1 Introduction to Studying Tort Law
Welcome to the study of tort law. The word tort comes from the Latin torquere, ‘to twist.” In Middle English, it meant “injury” –or the idea of twisting or turning that leads to harm—and in contemporary French it still means “wrong.” “Torts” are wrongful actions that cause some kind of harm for which the victims of the harm may seek legal relief. Torts are not usually wrongs arising from the breach of a contract. While there is a tort called “tortious interference with contract” (which is what it sounds like), and there are a few other instances where tort and contract law intersect, generally torts pertain to actions between parties who might have never made any sort of contract or promise to collaborate. Tort actions mostly arise between strangers. A common remedy for breach of contract law is “performance,” or forcing the party to complete what they promised to do by contract. By contrast, the typical remedy under tort law is compensation through money damages. An important feature of the torts litigation landscape is the contingent fee arrangement: the plaintiff’s attorney takes the tort case in the hopes of winning it and receives payment only if the plaintiff wins. In such cases, the attorney commonly receives around a third of the plaintiff’s award.
Legally speaking, tort lawsuits are civil, not criminal actions, which means they are brought by private parties against other parties. As with almost every legal generalization, there are exceptions to the dividing line between tort law and criminal law. A driver who causes significant losses and harms at the wheel could be criminally culpable as well as civilly negligent. Different actions would be brought by different entities seeking different remedies, animated by different purposes and subject to different procedural and substantive rules. The introductory torts course will rarely dwell much on the tort/criminal intersection. Torts is a class that typically introduces law students to civil, private law and most professors focus accordingly.
Tortious conduct may involve physical harm caused to people or property by car accidents, machinery malfunctions, medical malpractice, trespass on land, false imprisonment, and assault and battery, to name the most common kinds. Victims may also recover in some cases where there has been no physical harm, where they can show that the tortious conduct has caused harm to their reputation, dignity, privacy, mental wellbeing or in a narrower subset of cases, when they have suffered because their family members or loved ones have been physically harmed.
The Origins of Tort law
The purposes of tort law have expanded over the centuries of its evolution. In its earliest forms in England in the 12th century, tort claims provided a means of ordering civil society and keeping the peace. By defining certain conduct as wrongful and enabling a means of redress for harms caused by deviations from that standard, tort law reflected and helped shape social behavior and expectations.
It was the industrial revolution in England (roughly defined as the late 18th through early 19th century) that paved the way for the rise of modern tort law. Changes in manufacturing and transportation transformed the agricultural economy and brought sweeping changes to labor practices. Innovative technologies continued to be developed to meet the demands of operating efficiently at this new scale. Increasing mechanization in the industrialized workforce forced new patterns of behavior and exposed human bodies to increased risks of catastrophic harm. The rise of railway travel, likewise, brought a new wave of accidents—and accident law—both in England and in America, whose jurisprudence borrowed heavily from English law. While tort law first began to be recognized as a distinct field in England in the 18th century, in American tort did not consolidate into a recognized area of law until later in the 19th century.
Initially, workers found tort law’s rigid strictures to be barriers to recovery. Various protective doctrines insulated employers from the costs of employee injuries and made it difficult for employees—and often their widows—to recover legally for injuries and death. Indeed, some have argued that the rise of negligence law was rooted in industry capture and in the legislative efforts to insulate businesses from liability that might otherwise attach more easily under a strict liability standard. Under this theory, negligence law developed partly as a way to support the growth of businesses whose operations could have been hindered by expansive tort liability in this era prior to the creation of alternative mechanisms for dealing with employee injuries. Ultimately, tort law played a critical role in increasing worker safety and in the early twentieth century, its changing rules helped give rise to our current systems of workers’ compensation, private insurance and consumer protection law. In some respects, tort law both reflects the values of the jurisdiction that develops it and contributes to shaping behavior and values in the community it regulates.
In addition to its common law evolution, tort law in the modern era has taken shape from a significant amount of state and federal legislation. In the United States the 20th century witnessed the growth of a culture of governance through agencies and statutes, sometimes referred to as the rise of the “administrative state.” Many actions that might have been addressed through common law principles are now governed by state or federal statutes, administrative regulations or municipal ordinances. Consequently, studying tort law also provides a valuable exploration of the common law’s interaction with statutory and administrative regimes.
Effects of Contemporary Tort Law
In the modern era, tort law continues to play a role in disciplining the behavior of manufacturers, corporations and even government entities who may otherwise have incentives to cut costs on safety measures. Class action lawsuits brought to help those who have been injured, say by chemicals (like asbestos or tobacco) or products (like baby powder or certain breast implants) attempt to compensate and protect those who have suffered due to conduct that caused harm on a vast scale. These lawsuits play a deterring role and encourage entities to adopt a safer calculus in their risk assessments as they contemplate their choices for the future. Almost all entities that operate on any significant scale anticipate and accept some liability as a cost of doing business. Nonetheless, they will usually be forced to adjust their liability projections and behaviors after major litigation, for both economic and legal reasons.
First, tort law may exert economic pressures when litigation causes companies to discover or publicize flaws they can or must change. Companies may have known about safer alternatives and chosen not to adopt them because those were more expensive or less feasible than the less safe choice, or they may learn of these in the course of the discovery and defense process of a lawsuit. If a company was negligent in failing to adopt an optimally safe design, litigation costs—both the legal fees and any remuneration ordered—become line items on a corporate budget. Because companies must “internalize” the costs of this form of legal punishment, they may raise prices or choose less risky designs or both. Litigation may thus give rise to the costs associated with having to make design changes and replace, recall or destroy existing inventory. It may require costs in the form of “damage control” and public relations involved with rehabilitating a company’s reputation, depending on how the entity’s conduct looks to the general public.
Second, if a company does not correct whatever carelessness or decision making was exposed in prior litigation, it runs a very significant legal risk in the form of increased financial penalties given that the company is now on notice of the problem. If the harms occur again, courts are likely to levy much steeper damages, potentially including punitive damages, when considering the reasonableness of an entity’s decision to ignore their knowledge of prior accidents.
Consequently, tort law disciplines actors by incentivizing them to determine and maintain optimally safe choices and by forcing them to internalize the costs of any injuries arising when they have failed to do so. Yet tort law seeks an optimal level of safety, not 100% protection against all possible risks. If companies could guarantee perfect safety, they would probably be taking such burdensome precautions that they would be overdeterring, that is, behaving in a way that was not necessarily justified efficiency concerns and likely not required by morality concerns. This is especially the case if in adopting excessive precautions, entities chose to pass on the added costs to consumers. Under the economic (efficiency-maximizing) theory, tort law operates in light of a calculus that balances the kinds of harms likely to flow from certain conduct against the costs of refraining from that conduct or taking precautions to minimize risk. Under the corrective justice (compensation or recourse) theory, it seeks to vindicate those that have been harmed. But even in that view of tort law, rights and duties are always relative: how will they affect all the relevant stakeholders?
Because tort law is so malleable and diverse by jurisdiction, there are regularly opportunities to reflect on the law’s present and future state and to consider the rights it recognizes and the values it expresses. What will society look like if cases develop in one way versus another? How faithful is the law not just to precedents and legal history but to the future our society wishes to develop?
Thus far, this Introduction has described tort law mostly in terms of its effects on industrial actors and customers or consumers, presuming injuries that are physical. Yet in addition to structuring some of the risks and protections around corporate behavior and consumer safety, tort law plays an important role with respect to intangible injuries in our information-rich society. In protecting against misrepresentations, fraud and false speech, for example, tort principles underpin the laws of false advertising, securities regulation, product warnings and labeling and defamation. In your second and third years as law students, you will likely choose to pursue at least some classes that are rooted in tort law, such as environmental law, intellectual property law, corporate governance, insurance law and agency law, among others. In these upper-division areas, you will find that many of the key concepts you learn in your first year remain relevant, such as how courts and policymakers identify, define and balance rights and duties.
Tort law also plays a significant role in the sphere of our social lives. In providing compensation under wrongful death statutes and compensating for loss of consortium when individuals lose family members and spouses, tort law clearly signals certain values about the primacy of family in society and the importance of emotional ties to others. In allowing recovery for the loss of a fetus or a wrongful sterilization and in subordinating injuries to property and pets below injuries to humans, tort law signals its values. In creating default categories of statement that the law treats as so harmful proof of harm isn’t needed, and in allowing “homosexuality”–along with “criminality,” professional incompetence and loathsome disease—to remain on that list until only very recently—tort law once again signals certain values, albeit regressive ones in need of updating. It may be fairer to say that tort law reflects the limits of its authority to make change in some cases, yet its rules express values nonetheless. Tort law is not necessarily the agent of discrimination but it can becomes a conduit for it if its rules are rigid in the face of sociocultural change.
Systemic Biases in Tort Law: Physical vs Emotional Harm
In many respects, tort law’s role in regulating—and perpetuating—certain kinds of discrimination has not been the focus of scholars and law professors. Much of twentieth-century tort law has been centered on strict liability and negligence, which is to say on the law of accidents. Various doctrines predicated recovery on proof of physical harm which has histrorically had the effect of making recovery for emotional distress very difficult other than when it accompanied physical injuries. Contemporary tort law has been slow and reluctant to recognize injuries that are purely emotional: there was initially thought to be no way to recover for “purely emotional” harm. Tort law’s historical reluctance to allow recovery for emotional harm and its insistence on proving physical harm both reflected biases that can now be seen to have fallen disproprotionately on women. There was a corresponding lack of scholarly attention to some of the kinds of harms suffered by women and people of color. To be sure, courts applying tort law’s doctrines might have felt bound by precedents and rules but scholars need not have ignored or marginalized injuries resulting only in emotional harm. Yet they did; the exaggerated emphasis on accidental harms and physical injuries goes beyond courts alone.
In their now-seminal book The Measure of Injury: Race, Gender, and Tort Law (NYU Press, 2010), Martha Chamallas and Jennifer Wriggins have shown that the focus on negligence came with a corresponding devaluation of the intentional torts. This lopsided account of tort law has been reflected in law school syllabi, legislative agendas and efforts by jurists who study and “restate” or catalog the law, as well as by those who would attempt to reform tort law. Chamallas and Wriggins demonstrate how treating intentional torts as secondary in importance has systematically minimized the suffering of women and people of color.
A revolution in the courts in the second half of the century led to a patchwork of rules created to permit some claims associated with emotional distress under particularly heightened circumstances and narrow cases. A new tort, intentional infliction of emotional distress, was created out of an older cause of action based on “outrage.” The emergence of claims for recovery based on purely emotional distress generated some greater attention to the intentional torts, but there remains much work to do in recognizing tort the structural biases inherent in tort law.
In addition to the rigid distinctions between physical and emotional harms, for instance, tort law has also treated certain categories of behavior and certain entities as immune from tort liability. In some cases, this has meant that pathological or harmful behavior routinely went unrecognized by tort law. For instance, survivors of domestic violence rarely had viable claims in court even though they would have had winning battery, assault and other intentional torts claims had their assailant not been a romantic partner. This state of affairs has not changed much and domestic disputes often present genuine challenges for both civil and criminal law.
Skeptics of this account might reply that tort law was never intended to remedy marital or domestic disputes, which is true. Indeed, when we inherited English tort law, interspousal immunity—a ban on spouses’ ability to sue each other—came along with it. The renowned 18th-century English jurist, William Blackstone, set out ther ationale for that immunity:
“By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything; and is therefore called in our law-french a feme-covert, foemina viro co-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. … If the wife be injured in her person or her property, she can bring no action for redress without her husband’s concurrence, and in his name, as well as her own: neither can she be sued without making the husband a defendant.”
The woman’s legal personhood was effectively dissolved into her husband’s. The two were not commingled in such a way as to make one interchangeable for the other, each with rights to exercise equally. Instead, the husband absorbed her legal personhood and was required to act as the legal person on her behalf if she wanted to exercise legal rights. For this reason, it was thouhght to be illogical for an entity to … sue itself. (Intraspousal immunity was slowly abandoned, one state at a time, throughout the 20th century, partly because of the unjustified and sexist rationale.)
Be that as it may, the effect of excluding certain kinds of harms and including others at any given point in time sends signals about the values that are embedded in the legal regime and the interests it seeks most to protect.
Tort Law’s System Biases (Gender, Race and Intersectional Identity Effects)
Tort law may have begun to wrestle with gender and attendant sociological differences, but gender is only one dimension to identity. The challenge is that the impact of injuries lands intersectionally, of course, as a function not just of gender or of race but also of ability, sexual orientation and class, among other identity markers. In the visionary work of Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1249 (1991) she writes of ways that different dimension of identity may typically “intersect” to produce particular experiences of vulnerability. The problem is structural rather than personal or individual: “Intersectional subordination need not be intentionally produced; in fact, it is frequently the consequence of the imposition of one burden that interacts with preexisting vulnerabilities to create yet another dimension of disempowerment.” Exploring the systemic biases in tort law requires grappling with the intersectional effects of its rules and rulings and considering the fundamental principles in tort law with a fresh eye.
Thankfully, there has been some progress on issues of social justice. Yet there is no doubt that tort law continues to reflect signs of deep structural bias. Studies have shown that race and gender biases enter into damages awards in ways that ought to be concerning for policy makers. A recent empirical study using mock jurors demonstrated that “[t]he dollar awards for the injuries suffered by black plaintiffs were lower than awards for the same injuries experienced by white plaintiffs,” suggesting that race—and implicit racial bias—are bound up with how the legal system evaluates both responsibility and harm. Jonathan Cardi, Valerie P. Hans and Gregory Parks, Do Black Injuries Matter?: Implicit Bias and Jury Decision Making in Tort Cases, 93 S. Cal. L. Rev. 507 (2020). Actual damages awards are also measurably lower in patterns that reflect racism and sexism. See, also Jennifer B. Wriggins, Torts, Race, and the Value of Injury, 1900–1949, 49 How. L.J. 99, 101–03 (2005); Jennifer B. Wriggins, Whiteness, Equal Treatment and the Valuation of Injury in Torts, 1900–1940, in Fault Lines: Tort Law and Cultural Practice (David Engel & Michael McCann eds., Stan. Law Books 2009).
Identity effects may exert more pronounced and pernicious bias beyond merely skewing the amounts of damages. Per professors Ronen Avraham and Kimberly Yuracko, “not only does tort law’s remedial damage scheme perpetuate existing racial and gender inequalities, but also it creates ex ante incentives for potential tortfeasors that encourage future targeting of disadvantaged groups.” Torts and Discrimination, 78 Ohio St. L.J. 661, 666–67 (2017). Avraham and Yuracko describe how the structure of tort law can distort behaviors merely in anticipation of liability, thus perpetuating further discriminatory behaviors.
Tort law has traditionally not been taught in law schools in ways that take account of its systemic biases. Yet various doctrines and limitations that tort law treated as neutral had disproportionate effects that were anything but neutral in whom they most impacted or protected. Correcting the various biases will require seeing them first. Our legal system operates by stare decisis, that is, by building on and usually following precedents. In turn, this means that the lawyerly mind is trained to identify and gravitate towards tried and true authorities. In keeping with that inclination, perhaps, the legal academy has tended to teach the same torts cases, thus entrenching not only particular cases but to some extent, also traditional viewpoints. Correcting tort law’s biases may require a revisionist approach to tort law that begins with a reset.
From our vantage point in 2021, it seems urgent—and not out of the mainstream—to call for reexamining tort law’s biases. Theorists associated with various “critical” positions have long called for such a focus on all areas of law. Valuable contributions by critical race theory, critical feminist theory, critical legal studies, “LatCrit” as well as disability crit have built a scaffolding for this work. But the work of reenvisioning tort law is not constrained by any one ideological approach, or it ought not to be. It is of concern for all of us engaged in teaching and learning about tort law.
Consider that tort law is a domain whose disputes were decided, for a long time, only by white adjudicators and white jurors and navigated only by white male lawyers; even as that began to change, it remained a system that continued to benefit white cisgendered able-bodied people, especially men and those with more resources and socoiocultural privilege. Calling that out does not require any particular political or methodological affiliation. And not calling out should no longer seem like a defensible option.
The good news is that tort law is capable of incredible nuance, flexibility, and particularization. Those qualities are what can make it frustrating for law students seeking a single hard and fast rule. Yet they are also the very qualities that make tort law capable of significant systemic change.
Tort Law’s Dynamic and Culturally Contingent Nature
Tort law is laudably dynamic: it can and does change in response to changing perceptions of both identity and justice. This is why it is especially important for students first learning torts to understand this legal area as one that can play a role in either entrenching various forms of inequality or helping to minimize it. In delineating the behavior our society deems acceptable or out-of-bounds, tort law reflects and defines our social relations. As such, the study of tort law offers students the opportunity to think deeply about their values and belief systems. And it offers them an opportunity to carry into their professions the desire to participate in changing the law as the arc of justice bends, we hope, towards greater justice.
Tort law provides an excellent introduction to the common law precisely because of its capacity for adaptation: it is flexible and changes over time in response to sociocultural, economic and technological pressures. It is flexible by design: several key doctrines use open-ended standards (like “reasonableness”) and disputes often require fact-sensitive assessment. This means that tort law may be slow or cumbersome or expensive to litigate. The upside is that the law can be tailored to each particular situation, thus allowing for dynamic change that can be harder to achieve when using legislation to regulate behavior.
It is worth emphasizing that tort law embeds a great deal of cultural contigency. Tort law’s principles are applied in ways that are contingent (or depend for their application) on the culture and historical moment of those who apply them. That means that tort law’s standard of “reasonableness”—which plays a starring role in negligence but is also embedded in various other doctrines—reflects particular values and perspectives at a given place and moment in time.
A Thought Exercise on “Reasonableness”
Imagine you are a judge and you have been asked to make a decision about whether to allow a case to move forward in an action over a car accident. You will need to evaluate the reasonableness of the defendant’s actions, and specifically, whether or it was reasonable not to have replaced the brakes on the car after the brake light had been on for four days, given that the brakes failed on day five and caused an accident which caused significant injury to the plaintiff. At this point, you’ve got only the barest amount of information based on some preliminary filings.
What would you want to know in order to assess whether this was reasonable?
Now picture the reasonable person. Who appears in your mind?
What is the person’s race, gender, ethnicity and age? Did you imagine a person with a disability? What is the person’s cognitive level? What do you presume about this person’s education level and professional status?
There are two points to engaging in this thought exercise. The first is that the assessment of reasonableness is often highly factual and requires balancing. If the car is new and has never malfunctioned before, four days may be very little time from a routine service light’s first appearance to the brake’s failure. If the car is unreliable and the light simply one more sign that it requires maintenance, then waiting four days may seem less excusable. Would it matter to you how difficult it was for the driver to make time to get it to the repair shop? What if the driver was a single mother holding down two jobs and she had booked a service appointment for the first day she was off work, which was two days later than the accident? What if the driver was a collegiate athlete involved in exams and training and hadn’t wanted to distract themselves from those goals, thus postponing the maintenance? What if the driver was elderly and had forgotten about the light but kept meaning to fix it?
The second point is that tort law’s “reasonableness” standard is highly constructed. We ask jurors—or judges, sitting as factfinders—to determine it in each case because it can and must be considered in light of all the circumstances. But that does not make it impartial; humans bring their implicit biases and cognitive limitations to the task of determining what is reasonable. As you study tort law, pay attention to ways in which the very idea of reasonableness embeds cultural values or reflects ageist, sexist, ableist, racist or otherwise outdated and harmful notions. Part of changing the law is learning to identify hidden defaults and highlighting their impact.
In our era, tort regulation can be a lightning rod for political and cultural controversy. Tort actions are commonly brought by individuals against other individuals or entities, but their sociocultural context matters and many rulings can have broader impact beyond their individual verdicts. Our approach to tort law will be to ground cases in their sociocultural context and potential impact as we are reading and seeking to apply or distinguish them. I encourage you to think about torts and tort cases “in the real world” not as ancient legal precedents far removed from your experience as a law student and aspiring lawyer.
As your knowledge of this area increases, it may interest you to think about how tort law helps to enforce and balance social and economic norms of fairness and responsibility. Tort law becomes most interesting when considered as a form of civil justice. Consider, too, the ways in which the law fails to achieve the proper balance or justice, in your view, and how and why that might be.
Tort Law’s Purposes and Justifications
In one sense, merely describing the purposes of tort law is challenging; the field is politicized and animated by sharp philosophical disputes over how to define its scope and purposes. However, the following are noncontroversial starting points: Tort law exists to “(a) to give compensation, indemnity or restitution for harms; (b) to determine rights; (c) to punish wrongdoers and deter wrongful conduct; and (d) to vindicate parties and deter retaliation or violent and unlawful self-help.” Restatement (Second) of Torts § 901 (1979)
Tort theorists have argued over whether the purposes of tort are better understood in terms of (1) the positive legal rights of the victim (and compensation they may be owed as well); (2) the rights and duties of members of society to one another (and thus fairness to all individuals); (3) limits on the rights of those who engage in risky conduct or carelessly cause accidents (and the deterrence tort law imposes on them); and (4) the potential benefits to victim, tortfeasor and members of society if the costs of prevention and remuneration are maintained at optimal levels (which reflects a commitment to efficiency). Indeed, some casebooks and approaches to tort law focus very heavily on the economics of tort law, consistent with the views tort law’s core purposes are efficiency and compensation. Others may take a more philosophical approach, grounding rights and duties in different theories of justice, highlighting tort law’s purposes of and fairness and deterrence.
These terms and theories could be defined at great length and still seem overly simplified to some and mysterious to others. This text does not purport to be a substitute for an in-depth treatment of jurisprudence (which is the study of theories or philosophies of law). But it will use these terms—efficiency, compensation, fairness and deterrence—repeatedly throughout the text, and to ensure that readers understand them, it is helpful to define them in terms of theories of justice with a grounding in tort law.
Tort law is commonly framed in terms of several theories of justice: procedural justice (with an emphasis on fairness, notice and transparency); distributive justice (balancing compensation, loss-spreading and efficiency concerns); retributive justice (in seeking to punish and deter wrongdoing); and corrective justice (in providing compensation to the victims of tortious wrongdoing).
Procedural justice focuses on the transparency and fairness of processes by which rights are created and enforced. Designing a fair and balanced process is not a guarantee of fair outcomes because parties are not equally situated before the law; decisionmakers are not perfectly impartial or incapable of error; and many laws are outdated and lag behind contemporary views of fairness. Nonetheless, our legal system stakes significant importance on making an attempt at procedural fairness. Over time, tort law’s doctrines have reflected many attempts to modify earlier doctrines that created unfair outcomes for technical or trivial reasons or for evidentiary reasons that seemed beyond the party’s control and thus unfair to hold against her. In addition, the idea of “notice” plays an important role in many tort doctrines, which is a nod to procedural justice and reflects the idea that it seems fairer to hold someone responsible when they were “on notice.” If they knew or should have known that some harm was likely to happen and still did not adopt reasonable measures to prevent it, their culpability may be clearer to evaluate.
Distributive justice concerns allocating resources and liabilities fairly based on some pre-set understanding of the right to a “fair share” of both the benefits and burdens. The values driving that distribution may change over time, by jurisdiction, or in connection with political administrations. In our era, the driving concerns behind distributive justice have primarily been economic: who can bear the costs of liability and who should bear the costs of preventing accidents given the ability of various actors to insure against injury or to internalize the expenses associated with both injury and prevention. Indeed, contemporary tort law has been strongly influenced by late 19th-century philosophers who advanced utilitarian theories of law, as well as 20th-century scholars and judges working in the law-and-economics tradition. Such theorists often seek the “cheapest cost avoider”–the entity best positioned to absorb the costs of preventing harm and compensating for it when preventions fail—so as to maximize efficiency regardless of moral desert or culpability.
Retributive justice is more commonly associated with criminal law, which seeks to punish wrongdoers. Tort liability is not typically defined so as to impose suffering or punishment on the wrongdoer. For example, a tortfeasor may be liable in tort even when morally not blameworthy but merely careless. Likewise, an actor may be liable even when behaving carefully but nonetheless causing harm by taking an action to which the law applies strict liability. Generally, then, retributive justice is not the driving force behind tort law. In rare or egregious cases, however, courts may award punitive damages that do reflect theories of retributive justice, namely, that the wrong was so significant the wrongdoer deserves to suffer.
Corrective justice frames tort law as a form of moral or ethical obligation, structured in terms of first- and second-order duties. First-order duties specify particular behaviors (such as driving reasonably or refraining from trespass). Second-order duties arise if an actor breaches their first-order duties. Accordingly, second-order duties are duties to repair or make the injured party “whole,” thus correcting the tortfeasor’s wrongs and compensating for the losses their breach of first-order duties caused. Corrective justice is oriented around the duties owed by the defendant to those they injure because its central logic is the “making whole” of the plaintiff. One problem with this theory arises when injuries are irreparable; under such circumstances, tort law may still allow a victim to recover, thus broadening the right of recovery to the suffering caused by the injury even when the harm is irreparable, that is, something that cannot be “corrected.” It is also worth noting that the very idea of “wholeness,” when applied to the body, hints at an ableist understanding of selfhood. Wholeness, of course, is not simply a literal reference to body parts; it applies to compensation for pain and suffering and medical bills and many other ways in which catastrophic injury can derail and burden one’s regular way of life. But it is a good idea to keep the literal and figurative uses of “wholeness” conceptually distinct.
A related theory of tort law is that of civil recourse theory: when a person suffers a particular kind of harm, they have a right to bring a civil action against the one who harmed them and seek recovery. Yet unlike corrective justice, the duty to repair does not justify civil recourse theory. Rather, the individual whose right has been invaded merely has a right of recourse, that is a right to have their legal claim evaluated. The distinction may seem purely academic, but it can have important implications for how we conceive of the nature and scope of the plaintiff’s possible rights and remedies. Proponents of both of these approaches commonly cast tort law in deontological terms, which is to say, they treat tort law as containing moral obligations. Tort law expresses these moral values through rules and outcomes, and efficiency concerns may be subordinated accordingly rather than prioritized the way they are in the economic account of torts.
Scholars in the field have produced elegant refinements of each of the theories briefly sketched above; whole books could be and have been dedicated to each, in fact. There are also deep disagreements about the justifications of tort law that are much elaborated elsewhere. The debate between the two dominant views of (1) “corrective justice or civil recourse” and (2) “the efficiency or utility-maximizing account” is so longstanding, in fact, it has been characterized thus: “The struggle between them has long shown signs of being tired. It is near midway through its sixth decade at the very least. A good measure of the debate’s exhaustion is the increasingly prominent effort of scholars across generations to move beyond it, either by declaring a truce or by asserting a third model for the field altogether.” Nathaniel Donahue & John Fabian Witt, Tort As Private Administration, 105 Cornell L. Rev. 1093, 1094–95 (2020).
A recent synthesis of tort theories has argued that “morality and efficiency are not mutually exclusive theories of tort”; instead, “tort law operates as a vehicle through which communities perpetually reexamine and communicate their values, encouraging individuals to coordinate private relationships without undue state involvement. In short, the goal of tort law is to construct community.” Understood in this way, the author posits, the competing forces underpinning tort law can be understood as “complementary manifestations of tort law’s broader community-constructing purpose.” Cristina Carmody Tilley, Tort Law Inside Out, 126 Yale L.J. 1320, 1324 (2017).
To learn the basic contours and doctrines of tort law you need not reconcile deeper conflicting theories, of course, but it is helpful to gain at least an introduction to the theories that are underpinning the way tort law was created, has developed and continues to evolve. When the materials refer to these first four purposes of tort law—efficiency, compensation, fairness and deterrence—you will now have at least a preliminary sense now of their origins and interconnections.
Check Your Understanding
A court’s reasoning includes the following reasoning: “[T]he imposition of liability should deter negligent conduct by creating incentives to minimize the risks and costs of accidents…. If negligence is the failure to take precautions that cost less than the damage wrought by the ensuing accident [c], it would be unfair and socially inefficient to assign liability for harm that no reasonably-undertaken precaution could have avoided.” People Exp. Airlines, Inc. v. Consol. Rail Corp., 100 N.J. 246, 266 (1985)
Which of the four forms of justice does it most seem to reflect?
- Procedural justice
- Distributive justice
- Retributive justice
- Corrective justice
Answer: B. Distributive justice is correct.
A is incorrect because there are no mentions of the process or procedures associated with imposing liability. Although procedural justice is often associated with a particular vision of “fairness,” and the dicta above mentions unfairness, there is no emphasis on what makes it unfair and indeed, the word “unfair” is paired with “socially inefficient.”
B is correct because its emphasis on deterrence, incentives, minimizing costs, and its linking unfairness with inefficiency all suggest a focus on efficiency, which is associated primarily with distributive justice.
C is incorrect because there is no mention of excessive damages or extra-compensatory efforts for the plaintiff nor of punishment of the defendant; on the contrary, there is an attempt to optimize for a balanced amount of precautions based on their cost and the likelihood of harm.
D is incorrect because it seems to put the source of the obligation to the defendant not in duties owed to others—where corrective justice would allocate the obligation—but in the incentives created for defendants seeking not to avoid liability at all costs but to optimize for it based on what is efficient for them. In other words, some accidents might be avoidable but only at significant costs that make it inefficient to adopt the necessary precautions. Different theories of tort law may dictate different outcomes under such circumstances.