Greg Keating

Instrumentalist ideas have long been prominent in torts scholarship. Since the rise of legal realism, discussions of deterrence, compensation, the minimization of accident costs, and the distribution of losses have dominated scholarly discourse. In the past several decades, however, wholesale rejections of instrumentalist tort theory have arisen. The most uncompromising of these views rallies around the avowedly formalist battle cry that tort is “private law”. Ernest Weinrib’s elegant and influential book, The Idea of Private Law, declares its allegiance to that thesis in its title, and the idea figures almost as centrally in Arthur Ripstein’s recent and important Private Wrongs. Theorists who rally around the banner of “private law” claim that tort law’s governing principles of right and responsibility tumble out of the field’s characteristic legal form. Law, as they understand it, is constitutive of just relations among persons, not an instrument for the pursuit of independently v...

Standards which prescribe more than efficient precaution against physical harm and health injury are commonplace in American environmental, health and safety regulation. The “safe level” standard, for example, requires the elimination of all significant risks. The “feasibility” standard requires the elimination of significant risks to the extent insofar as it is possible to do so without impairing the long run survival of the activities which give rise to the risks. These standards reach back more than a generation to the founding of the Environmental Protection and Occupational Health and Safety Agencies. You might expect them to be too well-entrenched to be subject to serious dispute. Yet these standards are now routinely decried as irrational. Welfare, we are told, is the ultimate and only value and it prescribes efficient precaution. The only correct standard of safety is the standard of cost-justification and it prescribes minimizing the combined costs of preventing and paying for accidents, thereby maximizing the benefit we extract from risky activities. No matter how highly we value safety, the benefits of achieving a particular level of safety must be traded off against the costs of doing so. The rational way to trade costs off against benefits is to balance them so that we maximize net value and thereby make ourselves as well off as we can be. Taking more than efficient precaution yields less—not more—value. Preferring less value to more value is flatly irrational. Or so we are now told.
This paper argues that, in both law and ordinary moral reasoning, the avoidance of harm has priority over the provision of benefit. Harm’s moral significance is connected to our separateness and independence as persons, and with our interest in securing the conditions necessary for us to be the authors of our own lives. Harm avoidance has a justified priority but that priority is rooted in the value of autonomy, not in the value of well-being. Serious physical harms impair the pursuit of a wide range of human ends and aspirations, and deny normal human lives to those whose powers are impaired. Very few benefits, by contrast, are comparably essential conditions of effective agency. Benefit, like happiness, is mostly for each of us to pursue as best we can. In the domains to which they apply, the safety and feasibility standards are plausible expressions of the priority of avoiding harm. They rest on defensible judgments of value. Whereas cost-benefit analysis supposes that everything is fungible at some ratio of exchange, these standards assert that the gains to be won from the imposition of some risk to health and safety are not worth the candle. Only some gains and some values are important enough to justify the imposition of “significant risk” of devastating physical injury. The feasibility standard, for examples, supposes that the long-run flourishing of various activities is important enough to justify the imposition of significant risks of harm. The judgment here is not one of cost and benefit, but of comparable value.

Contemporary tort theory is a contest between instrumentalism and formalism. The prominence of instrumentalism is no surprise. American tort theory was born in the work of Oliver Wendell Holmes and his views were resolutely, if elusively, instrumentalist. Until very recently, economic views have dominated contemporary discussions of tort law in the American Legal Academy, and the economic analysis of torts is uncompromisingly instrumentalist. The rise of formalism, by contrast, is surprising. Legal realism swept over American legal thought long ago. Ever since, formalism has been treated more as epithet than as credible position by American legal scholars. In contemporary tort theory, though, formalism has roared back to life and struck some powerful blows against instrumentalism. Tort, these neo-formalists argue, is not an instrument for the pursuit of independently valuable ends. It is an institution whose norms are constitutive of just relations among persons. The bipolar, backwa...

This chapter contends that modern tort law is not “private law” in the distinctive way in which that term is now used. Theorists of tort as “private law” tend to regard its domain as one-off collisions among individual persons as they pursue their particular purposes, each in his or her individual, idiosyncratic, and voluntary way. Modern tort law, however, emerged in response to the rise of accidental harm as a pressing social problem. This chapter argues that refocusing on accidental harm as a basic feature of an industrial civilization prompted tort law to undergo a significant but underappreciated transformation in which harm is as salient as wrong and conceptions of collective responsibility compete with individual responsibility for control of the field. Trenchantly challenging the most basic commitments of the Kantian conception of tort law championed by Ernest Weinrib and Arthur Ripstein, this chapter maintains that there is nothing fundamentally private about tort law.

This paper comments on John C.P. Goldberg & Benjamin C. Zipursky, The Strict Liability in Fault and the Fault in Strict Liability 85 Fordham L.Rev. 743 (2016). In their important writings over the past twenty years, Professors Goldberg and Zipursky have argued that torts are conduct-based wrongs. A conduct-based wrong is one where an agent violates the right of another by failing to conform her conduct to the standard required by the law. Strict liability in tort poses a formidable challenge to the claim that all torts are wrongs whose distinctive feature is that they violate an applicable standard of conduct. When lawyers speak of strict liability causes of action, they are describing a domain of liability where a plaintiff does not have to prove that the defendant’s conduct was defective in order to recover. Strict liability is liability without regard to defective conduct. Defective conduct may be present, but its presence is not essential to liability. When liability in tort is ...

The concept of “corrective justice” has figured prominently in debates over the formal structure and normative commitments of private law — especially tort law — over the past generation. This chapter organizes those debates around two very different conceptions of the role and significance of corrective justice in private law, especially tort law. One conception sees corrective justice as “sovereign” the other sees it as “subordinate”. On a subordinate conception, corrective justice is an aspect of the institution of tort law and it must be accounted for by an adequate theory of tort. On a sovereign conception, corrective justice is the master concept of tort law; it does the explaining. In the disciplinary battles of the past few decades, economically inclined theorists of tort — especially Richard Posner — have conceived of corrective justice as subordinate whereas philosophically inclined theorists have taken it to be sovereign. The thought behind the subordinate conception is o...

This paper responds to Benjamin Zipursky’s Reasonableness in and out of Negligence Law 163 U. PA. L. REV. 2131 (2015). It takes issue with Professor Zipursky’s aversion to the Hand Formula. Trying to write the Hand Formula out of negligence law at this late date is tantamount to repudiating one hundred years of tort law and theory. This revisionary theorizing is as unnecessary as it is quixotic. The Hand Formula is not only too deeply embedded in negligence law to uproot; it is also unobjectionable. Indeed, the Hand Formula is one of modern negligence law’s more important achievements. It frees the concept of due care from a disturbing identification with customary practice and ties due care more closely to the idea of justified conduct. By doing so, it gives negligence law an important critical dimension.The Hand Formula draws its appeal from two sources. First, it is an exemplary instance of a court distilling the implicit essence of a body of case law. Second, the considerations ...

This chapter sketches a general framework which explains why questions of fairness have a natural salience when the imposition of risks of harm by some on others is at issue, and it applies that conception to major aspects of negligence law. Fairness comes to the fore because risk impositions require us to compare (1) what those who impose the risks stand to gain with (2) what those upon whom the risks are imposed stand to lose. Determinations of due care reconcile competing claims of liberty and security—for a plurality of persons. Fairly reconciling liberty and security requires reconciling them on terms that are justifiable both to those who impose risks and to those upon whom they are imposed. This, in turn, requires comparing the benefits and burdens of risk impositions in terms of their objective urgency, assessing the burdens and benefits of risk impositions qualitatively, and assigning a certain priority to the avoidance of harm. The framework is used to explicate the concep...

This paper comments on Ronen Avraham & Kim Yuracko, Torts and Discrimination forthcoming in the Ohio State Law Journal. Professors Avraham and Yuracko’s fine article, Torts and Discrimination, calls our attention to the fact that the entrenched fact of race and gender discrimination exerts a powerful, structural influence on tort damages, especially in bodily injury and wrongful death cases. Damages in tort — and in private law more generally — are reparative. Their role is to put the plaintiff in the position he would have been in but for the defendant’s wrong. Making the plaintiff whole requires that courts determine how the plaintiff’s life would have gone had she not been wrongly harmed. State of the art methods for doing incorporate the effects of objectionable racial and gender discrimination and carry those effects forward. The life expectancy, work-life expectancy, and average wage tables are tailored to the circumstances of men and Caucasians, the more they reflect the lega...

John Gardner’s From Personal Life to Private Law is a striking marriage of cultivated sensibility and analytic prowess. Professor Gardner is both acutely sensitive to the lived experience of our moral relationships and highly skilled at disentangling the threads which those relationships weave together to realize rich and distinctive forms of value. From Personal Life to Private Law pursues its thesis that there are multiple and deep connections between the ideas of duty, responsibility and reparation that lie at the center of private law and their counterparts in the relationships that figure centrally in our private lives with both subtlety and rigor. The work stimulates in the way that only the best tort theory does.My Comment is shaped by two responses to this overarching theme. On the one hand, I share Gardner’s doubts that the form of the tort lawsuit should loom as large as it does in the tort theories of Coleman, Ripstein, Weinrib and others. Duties of repair live in the sha...

In Abusing 'Duty' we argued that California courts have been abusing duty by issuing highly particularized rulings which reach no father than the facts before the court. The role of duty doctrine is to fix the legal standard applicable to the defendant's conduct. Highly particular rulings distort duty by failing to articulate law. They deform the substance of negligence law and disrespect the role of the jury. California's burgeoning 'no duty' decisions also trace a troubling whole; it devalues the physical integrity of the person and exalts unfettered dominion over real property and the unfettered pursuit of mutual advantage in the marketplace.Our arguments did not go unchallenged, especially by John Goldberg & Ben Zipursky. In this paper we respond to their criticisms and engage the position of the Third Restatement, to which we are largely sympathetic. In our view, Professors Goldberg & Zipursky mischaracterize negligent wrongdoing by presenting negligence...