Pepperdine Law Review
Volume 38
Issue 2 Symposium: Does the World Still Need
United States Tort Law? Or Did it Ever?
Article 13
2-15-2011
Torts as Public Wrongs
Michael L. Rustad
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Michael L. Rustad Torts as Public Wrongs, 38 Pepp. L. Rev. Iss. 2 (2011)
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Torts as Public Wrongs
Michael L. Rustad*
I.
II.
INTRODUCTION
THE TELESCOPE & THE MICROSCOPE IN THE SOCIOLOGY OF LAW
A.
Tort Macrotheories:Law and Society
1. Sociological Theory's Macroscope
2. Microsociology's Studies of Face-to-Face Interaction
III. THE MACROTORT & MICROTORT THEORIES APPLIED TO TORT
JURISPRUDENCE
A.
B.
C.
D.
IV.
Torts' Teleological Telescope
Modern Tort Macrotheories:Law & Economics
Sociologically Oriented Macrotort Theories
1. Social Justice Theory
2. Other Sociological Theories
Tort's DeontologicalMicroscope
1. Corrective Justice: Righting Wrongs
2. Civil Recourse's Rhetoric of Rights & Wrongs
TEN THINGS I HATE ABOUT CIVI
A.
B.
RECOURSE THEORY
Civil Recourse Is an Overly Individualistic Theory of
Justice
Civil Recourse Theory Is Tort Reform in Disguise
* Thomas F. Lambert Jr. Professor of Law & Co-Director of the Intellectual Property Law
Concentration, Suffolk University Law School, Boston, Massachusetts. I would like to thank Rachel
Rose, my key research assistant at Stetson University College of Law, where I was the visiting
Culverhouse Chair in 2009-10. Rachel, who holds an M.B.A. from Vanderbilt University, is a new
law school graduate and did an outstanding job of editing this manuscript. Philip Piazza, my Stetson
research assistant in the fall term, contributed to my section on software law. Stetson University
College of Law is not only the top trial and appellate advocacy program in the country, but is a
perfect place to do scholarship. Stephanie McVay ably assisted me with editorial work, citechecking, and research in the fall of 2010 at Suffolk University Law School. Alex Smarsch, a
second-year student at the Michigan State University Law School provided me with excellent
research and editorial assistance as well. Tim Kaye, my Stetson torts colleague, introduced me to
the concept of torts fundamentalism and contributed to my analysis. Tim also provided incisive
criticisms of my Hugh C. Culverhouse Chair talk, "The Joy of Torts." I also appreciate the help and
encouragement of Mike Allen, Andy Beckerman-Rodau, Martha Chamallas, George Conk, Darby
Dickerson, Bruce Jacob, Graham Kelder, Tom Koenig, Rob Penchuk, Chris Robinette, Marshall
Shapo, Gabe Teninbaum, Neil Vidmar, Joan Vogel, and Jennifer Wriggens. I also thank Claire Hill,
John Bickford, David Rowe, Blake Edwards, and the staff of the Pepperdine Law Review for a
fantastic job. Finally, I owe a debt of gratitude to my wife, Chryss Knowles, for her very "cool"
editorial suggestions and her patience with this subject over the years.
433
C.
D.
E.
F.
G.
H.
I.
J.
Civil Recourse Is Devoid ofData
Civil Recourse Has a Naive View of How Legislaturesand
Regulators Work
Civil Recourse Theory Is Not a Living Tort Law
Civil Recourse's Theory of Torts in a Bubble
The Joy of (Tort) Sects: Torts Must be Born Again
Civil Recourse Is Value-Free andApolitical
Civil Recourse Theory Is Reductive
Civil Recourse Theory Fails to Explain Jurisdictional
Differences
V. TORT LAW AS PUBLIC WRONGS: LIVING WITH MULTIPLICITY
A.
B.
Torts Right Private Wrongs
Torts SafeguardIntellectual PropertyInfrastructure
1. Trademark Infringement as Unfair Competition
2. The Tort of Trade Secret Misappropriation
C.
D.
Torts as Social Control
Crimtortsto Vindicate Public Wrongs
1. Mr.Toyoda & Donald: Private vs. Public Wrongs
2. BP & Me
VI. THE FUTURE OF TORTS INTHE INFORMATION AGE
A.
B.
New Technology Torts
Computer Malpractice
VI. CONCLUSION: DON'T STOP THINKING ABOUT TOMORROW
An adequate tort law remains crucial to providing for' the people.
Tort law is our primaryfallback method of empowering ordinary
people to remedy injustices to themselves through their courts.
Judge Jack Weinstein'
I. INTRODUCTION
As we reflect on whether the world needs American-style tort law (or
whether it ever did), it is important to acknowledge that tort scholars are not
of the same opinion about how torts should be defined, much less what
functions they should fulfill. We all know, of course, what a tort is. Or so
we think. The answer to the question is less straightforward than in other
substantive fields.2 Torts are a difficult branch of private law to pin down
1. Jack B. Weinstein, The Role of Judges in a Government of by, andfor the People: Notes for
the Fifty-Eighth Cardozo Lecture, 30 CARDOZO L. REV. 1, 243 (2008).
2. See H.L.A. HART, THE CONCEPT OF LAW 1 (1961) ("No vast literature is dedicated to
answering the questions 'What is chemistry?' or 'What is medicine?' as it is to the question, 'What
is law?').
434
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because the borderline between crimes and torts merges with the remedy of
punitive damages ("crimtorts"). The same act may constitute a crime as
well as a tort, and the two branches of law share a common vocabulary with
their use of the terms assault, battery, conversion, and trespass.4 After a
criminal prosecution, even in the event of an acquittal as in the infamous
O.J. Simpson case, a plaintiff may file a private tort action seeking punitive
damages. A criminal statute may be used in a negligence-based action to
establish the duty of care and breach of duty, but a plaintiff must still
establish a causal connection between the violation of the statute and
damages.
Similarly, the boundary between ex contractu and delicts ("contorts") is
imprecise, and torts frequently arise out of contracts in fields such as
medical malpractice, employment termination, or the bad faith settlement of
insurance claims. 6 William Prosser pointed to the definitional problem with
torts in the first sentence of Prosserand Keeton on the Law of Torts: "A
really satisfactory definition of a tort is yet to be found."' Torts scholarship
is "assaulted from any number of directions" by antagonistic perspectives.
The law of torts is a multi-paradigmatic field with most scholars fitting into
3. See generally Thomas Koenig & Michael Rustad, "Crimtorts" as CorporateJust Deserts, 31
U. MICH J.L. REFORM 289, 293-94 (1998).
4. "There are many wrongs that constitute both a public and private wrong, though the relative
importance of the two wrongs is not of so much consequence." I EDGAR B. KINKEAD,
COMMENTARIES ON THE LAW OF TORTS: A PHILOSOPHICAL DISCUSSION OF THE GENERAL
PRINCIPLES UNDERLYING CIVIL WRONGS Ex DELICTO 12 (1903).
5. A criminal statute standard serves as a surrogate for the standard of care if the plaintiff was a
member of the class of persons the statute was designed to protect who suffered the type of harm that
the statute was designed to prevent.
6. GRANT GILMORE, THE DEATH OF CONTRACT (1974) (describing how contracts are being
swallowed in a sea of torts in diverse subfields); see, e.g., Egan v. Mutual of Omaha Ins. Co., 620
P.2d 141, 145 (Cal. 1979) (torts arising out of insurance contracts in emergence of bad faith
insurance actions). See generally Thomas C. Galligan, Jr., Contortions Along the Boundary Between
Contracts and Torts, 69 TuL. L. REV. 457, 481 (1994) (contending that contorts arise where the
contract is adhesive and the stronger party exploits its superior bargaining power). Sir Arthur
Underhill's 1881 torts treatise describes the divide between contract law and tort law in England. At
common law there are "the two classes of wrongs ex contracta, and wrongs ex delicto; the former
being such as arise out of the violation of private contracts; the latter, commonly called torts, spring
from infractions of the great social obligation, by which each member of the state is bound."
ARTHUR UNDERHILL ASSISTED BY CLAUDE C.M. PLUMPTRE, PRINCIPLES OF THE LAW OF TORTS;
OR, WRONGS INDEPENDENT OF CONTRACT 4 (1st American ed. From the 2d English ed., Albany,
William Gould & Son 1881) (1873).
7. W. PAGE KEETON, DAN B. DOBBS, ROBERT E. KEETON & DAVID G. OWEN, PROSSER AND
KEETON ON THE LAW OF TORTS 1 (5th ed. 1984); see also JOHN C.P. GOLDBERG, ANTHONY J.
SEBOK & BENJAMIN C. ZIPURSKY, TORT LAW: RESPONSIBILITIES AND REDRESS 3 (2004) ("The
Latin root of 'tort' refers to conduct that is twisted (i.e., lacking in rectitude) while also twisting (i.e.,
interfering with the rights of others).").
8. Robert L. Rabin, Lawfor Law's Sake, 105 YALE L J. 2261, 2261 (1996).
435
two competing camps. The emphasis is either on "morality or corrective
justice" or on "social utility or policy."9
The tort torch has been passed to a new cool coterie of law professors
who eschew torts politics and prefer retreating to moral philosophy'o These
individual-justice theorists are also disengaged from the political crucible of
torts where the entrenched special interests are blatantly political and selfinterested." John C.P. Goldberg and Benjamin C. Zipursky, the founding
fathers of civil recourse, steer free of the disorderly social context world,
turning instead to the self-contained sphere of moral philosophy.' 2 These
9. DAN B. DOBBS, THE LAW OF TORTS 12 (2000).
10. "While cool people have existed for ages, they weren't called 'cool' until the 1950s ... but
undoubtedly were referred to in countless other ways . .. except, only partially could a single word
describe it. Until the 1950s, no English word has ever existed which could grasp this demeanor in its
entirety." A.O. Kime, The Concept of Cool, MATRIX OF MNEMOSYNE (1st ed. Apr. 2007) http://
www.matrixbookstore.biz/freedom3.htm. I do not mean that civil recourse theorists, such as
Goldberg and Zipursky, are nonchalant, and I am not referring to their demeanor or their
personalities. Rather, I am thinking of their tort law perspective as in control and moored to its
historical foundations rooted in eighteenth-century English law. Goldberg and Zipursky separate
themselves from the Great Society liberals of the 1960s by adopting the label of "liberal
egalitarianism" as is clear from the following passage from their 2005 Calabresi Symposium piece:
For many, the 1960s were a time for personal experimentation and the pursuit of strongly
egalitarian notions of social and political justice. In such a climate, there was little reason
to find value in a part of the law so intently focused on what must have seemed to be
hidebound notions of obligation and duty. Since that time, social and political
conservatives have seized on the inattentiveness of liberal egalitarians to notions of
responsibility and private right as a ground for rejecting liberal politics altogether. We
accept the premise of the conservatives' critique, but not its conclusion. The dissociation
in the 1960s and 70s of egalitarian liberalism from notions of responsibility and redress,
though understandable, was hardly inevitable. Nor is it a necessary feature of egalitarian
liberal thought. Rather, it was a historical contingency; an avoidable and, in retrospect,
costly accident of the Great Society. Liberal egalitarians can embrace a law of
responsibilities and redress without sacrificing their commitment to reform and social and
political justice.
John C.P. Goldberg & Benjamin C. Zipursky, Accidents of the GreatSociety, 64 MD. L. REv. 364,
407-08 (2005) (arguing for their theory of civil recourse). But see John C.P. Goldberg, Tort Law for
Federalists (and the Rest of Us): PrivateLaw in Disguise, 28 HARV. J.L. & PUB. POL'Y 3, 10 (2004)
[hereinafter Goldberg, Tort Law for Federalists] ("The wrongs-based view of tort law that I have
sketched and invoked as a basis for bolstering the U.S. Supreme Court's decision to intervene in
Campbell contains various aspects that should appeal to members of the Federalist Society even
apart from this view's ability to explain why certain perceived excesses in the tort system ought to
be reined in. To note but one such aspect, its roots can be traced back to the likes of William
Blackstone and Adam Smith. If modem Federalists are seeking a conception of tort law consonant
with some of the basic tenets of classical liberalism, then a wrongs-based view is for them.").
11. "Their theory identifies the central feature of tort law as the state's provision of a right to
recourse to those who have been the victims of a legal wrong." Jason M. Solomon, Equal
Accountability Through Tort Law, 103 Nw. U. L. REv. 1765, 1775 (2009).
12. It is not surprising that the majority of aficionados of civil recourse theory are young white
males teaching in law schools. See, e.g., Robert F. Blomquist, Re-Enchanting Torts, 56 S.C. L. Rev.
481, 484 (2005) (noting that "Goldberg's article creates an irresistible challenge accepted in this
Article ... to pick up the gauntlet and join him in an effort to defend and to re-enchant this beloved
subject"); Solomon, supra note II (providing a normative account for civil recourse theory); see
also Jason M. Solomon, Judging Plaintiffs, 60 VAND. L. REv. 1749 (2007) [hereinafter Solomon,
JudgingPlaintiffs].
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civil recourse theorists argue with force and eloquence that the aim of torts
centers on the idea "that an act is right or wrong 'in itself."" 3
This philosophy-driven approach is the "new cool" because of its
detachment from the worlds of gender, race, inequality, loss-allocation and
other relational social facts.' 4 These "social facts" cannot be ignored
because they have an independent power "apart from individual
representations."" The law of torts is embedded in a complex web of
obligations, duties, norms and customs that are external to individual
wrongs.' 6 Civil recourse's focus is on one-on-one private wrongs rather
than collective injuries such as the recent BP oil spill or the recent Toyota
runaway car cases.' 7 To the synoptic recourse theorists, tort law is a
civilized alternative to revenge for individual plaintiffs and serves no
broader societal purpose such as deterrence, loss-allocation or social
control.' 8 To rescue torts, they say, torts must be re-conceptualized as
individual justice derived "from the fact that the plaintiff has been wronged
by the defendant."' 9 These theorists are too far removed from tort law in
action to participate in the politicized tort reform debates where one side
denounces torts as a venal institution that is destroying American
competitiveness through "jackpot justice."20
John Goldberg, a leading civil recourse representative, boldly asserts
13. Jason M. Solomon, Equal Accountability Through Tort Law, 103 N.w. U. L. REV. 1765,
1775 (2009).
14. KENNETH L. MORRISON, MARX, DURKHEIM, WEBER: FORMATIONS OF MODERN SOCIAL
THOUGHT 195 (2d ed. 2006).
15. Id.
16. Id. at 195-96.
17. John C.P. Goldberg and Benjamin C. Zipursky are the best-known representatives of the
rights-oriented tort law that focuses on the relations between the plaintiff and the defendant as
opposed to focusing on the public or social interests of tort law. See, e.g., Benjamin C. Zipursky,
Civil Recourse, Not Corrective Justice, 91 GEO. L.J. 695, 735 (2003) [hereinafter Zipursky, Civil
Recourse]; Benjamin C. Zipursky, Introduction, 75 FORDHAM L. REV. 1143 (2006); John C.P.
Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to a Law for the
Redress of Wrongs, 115 YALE L.J. 524 (2005) [hereinafter Goldberg, ConstitutionalStatus of Tort].
The civil recourse theory is gaining new followers. See, e.g., Solomon, Judging Plaintifs,supra
note 12, at 1752 (adopting theory of civil recourse and contending that this theory can be unified by
adopting a principle of self-help).
18. See Clarence Morris, Punitive Damages in Tort Cases, 44 HARV. L. REV. 1173, 1198 (1931)
(regarding punitive damages as the functional equivalent of an "orderly, legal retaliation ... to be
preferred to a private vengeance, which will disturb the peace of the community").
19. John C.P. Goldberg & Benjamin C. Zipursky, Unrealized Torts, 88 VA L. REv. 1625, 1645
(2002).
20. See F. Patrick Hubbard, The Nature and Impact of the "Tort Reform" Movement, 35
HOFSTRA L. REV. 437, 538 (2006) (noting the reform movement will continue despite its doctrinal
problems because of its self-interest in defense and its protectors).
437
that tort reformers will stop trying to kill off tort law if it can be returned to
its eighteenth century Blackstonian roots as centered on private wrongs
instead of torts serving greater societal functions, such as policing habitual
corporate wrongdoers. 2 1 He argues that tort reformers as well as the
teachers of tort law will love this subject once more if courts stop trying to
use torts to solve America's social problems.22 Goldberg classifies my
scholarship (with Thomas Koenig's) as emblematic of the misuses or abuses
of tort law as social engineering:
If, for Koenig and Rustad, the great thing about tort is that it permits
judges and juries to adopt the role of unappointed corporate
ombudsmen, for Posner the great thing about tort is that it permits
judges to act as roving efficiency commissioners charged with the
task of identifying and achieving the cost-efficient mix of
precaution and injury. In fact, one of the great ironies of Koenig
and Rustad's "defense" of tort law is that it plays directly into the
hands of the tort reformers whose cause they seek to defeat. Victor
Schwartz, a lawyer at the forefront of the modern movement to kill,
or at least substantially curtail, tort-a movement with very
different aspirations than the kill-tort movement of the early
twentieth century-is only too delighted to argue about the worth of
tort as an instrument for social engineering. If that is all it is good
for, then it is hard to gainsay his point that democratically elected
legislatures and expert regulators should be permitted to reengineer
the world to make it safer for corporate America.23
My view is that tort law vindicates public wrongs and often serves as a
consumer watchdog because popularly elected legislatures and expert
regulators too often fail to protect us. 24 Scaling back the rights and remedies
provided in tort would be, in effect, a form of deferential behavior to the
"tort deformers" like Victor Schwartz who seek to dismantle tort law's
21. Sir William Blackstone's Commentaries were written in the 1760s during the last days of the
feudalistic writ system. A writ was a legal process commanding the arrest of a person or seizure of
his property.
This element of damages seems to have been the chief invigorating force between the origin
and development of trespass, and also the main cause of that remarkable development of writs
and the forms of action which took place in the thirteenth century and included much else in
addition to trespass.
George E. Woodbine, The Originsof the Action of Trespass, 33 YALE L. J. 799, 802 (1924).
22. John C.P. Goldberg, Unloved: Tort in the Modern Legal Academy, 55 VAND. L. REv. 1501,
1518-19(2002).
23. Id. at 1512-13.
24. Cf. Thomas Koenig & Michael Rustad, His and Her Tort Reform: Gender Injustice in
Disguise, 70 WASH. L. REv. 1 (1995) (arguing that tort reform restrictions of punitive and
noneconomic damages in the areas of products liability and medical malpractice have a disparate
impact on women).
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public functions.25 In a world where corporations sometimes dominate
legislatures and regulatory agencies, tort law maintains some independence,
and its importance as an arena addressing corporate misbehavior should be
permitted to evolve.26
This Article is a rejoinder to the civil recourse theorist's claim that tort
law will be better served by retreating to the philosopher's prefecture of
private wrongs. A subsidiary goal of this Article is to refute John
Goldberg's claim that my sociologically-inspired theory of torts as public
wrongs serves the interests of tort reformers rather than American
consumers. In a nutshell, civil recourse theory is "tort reform in disguise,"
not the concept of torts as fulfilling wide-ranging purposes such as the social
control of corporations. If judges adopt civil recourse theory, they will be
less inclined to recognize new causes of action and plaintiff classes deferring
instead to legislatures. Tort law is the multi-tasker of the common law and
does far more than redress private wrongs.
Tort law not only redresses private wrongs, it also advances general
deterrence through social control. The contemporary Toyota sudden
acceleration claims and the BP oil spill are example of how tort law tackles
collective injuries impacting the consuming public, the environment, and
communities. While it is unclear what role tort law will ultimately play in
redressing these collective injury cases, social interests will be relevant.
This Article, which makes the case that tort law can and should redress
public wrongs, unfolds in six parts. Part II introduces the idea of the
teleological telescope and the deontological microscope illustrating their
operation in sociological theory.27
In this part of the Article, I explain how the grand theories of classical
25. Tom Lambert, my late torts teacher, often used the term "deformer" to refer to the selfdescribed tort reformers. See Michael L. Rustad, Foreword to the Thomas F. Lambert, Jr.,
Symposium Issue on Sophisticated New Tort Theories, 5 J. HIGH TECH. L. 1, 2 (2005) ("Tom
Lambert wrote extensively about the groundless attacks on America's tort system, arguing that the
'tort deformers' routinely constructed an artificial civil justice crisis to mislead the public. Professor
Lambert's mission was to counter the full-scale, wide ranging attack on consumer rights.").
26. The Chicago School of Economics posited "the capture theory of regulation. In this model,
firms (or others) capture the regulatory process because each firm potentially bears a high cost if
regulation constrains its behavior . . . ." STEVEN C. HACKETr, ENVIRONMENTAL AND NATURAL
RESOURCES ECONOMICS: THEORY, POLICY, AND THE SUSTAINABLE SOCIETY 206 (M.E. Sharpe, 3d
ed. 2006) (explaining how firms capture the regulatory process and discussing political economy of
lobbying for favorable regulation).
27. "The classical distinctions are between: (1) teleolopical ethics in which consequences of the
act determine its worth or correctness, and (2) deontological ethics in which formal rules determine
correctness of the act." Victor R. Baker, Environmental Restoration: Challenges for the New
Millennium: Science, Engineering, and the Perception of Environmental Restoration 42 ARIZ. L.
REV. 287, 293 (2000) (emphasis added).
439
sociology were telescopic, but some modem theorists miniaturized their
perspective to focus on the individual and the small group. Part III describes
how modem tort theory has divided into competing camps based upon
whether legal academics use a macroscopic or a microscopic approach. The
basic distinction is that tort scholars use either a functional telescope (to
study public wrongs) contextually or the philosopher's microscope to
understand individual cases and controversies in an abstract way.28 The
division between macrotort and microtort theories is the functional
equivalent of how these approaches play out in classical and contemporary
sociological theory. 29 Torts have a micro aspect applicable to the pressing
facts of the individual case and the relationships between the parties, but
they also have macro features such as general deterrence and social control
that fill in the interstices between criminal and civil law and to resonate our
collective beliefs.30
Part IV comments on civil recourse theory's obscurantism and its lack
of fit with the empirical reality of modem tort law's complexity. In this part
of the Article, I discuss civil recourse theorist's misguided attempt to reduce
the multiplicity of American tort law to one single "true" quintessence. To
me, it seems that the main problem with this pure theory of tort law is its
separation from social context such as gender, race, social class, power, and
social change. 3 1 What is important to note here is that torts often redress
public wrongs, beyond the interests of the immediate parties.32
Part V gives my pluralistic account of torts as public wrongs. While the
manifest function of tort law is civil recourse or compensation, its latent
function is vindicating public wrongs. 3 The latent function-the hidden
face-of tort law is its public policy role addressing corporate misconduct
from the bottom up rather than through a top-down government monolith. 4
The key institution is the plaintiff in the role of private attorney general who
seeks civil recourse but also fulfills a broader purpose of identifying and
punishing reckless corporate defendants who had previously evaded the
attention of the public authorities."
28. See infra Part III.
29. See infra Part III. Economics, too, has macro and micro approaches, as does political science
and philosophy, but these comparisons are beyond the scope of this Article.
30. See infra Part III.
31. Twenty-five years ago, James Boyle commented on how torts teachers too often excluded
social context, bypassing variables such as class, power and stratification. Today the younger
generation seems even more preoccupied with abstract cases "not fleshed out by all the examples,
hypotheticals, phenomenologies, and other little stories that ... are the most important part of ...
legal education." James Boyle, The Anatomy of a Torts Class, 34 AM. U. L. REv. 1003, 1005
(1985).
32. See infra Part IV.
33. See infra Part V.
34. See infra Part V.
35. See infra Part V.
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Part VI applies my sociological theory of public wrongs to the
widespread problems created by dangerously defective software. The tort
law lag in addressing defective software demonstrates the need to permit tort
law to evolve to address social problems.3 6 Hence, the focus is how "we the
people" need brawny tort remedies to address social problems in the
information-based economy."
II.
A.
THE TELESCOPE & THE MICROSCOPE IN THE SOCIOLOGY OF LAW
Tort Macrotheories:Law and Society
1. Sociological Theory's Macroscope
"Macrosociology is the study of total societies, [and] their major
subunits" as well as their "emergent properties." 38 The macro approach in
sociology posits that society is "not reducible to the attributes of individual
members." 39 The founding fathers of sociology-Max Weber, Emile
Durkheim, and Karl Marx-placed their emphasis on how laws interrelate
with broader societal purposes.4 o Max Weber, in his ProtestantEthic and
41
for example, studied society comparatively and
the Spirit of Capitalism,
historically, highlighting convergences and divergences among societies
using cross-sectional methodologies. His Economy and Society explains
how the division between public and private law evolved in different
36. See infra Part VI.
37. See infra Part VI.
38. Edward W. Lehman, Sociological Theory and Social Policy, in POLICY RESEARCH 10
(Amitai Etzioni ed., 1978) (emphasis omitted).
39. Id.
40. Deborah Ballam draws upon classical sociology in her account of tort law as a cultural
reflector:
Tort law, perhaps more than any other area of modem U.S. law, is the magic mirror
reflecting the ways changes in society lead to changes in the law. From the late
nineteenth to the late-twentieth century, U.S. culture underwent a dramatic
transformation in attitude toward the individual's role in society. A belief in rugged
individualism, laissez-faire in contractual relations, and survival of the fittest dominated
late-nineteenth century thought. By the late-twentieth century, this dominant philosophy
had been replaced, in large part, by recognition of the "complex interdependence"
between individuals and between individuals and societal institutions.
Deborah A. Ballam, Employment-at-Will: The Impending Death of a Doctrine, 37 AM. BUS. L.J.
653, 656-57 (2000).
41.
See MAX WEBER THE PROTESTANT ETHIC AND THE "SPIRIT" OF CAPITALISM AND OTHER
WRITINGS (Peter Baehr & Gordon C. Wells, trans., 2002).
441
societies over time.42 Weber's "ideal type"43 of public law is the regulation
of state-oriented actions. In contrast, conduct regulated by private law is not
classified as state-oriented." He found that torts were far more detailed and
procedural in common law systems than under the civil law, a distinction
that is still present in the twenty-first century.45 Weber, who taught
commercial law at the University of Berlin, posited that torts were more
detailed and developed in common law systems because of stare decisis as
well as specialized rules of evidence not found in civil code jurisdictions.46
Weber's studies of legal rationality demonstrated how bureaucratic
formalism adumbrated legal conservatism. 47 He was the first to critique the
"professional ideology" of legalism and to show how it conflicted with
democracy. 48
Emile Durkheim (1857-1917) was a French sociologist whose De La
Division Du Travail Social (The Division of Labor in Society), advanced a
functional theory of the evolution of modem legal systems. 49 Durkheim's
perspective was that crimes not only affected the individual but also
contravened the collective conscious or community (societal) norms.so
Whether the problems were the division of labor, criminal behavior, or
suicide, he found social solidarity to be a key underlying factor. For
Durkheim, the division of labor determined in large part the nature of other
42. MAX WEBER, ECONOMY AND SOCIETY: AN OUTLINE OF INTERPRETATIVE SOCIOLOGY
(Guenther Roth & Claus Wittich, ed. 1978) [hereinafter WEBER, ECONOMY AND SOCIETY].
43. See Daniel Bodansky, The Legitimacy ofInternationalGovernance:A Coming Challengefor
InternationalEnvironmental Law?, 93 AM. J. INT'L L. 596, 603 n.42 (1999). Mr. Bodansky notes:
"The concepts of 'authority' and 'legitimacy' are what Max Weber called 'ideal types,' abstractions
that represent one component of reality." Id. (citing H. H. Gerth & C. Wright Mills, Introductionto
FROM MAX WEBER: ESSAYS INSOCIOLOGY 59 (H. H. Gerth & C. Wright Mills eds., 1946)).
44. WEBER, ECONOMY & SOCIETY, supra note 42, at 641.
45. Id at 896.
46. Id.
47. See JUDITH SHKLAR, LEGALISM: LAW, MORAL, AND POLITICAL TRIALs 15 (1986) (arguing
that Weber had a dynamic theory that reacted to the "intensification and rigidity of the legalism he
saw around him").
48. Id. at 18.
49. Michael L. Rustad, Private Enforcement of Cybercrime on the Electronic Frontier, 11 S.
CAL. INTERDISC. L.J. 63, 69 (2001).
Durkheim "argued that the division of labor produced anomie: "In effect, when
competition places isolated and estranged individuals, in opposition, it can only separate
them more." During the transition to an industrial society, anomic breakdowns occur. In
the developed industrial society, the division of labor would evolve into a new source of
social cohesion. Durkheim argued that crime in an industrial society is linked to the
division of labor where the remedies are expanded to include restitution, as well as
repression.
Id.
50. See generally id ("Durkheim theorized that 'disruptions presumably reduce the individuals'
sense of belongingness, resulting in anomie at a personal level.' He blamed anomie on the
disintegration of social norms that occurs due to changes in social institutions caused by
transformation of the economic base.").
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social institutions including the law. His thesis was that as society becomes
more complex and differentiated, the law swings from repressive to
restitutive law. 5' Durkheim's 1897 empirical study, entitled Suicide,5 2
explained that people were more likely to take their own life if they were
socially isolated. Durkheim's empirical study diminished, if not entirely
refuted, widely-believed explanations for the incidence of suicide such as
climatic, geographic, national character, or internal psychological
differences."
Through a comparative analysis of government data from Bavaria,
Burgundy, and Prussia, Durkheim was able to show a relationship between
suicide rates and social integration.54 Sociological and demographic
variables such as age, gender, marital status, religious membership, and
family ties insulated the individual from the psychic pain that leads to
suicide." Durkheim focused on the form of suicide he called anomic
suicide.56 Anomic suicide is associated with social stressors such as
51. See Marc Galanter & David Luban, Poetic Justice: Punitive Damages and Legal Pluralism,
42 Am. U. L. REV. 1393, 1461 n.321 (1993) ("Emile Durkheim's observation [was] that as society
becomes more complex, it shifts from punitive to restitutive law.") (citing EMILE DURKHEIM, THE
DIVISION OF LABOR INSOCIETY 49-69 (George Simpson trans., The Free Press 1947) (1893)).
52. See generally tMILE DURKHEIM, SUICIDE: A STUDY IN SOCIOLOGY (John A. Spaulding &
George Simpson, trans., The Free Press of Glencoe, 1951) (1897).
53. Ed Rubin notes how Durkheim eliminated "'extra-social factors' that cause suicide, such as
psychopathology and heredity," but focused instead on the social correlates of suicide. Edward
Rubin, Assisted Suicide, Morality, and Law: Why Prohibiting Assisted Suicide Violates the
Establishment Clause, 64 VAND. L. REv. 763, 769 (2010). Summarizing the effect of these social
causes, (Durkheim] states:
[I]ndividual peculiarities could not explain the social suicide-rate; for the latter varies in
considerable proportions, whereas the different combinations of circumstances which
constitute the immediate antecedents of individual cases of suicide retain approximately
the same relative frequency. They are therefore not the determining causes of the act
which they precede ....
Id. (quoting DURKHEIM, supra note 52 at 261).
54. DURKHEIM, supra note 52, at 153. Durkheim also uncovered differences in suicide rates
comparing Protestant and Catholics in Swiss cantons and German regions. Id. at 88. Catholics had
fewer suicides than Protestants controlling for other variables. "Switzerland is, on this score,
particularly instructive. There we find cantons of all religions and of all nationalities, and we know
that the inclination to commit suicide varies according to religious persuasion and national origin."
EMILE DURKHEIM,
ON INSTITUTIONAL ANALYSIS 241 (Mark Traugott ed., trans., 1978).
55. See generally RAYMOND ARON, MONTESQUIEU, COMTE, MARX, DE TOCQUEVILLE.
SOCIOLOGISTS AND THE REVOLUTION OF 1848, at 32 (Transaction Publishers 2009) (1967).
56. See Rustad, supra note 49, at 69.
Durkheim described crime as a dysfunctional consequence of the deregulation of norms
or a state of anomie. Anomie, or normlessness, was likely to be the greatest when
societies were undergoing social and technological change. Durkheim theorized that
"disruptions presumably reduce the individuals' sense of belongingness, resulting in
anomie at a personal level." He blamed anomie on the disintegration of social norms that
occurs due to changes in social institutions caused by transformation of the economic
443
migration or other dislocation that separate individuals from their traditional
social bonds." Durkheim's concept of anomie developed the thesis that
social attachments were critically important to understanding social
problems such as suicide and criminal behavior:
In Durkheim's 1897 work, Suicide, he argues that inactive or
disrupted group life creates "unregulated individuals with
'insatiable appetites' and 'fevered imaginations."' Durkheim was
the first to explain suicide as a sociological phenomenon. In his
classic The Division ofLabor in Society, he contended that societies
may be broadly classified into two types, mechanical solidarity and
organic solidarity. Mechanical solidarity is the division of labor
common in pre-industrial societies with homogenous dwelling in
small villages.
In contrast, organic solidarity is the division of labor common in
industrialized or urban societies with a well-defined manufacturing
base. In the mechanical solidarity of pre-industrial societies,
criminal law punishes offenses against the "collective conscience."
Durkheim defined the collective conscience as "[t]he totality of
beliefs and sentiments common to average citizens of the same
society [that] form a determinate system which has its own life."
The collective sentiments to which crime corresponds, therefore,
must singularize themselves from others by some distinctive
property-they must have a certain average intensity. Not only are
these sentiments engraved on all consciences, but they are strongly
engraved. Because crime offends the collective conscience, an
infraction attacks the entire social fabric. In Durkheim's words,
"Everybody is attacked; consequently everybody opposes the
attack. "
Karl Marx's Das Kapital (Capital) was a macrosociological study of
how economics shapes social institutions and, ultimately, social reality.
Marx stood the German philosopher Georg Hegel's concept of dialectics "on
its head" in his concept of dialectical materialism to analyze capitalism. 59
base.
Id (quoting Mark Abrahamson, Sudden Wealth, Gratification and Attainment:
Durkheim's Anomie ofAffluence Reconsidered,45 AM. SOC. REv. 49, 49 (1980)).
57. See DURKHEIM, supra note 52, at 252.
58. Rustad, supra note 49 at 67-68 (alteration in the original) (citation omitted) (arguing that
criminal law lags behind information-based and other technologies).
59. KARL MARX & FREDERICK ENGELS, MANIFESTO OF THE COMMUNIST PARTY 49 (Cosimo
Classics 2009) (1848).
The modem bourgeois society that has sprouted from the ruins of feudal society has not
done away with clash antagonisms. It has but established new classes, new conditions of
oppression, new forms of struggle in place of the old ones.
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Marx looked upon the basic economic structure as containing its own
opposition, "the seeds of its own destruction."a He argued that the character
of economic organization (base) was the independent variable shaping
culture as well as social institutions such as the legal system
(superstructure)." Marx was impressed with capitalism's dynamic ability to
both preserve and defend itself (through the accumulation of capital, wage
labor, and the role of the state in protecting the capitalist assets) and
influence society and social change. 62 Law protected the capitalist order
through both the physical force exercised by its enforcement mechanisms
and the ideological hegemony that arose from defining the legal order as
synonymous with justice.
Karl Marx visualized law in terms of the interlocking relationship
between society's base (economic structure) and superstructure (culture and
other social institutions including law). He argued that the law as well as
other superstructural institutions
will always reflect and promote the cultural values of the more
powerful economic classes in that society and furthermore that any
work of art or other cultural product is largely a product of the
creator's economic class, or more specifically, his or her specific
relationship to the means of production.63
Our epoch, the epoch of the bourgeoisie, possesses, however, this distinctive feature: it
has simplified the class antagonisms. Society as a whole is more and more splitting up
into two great hostile camps, into two great classes, directly facing each other:
Bourgeoisie and Proletariat.
Id. at 40-41.
60. See id
Conservation of the old modes of production in unaltered form, was, on the contrary, the
first condition of existence for all earlier industrial classes. Constant revolutionising of
production, uninterrupted disturbance of all social conditions, everlasting uncertainty and
agitation distinguish the bourgeois epoch from all earlier ones. All fixed, fast-frozen
relations, with their train of ancient and venerable prejudices and opinions, are swept
away, all new-formed ones become antiquated before they can ossify. All that is solid
melts into air, all that is holy is profaned, and man is at last compelled to face with sober
senses, his real conditions of life, and his relations with his kind.
Id. at 44.
61. In Manifesto of the Communist Party, Marx and Engels wrote: "The proletariat is without
property .... Law, morality, religion are to him so many bourgeoisie prejudices, behind which lurk
in ambush just as many bourgeois interests." Id at 56.
62. KARL MARX, CAPITAL: A CRITIQUE OF POLITICAL ECONOMY 554 (Fredrick Engels ed.,
Samual Moor & Edward Aveling trans., Charles H. Kerr & Co. 1906) (1867).
63. Clair Wright Reconciling CulturalDiversity and Free Trade in the DigitalAge: A Cultural
Analysis of the InternationalTrade in Content Items, 41 AKRON L. REV. 399, 449 n.229 (2008).
445
Marx would likely have regarded harsh, regressive doctrines denying
recovery to injured workers or consumers in the nineteenth century as
reflecting the interests of the ruling class, particularly the owners of the
means of production.6 Given his theory, Marx would also likely have
acknowledged the potential of law to emancipate and serve the
underprivileged in certain circumstances.6 ' Law is both a means of
oppression and a means of resistance. These seemingly opposing sides of
the law-as a source of comfort for the privileged and as a means of
agitation for the oppressed-are bound together in a significant and
interesting way.
Macrosociologists, whether liberals like Weber and Durkheim or
radicals like Marx, found law reflected societal variables, such as social
stratification, class, power, and social change.66 In my torts scholarship, I
tend to use a sociological telescope to gain insight into how tort lawsuits
advance public as well as private purposes. This structural or functional
64. See Jude P. Dougherty, The Brendan Brown Lecture: Accountability without Causality: Tort
LitigationReaches Fairy Tale Levels, 41 CATH. U.L. REV. 1, 4 (1991) ("Marx was convinced that
the bourgeois law of his day was the product of a capitalist ruling class, a class which created the law
to sustain its mode of economic organization. Marx's critique focused on nineteenth century tort
law, which he thought tempered entrepreneurial risk with a doctrine that places the risk of accidents
and product defects on the user.").
65. E.P. Thompson, the late English historian, conducted a study of the Black Act, a statute
enacted by the Hanoverian Whig Parliament in 1723. E.P. THOMPSON, WHIGS AND HUNTERS: THE
ORIGINS OF THE BLACK ACT 258-69 (Penguin Books 1990) (1975) (studying the 1723 Black Act
and revolt of citizens of Hampshire and Berkshire against the creation of scores of new capital
offenses relating to traditional land-uses such as deer hunting and wood gathering). The manifest
function of the statute was to protect the privacy of the landed gentry by brining in the death penalty
for nearly every imaginable rural offense against property that had not been a serious offenses
before-such as deer-stealing, cattle-maiming, arson, the cutting of trees, and sending threatening
letters-reveals that the rule of law is but another name for the rule of class. Id. In other words, the
architects of law had everything to gain from it and, it follows that those who were oppressed by the
law would have lost nothing by its absence. Id. Thompson, however, arrives at another conclusion
in his discussion of the rule of law at the end of his book. Id. The rule of law is also a utopian
possibility. Id The theme of Thompson's work is that law does not function merely as a form of
domination. Id. He also acknowledges that there is a moment of opposition or negation within it
which is significant, and which the forces of emancipation must recognize, respect, and use. Id
66. See Hugh Baxter, Habermas's Discourse Theory of Law and Democracy, 50 BUFF. L. REV.
205, 263-64 (2002) (describing how structural-functionalists view social institutions in tandem).
"[M]odem societies are differentiated into a plurality of functional subsystems, such as the economy,
politics, law, and science, each of which is a self-producing and self-reproducing network of
communication." Id.
67. See, e.g., Michael Rustad, In Defense of Punitive Damages in Products Liability: Testing
Tort Anecdotes With EmpiricalData, 78 IOWA L. REV. 1, 6 (1992) [hereinafter Rustad, In Defense of
Punitivie Damages] (describing an empirical study of a quarter century of punitive damages in
product liability); Michael L. Rustad, Unraveling Punitive Damages: Current Data and Further
Inquiry, 1998 Wis. L. REV. 15 (1998) [hereinafter Rustad, UnravelingPunitive Damages] (providing
secondary analysis of all extant empirical studies of punitive damages); Michael L. Rustad, The
Negligent Enablement of Trade Secret Misappropriation,22 SANTA CLARA COMPUTER & HIGH
TECH. L.J. 455 (2006) [hereinafter Rustad, Negligent Enablement] (studying a decade of Economic
Espionage Act prosecutions and trade secret misappropriation); Michael L. Rustad, Heart of Stone:
What is Revealed About the Attitude of Compassionate Conservatives Towards Nursing Home
446
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approach draws, in large part, upon classical sociologists who examined how
law, policy, and society interrelated. The insight of these functionalists is
that society is "not reducible to the attributes of individual members."6
Macrosociologists do not look at aesthetics or morals as "levers of
transformation" but instead focus on social structure and power relations.69
2.
Microsociology's Studies of Face-to-Face Interaction
Macrotort theorists, like their sociologist counterparts, tend to look at
the big picture of the complex interrelationships among law, policy, and
society.o What then is microsociology? While macrosociologists examine
the total society and its emergent properties, microtheorists give emphasis to
studies of small groups or social psychology." These theorists conduct field
and empirical studies of individuals' face-to-face interaction in small
groups.72 The masters of classical sociological thought were comparativists,
as opposed to the microtheorists who pioneered social psychology, symbolic
interactionism, ethnomethodology and the dramaturgical approach. 3 The
significant microsociology theories include social psychology, symbolic
interactionism, and the dramaturgical approach.7 4 In his well-regarded
Practices, Tort Reform, and Noneconomic Damages, 35 N.M. L. REv. 337 (2005) [hereinafter
Rustad, Hart of Stone] (conducting an empirical study of nursing home negligence cases); Michael
L. Rustad & Thomas H. Koenig, Cybertorts and Legal Lag: An Empirical Analysis, 13 S. CAL.
INTERDIS. L.J. 77 (2004) (conducting an empirical study of cybertort cases).
68. Lehman, supra note 38, at 10.
69. Id. at 13.
70. In economics, there is also a divide between macro and micro approaches. However, micro
and macrotheorists are not like the competing monistic theories as in tort law. Rather, the macro and
micro approaches are complimentary.
71. Lehman, supra note 38, at 10.
72. Id.
73. Social psychology focuses on "the effects of social and cognitive processes on the way
individuals perceive, influence, and relate to others." ELIOT R. SMITH & DIANE M. MACKIE, SOCIAL
PSYCHOLOGY 3 (2000). Symbolic interactionism focuses on shared meaning for individuals while
dramaturgy examines the social construction of reality and meaning in everyday life. See, e.g.,
ERVING GOFFMAN, THE PRESENTATION OF SELF INEVERYDAY LIFE (1959).
74. Symbolic interactionism, developed by sociologists such as George Herbert Mead, W.I.
Thomas, Louis Wirth, Robert Redfield, Charles Horton Cooley, and Herbert Blumer, emphasizes the
research methodology of participant observation in contrast to the telescopic social surveys of the
classical theorists. Herbert Blumer, the most famous symbolic interactionist, describes this
perspective as focusing on how individuals act toward things based upon the meaning ascribed to
them. HERBERT BLUMER, SYMBOLIC INTERACTIONISM: PERSPECTIVE AND METHOD 2 (University of
California Press 1969). A second postulate is that the meaning ascribed to objects arises out of
social interaction. Id. Finally, these meanings are shaped and reshaped by interpretation processes.
Id The Society for the Study of Symbolic Interaction "organiz[es] scholars interested in qualitative,
especially interactionist, research." University of California Press, http://ucpressjoumals.com/
447
microsociological studies, Thomas Scheff, for example, viewed the social
psychology of the emotional/relational world as the most basic unit of
sociological analysis. 5
III.
THE MACROTORT & MICROTORT THEORIES APPLIED TO TORT
JURISPRUDENCE
Macrotort theorists, like their sociologist counterparts, tend to look at
the big picture of law, policy, and society. American tort theory in the new
millennium has no single organizing principle and is a "battleground of
social theory."7 6 The microtort emphasis is rights-based (deontological)
rather than goals-based (teleological). 7 Classical torts scholars, as we shall
see, also employ the goal-based teleological approach, as opposed to the
deontological microtheories that focus on one case at a time.
A.
Torts' Teleological Telescope
Modification implies growth. It is the life of the law.
Louis D. Brandeis.79
From the late nineteenth century through the twentieth century,
macrotort theories have had the upper hand in American law schools.80 The
work of Oliver Wendell Holmes Jr. indicates that he was the first macrotort
theorist to break from the pre-modem private wrongs paradigm. Holmes's
grand theory was better suited to understanding the collectivization of
joumalSoc.asp?j=si. Erving Goffinan developed the dramaturgical theory in his 1959 book, The
Presentationof Self in Everyday Life. For Goffman, like Shakespeare, "All the World's a Stage."
See GOFFMAN, supra note 73, at 17-25. He compares the front stage (scripted performances) with
the back stage (what is concealed from the public). See id. Goffman examines how occupations like
waitressing, sex workers, and other interactions have a front and backstage. See id.; see also
ERVING GOFFMAN, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY (1986) (studying
how mental patients, drug addicts, deformed persons and others with "spoiled identity" manage their
everyday interactions).
75. See generally THOMAS J. SCHEFF, MICROSOCIOLOGY: DISCOURSE, EMOTION AND SOCIAL
STRUCTURE (1994).
76. William Prosser's insight was that tort law by its very nature was "a battleground of social
theory." PROSSER AND KEETON ON THE LAW OF TORTS § 3 (W. Page Keeton, ed., 5th ed. 1984).
77. "The basic difference between teleology and deontology hearkens back to the ancient
questions of Socrates: 'What is the good?' and 'What is justice?' In distinguishing the two, the good
relates to states of being. Normatively, a person or a society is to be good. Justice relates to actions."
Bailey Kuklin, The Morality of Evolutionarily Self-Interested Rescues, 40 ARIZ. ST. L.J. 453, 476
(2008).
78. See infra Part III.A.
79. Washington v. WC. Dawson & Co., 264 U.S. 219, 236 (1924) (Brandeis, J., dissenting).
80. See John C.P. Goldberg, Twentieth-Century Tort Theory, 91 GEO. L.J. 513 (2003) (providing
a historical account of why macrotheories predominated in American tort law from Holmes's time to
the present).
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"injuries to persons or property by railroads, factories, and the like."" In
The Path of the Law, Holmes describes torts of the late nineteenth century as
broader in scope than the "isolated, ungeneralized wrongs" such as assaults
and slanders of an earlier era.82
Individual tort cases provided a powerful check against defendants that
risked public safety. The earliest reported American case in which punitive
damages were awarded was Fleet & Semple v. Hollenkemp.83 In Fleet, the
Kentucky Supreme Court upheld exemplary damages against a pharmacist
who breached his duty to protect the public by mistakenly mixing a poison
into a prescription." The customer became violently ill after ingesting the
poisonous drug. The jury awarded the plaintiff $1,141.75-an amount that
far exceeded the plaintiffs medical expenses.ss The Kentucky Supreme
Court upheld the exemplary award ruling that the jury could consider
circumstances of aggravation or extenuation.
By the middle of the nineteenth century, courts began to explicitly
address tort law's public purposes in cases where common carriers
For example, in Wardrobe v.
recklessly endangered public safety.
CaliforniaStage Co., 87 the California Supreme Court reversed an exemplary
damages award to a traveler injured when a top-heavy stagecoach
overloaded with passengers overturned. The trial court instructed the jury
to impose damages to prevent future "'recklessness in the conduct of stages
to the great peril of passengers."' 89 The California Supreme Court found the
plaintiffs action should work to recover damages for his individual injury
"and not as a public prosecutor to vindicate the wrongs of the community." 90
The court thus refused to allow the plaintiff to recover damages "laid for the
81. Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARV. L. REv. 457, 467 (1897). For
example, courts increasingly imposed punitive damages against railroads for a variety of malicious
actions, including: "wrongfully ejecting passengers; carrying passengers past their stations;
accosting patrons in insulting fashions; failing to stop when signaled; failing to care for known sick;
refusing to carry the blind; allowing insults and fights; willful delaying of passengers; and
obstructing the tracks." Alfred G. Nichols, Jr., Comment, PunitiveDamages in Mississippi-A Brief
Survey, 37 Miss. L.J. 131, 138 n.39 (1965). For an extensive discussion of punitive damages awards
against railroads see Smith v. Wade, 461 U.S. 30, 57-84 (1983) (Rehnquist, J. dissenting).
82. Holmes, supra note 81, at 467.
83. 52 Ky. (13 B. Mon.) 219 (1852).
84. Id.
85. Id.
86. Id.at 180.
87. 7 Cal. 118 (1857).
88. Id. at 120.
89. Id.
90. Id.
449
benefit of the public." 9'
The CaliforniaStage Co. case is emblematic of torts that involve a risk
to the public greater than the harm done to an individual plaintiff. Collective
torts caused by common carriers or industrial enterprises are qualitatively
different from traditional one-on-one tort law because collective torts often
arise because companies decided to chance it, endangering the larger
community. 92 By the late 1800s, railroads had become common defendants
in tort lawsuits where there were larger issues such as public safety and
abuse of power, in addition to the private wrong done to an individual
plaintiff. 9
During this same period, frequent railroad derailments,
steamboat fires, and streetcar accidents led to "the frightful destruction of
life, and limbs and property" and called for stricter tort remedies to protect
American workers and consumers. 94 Holmes proposed a fault-based torts
paradigm that displaced the archaic and unworkable writ system.
In Holmes's view, negligence generally governed the "great mass"
of ordinary cases arising from such conventional prosaic activities
as riding horses, using fireplaces, maintaining common fences, or
lifting a stick to part fighting dogs. This estimate was empirical, not
normative. 95
Decades before Holmes became a justice of The Massachusetts Supreme
Judicial Court ("SJC"), that court had already begun reshaping American
91. Id.
92. The CaliforniaStage Co. itself is a prime example of a case where public safety and not just
the injuries of one individual plaintiff were at issue.
93. Michael L. Rustad, Happy No More: FederalismDerailed by the Court That Would be King,
64 MD. L. REv. 461, 487-88 (2005) (discussing punitive damages awards against the railroad in the
late nineteenth century); see, e.g., Louisville & Nashville R.R. Co. v. Eaden, 93 S.W. 7, 7 (Ky. 1906)
(describing how a railroad fireman "'recklessly, negligently, and wantonly' threw a shovelful of
burning cinders, embers, and ashes into [the plaintiffs] face, inflicting upon her serious burns and
permanent injury to her eyesight, from which she has suffered great injury and damage, and for
which she prayed a judgment in the sum of $ 5,000"); Sioux City & P. R.R. v. Stout, 84 U.S. 657
(1873); Keffe v. Milwaukee St. P. R.R. Co., 21 Minn. 207 (1875) (permitting young children to
recover for injuries sustained on railroad turntables despite the general rule that no duty of care was
owed to a trespasser); San Antonio & A.P. R.R. Co. v. Skidmore, 65 S.W. 215 (Tex. 1901)
(upholding a $ 1,000 verdict in favor of an eleven-year-old girl crippled by an accident caused by
playing on an railroad turntable that was attractive to children).
By the late nineteenth and early twentieth century, the focus of punitive damages had
shifted from individual wrongs to wrongs 'committed by corporate agents typically
involving defective operations or gross carelessness in the production of goods or
services.' Corporate wrongdoers such as common carriers had the potential of causing
potential injury to large numbers of the general public. High-handed or arrogant
corporate policies by common carriers also became the basis for punitive damages by the
first part of the nineteenth century:
Rustad, supra, at 487-88.
94. Rustad, supra note 93, at 490 (quoting Frink & Co. v. Coe, 4 Greene 555, 559 (Iowa 1854).
95.
450
DAVID ROSENBERG, THE HIDDEN HOLMES: HIS THEORY OF TORTS IN HISTORY 127 (1995).
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tort law to fit a fault-based model. Lemuel Shaw, who became Chief Justice
of the SJC in 1830, authored the landmark decision of Brown v. Kendall,
which marks the birth of the negligence paradigm.96 A trial in the
Massachusetts Court of Common Pleas established the basic facts in this
famous case, which has been known as the "fighting dogs" case by
generations of American law students. 97 Two dogs were fighting in the
presence of their masters, and the accident occurred when one dog owner
began beating the dogs with a four-foot stick "in order to separate them."98
The Massachusetts appeals court recounted the facts in the first American
negligence case:
The plaintiff was looking on, at the distance of about a rod, and that
he advanced a step or two towards the dogs. In their struggle, the
dogs approached the place where the plaintiff was standing. The
defendant retreated backwards from before the dogs, striking them
as he retreated; and as he approached the plaintiff, with his back
towards him, in raising his stick over his shoulder, in order to strike
the dogs, he accidentally hit the plaintiff in the eye, inflicting upon
him a severe injury.99
After the dogfight case, negligence swept the nation, and the fault
standard expanded to fit railroad accidents, stagecoach rollovers, and
industrial accidents.
While this was the first judicial acknowledgment of the fault principle,
negligence did not evolve into full-blown accident law until decades later.
The very definition of negligence involves balancing larger concerns than
those of the immediate parties. The torts of the local community were also
transformed as the economy industrialized in the late nineteenth century and
early twentieth century:
Negligence or accident law expanded rapidly in the 1850s to
protect the public against behavior like recklessly constructing an
unsafe bridge or failing to maintain a railway trestle, and mass
disasters such as the Triangle Shirt Waist Factory fire. The
96. Brown v. Kendall, 60 Mass. (6 Cush.) 292 (1850).
97. My late torts teacher, Tom Lambert, often remarked that all torts had a birthday. A good
case could be made that the birth of negligence was in October of 1850 when the Massachusetts
Supreme Judicial Court handed down Brown v. Kendall.
98. Kendall, 60 Mass. (6 Cush.) at 292-93 (recounting prior proceedings and facts established in
the court of pleas).
99. Id.
451
development of negligence freed courts from the shackles of the
writ system and permitted courts to begin balancing utilities against
risks. Negligence, by its very nature, involves judgments that weigh
the social benefit of activities against the risks of harm to the public.
In Thane v. Scranton Traction Co., the Pennsylvania Supreme Court
noted an important social benefit of industrial development:
'Rapidity of transit is no longer a mere convenience to the traveler.
It has become a matter of vital interest to the general business of the
community.' The same technology that benefited the public,
however, endangered the entire community when not carefully
managed. Fires, explosions, shipwrecks and other mass disasters on
a scale that was unknown in Blackstone's day resulted from the
negligent use of the dangerous instrumentalities necessary for an
industrial economy.'0 0
Holmes's conception of negligence transformed tort law by substituting
objective standards for "subjective inquiries." These "compensation or
deterrence approaches" to tort law highlighted regulation and social
engineering rather than moral rights:
In retrospect, it is apparent that compensation-deterrence theory is
heavily reliant on the moral-, law- and concept-skepticism that was
very much in vogue among American legal scholars in the first half
of the Twentieth Century. While it would take us far afield to
assess the validity of these skeptical theories, one can at least
respond by noting that what may have seemed in 1890 or 1930 to be
compelling proofs of the emptiness of moral and legal concepts are
not widely regarded as carrying much weight today. At a minimum,
one can safely assert that compensation-deterrence theorists have
not done the philosophical work necessary to obtain "summary
judgment" against accounts of tort law that invoke those
concepts. 0 1
Under Goldberg's narrative, Blackstone's formulation of torts was part
of the conventional wisdom until Holmes reconfigured tort law around
accident law. 10 2 Holmes, Bohlen, Green, and other grand tort theorists
"adapt[ed] Blackstone's law of private redress to the wrongs perpetrated
by railroad owners, automobile drivers, and product manufacturers."' 0
100. Michael L. Rustad & Thomas H. Koenig, Taming the Tort Monster: The American Civil
Justice System as a Battleground of Social Theory, 68 BROOK. L. REv. 1, 27 (2002) (citations
omitted).
101. Goldberg, supra note 80, at 533.
102. Goldberg, Unloved: Tort in the Modern Legal Academy, supra note 22 at 1505-06.
103. Id. at 1506.
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Torts took on new functions and, in John Goldberg's view, performed
them badly:
Even as Holmes was developing his theory of tort, tort law was
being called upon to do something it had never been asked to do
before: handle a major economic, social and political problem,
namely the phenomenon of mechanized accidents, particularly
workplace accidents. In the eyes of many, tort failed this test quite
miserably. Too many businesses employed shamelessly unsafe
practices; too many maimed workers were left without redress; too
many widows and orphans were left without support. At best, tort
had proved itself unable to cope with the problems posed by a
central feature of the industrial world. At worst, it was-as Charles
Gregory and Morton Horwitz would later suggest-a mere
handmaiden of capital.
'0
Goldberg's tort story, like all narratives, is oversimplified. He traces the
emergence "of an extended community of professional tort scholars"
beginning in the 1930s,105 but this group was prefigured by Holmes's torts
scholarship. 106 The compensation-deterrence theory of these legal realists
became the hegemonic torts theory from the mid-twentieth century to the
present. 07 Goldberg identifies two strands of tort theory in this community
of tort scholars that "drank deeply of the progressive critique of tort."'0 o
Leon Green was the first torts scholar to emphasize the importance of
judicial decision-makers considering social factors beyond the immediate
plaintiff and defendant and the "raw facts of a case." 09 Green authored a
casebook in 1931 that "consider[ed] tort law 'functionally' so as to
underscore its implications for public policy.""o He characterized tort law
as "public law in disguise" because of its emphasis on larger societal
interests "outside and beyond the interests of the immediate parties to the
litigation.""' Green's theory of tort law was multi-dimensional in that there
were contextual aspects to every tort case based upon "public policy, social
104. Id. at 1506-07.
105. Id. at 1509.
106. See supra notes 81-82, 95, 102-03 and accompanying text.
107. See Id
108. Id. Fleming James and Albert Ehrenzweig represent the first strand, advocating the
replacement of accident law with comprehensive social compensation. Id.
109. See Leon Green, Tort Law Public Law in Disguise, 38 TEX. L. REV. 1, 1 (1959).
110. G. EDWARD WHITE, TORT LAW IN AMERICA: AN INTELLECTUAL HISTORY 77 (2007).
111. See Green, supra note 109, at 2.
453
welfare, law making, or judicial legislation.""
torts as societal not just between the litigants:
2
Prosser, too, viewed the law of
Perhaps more than any other branch of the law, the law of torts is a
battleground of social theory. Its primary purpose, of course, is to
make a fair adjustment of the conflicting claims of the litigating parties.
But the last half century has brought an increasing realization of the
fact that the interests of society in general may be involved in disputes
in which the parties are private litigants. The notion of public policy
involved in private cases is not by any means new to tort law, and
doubtless has been with us ever since the troops of the sovereign first
intervened in a brawl to keep the peace; but it is only in recent decades
that it has played a predominant part." 3
William Prosser and Leon Green represented the "second line of torts
scholarship."I1 4 Under their influence, tort law evolved to address new dangers
from toxic exposure, environmental pollution, dangerously defective products,
5 Macrotheory was necessary to interpret the
and other corporate misbehavior.s"
problem of collective injuries that were qualitatively different from the largely
intentional torts or delicts of eighteenth-century England and pre-industrial
America."'
During the post-New Deal era, tort scholars became less interested with
"cases or controversies" and more interested in larger public policies. However,
a tort theory that collectivizes injuries in products liability, toxic torts, and many
other substantive areas is antithetical to the monistic concept of "private
wrongs," and Goldberg disparaged the "new negligence" that encourages
"judges, juries, and law professors with a mandate to undertake de novo 'social
engineering.""' 7 Civil recourse theorists conceptualize tort law as "private law
in disguise,"' 8" emphasizing the bipolar relations between the parties rather than
torts as public wrongs."' In his piece for the FederalistSociety Symposium on
Law andPublicPolicy, Goldberg stated:
112. Id.
113. WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS § 3 (3d ed. 1964).
114. Goldberg, Unloved: Tort in the Modem Legal Academy, supra note 22 at 1509.
115. See Michael L. Rustad, Happy No More, supranote 93, at 493.
116. See John T. Nockleby & Shannon Curreri, Comment, 100 Years of Conflict: The Past and
Future of Tort Retrenchment, 38 LOY. L.A. L. REV. 1021, 1038-39 (2005) ("As the society has
become increasingly complex, and the harms a single producer or segment of the economy could
create ever more dramatic, the challenges for a civil justice system justified by an ideology of
individualistic dispute-resolution have been profound.").
117. Goldberg, Unloved: Tort in the Modem Legal Academy, supra note 22, at 1511.
118. Goldberg, Tort Lawfor Federalists,supra note 10, at 16.
119. See John C. P. Goldberg & Benjamin C. Zipursky, Symposium, Seeing Tort Law from the
InternalPoint of View: Holmes and Hart on Legal Duties, 75 FORDHAM L. REv. 1563, 1580 (2006)
(noting tort law is about "arming victims with a legal power to pursue those who have wronged
them").
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Dean Leon Green once famously described tort law as public law in
disguise. Today, about a half-century later, the disguise has been
dropped: every year in classrooms around the country, law students
are taught that tort law is public law because it has to be..
.
. To
gain a genuinely realistic sense of what tort law actually does, what
it can do, and what it ought to do, we must dispense with the notion
that tort law ought to be public regulatory law because that is the
only thing that it can be. It is time to recognize that tort law, as it
functions today, is private law in disguise. 120
Torts macrotheorists examine questions of law and society more broadly
than moral philosophers, such as corrective justice or civil recourse theorists,
whose center of attention is the individual plaintiff and the individual
defendant.12' Goldberg contends that the compensation-deterrence theorists
displaced private redress based upon notions of private wrongs:
Compensation-deterrence theory accepts as its premise that tort
suits probably once did fit the traditional account..
..
In the typical
action, plaintiff P complained that defendant D had violated a right
of his conferred by some relatively uncontroversial moral norm or
tenet (for example, the norm against intentionally and unjustifiably
striking another), which norm had been incorporated into the formal
law through the old common law writs such as the writ of trespass.
If P could make out such a claim, he could then expect satisfaction
from D in the form of a compensatory payment. Thus, premodern
tort law was characterized by the adjudication of private disputes by
judges and juries who, through the formalities of the legal system,
employed ordinary moral principles to determine whether a given
defendant had violated the plaintiffs rights and therefore became
obligated, as a matter of justice, to provide redress in compensation
for the violation.122
The macrotheory assumption is that tort suits are no longer viewed as
individual "cases and controversies" but as "occasions for judges and juries
to regulate behavior on a forward-looking basis." 23 Compensation120. Goldberg, Tort Law for Federalists,supranote 10, at 15-16.
121. Jane Stapleton makes the point that tort's legal duties do not "track moral duty, a point
illustrated by the absence of a duty to attempt an easy rescue of a helpless stranger." Jane Stapleton,
Evaluating Goldberg and Zipursky's Civil Recourse Theory, 75 FORDHAM L. REv. 1529, 1556
(2006).
122. Goldberg, supra note 80, at 522-23.
123. Id. at 524.
455
deterrence theorists swung tort law from "private to 'public' law, whereby it
functioned to achieve collective, not corrective justice."' 24 The paramount
purpose of the macrotheorists was deterrence-compensation: "deterrence of
antisocial conduct and compensation for those who have been injured." 25
B. Modern Tort Macrotheories:Law & Economics
John Goldberg maintains that "economic deterrence" evolved as one of
the five dominant theories of twentieth-century torts jurisprudence. 126 This
theory has its genesis in 1970s scholarship, when torts teachers in elite law
schools began teaching how tort law advances collective goals, such as
specific and general deterrence and allocative efficiency.127 Law and
economics torts scholars are concerned with big issues such as "allocative
efficiency, externalities, or the economic welfare of society." 28 In other
words, the study of law and economics is interested in macrotort concerns
such as reducing the cost of accidents, reallocating loss to wrongdoers,
general deterrence, and rules that reflect efficiency.12 9 This economics
paradigm of tort law consists of a number of competing subtheories,
including the positivistic and normative approaches to tort law. Positivistic
economics is a macrotort theory that asks judges to formulate tort rules that
will reduce social problems such as the rate and severity of automobile
accidents.130 Positivists describe the parameters of tort law in practice. In
contrast, normativists are utopian in the sense that they prescribe what tort
law should be assuming ideal circumstances. 131
William M. Landes, an economist, and Richard A. Posner, a lawyer, are
the founders of the positivist school, which believes that the preeminent
purpose of tort law is to assume judge-made case law was devised to
124. Id.
125. Id. at 525.
126. Id. at 514.
127. More than thirty years hence, a macro view of torts persists. See, e.g., Guido Calabresi, The
Complexity of Torts: The Case of Punitive Damages, in EXPLORING TORT LAW 333, 334 (M. Stuart
Madden ed., 2005) [hereinafter Calabresi, Complexity of Torts] ("Too often, those who view tort law
in a 'goal oriented' way move quickly to a single, simple goal-whether it be economic efficiency,
furthering loss spreading, or anything else-and having examined tort doctrines and cases on that
basis, are properly attacked for being reductionist.").
128. See Thomas C. Galligan, Jr. et al., Tort Law: Cases, Perspectives, & Problems4 (Santa Clara
Univ. Sch. of Law, Working Paper No. 07-29, 2007), available at http://papers.ssm.com/sol3/
papers. cfm?abstract id=997177.
129. See id at 7. Law and economics approaches to tort law are diverse and scholars are divided
into camps that emphasize choice theory, game theory, positive economics or normative economics.
Id. (noting that the two most important forms for the study of tort law "are positive (descriptive or
'what is') economics or normative (prescriptive or 'what should be') economics").
130, WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW 11,
13, 19 (1987).
131. See also STEVEN SHAVELL, ECONOMIC ANALYSIS OF ACCIDENT LAW 206 (1987)
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promote efficiency as an overarching societal goal. Judge Posner argues that
a "positivist might think it perfectly all right for judges to legislate, at least
within the bounds fixed by the nature of the judicial office. .. *."32
Positivists express the law as it is, while normative law and economics
scholars prescribe what the law should be. The focal point of both
prescriptive law and the economics scholars is describing economic
efficiency as tort law's goal, "without necessarily arguing that efficiency
should be the goal of the legal system."' 33 Posner emphasizes the role of
deterrence and contends that punitive damages must be increased where the
probability of detection and punishment is low. 134
Judge Guido Calabresi, who is a Second Circuit U.S. Court of Appeals
judge and former dean of Yale Law School, is the emblematic normative
scholar, as evidenced by his global proposals to reduce the costs of accidents
and his emphasis on general and specific deterrence as tort's primary tools
for social change.'13 In his 1970 book, The Cost of Accidents, Calabresi
drew the classic distinction between specific deterrence, which makes the
wrongdoer pay the price of wrongdoing, and the larger social sanction of
general deterrence, which vindicates the harm to society.' 36 He contends
that the overarching goal of tort law is to control the costs of accidents rather
than to eliminate them. 137
Judge Calabresi argued that accident law is about resolving the social
problem of carnage on the nation's highways by minimizing the costs in the
most efficient and optimum way.' 38 He applies a cost-benefit analysis to
reach his hypothesis that primary accident losses may be reduced where
The overarching
primary accident costs exceed prevention costs.139
emphasis of law and economics is on loss-spreading arrangements devised
to reduce secondary losses.140
Calabresi's 1961 article in the Yale Law Journal examined
macrotheoretical questions about how society should deal with the problem
132. RICHARD A. POSNER, LAW AND LEGAL THEORY IN ENGLAND AND AMERICA 11 (1997).
133. FRANK H. STEPHEN, THE ECONOMICS OF THE LAW 129 (1988).
134. See, e.g., Mathias v. Accor Econ. Lodging Inc., 347 F.3d 672, 676-77 (7th Cir. 2003)
(upholding high ratio award against hotel that covered up bedbug problem reasoning that such an
award was justified because it was an incentive for plaintiffs to sue where the probability of
detection was low and the probability was high that the hotel's wrongdoing would go unpunished).
135. See GulDo CALABRESI, THE COST OF ACCIDENTS: A LEGAL AND ECONOMIC ANALYSIS 184
(1970).
136. Id at 68-69.
137. Id. at 68.
138. Id. at 26.
139. Id.
140. Id. at 39-40.
457
of risk distribution. 14 1 Calabresi is a functionalist who systematically
identifies the goals and sub-goals of tort law in reducing and administering
accidents. 142 Both positivism and normative approaches are instrumental
theories that conceptualize the injury problem from a societal perspective, as
opposed to the microtheorists who confine their analysis to individual cases.
Moreover, law and economics scholars' focus on goals and sub-goals of the
tort system marginalizes the requirement of individual causation that has
long been part of tort law.143
Despite sharing assumptions about "causal connection" in mass torts,
the sub-schools of law and economics have different takes on the politics of
torts law. Normative law and economics asks whether the tort system is
better able to allocate resources than alternative compensations systems,
regulation, or taxation.'" Judge Calabresi's opinion in Ciraolo v. City of
New York 4 5 demonstrates that he is a functionalist who sees tort remedies
fulfilling multiple societal functions. In addition, Calabresi describes how
the remedy of punitive damages advances the goal of "socially
compensatory damages" by forcing defendants to bear the true costs of their
conduct on society in addition to the harm done to the individual.146
Punitive damages enforce social norms through the general deterrence that
results from the litigation launched by private attorneys general. 14' Finally,
this remedy fulfills a multiplier function to achieve its manifest functions of
punishment and deterrence:
Since thieves will not always be caught, they must be penalized by
more than the cost of the items stolen on the occasions on which
they are caught. This 'multiplier' is essential to render theft
unprofitable and properly deter it. .
..
[S]cholars have recognized
that punitive damages can serve the same function in tort law.14 8
Strict products liability is a subfield of tort law that developed in the
1970s under the influence of such law and economics founders as Calabresi
and Posner. 149 Products liability resonates with law and economics scholars
141. Guido Calabresi, Some Thoughts on Risk Distributionand the Law of Torts, 70 YALE L.J.
499 (1961).
142. See CALABRESI, THE COST OF ACCIDENTS: A LEGAL AND ECONOMIC ANALYSIS, supra note
135, at 24.
143. See DONALD G. GIFFORD, SUING THE TOBACCO AND LEAD PIGMENT INDUSTRIES:
GOVERNMENT LITIGATION AS PUBLIC HEALTH PRESCRIPTION 57 (2010).
144. See STEPHEN, supra note 133, at 133.
145. 216 F.3d 236 (2d Cir. 2000).
146. Id. at 245.
147. Calabresi,Complexity of Torts, supra note, at 127.
148. Ciraolo,216 F.3d at 244.
149. California Supreme Court Justice Roger Traynor's concurring opinion in Escola v. Coca
Cola Bottling Co., 150 P.2d 436 (Traynor, J., concurring) (Cal. 1944), was the first articulation of
458
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because of its emphasis on risk spreading and collective goals such as the
minimization of the costs of defective products. Calabresi's concept of the
"least cost avoider" was key to the risk-utility theory in defective design
cases in products liability.5 0 Products liability ensures "that the costs of
injuries resulting from defective products are borne by the manufacturers
that put such products on the market rather than by the injured persons who
are powerless to protect themselves." 15 1
C. Sociologically OrientedMacrotort Theories
1. Social Justice Theory
John Goldberg's survey of twentieth century tort schools of thought
considers my view of torts to fit squarely within the bounds of what he
defines as social justice theory. 5 2 In my opinion, my empirically-based
scholarship better fits under Roscoe Pound's model of sociological
jurisprudence because of my emphasis on law's instrumental function of
In Pound's view, as well as mine, torts are
social control.' 53
the theory of strict products liability. See Roger J. Traynor, The Ways and Meanings of Defective
Products and Strict Liability, 32 TENN. L. REV. 363 (1965). Justice Traynor wrote:
As handicrafts have been replaced by mass production with its great markets and
transportation facilities, the close relationship between the producer and consumer of a
product has been altered. Manufacturing processes, frequently valuable secrets,
are ordinarily either inaccessible to or beyond the ken of the general public. The
consumer no longer has means or skill enough to investigate for himself the soundness of
a product, even when it is not contained in a sealed package, and his erstwhile vigilance
has been lulled by the steady efforts of manufacturers to build up confidence by
advertising and marketing devices such as trade-marks.
Escola, 150 P.2d at 443 (Traynor, J., concurring). Traynor's rationale for products liability uses
reasoning functionally equivalent to the least cost avoider.
150. See, e.g., Guido Calabresi & Jon T. Hirschoff, Toward a Test for Strict Liability in Torts, 81
YALE L.J. 1055, 1060 (1972) ("The question for the court reduces to a search for the cheapest cost
avoider."); Id. at 1060 n.19 ("The cheapest cost avoider has been . . . defined as the party 'an
arbitrary initial bearer of accident costs would (in the absence of transaction and information costs)
find it most worthwhile to "bribe" in order to obtain that modification of behavior which would
lessen accident costs most."').
151. Jackson v. Johns-Manville Sales Corp., 727 F.2d 506, 525 (5th Cir. 1984) (quoting State
Stove Mfg. Co. v. Hodges, 189 So. 2d 113, 120 (Miss. 1966)) (discussing policy objectives of strict
liability in reallocating the cost of injury to the responsible manufacturer).
152. Goldberg, supranote 80, at 560.
153. Social justice has become a watchword for radical politics recently after TV and radio
commentator Glenn Beck "suggested any church promoting 'social justice' or 'economic justice'
merely was using code words for Nazism and communism." Hanna Siegel, ChristiansRip Glenn
Beck Over 'SocialJustice' Slam, ABC NEWS (March 12, 2010), http://abcnews.go.com/vWN/glenn08
. Beck thundered in a recent
beck-social-justice-christians-rage-back-nazism/story?id=100850
program:
459
instrumentalities to vindicate public wrongs and hold corporate wrongdoers
accountable.15 4 But, as I shall demonstrate in Part V of this Article, tort law
also protects corporations' intangible assets, as well as consumers' health
and safety, especially in an information-based economy predicated upon
intellectual property assets.
Goldberg and the other civil recourse theorists disagree with using the
tort system as a vehicle for effecting social control or resolving social
problems. Goldberg describes what he views as the perils of enabling judges
to construct solutions to social problems outside of the legislative and
regulatory process, writing:
Social justice theorists conceive of tort as a device for rectifying
imbalances in political power. Specifically, they posit that tort
Moneyed
corrects for pathologies of interest-group politics.
and
legislation
or
distort
block
interests, particularly corporations,
them.
control
and
monitor
to
capture regulatory agencies designed
As a result, these interests are able to pursue the self-interest of their
executives and shareholders at the expense of general the public by
producing dangerous products and hiding critical information about
their dangerousness....
By arming citizens with the power to sue corporations for
misconduct outside of the legislative and regulatory process, tort
corrects for this imbalance of power. In particular, it permits
independent judges and especially juries to hold corporate America
and other powerful actors accountable. Thus, negligence actions by
gunshot victims, and public nuisance actions by cities that bear the
cost of treating those victims, make up for the absence of effective
Likewise, product liability suits restrain
gun control.
pharmaceutical companies from profiteering on dangerous and
ineffective drugs. The social justice conception of tort is most
closely associated in practice with Ralph Nader. Scholars who have
"I beg you look for the words social justice or economic justice on your church Web
site," he said. "If you find it, run as fast as you can. Social justice and economic justice,
they are code words. . . . Am I advising people to leave their church? Yes! If they're
going to Jeremiah Wright's church, yes!"
Id. Social justice is an indeterminate term that has different meanings during different historical
periods. The image of social justice has been distorted to imply that social justice theorists are
demagogues interested in redistributing wealth through tort law versus having respect for the
legislature and regulatory agencies. However, social justice also encompasses restorative,
communal, democratic participation, racial and gender equity, and human rights. Today, it is
associated with progressive legal scholars. But in 1934, a right-wing Catholic priest, Charles
Coughlin, founded the National Union for Social Justice, which was active until 1942. The Press:
Crackdown on Coughlin, TIME MAGAZINE (Apr. 27, 1942) available at http://www.time
9
.com/time/magazine/article/0,9171,7 5777,00.html. Father Coughlin used the term "Social Justice"
in the 1930s and 1940s. Id.
publications
Deal
anti-New
as the title of his
154. See infra notes 554-77 (describing Pound's vision of tort law as social control).
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developed this conception further include Richard Abel, Anita
Bernstein, Carl Bogus, Thomas Koenig, and Michael Rustad.'55
Tort law enables plaintiffs to obtain civil recourse, but it also involves
larger public policies, which Leon Green described as the interests of "we
the people."'16 Stephen Sugarman notes that civil recourse tort scholarship
is conservative in its emphasis "on individual responsibility for wrongdoing." 7 What is distinctive about social justice in tort law is that it aims
"to employ tort law progressively, with an ambition to be sensitive to the
demands of equality and the interests of disadvantaged groups in society."
What is essential, then, to understand with respect to social justice is its
tendency to equate tort law with serving a public purpose beyond those of
the immediate parties to the lawsuit.
To achieve these aims, the "social justice" school calls for private
attorneys general to file lawsuits that uncover smoking gun evidence of
corporate misconduct.' 9 Social justice theorists believe that only punitive
damages can establish that "'tort does not pay' by hitting the rich and
powerful in the bank account."160 Judge Jack Weinstein's account of tort
law is close to the "social justice" narrative:
It is an individual compensation scheme for the injured that also
serves society as a method for deterring unsocial conduct. Being
largely judge-made in origin, it can be molded by the courts as well
as legislators to meet new situations.
And Koenig and Rustad express the concept this way:
The power of the law of torts lies in its ability to adapt to
changing social conditions. In the eighteenth century, torts
In
compensated individuals injured by their neighbors.
contrast, in the 1970s and 1980s, mass tort law litigation
evolved to compensate the victims of occupational exposure to
155. Goldberg, supranote 80, at 560.
156. Green, supranote 109, at 2.
157. Stephen D. Sugarman, Personal Injury and Social Policy-Institutional and Ideological
Alternatives, in TORTS TOMORROW: A TRIBUTE TO JOHN FLEMING 290, 294 (Nicholas J. Mullany &
Allen M. Linden eds., 1998).
158. MARTHA CHAMALLAS & JENNIFER B. WRIGGINS, THE MEASURE OF INJURY: RACE, GENDER,
AND TORT LAW 191 n.2 (2010) (quoting TSACHI KEREN-PAz, TORTS, EGALITARIANISM AND
DISTRIBUTIvE JUSTICE 2 (2007)).
159. See Goldberg, supra note 80, at 561.
160. Id.
461
toxic substances....
The inherent flexibility of tort law allows it to mediate social
inequities as they arise. Just as tort law protected less
powerful individuals against King George III's agents or from
the excesses of abusive employees of the railroads, torts
continue to evolve to meet the challenges of the new
millennium.' 161
In his Torts: Unloved piece, Goldberg places my scholarship within
the Prosser-Green tradition of applying a public policy analysis:
For a contemporary example, consider the argument of Professors
Koenig and Rustad in a recent book, somewhat ironically entitled
In Defense of Tort Law.
Tort law, they note, is nominally a
system for providing redress to those injured by the wrongs of
others. But that is not the basis on which it is to be defended.
Rather, it is to be defended for its "latent" public policy function,
namely, "furthering the cause of social justice" by uncovering and
punishing corporate misconduct. In short, tort law is embraced
not for what it is, but for what it empowers judges and juries and
right-thinking legal policy analysts to do. 162
Goldberg ultimately declares that social justice scholars are mistaken
about what tort law is supposed to do. 163 Evidently, imbuing tort law with
a public purpose not only plays into the hands of tort reformers but also
places judges in the role of legislators, according to Goldberg.'64
2.
Other Sociological Theories
American tort law "has been affected by the social identity of the
parties and cultural views on gender and race."165 Progressive scholars
influenced by social science and those critical, for example, of race and
gender issues believe that tort law can and should further objectives such
as social justice, gender equality, and racial equality, among other
important goals. 166 Each of these sociologically-based theories also
161. Weinstein, supra note I at 167-68 (quoting THOMAS H. KOENIG & MICHAEL L. RUSTAD, IN
DEFENSE OF TORT LAW 67 (2001)).
162. See Goldberg, supra note 80, at 1511 (footnotes omitted) (quoting KOENIG & RUSTAD, supra
note 161, at 2).
163. See Goldberg, supra note 80, at 562.
164. See id. at 560; see also supra note 155 and accompanying text (quoting Goldberg on the
subject).
165. CHAMALLAS & WRIGGINS, supranote 158, at 1.
166. See infra note 353 and accompanying text for a summary of scholarly work regarding race,
class, gender, and other power differentials in the tort law context.
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examines tort law in a social context interrelating the law, power, and
society. 6 1
D. Tort's DeontologicalMicroscope
The micro and macro approaches to tort law are comparable
respectively to the dichotomy between rights-oriented theorists and the
utilitarians in American philosophy. Michael Sandel asks whether justice
should be founded on utility-as prefigured in the work of Jeremy Bentham
or John Stuart Mill-or a respect for individual rights-in the tradition of
Immanuel Kant, later represented by the work of John Rawls.' 68 Torts, too,
has its functional counterpart to microtheories in its emphasis on moral
philosophy. The paramount distinction between microtorts and macrotorts is
a dispute about tort law's proper sphere of application. The focal points for
tort macrotheorists include societal purposes such as deterrence, loss
allocation, or social justice.169 In contrast, microtheorists utilize the
microscope to investigate corrective justice (or civil recourse) between the
individual plaintiff and the defendant.o70
1. Corrective Justice: Righting Wrongs
Corrective justice is the oldest and best-known microtort theory; it
brings together the bipolar relations between the injured plaintiff and the
plaintiffs state-sanctioned right to require the defendant to right the
wrong.'"' Under this monistic theory, one party wrongfully injuring another
disturbs the equilibrium.172 The equilibrium that the defendant must restore
is monetary compensation, which is the functional equivalent of rectification
or restorative justice. Important also to the theory of corrective justice is the
concept that:
For the defendant to be held liable, it is not enough that the
defendant's negligent act resulted in harm to the plaintiff. The harm
167. See infra note 352 and accompanying text for a list of work some work based on such
theories.
168. John Rawls, PoliticalLiberalism, in JUSTICE: A READER 343, 359 (Michael J. Sandel ed.,
2007).
169. See supra text accompanying notes 128-29.
170. See infra text accompanying notes 171-72.
171. See Ernest J. Weinrib, Deterrence and CorrectiveJustice, 50 UCLA L. REV. 621, 623-24
(2002).
172. Zipursky, Civil Recourse, supra note 17, at 695. Corrective justice restores equilibrium by
righting wrongs. Id.
463
has to be to an interest that has the status of a right, and the
defendant's action has to be wrongful with respect to that right. 173
Corrective justice is an ideal fit with eighteenth century Gemeinschaft
society, where torts were primarily about discrete wrongs committed by
neighbors or members of the local community. This microtort theory
emphasizes political morality and focuses on the individual plaintiff and the
defendant's obligation to right a wrong; it is unconcerned with systemic
goals such as allocative efficiency or general deterrence.174 Corrective
justice is perhaps the best example of microtort theory because it reflects "a
deontological, rather than a utilitarian, set of values."l 75 However, the moral
philosopher's microscope focuses on righting wrongs in individual cases,
giving short shrift to tort law's larger social functions.' 76
2.
Civil Recourse's Rhetoric of Rights & Wrongs
Civil recourse theory, the most prominent brand of microtheory, shares
common ground with corrective justice in its position "that an act is right or
wrong 'in itself."" 7 In short, corrective justice theorists favor downsizing
tort law from a tool for redressing public wrongs to one which can only
redress private wrongs."
To understand the development of civil recourse theory, three important
factors must be remembered. First, civil recourse theory has close ties to
corrective justice in its emphasis on the bilateral relationship between
plaintiff and defendant.' 79 Benjamin Zipursky, who coined the term "civil
recourse," explains that the state's role in offering a means of redress
separates civil recourse from corrective justice:
I offer an account that is entirely nonteleological and which does
not depend upon notions of distributive or corrective justice. The
principles embedded in tort law nevertheless constitute a
fundamental aspect of liberal individualism. The principle of civil
173. Ernest J. Weinrib, CorrectiveJustice in a Nutshell, 52 U. TORONTO L.J. 349, 352 (2002).
174. See, e.g., Jules L. Coleman, The Mixed Conception of Corrective Justice, 77 IOWA L. REV.
427, 428 (1992) (describing corrective justice as a "moral ideal").
175. Zipursky, Civil Recourse, supranote 17, at 699-700.
176. See supra notes 17-19 and accompanying text.
177. Christopher J. Robinette, Torts Rationales, Pluralism,and Isaiah Berlin, 14 GEO. MASON L.
REV. 329, 347 (2007); see supra text accompanying note 13 (discussing civil recourse theorists'
assertion that tort law is based on the concept that acts have a moral character of their own).
178. Goldberg, supra note 22, at 1518 (stating that "tort law is not well-suited to solve the largescale social and political problems it is being asked to solve. . . ").
179. See Zipursky, Civil Recourse, supra note 17, at 695 (explaining that corrective justice has no
theory for the role of the state); see also Benjamin C. Zipursky, Rights, Wrongs, and Recourse in the
Law of Torts, 51 VAND. L. REV. 1, 6 (1998) [hereinafter Zipursky, Rights, Wrongs, and Recourse]
(introducing these concepts in his theory of civil recourse).
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recourse is simply that an individual who has been legally wronged
is entitled to some avenue of recourse against the one who wronged
her. Like other fundamental features of liberal individualism, the
principle of civil recourse constrains and conditions the state's
subjection of individuals to a system of rules, and its occupation of
a monopoly of force. The state is obligated to permit and empower
those who have been legally wronged to act, civilly, against those
who have wronged them. 80
To Zipursky, the defendant's duty to right a wrong depends upon
"whether the plaintiff is genuinely entitled to an avenue of recourse-to an
action-against the defendant."' 8 ' The second factor is that the state
sanctions civil recourse, and it is a constitutional right of the plaintiff to seek
redress.182 Thirdly, Zipursky draws upon Benjamin Cardozo's concept of
duty as a limiter in developing his theory that "substantive standing" is a
predicate for all tort actions, writing:
The facts of Palsgrafmay be peculiar, but its core principle is
pervasive: For all torts, courts reject a plaintiffs claim when the
defendant's conduct, even if a wrong to a third party, was not a
wrong to the plaintiff herself. For example, an injured plaintiff can
win in fraud only if she was defrauded, in defamation only if she
was defamed, in trespass only if her land rights were violated, and
so on. Courts reach these results even where the defendant acted
tortiously, the plaintiff suffered a real injury, and the plaintiffs
injury was reasonably foreseeable. The legal rule upon which these
cases rely is that which our scholarly tradition treats so
ambivalently in Palsgraf A plaintiff cannot win unless the
defendant's conduct was a wrong relative to her, i.e., unless her
right was violated. I shall call this principle the "substantive
standing" rule and shall show that it is a fundamental feature of tort
law. 183
Civil recourse theorists view the "substantive standing" doctrine as a
concept that separates them in the legal academy from the corrective justice
and the law and economics advocates.'" Civil recourse focuses on "the
180.
181.
182.
183.
184.
Zipursky, Civil Recourse, supra note 17, at 754.
Id. at 739.
See Goldberg,supra note 80, at 524, 529.
Zipursky, Rights, Wrongs, and Recourse, supra note 179, at 3-4.
Id at 4.
465
right of action" that is "publicly respected."18 1 Under this view, the role of
the state is to help private individuals redress private wrongs. 8 6 Civil
recourse theory stands on the shoulders of corrective justice but departs from
it in its emphasis on the role of the state in providing a dispute resolution
mechanism for aggrieved plaintiffs.'"
The difference between civil
recourse theory and corrective justice is the role of the state in recognizing
an individual's right of action.'" Goldberg and Zipursky describe civil
recourse as superior to instrumentalist compensation or deterrence theories:
We have elsewhere described this idea as a "principle of civil
recourse": the principle that an individual who has been wronged is
entitled to an avenue of recourse against the wrongdoer. Our point
here is not that such a principle is demanded by principles of justice,
or even morally sound, but that it is the animating idea behind our
system of tort law. Similarly, with regard to the first idea, our point
is not that individuals do have a variety of moral obligations to treat
others in various ways, but that the law entrenches the notion of
obligations to treat others in various ways.
Our account of internal deterrence fits nicely within this
framework (although it does not require adoption of this
framework).
The first point of recognizing relational legal
obligations is that the obligees more often than not live up to these
obligations, and therefore the individual and social benefits of
having the pertinent course of conduct followed are in part owed to
the existence of the legal obligations.'89
It is also crucial to take into account that civil recourse theory is a
single-minded microtheory which has a central focus is on moral philosophy
and reacts against sociological jurisprudence.' 90 Goldberg contends that tort
185. Benjamin C. Zipursky, Legal Malpractice and the Structure of Negligence Law, 67
FORDHAM L. REv. 649, 662 (1998).
186. See Goldberg, ConstitutionalStatus of Tort, supra note 17, at 529.
187. Solomon, supra note 13, at 1776 ("First, they argue that the theory of corrective justice
inaccurately indicates that there is a 'duty of repair.' Rather, they say, there is no affirmative duty to
pay anything in the absence of a lawsuit. If the lawsuit is successful, there is a liability, not an
affirmative duty. Second, corrective justice theory does not account for countless tort cases where
wrongs by defendants do not lead to liability. These cases, Zipursky argues, are explained by a
series of 'substantive standing requirements' that specify when certain classes of victims can
successfully sue particular defendants. Finally, recourse theory criticizes corrective justice for
treating compensatory 'make-whole damages' as the only and essential remedy in torts, thus
conflating the issues of tort liability and remedy." (footnotes omitted)).
188. Zipursky, Civil Recourse, supra note 17, at 755.
189. John C.P. Goldberg & Benjamin C. Zipursky, Accidents of the Great Society, 64 MD. L. REv.
364, 402-03 (2005) (arguing for the authbrs' theory of civil recourse).
190. It is not surprising that Zipursky often uses Justice Cardozo's famous cases such as Palsgraf
and MacPhersonas examples of civil recourse. John Goldberg, too, admires Cardozo's conceptual
pragmatism. Twenty years ago, before he developed the civil recourse theory with Zipursky,
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law has been transformed 'from private to "public law," whereby it function[s]
to achieve collective, not corrective, justice.""9' Charnallas and Wriggins
describe Goldberg's stance as critical of the Restatement-type scholars who have
helped transform torts "from private to 'public law,"' noting that Goldberg
disapproves of the Restatement vision of tort law, which places paramount
importance on advancing two objectives: the 'deterrence of antisocial conduct
and compensation for those who have been injured."'l 92 Civil recourse theory
asserts that tort law has been diverted from private wrongs "to be just another
way ... government regulates conduct for the public good."' 93 Professor
Goldberg criticizes social engineering through tort law and contends that it "is
not defensible as public regulatory law."l 94 He states that tort law is a poor
mechanism for advancing social justice as "a form of disaster relief for injury
victims because of its high transaction costs."' 9 5 Goldberg argues, along with
many other younger scholars, that "tort law is not well-suited to solve the largescale social and political problems it is being asked to solve (if only by
Goldberg cautions judges against social engineering but
default)."' 96
acknowledges that torts must evolve:
Goldberg wrote of Cardozo's sensitivity to evolving social norms in his judicial method: "The unity
of Cardozo's philosophy of common law lies in his understanding of social life. His view of the
common law's purpose, its illnesses, and their cures, flows from the belief that society is an
evolving, pluralistic community." John C.P. Goldberg, Community and the Common Law Judge:
Reconstructing Cardozo 's Theoretical Writings, 65 N.Y.U. L. Rev. 1324, 1372 (1990) (explaining
Cardozo's sociological approach to judicial method). Nevertheless, civil recourse theorists have
jettisoned Cardozo's sociological approach in favor of the abstracted methods of analytical and
moral philosophy.
Two decades ago, Goldberg expressed his admiration for Cardozo but commented on the
inadequacy of his sociological method. Goldberg chastises sociological jurisprudence in the
following passage:
The radicalism of the method of sociology is that it dispenses with the indirection that is
at the heart of a precedent-based system of law. It asks judges momentarily to forget the
shackles of accumulated precedent and address directly the usefulness of the rule. It thus
adopts a perspective from "outside" the common law by asking a particular doctrine to
justify itself, given that "[t]he final cause of law is the welfare of society."
Id. at 1359.
191. CHAMALLAS & WRIGGINS, supra note 158, at 17 (quoting Goldberg).
192. Id. (again, quoting Goldberg).
193. Goldberg, ConstitutionalStatus of Tort, supra note 17, at 583. Goldberg goes on assert:
"Whether couched in terms of James-Traynor loss-spreading, Prosserian utilitarian balancing, or
Calabresi-Posner efficient deterrence, tort law has, since the late 1930s, been widely understood by
academics to be just another way in which government regulates conduct for the public good." Id.
(describing how diverse tort scholars have diverted the path of tort law to serve as an instrumental
tool of regulation).
194. Goldberg, Tort Lawfor Federalists,supra note 10, at 4.
195. Id.
196. Goldberg, supra note 22, at 1518.
467
By this I do not mean to say that tort ought not to address
contemporary problems-it does and it should. Rather, I am
suggesting that we must recapture the idea that tort cases are
concerned with the focused task of identifying and remedying
instances in which an actor has wronged another, as opposed to
providing localized compensation or insurance schemes, regulating
antisocial conduct for the good of society, or the like.'97
Civil recourse is a reaction against courts serving a quasi-regulatory
role. In their recent Texas Law Review article, Goldberg and Zipursky
clarify their position on public wrongs, acknowledging that torts do play
delimited public roles under their theory.198 They acknowledge that torts
serve a purpose in setting norms in the larger society.' 99 They also state that
tort law "can advance or interfere with the operation of other public
institutions." 2 00 However, the thrust of civil recourse theory is a call for
torts to be reborn as private law and for torts to retreat from its public law
role. Goldberg insists that we "need to ask less, yet expect more, of tort." 20 1
He chides judges that enable juries to do
equity or "deny liability as a matter
202
of law in the name of 'public policy."'
Goldberg advocates stripping tort law of its tendencies to devise "ad hoc
solutions to perceived social ills." 203 Such microtort theories, spearheaded
by the younger generation of torts scholars, are counter-hegemonic because
they embrace an inwardly turned moral philosophy that rejects the logic of
Restatement scholars who follow the tradition of Prosser, Green, and other
compensation-deterrence scholars. 2 04 At a time when torts scholarship has
increased significantly, there has been a curious contraction of tort law's
sphere of application and an impoverishment of its content. Civil recourse is
a microtort theory that stands in sharp contrast to macrotort theories such as
those inspired by law and economics or sociologically.205 Zipursky argues
that civil recourse is better able to interpret the rights and wrongs structure
of tort law than corrective justice, although he acknowledges there is much
197. Id. at 1519.
198. John C.P. Goldberg & Benjamin C. Zipursky, Torts as Wrongs, 88 TEX. L. REv. 917, 918
(2010).
199. Id.
200. Id.
201. Goldberg, supranote 22, at 1519.
202. Id. at 1518.
203. Id. at 1519.
204. See CHAMALLAS & WRIGGINS, supranote 158, at 17 (describing Goldberg's account of how
the Restatement-scholarsview the project as neutral but in fact are serving compensation-deterrence
and other quasi-regulatory functions).
205. Goldberg and Zipursky contend that it is a mistake to conceive of torts "for the allocation of
accidentally caused losses." Goldberg & Zipursky, supra note 198, at 919.
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common ground between these theories.206 Franz Werro contends that the
law of torts should not serve a social insurance function, arguing that the
social insurance "objective would be better served if the tort system was
coupled and complemented by a basic social insurance coverage for all
accidents."207 Goldberg gives us no reform proposal but only states in
passing that such a mechanism should replace tort law's public law role.208
IV. TEN THINGS I HATE ABOUT CIVIL RECOURSE THEORY 209
A.
Civil Recourse Is an Overly Individualistic Theory ofJustice
Turning now to evaluation, I shall start by making an obvious point:
civil recourse theory does not accurately describe tort law's complex mosaic.
The drumbeat of civil recourse theory is the right of a particular plaintiff to
seek civil recourse from a defendant that caused his harm. Pound noted how
Puritans in America viewed man:
[As a] free moral agent, with power to choose what he would do
and a responsibility coincident with that power. He put individual
conscience and individual judgment in the first place. ... Hence
law was a device to secure liberty,... and its sole basis was the free
agreement of the individual to be bound by it.... The history of
juristic thought tells us nothing unless we know the social forces
that lay behind it....
...
Let us look the facts of human conduct in the face. Let us
look to economics and sociology and philosophy, and cease to
assume that jurisprudence is self-sufficient.210
206. See Zipursky, Civil Recourse, supra note 17, at 697-98.
207. Franz Werro, Tort Law at the Beginning of the New Millennium: A Tribute to John G.
Fleming'sLegacy, 49 AM. J. COMP. L. 147, 149 (2001).
208. More recently, however, Goldberg has favored more extensive first-party insurance as
opposed to social compensation. See John C.P. Goldberg, Ten Half-Truths About Tort Law, 42 VAL.
U. L. REv. 1221, 1240 (2008).
209. I must explain that I do not literally "hate" civil recourse theorists, but certain things that I
have enumerated irritate me greatly. Obviously, the subtitle is inspired by the movie Ten Things I
Hate about You. Not to belabor this explanation, but I have enjoyed working with John Goldberg on
the Torts and Compensation Systems Committee of the Association of the American Law Schools
(AALS) for a number of years. I have participated in a number of symposiums with both Professors
Goldberg and Zipursky and enjoy their company very much.
210. Roscoe Pound, Law in Books and Law in Action, 44 AM. L. REv. 12, 32-33, 35-36 (1910).
469
This juristic theory strips tort law of its multiple layers of social
meaning and attempts to reduce it to a single eidetic essence of civil
recourse. Goldberg's approach to tort law reminds us that we are not all
realists. 2 11 His theory is a return to formalism instead of a functional
approach to what purposes torts fulfill.
My former teacher, the late Abram Chayes, observed, "[T]he
dominating characteristic of modem federal litigation is that lawsuits do not
arise out of disputes between private parties about private rights. Instead,
the object of litigation is the vindication of constitutional or statutory
policies." 2 12 He noted that nineteenth-century adjudication "assumed that
the major social and economic arrangements would result from the activities
of autonomous individuals." 213 Chayes described the folly of microtheory in
constitutional law with its sanctification of a focus on plaintiff and
defendant, limiting courts to the task of clarifying "the law to guide future
,,214
He was writing his essay at a time when the popular
private actions.
wisdom was that litigation was a "private contest between private parties
with only minimal judicial intrusion."2 1 1
And so it is with tort law. Judge Jack Weinstein describes mass torts
cases as being "akin to public litigations" comparable to the kind of
institutional change supervised by courts in protecting constitutional
rights.2 16 Mass torts are similar to public law litigation in that they both
"implicate serious political and sociological issues . . . and both affect larger
communities than those encompassed by the litigants before the court." 2 17
The partnership between state attorneys general and trial lawyers in suing
the tobacco companies and lead pigment industries are emblematic of tort
law's evolving function as a public health prescription.
Civil recourse theory is an abstract theory that says torts are largely
about individual plaintiffs and defendants. The unique feature of civil
recourse is that the state provides a grievance mechanism "to those who
have been the victims of a legal wrong." 21 8 This principle is unobjectionable
for all torts scholars. How trivial and obvious! 21 9 First-year torts teachers
211. The civil recourse theorists need to follow Pound's dictum that we resolve the conflict
between the law in books and the law in action. He writes: "Let us not become legal monks. Let us
not allow our legal texts to acquire sanctity and go the way of all sacred writings. For the written
word remains, but man changes." Id. at 36.
212. Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281,
1284 (1976).
213. Id. at 1285.
214. Id,
215. Id. at 1288.
216. JACK B. WEINSTEIN, INDIVIDUAL JUSTICE IN MASS TORT LITIGATION: THE EFFECT OF CLASS
ACTIONS, CONSOLIDATIONS, AND OTHER MULTIPARTY DEVICES 41 (1995).
217. Id.
218. Jason M. Solomon, supra note 13, 1775.
219. For instance, Goldberg and Zipursky write:
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would surely feel that they knew that already, and there was no need to take
up a lot of law review space elaborating on something we all know. 220 A
growing body of empirical research on our civil litigation system
demonstrates that torts are situated in a complex legal landscape. More than
half of all torts lawsuits filed in the seventy-five largest U.S. counties were
individuals suing individuals.22' Most of these lawsuits arose out of motor
vehicle accidents, the leading category of personal injury cases. 2 22 "[T]he
'legal delinquency' in a negligence case is [mere] carelessness or the failure
to exercise reasonable care" and it often affects strangers.223
It does not take more than a momentary reflection to recognize that civil
recourse is not an accurate interpretation of modem tort law. Apart from its
monistic nature, which is itself a major problem, civil recourse does not
Individuals who are able to prove that someone has treated them in a manner that the
legal system counts as a relational, injurious wrong shall have the authority to hold the
wrongdoer accountable to him. This commitment is not founded, in the first instance, on
instrumental concerns but on political and moral ones. Part of the state's treating
individuals with respect and respecting their equality with others consists of its being
committed to empowering them to act against others who have wronged them.
Goldberg & Zipursky, supra note 198, at 974. Jane Stapleton notes that "[I]t is trite law that a
plaintiff cannot simply piggyback on another's claim.... If when Goldberg and Zipursky assert that
their 'conception of duty is relational' they are simply stating this trite point, that would be fine."
Jane Stapleton, Evaluating Goldberg & Zipursky's Civil Recourse Theory, 75 FORDHAM L. REV.
1529, 1545 (2006) (quoting John C.P. Goldberg & Benjamin C. Zipursky, The Moral of
MacPherson, 146 U. PA. L. REv. 1733, 1828 (1998) [hereinafter Goldberg & Zipursky, Moral of
MacPherson]).
220. Goldberg and Zipursky's rebuttal to this point is that civil recourse is a significant advance in
torts jurisprudence:
Is this just a fancy way of referring to compensation, to a day-in-court ideal, or to
vengeance? We think not. A notion of recourse or redress is complementary to the
notion of responsibility in several important respects. First, if obligations and
responsibilities provide a sort of social "glue," bonding citizens to one another and
permitting mutual reliance, the idea of civil redress does the opposite. It permits
individuals to be independent in two critical ways. It permits private individuals to be
independent of other private individuals' assertions of power and will over them, because
it empowers them to respond when they have been wronged, injured, or unjustifiably
disappointed. It also permits individuals to be, to some extent, independent of the
government. Although the existence of a private right of action relies upon the state's
willingness to play its role, the state is not in the driver's seat. The individual need not
wait around until the state decides to intervene. A right of action means a right to use the
courts to proceed against a private party for a remedy. It is, in significant part, a power to
redress a wrong done to one.
Goldberg & Zipursky, supra note 189, at 406.
221. Thomas H. Cohen, Civil Justice Survey of State Courts: Tort Trials and Verdicts in Large
Counties, 2001, BUREAU OF JUST. STAT. BULL. (Department of Justice, Washington D.C.) Nov.
2004, at 1.
222. Id. at 3.
223. Rustad & Koenig, supra note 100, at 27 (quoting Louisville & Nashville R.R. Co. v. Eader,
93 S.W. 7, 7 (Ky. 1906).
471
address the importance of tort law in punishing and deterring economic
espionage and other public wrongs threatening our information-based
economy. Business torts, such as misappropriation, protect the public
interest as well as the owners of intangible business assets.224 In short, civil
recourse theory does not address the mosaic of American tort law. In the
twenty-first century, torts are four-cornered, serving multiple social
functions between (1) businesses (B2B), (2) businesses and consumers
(C2B), (3) governments and businesses (G2B),225 and (4) consumers versus
other consumers (C2C). Civil recourse theorists do not provide concrete
cases involving organizations seeking redress for injuries. The hidden face
of tort law is the expansion of B2B lawsuits that serve the business world.226
In my survey of punitive damages studies, I found that the number and size
of awards in B2B litigation had skyrocketed in the 1980s and 1990s. 227 The
tort reform proposals have ignored this face of tort expansion, targeting
lawsuits against hospitals and doctors,228 products liability actions,229
employment discrimination, 230 and other collective injury cases.
Reformers target punitive damages awards in products liability and
medical malpractice cases; punitive damages in either are rare. In contrast,
punitive damages are awarded in a third of all business or contract cases. 23 1
Cook County courts in Illinois and San Francisco County courts in
California awarded more than nineteen times more punitive awards in
business contracts or torts cases than in product liability actions.232 The
challenge for torts theorists is to develop an interpretative account that
explains differences between sectors such as B2B and B2C and why tort
reform targets consumers rather than businesses. What is missing in the
civil recourse theory is any recognition that businesses, as well as
224. See Andrew Beckerman-Rodau, Trade Secrets-The New Risks to Trade Secrets Posed by
Computerization, 28 RUTGERS COMPUTER & TECH. L.J. 227, 228 (2002) (explaining how most
business assets in the past were durable goods but today they are intellectual property assets
protected as trade secrets).
225. Federal courts have exclusive subject matter jurisdiction over tort claims against the federal
government. 28 U.S.C. § 1346(b)(1) (2006). After the Second World War, Congress enacted the
Federal Tort Claims Act (FTCA). Smith v. United States, 507 U.S. 197, 207 (1992) (Stevens, J.,
dissenting). The FTCA waives the sovereign's immunity from negligence actions, but not from
liability founded in strict liability or a number of intentional torts. 28 U.S.C. § 1346(b)(1). In
addition, plaintiffs must first exhaust remedies before appropriate federal agencies, prior to filing
claims against the government. 28 U.S.C. §2675 (2006).
226. See Rustad, UnravelingPunitive Damages,supra note 67, at 37.
227. Id.
228. See Nockleby & Curreri, supra note 116, at 1059-63.
229. See Id. at 1055-58.
230. See Id. at 1063-66 (noting how the tort system was a primary tool for "[flighting and
remedying discrimination based on race, sex, age, religion, national origin, and eventually disability
231.
Rustad,
232.
Id.
472
supra
at 38 (citation
note
67,
at 37-38
omitted).
(citation
omitted).
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individuals, use torts to vindicate their interests. A more comprehensive
interpretative theory of tort law must address how torts are needed to protect
the business community, intellectual property, and software licensing
transactions. In the new millennium, torts will play an increased role in
protecting the crown jewels of the information society, as discussed in Part
V of this Article.
B.
Civil Recourse Theory Is Tort Reform in Disguise
Existing rules andprinciples can give us our present location, our
bearings, our latitude and longitude. The inn that shelters for the
night is not the journey's end The law, like the traveler, must be
readyfor the morrow. It must have a principleof growth.
Benjamin CardoZO233
Civil recourse theorists say that they do not oppose tort law evolving to
meet new challenges, but their overly doctrinal approach serves the interest
of tort reformers.234 They favor judicial restraint, contending that they are
following the tradition of "Cardozoan pragmatic conceptualism." 235 They
maintain that pragmatic conceptualism is a way to update Blackstonian
private wrongs to a modem context while fencing out instrumentalism from
tort law.236 What is crucial about civil recourse is to adopt a conceptual
approach to tort law versus the instrumentalist view that has dominated tort
law since Holmes's time.237 On the surface, Goldberg and Zipursky weigh
233. BENJAMIN N. CARDOZO, THE GROWTH OF THE LAW 19-20 (1973).
234. F. Patrick Hubbard lists a few examples of creative continuity in tort law, where the courts
took the lead in changing tort law in a progressive direction:
(1) adoption of negligence as the basic standard for imposing tort liability on persons
whose actions injure others;
(2) expansion of the role of negligence by abolishing privity limitations on products
liability claims;
(3) abolition of sovereign, charitable, and parental immunities;
(4) extension of right to recover for mental distress to persons in the "zone of danger," to
certain bystanders, and to victims of "outrage;"
(5) abolition of category system of entrants for determining liability for injuries on
premises; and
(6) replacement of the doctrine of "contributory negligence," which totally barred an atfault plaintiff from recovery, with comparative fault, which allows an at-fault plaintiff to
recover some of his loss from the at-fault defendant.
Hubbard, supra note 20, at 465 (citations omitted).
235. Goldberg & Zipursky, supranote 19, at 1627-28.
236. See id at 1627 n. 4.
237. See id. at 1627.
473
in against "the removal or limitation of tort claims" because it abridges the
citizens' right of recourse.238 To their credit, recourse theorists do not
support caps on damages but acknowledge the right of both legislatures and
judges to block what they regard as questionable claims, such those for
unrealized injuries or nominal damages.239 Nevertheless, their idea of an
adequate award is more restrictive than is widely accepted in tort
litigation. 24 o Rather, they adopt Blackstone's model of private wrongs that
calls for "an award that reflects the wrong done to the victim by the injurer,"
rather than the "full-compensation, make-whole model of today." 24 1 It is
unclear how judges will evaluate the wrong and whether that includes
hedonic damages to compensate the plaintiff for the lost ability "to engage in
and experience the ordinary value of life that he was experiencing prior to
the injury." 242
It is also unclear whether civil recourse theory's
commoditization of the "wrong done" includes indeterminate dignitary and
noneconomic damages, which are often the target of tort reformers.243
Civil recourse is also tort reform in disguise because it discourages
judges from employing policy arguments in recognizing new causes of
action or classes of plaintiffs or engaging in ex post facto social
engineering. 2" Goldberg and Zipursky concede that tort law sends signals
238. See Goldberg & Zipursky, supra note 198, at 981.
239. See id. ("If tort law is for the recourse of wrongs, then it will be important to know whether
its definitions of legal wrongs are plausible, and if it is providing meaningful recourse to victims of
such wrongs. Where necessary to ward off suits that allege nominal wrongs and injuries that seem
unlikely actually to be wrongs and injuries, there is room for judges and legislatures to block or raise
barriers to suit."). During the twenty-year period between 1980 and 2000, thirty-two states have
passed limits on the recovery of punitive damages, thirty-five states have imposed joint and several
liability limitations, and thirteen have limited potential recoveries for pain and suffering. THOMAS
H. KOENIG & MICHAEL L. RUSTAD, IN DEFENSE OF TORT LAw 64 (2001). By 2006, twenty-five
states had already capped civil recourse by placing caps on noneconomic damages in medical
malpractice actions. Michael L. Rustad, Neglecting the Neglected: The Impact of Noneconomic
Damage Caps on MeritoriousNursing Home Lawsuits, 14 ELDER L.J. 331, 334 (2006).
240. See John C.P. Goldberg, Two Conceptions of Tort Damages: Fairv. Full Compensation, 55
DEPAUL L. REv. 435, 436 (2006).
241. Id. at 443 (noting that the relational idea of civil recourse is in contrast to the "make-whole"
notion).
242. Mercado v. Ahmed, 974 F.2d 863, 869 (7th Cir. 1992).
243. Civil recourse theorists provide little guidance on how juries will determine the wrong. The
present practice is for juries to award special damages such as medical expenses, lost earnings, and
more subjective noneconomic damages for pain and suffer. See generally Ellen S. Pryor,
RehabilitatingTort Compensation, 91 GEO L.J. 659, 660 (2003).
244. Civil recourse theory contends that judges should abandon policy considerations in favor of
the formalistic concept of duty. Goldberg and Zipursky write:
Finally, as a prescriptive theory of negligence, the instrumentalist model leaves a great
deal to be desired. In the first place, because ordinary morality employs notions of duty,
the model has generated legal conclusions that seem ridiculous, or at least overly
demanding and inappropriate. Moreover, by abandoning the psychologically rich notion
of duty in favor of a policy- and sanction-driven account, the Holmes-Prosser conception
of negligence has undercut the motivation for complying with the law that is built into the
concept of duty itself. Both the judges who make the law, and the corporate and
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as to social norms, and common law judges appropriately consider public
policy issues in deciding cases.245 Moreover, they note that tort law can
"advance or interfere with the operation of other public institutions."246 But
they take a strong stand against torts having a public purpose in filling
regulatory fissures and fulfilling other public purposes.24 7 Civil recourse is
tort reform by stealth in its overly restrictive view of the role of societal
change in bringing about changes in tort law.248 Jane Stapleton notes that
civil recourse theory would limit tort law by discriminating against classes
of plaintiffs based upon their relational guidelines.24 9 Stapleton writes that
civil recourse will render "a group of 'second-class citizens' who, though
they were directly physically injured by the negligent act of the defendant,
are not entitled to petition the law to sanction the careless party." 250
In recent years, tort law has evolved to bridge the gap left by criminal
law and regulators for victims' reproductive injuries and injuries from lead
paint exposure, defective automobiles, toxic torts, and clergy's sexual
abuse.2 s1 Civil recourse theorists sometimes claim boldly that it is up to the
legislature, not courts, to create new classes of plaintiffs or causes of
action.252 They are naysayers when it comes to the judiciary recognizing
new rights and responsibilities:
Those with an irreversible hostility to the common law's
capacity for growth insist that it is a closed system of rules,
immutable until changed by legislation. This arid philosophy would
sign the death warrant of the common law and require that it remain
frozen in its Plantagenet molds. This nay-saying approach which
would deny to our judges and courts any role of responsibility in the
individual decision-makers governed by it, having been told for most of this century that
tort law is about policy, not duty, now tend to regard tort law as a cost of doing business
rather than a collection of obligatory norms.
Goldberg & Zipursky, The Moral of MacPherson, supranote 219, at 1742.
245. See Goldberg, Unloved: Tort in the Modern Legal Academy, supra note 22, at 1518.
246. Goldberg & Zipursky, supra note 198, at 918.
247 Goldberg & Zipursky, Moral ofMacPherson,supra note 219, at 1736-37.
248. See Stapleton, supra note 121, at 1558.
249. See id. at 1531.
250. Id. (explaining how the relational breach and substantive standing ideas of Goldberg and
Zipursky divests some plaintiffs of civil redress for their claim and shields defendants from liability).
251. Michael L. Rustad & Thomas H. Koenig, Reconceptualizing State AG Parens Patriae as
Crimtorts, Suffolk University Law School Research Paper No. 10-43 at 4-5 (Sept. 7, 2010),
availableat http:ssrn.com/abstract-l 673529; see also Koenig & Rustad, supra note 3, at 293-94.
252. See Thomas F. Lambert Jr., The Common Law is Never Finished (Comparative Negligence
on the March), 32 ATL L.J. 741 (1968) (explaining that "it follows that nothing should ever be done
for the first time").
475
endless task of accommodating change to continuity recalls the
celebration of standing pat in Cambridge Professor Comford's little
classic MicrocosmographiaAcademica, in which basic arguments
for judicial inertia are advanced, the principle of the opening wedge
and the principle of the dangerous precedent.253
Full of critiques of modem tort law and nostalgic for John Locke and
William Blackstone, judges following civil recourse will be more likely to
defer to legislatures instead of finding creative continuity in tort law in the
grand tradition of Benjamin Cardozo, Roger Traynor, or Jack Weinstein. 254
If we follow civil recourse's logic, we would have no market share, lost
chance, or risk contribution theories to address problems of causation.
Goldberg's approach is critical of law shedding doctrine such as
"limited duty rules, immunities, and categorical bans on recovery for
emotional and economic harm." 255 Notice that these rules are conservative
and check plaintiffs' recovery especially in collective injury cases. Indeed,
in their recent Texas Law Review piece, Goldberg and Zipursky nod in
approval to the Michigan Supreme Court's decision not to recognize loss of
chance in medical malpractice.256
John Goldberg argues that courts should stop viewing torts as a branch
of public law, serving quasi-regulatory functions or solving social
problems.257 Instead, recourse scholars propose to strike society from the
torts equation, contending that its public law purposes must be "cabin'd,
253. Id.
254. Goldberg denies that civil recourse theory will prevent judges from redressing "new wrongs
or new iterations of old wrongs in light of changes in other areas of law, as well as economic,
technological, demographic, and sociological changes." Goldberg, Tort Law for Federalists,supra
note 10, at 14. Goldberg tried to have it both ways. He insists that torts should be stripped of its
public regulatory role, but acknowledges that tort law should evolve to meet changing conditions.
Nevertheless, if civil recourse strips judges of their power to use torts as public regulation, it is
unclear how new torts will be born. The birthday of a new tort is often based on important social
policy. Tort law divorced from public policy is like Hamlet without the Prince of Denmark. Let it
also be remembered the common law is not immutable. Goldberg also forgets that stare decisis is
driven by public policy as Frankfurter reminds us: "We recognize that stare decisis embodies an
important social policy .... But stare decisis is a principle of policy and not a mechanical formula."
Helvering v. Hallock, 309 U.S. 106, 119 (1940). Sociological accounts of changes in tort law do not
come from the legal heavens but from changes in the political economy. Courts did not recognize
privacy-based torts until the development of new technologies and other changes in the society. See
Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARv. L. REv. 193, 193 (1890)
(arguing that courts should recognize a new tort to redress widespread abuses in the field of
journalism).
255. CHAMALLAS & WRiGGINS, supranote 158, at 18.
256. Goldberg & Zipursky, supra note 198, at 982 ("For example, the enactment by the Michigan
legislature of a bar to claims for 'loss-of-a-chance,' whether wise or unwise from a policy
perspective, was probably justified given the dubiousness of the idea that a lost chance for health is
really an injury.").
257. Goldberg, Unloved: Tort in the Modern Legal Academy, supra note 22, at 1517-18.
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cribb'd and confined."258 If civil recourse were adopted, the judicial role in
torts case would be narrower, and creative continuity would be displaced by
"a notion of judicial restraint." 259
Civil recourse theorists urge courts to ignore unrealized wrongs until
they "ripened into an injury." 260 They prefer that judges not create new tort
duties, rights, and remedies, but defer to legislatures and expert regulators.26 1
Under civil recourse's substantive standing doctrine, a defendant can create
risks with impunity, so long as there is not an immediate injury. 262 "A
defendant may act in a manner that risks an injury, or even in a manner that
almost surely will bring about an injury, but that does not mean that the
injury will actually occur." 263 This restrictive view means that civil recourse
theorists are unlikely to endorse liability theories arising in the modem
world, such as the negligent enablement of computer crime caused by lax
computer security or defects in computer programs. Civil recourse theory is
again "tort reform in disguise" because it asks judges to "just say no" to
creating new plaintiffs and classes of plaintiffs. 26" The frontiers of
258. WILLIAM SHAKESPEARE, THE TRAGEDY OF MACBETH act 3, sc. 4 (George Smith, ed., J.M.
Dent & Co. 1902). My torts professor, Tom Lambert, was fond of this quote from William
Shakespeare's Macbeth where Macbeth states:
Then comes my fit again: I had else been perfect,
Whole as the marble, founded as the rock,
As broad and general as the casing air:
But now I am cabin'd, cribb'd, confined, bound in
To saucy doubts and fears. But Banquo's safe?
259. Goldberg, Tort Law for Federalists,supra note 10, 14-15.
260. Goldberg & Zipursky, supra note 19, at 1639; see John C.P. Goldberg, What Clients Are
Owed: Cautionary Observations on Lawyers and Loss of a Chance, 52 EMORY L.J. 1201, 1203
(2003) (expressing reasons not to expand the doctrine of loss-of-chance cases to legal malpractice).
261. Goldberg & Zipursky, Moral ofMacPherson, supra note 219, at 1740.
"According to Prosser, judges are to set the limits of negligence liability by making allthings-considered decisions as to whether it would be good or bad for society to permit
such liability. Yet our understanding of the relative strengths and weaknesses of political
institutions often leads to the conclusion that the legislative and executive branches are
more capable, or at least more appropriate, institutions for making such decisions."
Id.
262. "Professor Zipursky connects Palsgraf to a broader "proper plaintiff' requirement that
operates throughout tort law and suggests, contra Weinrib, that this facet of tort is captured better by
a theory of civil recourse than corrective justice." Goldberg, supra note 80, at 572 n.269 (explaining
Zipursky's substantive standing theory of civil recourse).
263. Goldberg & Zipursky, supra note 19, at 1639.
264. Civil recourse theorists are conservative, pragmatic conceptualists, unlike other academics
that propose the expansion of tort law. Goldberg's reluctance to expand the "loss-of-a-chance" to
contorts, such as legal malpractice, is a perfect example. He writes:
Instead of having to prove that the doctor's neglect of duty more likely than not was a
but-for cause of the plaintiff's injury, the loss-of-a-chance plaintiff only has to prove that
the malpractice made it somewhat more likely that she would be injured. Several
477
accountability depend upon judicial receptivity to compensation for life's
troubles that do not fit into traditional injury categories. American tort law
must continue to evolve to address the complexities of modem injury such
as multiple causation, latent injury, the inchoate plaintiff, and the
indeterminate defendant. Pragmatists recognize, however, that new torts
cannot be born unless plaintiffs' counsel creatively "frames" them in terms
of well-established victim classes.265
Justice Oliver Wendell Holmes Jr. described how the common law must
resist stasis: "In moving waters there is life and health; in stagnant pools,
decay, and death."266 Torts are always in the process of becoming, often
lagging behind changes in society and technology. In other words, as
Holmes suggests they must, torts are evolving as a moving stream, not a
stagnant pond. In the Path of the Law, Holmes's central point was that
certainty or repose in the common law was not achievable.267 Nevertheless,
how does tort law evolve if it is in a full retreat from social engineering? 268
Civil recourse theory has no sustained theory about how the law changes
because their focus is not on law, policy, and society.269
The history of tort law is a story of the common law evolving, as it is
"not a closed system of static rules, immutable unless changed by
prominent commentators have recently called for application of loss of a chance to legal
malpractice, primarily out of concern over the difficulty a legal malpractice plaintiff faces
in proving that, but for her lawyer's carelessness, she probably would have prevailed in
the matter in which she was being represented. This Essay attempts to explain why,
despite the intuitive appeal of loss of a chance doctrine on grounds of both fairness and
deterrence, courts ought to be wary about transplanting it from the fringes of medical
malpractice into the law of legal malpractice.
Goldberg, supra note 260, at 1201.
265. Anita Bernstein, How to Make a New Tort: Three Paradoxes, 75 TEX. L. REV. 1539, 1541
1545 (explaining how new tort actions such as the invasion of privacy, the intentional infliction of
emotional distress, wrongful termination, and product liability were recognized because they fit
within established doctrine).
266. Michael Rustad, The Jurisprudence of Hope: Preserving Humanism in Tort Law, 28
SUFFOLK U. L. REv. 1099, 1105 (1994) (quoting Justice Oliver Wendell Holmes Jr.).
267. Holmes, supra note 81, at 466 ("[C]ertainty generally is illusion and repose is not the destiny
of man.").
268. See id at 466-67. Civil recourse theory does not have a theory of social change except to
say that the judges should replace policy with inward-turned duties. Structural-functionalists explain
that there is often a cultural lag; one institution does not keep up with technological changes. See
generally Rustad & Koeing, supra note 67, at 77-78 (discussing same). During the age of the
automobile, the tort law lagged behind other social developments. Id. at 78. Today, tort law is
lagging behind developments in the information-based economy whose base is predicated upon
intellectual property as opposed to durable goods. Id. at 78, 95.
269. The rise of strict products liability is emblematic of the modern expansion of plaintiffs' rights
in tort law. Justice Roger Traynor's concurring opinion in Escola v. Coca-ColaBottling Co., 24 Cal.
2d 453, 150 P.2d 436 (1944), was the first judicial recognition of strict products liability, see id at
461, 150 P.2d at 440 (Traynor, J., concurring). See also RESTATEMENT (SECOND) OF TORTS § 402A
(1965) (adopting Traynor's theory of strict liability, became accepted law in the majority of
jurisdictions within a decade and a halo.
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legislation." 270 The earliest American exemplary damages punished conduct
that violated local norms, such as the debauchery of the plaintiffs daughter,
destroying her "parental prospects." 2 7 1 During the pre-Civil War period, the
tort remedy of punitive damages gave slave owners a remedy for tortiously
harboring fleeing slaves. 27 2 "By the end of the nineteenth century,... [tort
remedies were] a means of social control against the reckless endangerment
of the public by the proprietors of railroads, streetcars, coal mines, and other
industrial enterprises. ,,211
Tort law functions are continually evolving to address new social
problems.274 Tort law's signature has been its ability to evolve and
recognize new causes of action or simply to adapt old causes of action to
new social problems.275 Specifically, tort law has for centuries evolved to
solve public health hazards in each historic epoch. The period from the end
of the Second World War until the early 1980s was the epoch of the
consumer in American tort law. Lawrence Friedman describes how the old
tort law served as "a law of limitation," whereas twentieth-century courts
and legislatures "limited or removed the obstacles that stood in the way of
plaintiffs." 276 The real "tort reforms," beginning in the middle of the
twentieth century, remade tort law to be "more responsive to the claims of
injured people."277
In the new millennium, collective injuries are not only probabilistic but
they are often unrealized.278 Indeed, "[lt]he predominant injury in a cybertort
case will be a financial loss, dignitary injury, or invasion of privacy,",2 79 and
there will often be an issue of whether the injury is realized. If a hacker
steals your identity, your credit card, or bank account numbers for thousands
of customers, there is an issue of whether any one plaintiff can prove
270. Thomas F. Lambert Jr., Principles,Persuasions,and PrimrosePropaganda,19 NACCA L. U.
J. 25 (May 1957).
271. See Stout v. Prall, I N.J.L. 79, 79 (1791).
272. See, e.g., Oliver v. Kauffman, 18 F. Cas. 657 (E.D. Pa. 1850) (reporting case where slave
owner sued the defendants for tortiously harboring twelve slaves and helping the slaves escape to the
free state of Pennsylvania).
273. Rustad, supra note 93, at 485 (discussing punitive damages awards against the railroad in the
late nineteenth century).
274. See infra notes 277, 286 and accompanying text.
275. See id.
276. LAWRENCE M. FRIEDMAN, AMERICAN LAW IN THE TWENTIETH CENTURY 349 (2002).
277. Id. at 350.
278. See, e.g., Metro North Commuter RR. v. Buckley, 521 U.S. 424, 444 (1997) (holding that,
despite the railroad's clear negligence, the railroad workers exposed to asbestos dust over a long
period of time had no claim for damages since no injury had yet appeared).
279. Michael L. Rustad & Thomas H. Koenig, The Tort of Negligent Enablement of Cybercrime,
20 BERKELEY TECH. L.J. 1553, 1603 (2005).
479
damages absent proof that the private information has been used or abused.
Moreover, if issuers absorbed all of the financial losses that resulted from
fraudulent credit card transactions, a defendant may argue that no injury has
been realized. A dynamic law of torts finds remedies to redress the wrongs
created by hackers that have not yet materialized into a financial injury.280
These anticipated loss cases are comparable to claims for an enhanced risk
of developing a future disease, where the injury has not yet manifested. 281
C.
Civil Recourse Is Devoid ofData
Roscoe Pound's 1910 essay, Law in Books and Law in Action, described
how judicial law making in his day "expected to force the case into the four
corners of the pigeon-hole the books have provided."282 The legal formalists
of Pound's day did not appreciate that law is situated within social bonds.283
What's missing in civil recourse theory is an account of the complex social
web shaping tort rights and remedies. Civil recourse theory has no
explanation of who makes torts claims and the role of the contingency fee
system in making civil recourse possible for most consumers. 284 Civil
recourse does not account for major "players in the tort system-the
plaintiffs lawyer, the defense lawyer, and the insurance company and its
adjusters." 285 Nor is there any reference to empirical data on the actual
280. Bernstein, supra note 265, at 1539-41 (explaining how new torts are born to confront new
social problems).
281. Civil recourse theorists impose a monistic order on tort law that is inconsistent with tort's
complexity as recognized in Cardozo's works. Dan Simon characterizes Cardozo's account of
judging as recognizing gaps and indeterminacies, describing Cardozo's judicial realization that
decisions are "not readily deduced from an orderly conceptual system of precepts." Dan Simon, The
Double-Consciousnessof Judging: The ProblematicLegacy of Cardozo, 79 OR. L. REv. 1033, 1043
(2000). Simon writes of Cardozo's judicial philosophy:
"The common law does not work from pre-established truths of universal and inflexible
validity to conclusions derived from them deductively." The tasks the judge faces are
complex, difficult, and replete with clashes between seemingly irreconcilable opposites;
he explained: "[D]eep beneath the surface of the legal system, hidden in the structure of
the constituent atoms, are these attractions and repulsions, uniting and dissevering as in
one unending paradox." Everything is "penetrated with casuistry and dialectics."
Id. (quoting BENJAMIN N. CARDOZO, The Nature of the JudicialProcess, in SELECTED WRITINGS OF
BENJAMIN NATHAN CARDOZO 114 (Margaret E. Hall ed., 1947); BENJAMIN N. CARDOZO, The
Paradoxesof Legal Science, in SELECTED WRITINGS OF BENJAMIN NATHAN CARDOZO 255, 226
(Margaret E. Hall ed., 1947)).
282. Pound, supra note 210, at 20.
283. "Law has always been and no doubt will always continue to be, 'in a process of becoming.'
It must be 'as variable as man himself.' . . . 'Law would be neglecting one of its more important
functions if it ceased to meet the demands of this ceaseless evolution."' Id. at 22.
284. John Goldberg explains that citizens have a theoretical right to seek recourse, but does not
explain why seeking civil recourse is less popular in recent years. See Goldberg, Constitutional
Status of Tort, supra note 17, 524 (2005) (asserting that civil recourse is part of the "basic structure
of our government" and that "all American citizens have a right to a body of law for the redress of
private wrongs").
285. Ellen Pryor, Noneconomic Damages, Suffering, and the Role of the Plaintif's Lawyer, 55
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growth, size, ratio, plaintiff-defendant characteristics, factual foundation, or
other qualities of how plaintiffs actually recover civil recourse. A living tort
law, like the living Constitution, "evolves, changes over time, and adapts to
new circumstances."286
Moreover, the lack of empirical grounding is an issue that gnaws at the
fabric of civil recourse theory. In their dozens of articles on civil recourse,
Goldberg and Zipursky rarely refer to the cumulative and reliable body of
empirical torts scholarship. They do not account for the numerous hurdles
that prevent actual plaintiffs from receiving civil recourse. How many civil
wrongs are there out there and how often do injured plaintiffs file claims
over them? 2 87 The problem lies not so much in the theoretical availability of
civil recourse as in the real world difficulty of finding an attorney willing to
try the case, winning over a jury, and collecting the award in the postsettlement period.288 The right to pursue civil recourse is not the same thing
as actually receiving an adequate award.289
Recourse theorists' lack of actual real world application is a grave
silence that grows increasingly hard to justify in the face of a growing body
of empirical research on how America's civil justice system functions. The
theory of civil recourse is based upon cultural nostalgia rather than empirical
data. Only one personal injury victim in ten pursues a tort liability claim,
and only ten percent of those claimants receive compensation from the tort
DEPAUL L. REV. 563, 563 (2006).
286. Civil recourse theorists share common ground with constitutional law originalists in positing
one theory for all time. In his recent book, The Living Constitution, David A. Strauss argues that
originalism is appealing to many because of its greater certainty. See DAVID A. STRAUSS, THE
LIVING CONSTITUTION 29-31 (2010) (explaining that "there is something natural about
originalism"). Civil recourse acknowledges that law changes but has no theory of why it changes
because of its myopic focus on the bipolar relationship between plaintiff and defendant. In the
ethereal world of civil recourse, there is no need to refer to empirical research or trends in tort law.
287
The tort system plays a relatively limited role in compensating for accidental injury in the
United States. Because tort law focuses on wrongdoing, the system does not generally
provide compensation where the injurer was not a wrongdoer. In addition, the system
does not provide compensation where a wrongdoer has no insurance or no personal assets
to pay compensation, or where the amount of loss is too small to be worth the cost of
litigation. Even where a wrongdoer has assets or insurance, the tort system will not
provide recovery for injury unless the victim brings a claim.
Hubbard, supranote 20, at 441. Civil recourse theory has no systematic account of all of the hurdles
that a potential civil recourse claimant must clear before they can use the state-sanctioned grievance
mechanism of the tort system. Because civil recourse theorists do not address social class, wealth, or
poverty, they do not explain the difficulties of seeking civil recourse against the empty-pocketed
defendant who has no insurance coverage. Civil recourse theorists do not even speculate on the ratio
of private wrongs to claims.
288. See supra note 287.
289. See supra note 287.
481
system.290 Also, given that the state provides injured plaintiffs with a
mechanism to obtain civil recourse, these theorists do not explain why tort
cases have been declining dramatically in federal and state courts in recent
years.29 1 Civil recourse theory does not explain how collectability enters
into the civil recourse puzzle or why so many plaintiffs fail to exercise their
right to redress.292
The tort caseload in federal courts has been in sharp decline since the
mid-1980s.' 9 "The percentage of tort cases concluded by trial" in federal
district courts "declined from 10% in the early 1970s to 2% in 2003."294
"The number of tort trials concluded in U.S. district courts declined by
nearly 80 percent-from 3,600 trials in 1985 to fewer than 800 trials in
2003 ... 295 Empirical studies of tort law also demonstrate a decrease in
jury trials in state courts.296 Civil recourse theory has no explanation for
why fewer plaintiffs are "righting their wrongs" in court. Finally, civil
recourse theory does not explain why tort plays an expansive role in the
United States and is relatively undeveloped in many civil code countries. 297
Suppose the zeitgeist of American culture changed dramatically and
Congress did follow Goldberg's suggestion that we displace tort law with
social insurance and expert regulators. 298 Americans show no enthusiasm
for this functional equivalent of tort law, and neither does John Goldberg. It
is an old debater's trick to raise the possibility of a radically utopian solution
to confuse your opponents by "making the perfect the enemy of the good."
If social compensation was magically adopted in the United States, what
290. DEBORAH R. HENSLER, ET AL., COMPENSATION FOR ACCIDENTAL INJURIES IN THE UNITED
STATES 120 (1991), available at http://www.rand.org/pubs/reports/2006/R3999.pdf.
291. See Press Release, U.S. Dep't of Justice, No. of Fed. Tort Trials Fell by Almost 80 Percent
from 1985 Through 2003 (Aug. 17, 2005), http://www.ojp.usdoj.gov/archives/pressreleases/
2005/fttv03pr.htm.
292. Gerhard Wagner, Tort Liability and Insurance: ComparativeReport and Final Conclusions,
in 16 TORT LAW AND LIABILITY INSURANCE 309, 334 (Gerhard Wagner ed., 2005) (explaining how
the history of torts from Roman times to the present oscillates between the compensation and
deterrence functions).
293. See Press Release, U.S. Dep't of Justice, supra note 291.
294. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, General Civil (Tort, Contract,and
Real Property) Trials (Oct. 25, 2010), http://bjs.ojp.usdoj.gov/index.cfm?ty-tp&tid=2231.
295. Press Release, U.S. Dep't of Justice, supra note 291.
296. Thomas H. Cohen, Bureau of Justice Statistics, U.S. Dep't of Justice, Tort Trials and
Verdicts in Large Counties, 2001, at 1 (Nov. 2004), available at http://bjs.ojp.usdoj.gov/content/
pub/pdf/ttvcO .pdf.
297. See David Corbe-Chalon and Martin A. Rogoff, Tort Reform a La Francaise:Jurisprudential
and Policy Perspectives on Damagesfor Bodily Injury in France, 13 COLUM. J. EUR. L. 231,235
(2007) (arguing that France and other civil code members of the European Union insure risks
whereas American prefer the tort system and decisions by private sector actors); see also Michael
Wallace Gordon, Mexican Law: A treatisefor Legal Practitionersand InternationalInvestors, 32 U.
MIAMI INTER-AM. L. REV. 361, 364 (2001) (reviewing JORGE A. VARGAS, MEXICAN LAW: A
TREATISE FOR LEGAL PRACTITIONERS AND INTERNATIONAL INVESTORS (1998)) (describing the
Mexican law of torts as sketchy and undeveloped).
298. See supra notes 206-07, 261 and accompanying text.
482
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would be missing? Tort law would surely have a significantly diminished
role, as evidenced below.299
The system in Sweden is instructive. If comprehensive social insurance
were adopted in the United States, tort law would have a significantly
diminished role covering foreigners and others not under the U.S.
monolith.3 00 In Sweden, claimants look to insurance first and to torts
second.301 Additionally, in Sweden, the tort system serves as a backup for
those few individuals, such as foreigners, not covered by the nation's social
3 02
security compensation agency, also called the Forsakringskassan.
Under a social compensation scheme, fault would be irrelevant in a
system where the compensation role of the tort system is largely displaced
by a monolithic government agency.303 Personal responsibility is a major
concern of American-style negligence, and this norm meshes well with
American cultural values. In Sweden, tortfeasors need not even reimburse
the state's social security treasury where they at fault.3 " Victims receive
eighty percent of their earnings.os Conversely, in a social compensation
system, the role of comparative fault or assumption of risk is non-existent.
In fact, social compensation is not interested in the causal connection
between what the tortfeasor did and fault allocation.306 Therefore, social
compensation has no place for non-economic damages or punitive
damages.307 Civil recourse does not explain why social insurance schemes
have not gained traction in American society. The picture that they paint of
civil litigation is based upon featured cases and hypotheticals, as opposed to
the law in action.
D. Civil Recourse Has a Narve View ofHow Legislaturesand Regulators
Work
The civil recourse theory has a narrow focus on the wronged individual
and entitles the claimant "to an avenue of recourse against the
299. See infra note 300 and accompanying text.
300. See generally 3 EUROPEAN CTR. OF TORT & INS. LAW, THE IMPACT OF SOCIAL SECURITY
LAW ON TORT LAW (Ulrich Magnus ed., 2003).
301. Wagner, supra note 292, at 340 (noting how tort victims look to insurance first and that tort
is but a handmaiden to social compensation).
302. Id. at 183.
303. Id. at 182.
304. Id.
305. Id. at 183.
306. Id. at 182.
307. Id.
483
wrongdoer."308 John Goldberg contends that judges and juries have been
armed "with power largely unbounded by legal or institutional
constraints."'309 According to civil recourse theorists, the principal function
of the judge in tort cases is to enable civil recourse by serving as an umpire
in the proceedings between the plaintiff and the defendant.31 o
The conventional regulation of tobacco, the use of which is the leading
preventable cause of death in the United States, was thwarted for decades by
the tobacco industry.'
When it became apparent that Congress and state
legislatures lacked the political will to regulate this product, the victims
turned to the tort system.31 2 Tort law not only bridges a regulatory gap,
but it also bridges the hiatus left by criminal law that lags well behind
technological and social changes, such as Internet-related wrongdoing. 3 14
The engine of discovery is often superior to legislative committee meetings
in uncovering smoking gun evidence of corporate wrongdoing."
308. Goldberg & Zipursky, supra note 10, at 402-03.
309. Goldberg, supranote 22 at 1512.
310. His proposal is a full retreat from tort law serving a public purpose and reminds me of Tom
Lambert's critique of judges who sanctified binding precedent: "The paralyzing doubts of judges as
to whether stare decisis prevents them from correcting past mistakes fogs the judicial windshield,
thick as mashed potatoes. Our judges should not sit like figures on a silver coin, ever looking
backward. No rule is settled until it is settled right."
Thomas F. Lambert, Jr., Editorial, Reflections ofan Optimist, 21 NACCA L.J. 25, 26 (1958).
311. E. Kelder, Jr. & Richard A. Daynard, The Role of Litigation in the Effective Control of the
Sale and Use of Tobacco, http://www.lexis.com/research/buttonTFLink?_m=f22e73bd819b666ba
3c4f4bc44fd4587& xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2008
%20U.%20Ill.%20L.%20Rev.%201225%5d%5d%3e%3c%2fite%3e& butType=3&butStat-2&
butNum=-3 18& butinline-1& butinfo-%3ccite%20cc%3d%22USA%22%3e%3c%21%SbCDATA
%5b8%2OStan.%20L.%20%26%2OPol%27y/o2ORev%2063%2cat%2069%5d%5d%3e%3c%2fcite
%3e&_fmtstr=VKWIC&docnum-2&_startdoc=1&wchp=dGLbVzz-zSkAb&_md5=8e903bfbfd
001 13cb233de03f307626c.
312. "Thus, the failure of conventional forms of legislative and administrative regulation of
tobacco products and the recent shift in the landscape of tobacco litigation" led to "tobacco product
liability litigation." Id. at 63 (arguing that tobacco products enjoyed a limited immunity for many
decades because of administrative and legislative failure to enact effective tobacco control
legislation).
313. Rustad & Koenig, supra note 100, at 96. The "agency capture" hypothesis contends that
regulators have too close ties with industry discouraging pro-active enforcement. Under this theory,
expert regulators lose their will to do their job because they wish to protect their future prospects
working in the industry. Even if expert regulators do their job professionally, they often lack the
resources to protect the public. Just by way of example, the Consumer Product Safety Commission
does not have either the financial or human resources to protect us from defective products from
China and other countries. Private attomeys general are necessary to place sufficient pressure on
corporations tempted to trade safety for profits.
314. Rustad, supra note 49, at 86, 96-99 (arguing that criminal law lags behind information-based
and other technologies).
315. Litigators, not regulators, uncovered: "l) new evidence garnered from internal documents
and former tobacco industry researchers and executives concerning tobacco industry knowledge of
the addictive and pharmacologic properties of nicotine; 2) industry attempts to hide this knowledge;
[and] 3) industry efforts to manipulate nicotine levels so as to addict smokers." Kelder & Daynard,
supranote 311, at 64.
484
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Goldberg contends that naive social justice theorists are wrong to
encourage judges to use tort law for social engineering.3 16 His theory is that
judicial timidity is needed to restore tort to its rightful place. 17 These civil
recourse scholars do not see themselves as tort reformers but as tort
restorers."'1 Civil recourse scholars are armchair philosophers who do not
give any practical guidance on how judges should decide cases where there
are conflicting public policies at stake. Goldberg contends that courts
should stop trying to use tort law to solve social problems and let
legislatures and expert regulatory agencies perform that role. 319
Nevertheless, courts are often in a better position to make social policy
because they are "populist and deliberative, whereas legislatures tend to be
captured by special interests, secretive, hasty, and unwilling or unable to
offer reasons for their actions."320 The National Highway Traffic Safety
Administration (NHTSA), the so-called watchdog for automobile safety, has
been slow to respond to the Toyota sudden acceleration cases. 321 The April
2010 mine disaster is a case study of the failure of expert regulators in
protecting American workers:
316. See generally Goldberg,ConstitutionalStatus of Tort, supra note 17.
317. See id at 530 (explaining that tort law is "best understood as a law of redress" and providing
"a set of guidelines for judicial review that will permit courts to assess more intelligently the
constitutionality of particular tort reforms").
318. Civil recourse theory's return to Blackstone brings to mind Roscoe Pound's critique of legal
scholars of his day that retreated from sociology to juristic principles from the past. "'All sciences,'
wrote Ulrich Ztsius in 1520, 'have put off their dirty clothes, only jurisprudence remains in her
rags.' . . . In other words, law has always been dominated by ideas of the past long after they have
ceased to be vital in other departments of learning." Pound, supra note 210, at 25.
319. See Goldberg, supra note 22, at 1518. Despite Goldberg's views, democratically elected
legislatures are subject to being captured by special interests such as the habitual corporate
wrongdoers lobby. See generally Michael L. Rustad, Nationalizing Tort Law: The Republican
Attack on Women, Blue Collar Workers and Consumers, 48 RUTGERS L. REV. 673 (1996)
(describing the corporate campaign to restrict rights of women, blue collar workers and consumers in
proposals to limit punitive and non-economic damages).
320. Richard L. Abel, Questioning the Counter-MajoritarianThesis: The Case of Torts, 49
DEPAUL L. REV. 533, 533 (1999).
321. Joan Claybrook, former NHTSA administrator, testified recently:
As the press revealed several months ago, a large number of former NHTSA officials,
including Administrators, the top presidential appointee, deputy administrators, general
counsels, and chiefs of the enforcement, rulemaking and research divisions, as well as
technical staff have left NHTSA over the years to be employed by vehicle and equipment
manufactures as consultants, lobbyists, attorneys or on staff. Obviously this is a real
problem and needs to be addressed.
The Proposed Motor Vehicle Safety Act: Hearing Before the Subcomm. on Commerce, Trade and
Consumer Protection of the H. Comm. on Energy and Commerce, I 11th Cong. 11 (2010) (statement
of Joan Claybrook, President Emeritus, Public Citizen Former Administrator, The National Highway
Traffic Safety Administration) [hereinafter Motor Vehicle Safety Act Hearings].
485
Then in early April a horrible coal mine explosion at the Massey
Energy Upper Big Branch coal mine in Montcoal, West Virginia
killed 29 miners. This mine had been cited just weeks before the
disaster for numerous safety violations, including problems in
ventilating the mine and failure to prevent a buildup of deadly
methane gas.... According to the Washington Post, "More than
200 former Congressional staff members, federal regulators and
lawmakers are employed by the mining industry as lobbyists,
consultants, or senior executives, including dozens who work for
coal companies with the worst safety records in the nation."
Regulation of mining operations and enforcement of violations has
been weak for years.322
Civil recourse theory's dogmatic assumption that courts must defer to
democratically-elected legislatures and expert regulations denies the politics
of torts inherent in judicial decision making.3 2 3 As Alexis de Tocqueville
observed, "[t]here is hardly a political question in the United States, which
does not sooner or later turn into a judicial one." 324 Roscoe Pound noted
that courts in the western states in the late nineteenth century were able to
use judicial-lawmaking to determine competing water rights.325 At the same
time, courts were remiss in developing corporate law that would hold
corporate enterprises liable for breaching their fiduciary duty and ensuring
against mismanagement.326 Pound also criticized courts for doing too little
to improve civil procedure.3 2 7 In his day as in ours, courts and judicial
decisions are first responders to emergent social problems. Courts and tort
law are in a better position than rigid government bureaucracies to deal with
the demands of an evolving society. 328 Think of how the "oil industry
lobbyists secured very low limits on company liability (economic liability is
capped at $75 million)" in the BP oil spill. 32 9
Civil recourse theorists subordinate the concept of separation of powers
322. Id. at 2.
323. See generally Goldberg,ConstitutionalStatus of Tort, supranote 17.
324. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 248 (J.P. Mayer & Max Lerner eds.,
Harper & Row 1966) (1838).
325. See Pound, supranote 210, at 23.
326. See id. at 23.
327. Id.
328.
It is the glory of the common. law that it is not a rigid, immutable code. On the contrary,
it is a vital, living force that endows with the breath of life a body of practical principles
governing human rights and duties. These rules are subject to gradual modification and
continuous adjustment to changing social and economic conditions and shifting needs of
society. This characteristic is the life blood of the common law.
Caporaletti v. A-F Corp., 137 F. Supp. 14, 16 (D.D.C. 1956), rev'don other grounds, 240 F.2d
53 (D.C. Cir. 1957).
329. Claybrook, supra note 321, at 2.
486
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in their concern that judges stay out of the realm of public policy. 330 In the
seamy world of PACs and heavy corporate lobbying, legislaturesespecially Congress-too often act for the good of campaign contributors,
not the public. The tobacco industry serves as a case study of both the
regulatory failure at every level and the legislative support of the industry.
Every time Big Tobacco got in any kind of trouble with regulatory agencies,
like the Federal Trade Commission or the Federal Communications
Commission, their lobbyists went to Congress to bail them out. 332 "The
tobacco industry's influence over federal and state legislators makes it
enormously difficult, if not impossible, for effective tobacco control
legislation to be passed at the federal or state level."
The tobacco industry is not the only industry that is shielded from
regulatory accountability. Defendants in other mass torts cases such as
asbestos, DES, lead paint, ultra-absorbent tampons, Bendectin, and breast
implant failed to produce private information at the request of regulatory
330. Judge Jack Weinstein contends that judges owe a duty to society to respond to difficult and
sometimes intractable social problems:
Ours is a dynamic society sociologically, economically, and technically. To remain
significant, the courts must exercise power to modify the law to deal with changes in our
real world. That the courts' role should be subsidiary to that of the legislatures at the
federal and state levels does not excuse judges ignoring our obligations to all the people
within our sphere of influence.
Weinstein, supra note 1, at 231.
331. As has recently been noted:
During this time [the 1950s and 1960s], the tobacco industry needed no allies to achieve
its objectives for several reasons. First, the industry could directly protect itself from
emerging threats because its power to block change at the federal level was pervasive.
Members from tobacco-producing states chaired one-third of House committees and
nearly one-quarter of Senate committees in the early 1960s.
Bruce Yandle et. al., Bootleggers, Baptists, & Televangelists: Regulating Tobacco by Litigation,
2008 U. ILL. L. REv. 1225, 1246-47 (2008) (footnotes omitted).
332.
The FTC and FCC actions in the 1960s and 1970s, for example, along with the three
waves of suits against the tobacco industry from the 1950s forward, caused the industry
to perpetually fend off attack with the main weapons they had: Congress, big law firms,
and secrecy. Each of these weapons showed holes and grew less powerful with time, as
regulation-by-litigation came to the fore.
Id. at 1242 n.63. In the 1990s, the tobacco industry was able to beat back the FDA's efforts to
regulate tobacco.
"After . . . [an attempt to regulate tar content], cigarettes mostly avoided additional federal
regulatory oversight until the 1990s, when the FDA attempted to assert regulatory authority. A
significant reason was the tobacco industry's continued sway in Congress, particularly in the
Senate." Id. at 1254 (footnote omitted).
333. Graham E. Kelder, Jr. & Richard A. Daynard, The Role ofLitigation in the Effective Control
of the Sale and Use of Tobacco, 8 STAN. L. & POL'Y REV., Winter 1997, at 63.
487
agencies.334 The notion that legislatures will act for the public good is a
naYve, grade-school civics statement that bears little semblance to reality.
Class action litigation against the tobacco industry was going well until
Congress got hold of it and became the chief arbiter of the first, failed
settlement.
Additionally, the recent Supreme Court decision removing corporate
spending limits in campaigns is liable to exacerbate the undue influence
corporations already have on legislatures.33 6 Goldberg contends that tort law
is "not well equipped to provide public safety regulation because of, among
other things, judges' and jurors' lack of agenda control, their limited access
to information, and their relative lack of expertise and accountability.""3 I
would agree that any one case or controversy would have a limited scope
compared to a bill being debated by Congress. In Congress, however, there
are no rules of evidence. Additionally, there is no requirement that
legislators have a perfect voting record (whereas a judge cannot skip out on
a case without grounds for recusal), and there is no appeals process except
for the President's signature.
From reading the work of these social recourse theorists, one would
think that we were living in some halcyon era of legislative politics where
legislators worked tirelessly for the public good rather than toiling on behalf
of their campaign contributors. By virtue of the contingency fee system,
torts are the only area of our civil justice system open to everyone,
regardless of their ability to pay for a lawyer's services.
We have a federal government with limited powers for a reason.
However, civil recourse theorists would replace the public policy role of tort
law with more regulation. For example, Goldberg proposed replacing the
public policy role of tort law with comprehensive social insurance. 3 39 Tort
law may be unpopular at this point in time with the American public thanks
to the tort reformers' well-funded campaign against it, but raising taxes to
fund a Swedish-style insurance scheme would be far more unpopular. In
any case, I suspect a monolithic compensation system would fail to provide
334. Wendy Wagner, Stubborn Information Problems & The Regulatory Benefits of Gun
Litigation, in SUING THE GUN INDUSTRY: A BATTLE AT THE CROSSROADS OF GUN CONTROL AND
MASS TORTS 271, 276 (Timothy D. Lytton ed., 2005).
335. See Richard A. Daynard & Graham E. Kelder, Jr., The Many Virtues of Tobacco Litigation,
TRIAL, Nov. 1998, at 34.
336. See, e.g., Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876 (2010) (holding that the
ban on corporate-funded independent expenditures, which was ultimately struck down, could not be
found inapplicable to a film, which was an electioneering communication that was equivalent to
express advocacy).
337. Goldberg, Tort Law for Federalists,supranote 10, at 4.
338. See, e.g., Grimshaw v. Ford Motor Co., 174 Cal. Rptr. 348, 382-83 (Ct. App. 1981) (noting
how punitive damages bridges the gap in protecting consumers when government safety regulations
have failed to do so).
339. See Goldberg, supranote 23, at 1518.
488
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sufficient deterrence and would be unlikely to serve as an effective
grievance mechanism for injured plaintiffs. A comprehensive public welfare
system replacing tort law would clash with embedded American cultural
views about personal and corporate responsibility. Still, in more recent
pieces, Goldberg calls for a wider application of first party insurance to pick
up the slack.340
Courts are in a better position to make social policy because they are
"populist and deliberative, whereas legislatures tend to be captured by
special interests, secretive, hasty, and unwilling or unable to offer reasons
for their actions." 34 1 Leon Green argued that "'we the people"' are a party
to every lawsuit and that 'environmental facts"' could "outweigh the
transactional facts in litigation .... " 34 2 We the people have benefited from
tort lawsuits that have made us collectively safer.
Goldberg explains that one reason why tort law is under attack is that it
tries too much to serve as a grievance mechanism against corporate
abuses.34 3 Goldberg contends that tort law will be loved once more if it
stops trying to solve social problems and returns to its pre-World War II role
of adjudicating disputes between individuals. Goldberg's theory is that if we
adopt his approach utilizing civil recourse theory, the tort reformers will
agree to cease-fire. Of course, then the tort reformers would have nothing to
object to because a downsized civil justice system could not perform its
social control function. Tort theory refashioned into civil recourse is less
likely to threaten corporate wrongdoers because of its focus on individual
justice and its caution about recognizing new rights and remedies as new
social problems emerge. 3 4 His argument reminds me of the animal world
where the first line of defense for some species is to make themselves less
detectable.345 If tort law was divested of its public and social policy
340. Goldberg, supra note 208, at 1240.
341. Richard L. Abel, Questioning the Counter-MajoritarianThesis: The Case of Torts, 49
DEPAUL L. REv. 533, 533 (1999).
342. Green, supra note 109, at 2.
343. Goldberg, supranote 22, at 1517-18.
344. Goldberg would dispute my contention that civil recourse would discourage new causes of
action. Goldberg, supra note 208, at 1241-46 (adopting use of pragmatic conceptualism). My
argument, however, is that the theory of private wrongs is conservative and disapproves of forming
new tort theories and causes of action. If judges were to adopt civil recourse theory, they would
defer to legislatures ex ante approaches to regulation versus the court's ex post facto approach that
has been dominant throughout the last century and a half. It is difficult to picture the tort landscape
where courts are not proactive in forging solutions to emergent problems.
345. Such a natural defense mechanism to protect against predators is described as follows:
Often the first line of defense is to avoid being detected by the predator. One way to do
this is to minimize noise production and any visual cues that the predator might use to
locate the prey. Frogs and crickets usually stop singing as another creature approaches.
489
functions, it would be of little interest to tort reformers, but to argue that this
is permissible because citizens can seek recourse in the democratically
elected legislature is unrealistic. Judge Weinstein also disagrees with civil
recourse theorists' downsizing of the judicial role:
Ours is a dynamic society sociologically, economically, and
technically. To remain significant, the courts must exercise power
to modify the law to deal with changes in our real world. That the
courts' role should be subsidiary to that of the legislatures at the
federal and state levels does not excuse judges ignoring our
obligations to all the people within our sphere of influence.34 6
E. Civil Recourse Theory Is Not a Living Tort Law
Civil recourse theory is focused on the tort law-in-the-books not the law
in action.3 47 Progressive race and gender theorists explain how principles
that first evolved in employment law have been imported into tort law to
produce a "more egalitarian body of cases." 34 8 A number of prominent mass
torts cases have redressed gender-linked injuries:
Historically, the private attorney general has played a socially
beneficial role in mass products liability actions involving
dangerously defective products. The Dalkon Shield intrauterine
device, for example, caused an epidemic of infections, septic
abortions, infertility, and death in many women. After lawsuits by
private litigants, A.H. Robins finally agreed to remove the devices
from the market and pay the medical costs of removal. It took the
chastening message of products liability litigation to remove this
hazardous product from the marketplace. The private attorney
general's role in ensuring public safety is also demonstrated by the
litigation involving the oral contraceptive Ortho-Novum 1/80.
Women who sustained life-threatening injuries sued the
manufacturer, and, subsequently, the manufacturer lowered estrogen
levels in the contraceptive, thus protecting the consuming public.349
The resulting silence makes it more difficult for the predator to find them. Other prey has
evolved camouflage coloration that blends into the background making it difficult for
visual predators to find them.
Mark A. Davis, Predation and Defense, BIOLOGY REFERENCE (Oct. 15, 2010, 10:12 AM),
http://www.biologyreference.com/Po-Re/Predation-and-Defense.html.
346. Weinstein, supra note 1, at 231.
347. See generally Pound, supra note 210 (explaining the distinction between law in the books
and law in action).
348. Id.
349. Rustad, Heart of Stone, supra note 67, at 366-67 (citations omitted).
490
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Martha Chamallas and Jennifer Wriggins describe their feminist theory
as a "critical" approach to tort law but also note that it is classifiable as "a
progressive approach to tort law." 5 o They note that "John Goldberg
excluded feminist theories altogether from his taxonomy of tort theories,
choosing not to include feminist torts scholarship within his category of
'social justice' theories." 35 1 Goldberg's survey of tort theories gives short
shrift to critical feminism, critical race theory, LatCrit Theory, and other
sociologically tuned in approaches.352
A growing literature demonstrates the importance of gender and race
context in the torts equation.353 Just by way of example, racial-context cases
350. CHAMALLAS & WRIGGINS, supra note 158, at 191 n.3 ("Although we describe our approach
as a 'critical' approach to tort law, it might just as easily be classified as a progressive approach to
tort law, thereby aligning us with such scholars as Michael Rustad, Tscachi Keren-Paz and Richard
Abel"). See generally Tsachi Keren-Paz, Egalitarianismas Justification: Why and How Should
Egalitarian Considerations Reshape the Standard of Care in Negligence Law? 4 THEORETICAL
INQUIRIES INLAW 275, 275-76 (2003) (noting how tort law follows redistributive goals and results).
351. CHAMALLAS & WIGGINS, supranote 158, at 191 n.4.
352. See generally THOMAS C. GALLIGAN, JR. ET AL., TORT LAW: CASES, PERSPECTIVES &
PROBLEMS (4th ed. 2007) (explaining six different approaches to tort law).
353. While the importance of race and gender is clear, doctrinally limited civil recourse theorists
completely ignore how race, class, gender, and power differentials impact tort law rights and
remedies. See, e.g., Leslie Bender, A Lawyer's Primer on Feminist Theory and Tort, 38 J. LEGAL
EDUC. 3 (1988); Leslie Bender, An Overview of Feminist Torts Scholarship, 78 CORNELL L. REV.
575 (1993); Leslie Bender, From Gender Difference to Feminist Solidarity: Using Carol Gilligan
and an Ethic of Care in Law, 15 VT. L. REV. 1 (1990); Martha Chamallas, Civil Rights in Ordinary
Tort Cases: Race, Gender, and the Calculation of Economic Loss, 38 LOY. L.A. L. REV. 1435
(2005); Martha Chamallas, Discrimination and Outrage: The Migrationfrom Civil Rights to Tort
Law, 48 WM. & MARY L. REV. 2115 (2007); Martha Chamallas, The Architecture of Bias: Deep
Structures in Tort Law, 146 U. PA. L. REV. 463 (1998); Martha Chamallas, Unpacking Emotional
Distress: Sexual Exploitation, Reproductive Harm, and FundamentalRights, 44 WAKE FOREST L.
REv. 1109 (2009); Martha Chamallas & Linda K. Kerber, Women, Mothers, and the Law of Fright:
A History, 88 MICH. L. REV. 814 (1990); Lucinda M. Finley, A Break in the Silence: Including
Women's Issues in a Torts Course, I YALE J.L. & FEMINISM 41 (1989); Lucinda M. Finley, Female
Trouble: The Implications of Tort Reform for Women, 64 TENN. L. REV. 847 (1997); Lucinda M.
Finley, The Hidden Victims of Tort Reform: Women, Children, and the Elderly, 53 EMORY L.J. 1263
(2004); Mary Kate Kearney, Breaking the Silence: Tort Liability for Failing to Protect Children
from Abuse, 42 BUFF. L. REV. 405 (1994); Margo Schlanger, Injured Women Before Common Law
Courts: 1860-1930, 21 HARv. WOMEN'S L. J. 79, 105-06 (1998); Jennifer B. Wriggins, Damages in
Tort Litigation: Thoughts on Race and Remedies, 1865-2007, 27 REV. LITIG. 37 (2007); Jennifer
Wriggins, Domestic Violence Torts, 75 S. CAL. L. REV. 121 (2001); Jennifer Wriggins, Genetics, IQ,
Determinism, and Torts: The example of Discovery in Lead Exposure Litigation, 77 B.U. L. REV.
1025 (1997); Jennifer B. Wriggins, Torts, Race, and the Value of Injury, 1900-1949, 49 HOWARD
L.J. 99 (2005); Koenig & Rustad, supra note 24; see also Frank McClellan, The Dark Side of Tort
Reform: SearchingforRacial Justice,48 RUTGERS L. REV. 761 (1996); Angela P. Harris, Foreword:
The Jurisprudenceof Reconstruction, 82 CALIF. L. REV. 741 (1994); Angela P. Harris, Race and
Essentialism in Feminist Legal Theory, 42 STAN. L. REv. 581 (1990), and Camille A. Nelson,
Considering Tortious Racism, 9 DEPAUL J. HEALTH CARE L. 905 (2005). See generally
CHAMALLAS & WRIGGINS, supra note 158 (tracing the role of race and gender in the history of
491
like lead paint poisoning and negligent sterilization cases "demonstrate the
multiple ways in which race is constructed and racial meanings are produced
in tort litigation."354 Similarly, the negligent infliction of emotional distress
and bystander claims are relational loss cases intricately tied to gender
relations and bias."' Asbestos and workplace injury cases are generally
"His Torts," whereas wrongful birth, reproductive injuries, and nursing
home cases are emblematic of "Her Torts." 5 6
Like John Rawls's veil of ignorance, civil recourse is acontextual,
Jane
ahistorical, and disconnected with the sociology of tort law. 5
Stapleton criticizes Goldberg and Zipursky for unnecessarily creating an
awkward and incoherent theory predicated upon "untethered moralism." 358
Her critique is that "civil recourse theory. . . is overblown in its claims,
awkward and inconvenient in application, and internally incoherent in its
account of the 'guidance' it claims that the law of torts sends out." 3 59 In her
360
view, "[t]here is no such thing as 'the genuine structure of tort law."'
Felix Cohen, a prominent legal realist, castigated the legal formalists of his
day as operating in the celestial sphere of the legal heavens.
In response, civil recourse theorists would maintain that they are not
deriving tort duties from abstract moral philosophy but from timeless
principles of tort law.362 As a young law professor, Roscoe Pound castigated
the law professors of his day for their dry as dust overly abstract approach to
teaching law and scholarship. The implicit approach of the civil recourse
theorists is to desiccate torts by eliminating social context. Just by way of
American tort rights and remedies from the nineteenth century to the present).
354. CHAMALLAS & WRIGGINS, supranote 158, at 29.
355. Id. at 103.
356. Koenig & Rustad, supra note 24, at 6 (reporting findings from an empirical study of genderlinked injuries in medical malpractice and products liability).
357. Jennifer Wriggins describes the "acontextual approach" in American tort scholarship and
legal education. See Jennifer B. Wriggins, Toward a Feminist Revision of Torts, 13 AM. U.J.
GENDER SOC. POL'Y & L. 139, 143 (2005).
358. Stapleton, supra note 219, at 1562.
359. Id.
360. Id
361. See Cohen, TranscendentalNonsense and the FunctionalApproach, 35 COLUM. L. REV. 809,
809 (1935) (comparing legal formalism to "legal heaven" where concepts descend from heavens
rather than from society).
362. See Goldberg & Zipursky, MoralofMacPherson, supranote 219, at 1847.
A relational conception of the duty of due care should now be recognized as an option in
negligence theory. Its deployment does not require abstract moral philosophy, but simply
careful interpretation of the concepts of duty already present in the tort law. Unlike
constitutional law, we need not be defensive about text because the relevant authority is
the entire common law of negligence, which abounds with moral notions of duty. Nor
should separation of powers or federalist concerns precipitate hesitation: the contours of
tort law are traditionally the domain of the judiciary. For all of these reasons, the
authority of courts to engage in deontological reasoning in tort law leaves an open field.
Id.
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example, torts are gender-linked and the nature of tort injury cannot be
understood without taking this variable into account. 6 A growing body of
critical feminist scholarship demonstrates that gender makes a difference in
tort adjudication. 3 Ellen Bublick's empirical work on how sexual assault
victims use tort remedies is a perfect example. She uses data to demonstrate
that changes in gender-roles and sex-related norms reflect women's "greater
economic and political power."36 She explains the increase in tort actions
to redress sexual assault is a reflection of the victims' greater willingness to
testify against their attackers as well as greater social support networks for
women. 366
Jennifer Wriggins uses domestic assault cases in first year torts class to
explain the importance of gender role de-differentiation in understanding
this important field of tort litigation.3 67 Lucinda Finley's empirical study of
noneconomic damages concluded: "Women tort victims, the elderly,
particularly elderly women, as well as children who suffer the ultimate
injury of death" are disparately impacted by caps on pain and suffering or
noneconomic damages. 368
Race, class, and power differentials are important variables determining
the result in intentional infliction of emotional distress cases such as Gomez
v. Hug.369 In Gomez, a racist county commissioner hurled racist epithets at
Silvino Gomez while he was employed at a county fairground. 370 The
outrage in that case was a product of both racial bias and work place
bullying coupled with disparities in power between employer and
employee.37 1 In Fisherv. CarrouselMotor Hotel, a motel owner was found
363. Koenig and I used empirical data to demonstrate the incidence and type of injuries that are
gendered. As a result, tort reforms of noneconomic damages, for example, are gender injustice in
disguise. See generally Koenig & Rustad, supra note 24.
364. See CHAMALLAS & WRIGGINS, supra note 158, for an excellent summary of research on the
impact of race and gender on American tort law.
365. Ellen M. Bublick, Tort Suits Filed by Rape and Sexual Assault Victims in Civil Courts:
Lessonsfor Courts, Classrooms, and Constituencies, 59 SMU L. REV. 55, 62 (2006).
366. Id.
367. Jennifer B. Wriggins, Domestic Violence in the First-Year Torts Curriculum, 54 J. LEGAL
EDUC. 511, 19 (2004).
368. Lucinda M. Finley, supra note 353, at 1280; see also KOENIG & RUSTAD, supra note 239, at
111 (noting that caps on noneconomic damages disproportionately impact women especially in birth
injury cases).
369. Gomez v. Hug, 645 P.2d 916 (Kan. Ct. App. 1982).
370. Id.
371. The tort of intentional infliction of emotional distress was first developed in Justice Roger
Traynor's landmark opinion in State Rubbish Collectors Ass'n. v. Siliznoff 240 P.2d 282 (Cal.
1952). In the Siliznoff case, an association of rubbish collectors threatened to beat up the plaintiff
and destroy his truck unless he acceded in their demand for union dues. Id. at 284. This new tort
493
liable for battery when a manager intentionally snatched a plate from an
African American scientist attending a conference luncheon.372 The plaintiff
was an African American and the defendant a white restaurant.
Here, the
intersecting variables of race, class, and education must be considered in
determining the offensiveness of what happened. Nevertheless, Chamallas
and Wriggins contend that courts often set the tort standard too high in racial
harassment cases.37 4 In one federal appeals court they cited, the plaintiff
"was compared to slaves and to monkeys; her hair was mocked as 'nappy'
What is missing in civil
and as resembling that of a cat or a dog." 7
recourse is any discussion of racial context, power differentials, and social
context.
The civil recourse theories propose a tort law for the legal heavens
rather than this world. They stand at legal heaven's gate with their abstract
and obscure conceptualism, fact-free and devoid of social context. The
problem with their approach is that tort law is not normative like ethics;
rather, tort law is more akin to a sociological reality. Judith Shklar criticized
legal philosophers that focus on legalism that is isolated "completely from
the social context within which it exists.376 She writes about how formalists
seek to separate the law from the non-law saying: "Law is endowed with its
own discrete, integral history, its own 'science,' and its own values, which
are all treated as a single 'block' sealed off from general social history, from
general social theory, from politics, and from morality." 7 Civil recourse,
too, is separated from social context because their abstracted approach to tort
law is separated from social context and the politics of the tort wars. Shklar
contends that it is a mistake to fence off legalism from the rest of society.
Tort law does not descend disembodied from the thin, rarefied air of the
legal heavens.3 79 Roscoe Pound castigated the law professor of his time for
redresses abuses of power where the defendant's conduct is outrageous in deviating from community
mores or norms. Id. at 285. "Before the infliction tort was created judges stretched the torts of
battery, assault, and trespass to provide redress for outrageous conduct that inflicted severe mental
anguish." Mark P. Gergen, The Jury's Role in Deciding Normative Issues in the American Common
Law, 68 FORDHAM L. REV. 407, 440 (1999). The tort of outrage is emblematic of the role that
gender, race, class, power, and other social variables play in tort decisions. See generally Daniel
Givelber, The Right to Minimum Social Decency and the Limits of Evenhandedness: Intentional
Infliction of Emotional Distress by Outrageous Conduct, 82 COLUM. L. REv. 42 (1982) (discussing
social context of intentional infliction of emotional distress cases).
372. Fisher v. Carrousel Motor Hotel, 424 S.W.2d 627, 631 (Tex. 1967).
373. Id. at 628-29.
374. See CHAMALLAS & WRIGGINS, supranote 158, at 79.
375. Id. (discussing Walker v. Thompson, 214 F.3d 615 (5th Cir. 2000)).
376. JUDITH N. SHKLAR, LEGALISM: LAW, MORAL, AND POLITICAL TRIALS 2 (1986).
377. Id.
378. Id. at 3.
379. See Cohen, supra note 361, at 809. Felix Cohen, who viewed legal formalism as
transcendental nonsense, coined the concept of the legal heavens. He satirized the failure of
formalists to consider social context and history:
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acting like "legal monks who pass their lives in an atmosphere of pure law,
from which every worldly and human element is excluded.""so Civil
recourse theory then is tort jurisprudence's equivalent of constitutional law's
faint-hearted originalism in its belief that the meaning can be determined by
retreating to Blackstone's private wrongs. 8
F.
Civil Recourse's Theory of Torts in a Bubble
Civil recourse approaches tort law from an "internal point of view" as
opposed to the traditional account that torts deter, allocate losses, and serve
to supplement public regulation.38 2 Civil recourse theory is ahistorical and
presupposes some sort of timeless essence of private wrongs that remains
unchanged in the new millennium. Civil recourse theory's myopic focus on
individuals is inward turned neglects social interests. The problem is that
these born-again Blackstonians are miniaturizing rights and remedies
without acknowledging that torts are not just between the plaintiff and the
defendant. 383
I have a long history of seeing tort law through Seinfeld-colored glasses.
In this case, the Bubble Boy episode comes to mind.384 The Bubble Boy,
you will recall, lived a sad life in germ-free incubator called "The Bubble."
Donald was the Bubble Boy's name and he had a rather nasty personality
that we do not need to deal with here. The pertinent point was that his living
Some fifty years ago, a great German jurist had a curious dream. He dreamed that he
died and was taken to a special heaven reserved for the theoreticians of the law. In this
heaven one met, face to face the many concepts of jurisprudence in their absolute purity,
freed from all entangling alliances with human life . . . . How much of contemporary
legal thought moves in the pure ether of [the] heaven of legal concepts?
Id.
380. Ned Hamilton & Mattias Jarren, Introduction to ROSCOE POUND, THE SPIRIT OF THE
COMMON LAW xxxi (Transactions Books 1998) (1906) (quoting Roscoe Pound's famous 1907
address critiquing legal education).
381. See supra note 286 (discussing originalism).
382. See, e.g., Goldberg & Zipursky, supra note 113; see also Benjamin C. Zipursky, The Internal
Point of View in Law and Ethics: Introduction, 75 FORDHAM L. REV. 1143, 1145 (2006) (describing
"Hart and Holmes as a prism through which to look at the relations between law and ethics");
Goldberg & Zipursky, supra note 189, at 365 n.2 ("More generally, we have supposed that the first
step-but not the last-in analyzing tort law is to understand it from the 'inside,' rather than by
means of a reductively instrumental account that, on each occasion calling for the application of tort
law, asks what result will serve some policy goal or goals, such as deterrence and compensation.").
383. My discussion of tort law miniaturism has a parallel concept in sociology's microtheories.
See John F. Stolte et al., Sociological Miniaturism: Seeing the Big Through the Small in Social
Psychology, 27 ANN. REv. Soc. 387 (2001).
384. The Bubble Boy, Seinfeld Scripts (Oct. 20, 2010 5:30 PM), http://www.seinfeldscripts.com/
TheBubbleBoy.htm.
495
space was a germ-free incubator. Of course, there is a sense in which every
case is a world onto itself. Nevertheless, neither cases nor their impact can
be quarantined in a "germ-free incubator." All deontological theories are in
a bubble, and the civil recourse is sequestered from society.
G. The Joy of (Tort) Sects: Torts Must be Born Again
The term "fundamentalist tort theory" refers to the tendency of tort
scholars to be true believers of a single account of tort law predicated upon a
single variable.185 Tim Kaye compares tort law camps to battling sects of
some "fundamentalist religion, in which theorists flaunt their piety by
providing an ever-purer statement of the faith." 8 Corrective justice, for
example, has a monistic focus upon the specific litigant who needs to be
In contrast, law and economics macrotheory focuses
made whole again.
on loss allocation and distribution, 8 recasting torts into a single doctrinal
mold. Tort fundamentalism, like religious fundamentalism, places the
highest value on doctrinal conformity. 89 Monists teach that tort law must
strictly adhere to a set of basic doctrinal principles that are almost religious
in nature.390 Such proselytizers have turned tort law into competing sects
each with a "with-me-or-against-me" view that is the functional equivalent
of "fundamentalist piety.""' Civil recourse theory is a counter-hegemonic
reaction to the tort law taught in American classrooms for many decades and
385. See Green, supranote 109, at 266.
Leon Green commented on tort theorists who elevated fundamentalist doctrines in his
day: [Tort law doctrine] can be stretched or contracted to meet the needs of the moment
and is always colored by the desires of the user. Doctrine for doctrine's sake may
become an obsession with lawyers as it does with preachers and politicians. It feed on
itself; hardens into clichds and blocks the arteries of thought.
Id.
386. Tim Kaye, Rights Gone Wrong: The Failureof Fundamentalist Tort Theory, 79 MISS. L.J.
931,933 (2010).
387. Coleman, supra note 174, at 429-30.
388. See supra text accompanying notes 128-29.
389. See Scott Bidstrup, Why the 'Fundamentalist'Approachto Religion Must be Wrong (October
14, 2010 5:00 PM), http://www.bidstrup.com/religion.htm ("Fundamentalism isn't restricted to
Christianity or Islam, the two major religions on which it has had its greatest impact, but it is found
in every major religion, ranging from Judaism, to Hinduism, to Sufism, to Buddhism, to even
Zoroastrianism.").
390. Kaye, supra note 386, at 933.
Indeed, rather than shedding new light on the law of torts, all these "with-me-or-againstme" approaches have one unappealing feature in common: they paint a picture of the law
which is simply unrecognizable to the non-believer. Herein lies the problem. Instead of
aiding the explanation or evaluation of the law of torts, statements of tort law theory are
becoming more like affirmations of fundamentalist religion, in which theorists flaunt
their piety by providing an ever-purer statement of the faith. Yet, as always,
fundamentalist piety appeals only to fundamentalists.
Id. at 933.
391. Id.
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maintains that "relational wrongs is the linchpin of a theory of tort law that
makes better sense of tort doctrine and better captures what that body of law
promises to deliver as one among many departments of the law."392 These
recourse sectarians believe that tort law should be restored to its
Blackstonian ideal of redressing private wrongs and jettison instrumental
purposes such as deterrence or advancing social, racial, or gender justice.393
Civil recourse sectarians, like those following corrective justice, emphasize
the idea "that an act is right or wrong 'in itself."' 39 4 Goldberg charges that
courts, too, have incorporated too much public policy in their unprincipled
decisions: "Many judges seem to view tort cases as presenting a simple, nonor deny
law-governed choice: permit the jury to do 'flabby equit[y],'
39
liability as a matter of law in the name of 'public policy."' s
Just as Martin Luther led a revolt against the Catholic Church in
sixteenth century Germany, civil recourse theories are leading an apostate
revolt against traditional tort law.396 Goldberg and Zipursky, the founding
fathers of civil recourse, would downsize torts from serving broader societal
functions to the micro point of view that focuses on the bipolar relationship
between the injured plaintiff and the defendant who perpetrated the
wrong.3 97 They call for re-conceptualizing tort law from a public law to a
392. John C.P. Goldberg, Anthony J. Sebok & Benjamin C. Zipursky, The Place of Reliance in
Fraud,48 ARIZ. L. REv. 1001, 1014 (2006).
393. Id. at 1013-14.
For present purposes, it will suffice to say that the idea of torts as private or relational wrongs has a
long lineage in Anglo-American law, tracing back through the likes of Cardozo to eighteenthcentury American commentators like Dane, Greenleaf, and Swift to the work of Austin, Blackstone,
and Locke. Conceptualizing torts as being built on relational duties also enables us not only to make
sense of otherwise puzzling individual tort doctrines like reliance, but captures what is distinctive
about tort law as a body of law. . .
Id.
394. Robinette, supranote 177, at 347.
395. Goldberg, Unloved: Tort in the Modern Legal Academy, supranote 22, at 1518.
396. See Goldberg & Zipursky, The Moral of MacPherson, supranote 219, at 1812.
The hostility towards duty in modem torts scholarship can now be seen for what it is: an
undefended commitment to empiricist and utilitarian philosophies, masquerading as a
conceptually necessary axiom. By demonstrating this much, we hope to have created a
willingness on the part of the reader to entertain the possibility of a non-reductive
conception of duty. Our remaining task is to start to make the positive case for retention
of such a concept as part of the tort of negligence.
Id.
397. Civil recourse theorists gloss over the complexity of tort law and our compensations systems
described by F. Patrick Hubbard:
[T]here are four potential bearers of the costs involved: the victim, the injurer, a third
party like a private insurer, or the public through a social welfare scheme. If the costs are
left on victims, they are poorer; if costs are shifted, victims are richer while injurers, third
parties, or the public are poorer. In the tort system, the decision tends to be limited to
497
law of private wrongs:
Afraid since Holmes's time of the sanctimonious sound of
"wrongs," and confronted with modem accident epidemics, scholars
have convinced themselves that the subject of Torts is really about
accidentally caused losses, not wrongs, and that the central task of
tort law is to reallocate such losses in the most justifiable manner.
Included among them are economists like Calabresi and Posner,
corrective-justice theorists like Coleman, and mainstream doctrinal
scholars like Prosser and the Reporters for the forthcoming
Restatement (Third) of Torts. Without wrongs at the center,
however, all of these theories are doomed to fail. Numerous, deeply
rooted features of the structure of Anglo-American tort law, as we
have shown, render loss-based theories incapable of capturing this
body of law. In contrast, a civil-recourse theory that predicates
rights of action on wrongs, not losses, comfortably shows how tort
law hangs together.398
Nearly fifty years ago, Leon Green described the danger of funneling
tort law through a single doctrinal perspective, but maintained that "[t]his
does not call ... for the flight from doctrine to the heaven of policy
making."399 The problem with civil recourse theory is that torts are more
than one thing. Torts are not just about the individual plaintiff and
defendant, but involve other societal interests. Fundamentalism in tort law,
like religious fundamentalism, is dogmatic in believing that it has the one
true way of seeing tort law. Goldberg and Zipursky write in their latest
article that they seek to "put us back on track, not just pedagogically but
theoretically."400 Just as religious fundamentalists believe there is one true
path, these tort sectarians ask us to accept as an article of faith that torts are
about private wrong and serve no overarching public purposes.
H. Civil Recourse Is Value-Free and Apolitical
The civil recourse concern that judges not inject public policy and
equitable considerations into their decision-making goes against the grain of
tort law in action. Can judges decide tort cases in a value-free judicial
chamber hermetically sealed from the unseemly world of politics? Civil
whether the loss will be borne by the victim or the injurer. Third parties like liability
insurers may ultimately bear the cost, but the initial judicial allocation will not usually
involve the third party.
Hubbard, supra note 20, at 445.
398. Goldberg & Zipursky, supra note 198, at 986.
399. Green, supra note 109, at 269.
400. Goldberg & Zipursky, supra note 198, at 986.
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recourse theorists would answer this question "yes." Chamallas and
Wriggins comment on Goldberg's attempt to separate the prescriptive
aspects of tort law from the interpretative. 4 01 They argue that this is a false
dichotomy given that it is impossible to free interpretation and description
from values.402 Civil recourse theorists criticize torts scholars who view
torts as a political struggle involving class, power, and social change.
John Goldberg suggests that a better and more accurate title for my book
with Thomas Koenig, In Defense of Tort Law, is "The Political Usefulness
of Tort Law. >403 This clever and admittedly hilarious suggestion reminds
me of the debate over whether sociology should be value neutral when I was
a Ph.D student in the late 1970s and early 1980s. Sociologist Alvin
Gouldner was the leading spokesperson for the view that value-free
sociology was not possible or desirable. Gouldner castigated sociologists
who attempted to "escape from the world" 404 by divorcing social science
from political and economic realities. Gouldner argued that the ambitious
sociologists of his day served the governing class by pursing valueneutrality 405 in a manner that was "useful to those young, or not so young
men, who live off sociology rather than for it. . . ."4 06 He charged that the
value-free doctrine was "a contemporary version of the most ancient
sophistry."407 Too many young sociologists had an idealized image of
themselves as working in an antiseptic world of value neutrality divorced
from social reality. Allen Hutchinson, a Canadian torts scholar, echoes this
argument, reasoning that value neutrality is impossible in tort law because it
is not possible to "discard our ideological presuppositions and achieve some
ahistorical or universal standpoint." 40 8
The question remains, can judges decide torts cases in a value-free
judicial chamber hermetically sealed from the seamy world of politics? John
Rawls employed the legal fiction of "the veil of ignorance" to refer to
judicial decision making without bias.409 Judith Shklar contends that the
CHAMALLAS & WRIGGINS, supra note 158, at 18.
402. Id. ("We do not believe that such a strict separation of interpretation and prescription is
possible. For critical scholars like ourselves, the interpretative/prescriptive dichotomy is inherently
unstable, primarily because we believe that the human process of 'interpreting' and 'describing' the
law cannot free itself from normative considerations of what ought to be.").
403. Goldberg, Unloved: Tort in the Modern Legal Academy, supranote 22, at 1511 n.41.
404. Alvin W. Gouldner, Anti-Minotaur: The Myth of a Value-Free Sociology, 9 SOC. PROB. 199,
203-04 (1962).
405. Id. at 204.
406. Id.
407. Id.
408. Allan C. Hutchinson, Beyond No-Fault, 73 CALIF. L. REv. 755, 755-56 (1985).
401.
409. See JOHN RAWLS, A THEORY OF JUSTICE 136 (1971).
499
fundamentalist belief that law can be separated from politics is ideological
though it is masquerading as value-free.410 She sees this search for value
neutrality as what prevents legal thinkers from apprehending "both the
strengths and weaknesses of law and legal procedures in a complex social
world." 4 11 This search for law separate from society is also a search for
certainty in an uncertain world.
Civil recourse theorists' call is for torts to return to an earlier era when
judges supposedly decided cases in an apolitical, objective, and nonideological way. Goldberg's Torts: Unloved article asks torts scholars and
courts to refocus on individual cases and controversies rather than viewing
tort law as an instrument for social justice:
I am suggesting that we must recapture the idea that tort cases are
concerned with the focused task of identifying and remedying instances
in which an actor has wronged another, as opposed to providing
localized compensation or insurance schemes, regulating antisocial
conduct for the good of society, or the like. Relatedly, we will have to
recapture a sense of tort as a body of law, rather than as an occasion for
doing whatever seems right or practical at the time. Perhaps then tort
could regain our love, or at least a grudging recognition of its
worth. 413
Moral philosophy is attractive on the surface because it is a retreat from
the nitty-gritty world of tort reform politics but, in reality, ignoring the role
of power inequities in U.S. society does not make it either value-free or
apolitical. Civil recourse theory makes for elegant abstract argument, but it
is woefully divorced from the reality of legislative politics.
Civil recourse theorists seem to yearn for a simpler world where moral
philosophy fits one-on-one injuries and the political and social perspectives
fall by the wayside. The private wrong created when a neighbor sues the
wife or daughter of another fits well within models favored by younger tort
scholars such as retributive justice or civil recourse. Moreover, in the form
of a curious turn of phrase, Goldberg's assertion that we "need to ask less,
yet expect more, of tort" is a call for a simpler society where tort conflicts
are mediated between neighbors in the local community.4 14 He calls for us
"to wean ourselves from the habit of treating tort as a means of devising ad
410. JUDrm N. SHKLAR, LEGALISM: LAW, MORALS, AND POLITICAL TRIALS 89-90 (1986).
411. Id. at 8 (discussing the straightjacket of legalism in the bench and bar).
412. Shklar describes how legalists attempt to cabin the complexity of human relationships into
"the form of claims and counterclaims under established rules, and the belief that the rules are
'there."' Id. at 10.
413. Goldberg, supra note 22, at 1519.
414. Id.
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hoc solutions to perceived social ills."415
Civil recourse theorists' downsizing of American tort law brings to
mind the work of the German sociologist Ferdinand Tonnies. T6nnies
developed a grand theory of modernity that focused on the ideal types of
Gemeinschaft and Gesellschaf.416 T6nnies described how societies evolved
from Gemeinschaft, where culture was based upon traditional bonds of
family and community, to Gesellschaft, where the social bonds were
impersonal and specialized.417 Mathieu Deflem describes T6nnies' 1887
book as an explanation of the evolution from ancient to modern society:
Suggesting a transformation from Gemeinschaft to Gesellschaft,
T6nnies argues that societies of the earlier form are organized
around family, village, and town. The economy is largely
agricultural and political life is local. Gesellschaft societies, on the
other hand, are organized at the larger levels of metropolis and
nation-state, while the economic system is based on trade and
modem industry. Extending his sociological perspective to include
a social psychology, T6nnies conceived of social formations as
expressions of the human will. He argued human volition to be
either of the type of essential-will (Wesenwille), dominant in
Gemeinschaft, or arbitrary-will (Kirwille), which characterizes
Gesellschaft. Essential-will is defined as the human will that
readily springs forth from a person's temper and character. The
development of essential-will into arbitrary-will allows actors to
choose among various means to fulfill certain ends. The crucial
characteristic of arbitrary-will is the capacity to distinguish means
from ends and to choose the most efficient means for any given
end.4 18
Goldberg's dwarfing of tort law returns us full circle to the tort law of
the Gemeinschaft society of the eighteenth century. 419 During this time, as
415. Id. (emphasis added).
416. See Mathieu Deflem, Tonnies, Ferdinand (1855-1936), in ROUTLEDGE ENCYCLOPEDIA OF
PHILOSOPHY (Edward Craig ed., 2001), available at http://www.cas.sc.edu/socy/faculty/
deflem/zToennies.html.
417. See id.
418. Id.
419. I borrow this phrase from William F. Warde who charged that microsociologists were
"dwarfing" sociology in the 1960s. William F. Warde, American Sociology: An Article Review of
Two Recent Studies of Modem Sociology: What is Sociology? by Alex Inkeles, and The New
Sociology edited by Irving Louis Horowitz, 26 INT'L SOCIALIST REv. 71 (1965) (book review),
available at http://www.marxists.orglarchive/novack/1965/03/sociology.htm.
501
now public wrongs involved breaches or violations of duties "'which affect
the whole community."' 420 Tort law also mediated and moderated conflict
in Gemeinschaft society. Civil recourse theorists demonstrate their
conservative politics in their admiration of Sir William Blackstone who
surveyed torts in Volume three of his famous Commentaries.421 Civil
recourse theorists apparently believe that tort law can be renewed if we will
turn back the clock to an earlier era of private wrongs.422 Macrotort scholars
diverted from Blackstone's private wrongs view of tort law as the United
States industrialized and modernized:
In sum, the material, political, and intellectual circumstances in
which tort law operated changed significantly in the late Nineteenth
and early Twentieth Centuries. The traditional account-under
which tort law was understood as a set of rules and concepts,
grounded in ordinary morality, for resolving disputes over alleged
wrongs committed by A against B-was no longer obviously in tune
with modem realities or political and intellectual sensibilities.
Indeed, many would soon conclude that if tort law was to be
explained or defended, it would have to be on new grounds. This
would be the dominant project of American tort theory in the first
seventy years of the Twentieth Century.423
Blackstone wrote his Commentaries on the English common law during
a period of great transformation as the writ system was breaking down.424
420. Goldberg, supra note 240, at 439 (quoting 3 WILLIAM BLACKSTONE, COMMENTARIES *2).
421.
During the eighteenth century, a major ideological conflict between forward-looking
Jeremy Bentham and backward-looking Blackstone foreshadowed the coming struggle
between legal formalism and realism that took shape in the early decades of the twentieth
century. Bentham's utilitarian philosophy maintained that the law must be refashioned to
"maximize the greatest happiness of the greatest number."
Bentham targeted
Blackstone's "incrementalism, traditionalism and transcendentalism" as a "barnacled,
superstitious, reactionary [defense of the] status quo."
Rustad & Koenig, supra note 100, at 12 (footnotes omitted) (quoting RICHARD A. POSNER,
THE PROBLEMS OF JURISPRUDENCE 12 (1990)).
422. Civil recourse theory's endorsement of Blackstone stands in stark contrast to instrumentalists
who revile him. As we wrote in our Brooklyn Law Review piece:
Richard Posner's The Problems of Jurisprudencesupports the utilitarian philosophy of
Jeremy Bentham against Blackstone's formulation. Judge Posner views Blackstone's
jurisprudence as hampering wealth maximization by imbuing the common law with a
"transcendental aura" that was "rooted in Saxon customary law.". . .
Oliver Wendell Holmes Jr. attacked Blackstone's notion of legal doctrine as divinely
inspired, arguing that law was "the creation of distinctly earthbound political
Holmes castigated
authorities-legislators and, at the time, especially judges."
Blackstone's formalistic model of the English common law for its lack of coherence and
inability to evolve to meet new social challenges ....
Id. at 12 (footnotes omitted) (quoting POSNER, supra note 421, at 1, 2-13).
423. Goldberg, supranote 80, at 521.
424. As Justice Cardozo wrote in the famous contract case of Wood v. Duff-Gordon, 118 N.E.
502
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Writs were formal legal documents issued by the court that called for the
seizure of persons or property. 425
"This element of damages seems to have been the chief invigorating
force behind the origin and development of trespass, and also the
main cause of that remarkable development of writs and the forms
of action which took place in the thirteenth century and included
much else in addition to trespass." 426
Civil recourse theory seems to fit perfectly with eighteenth century
private wrongs system where the chief disputes involved intentional tort
actions between neighbors in the local community.
However, if, in the eighteenth century, an obstruction blocked the public
highway it was a common nuisance.427 Eighteenth-century English tort law
operated in a Gemeinschaft-type society where the economy was agricultural
with a homogenous sense of community and outlook. The tort law of that
period was largely about intentional torts, not negligence. 428 Volume three
of Blackstone's Commentaries, entitled "Private Wrongs," was the
equivalent of Prosser on Torts for eighteenth-century England.429 In
Blackstone's day, torts were not just between the plaintiff and the defendant;
they also served public purposes by preserving the family and local
community:
Volume Three of Commentaries is a snapshot of eighteenth century
English tort law prior to the development of the fault-based
negligence paradigm. Tort law of that period preserved the King's
peace and the domestic tranquility of the family and community by
mediating conflict between neighbors over property and personal
rights.430
214, 214 (1917): "The law has outgrown its primitive stage of formalism when the precise word was
the sovereign talisman, and every slip was fatal."
425. The writ system was a straightjacket that made it difficult for torts to evolve. At early
common law, under the writ system, a plaintiff would have no recovery unless her injury fit within
the confines of an "existing and recognized writ." WILLIAM L. PROSSER, HANDBOOK OF THE LAW
OF TORTS 19 (1971); see also Rustad & Koenig, supra note 100, at 9 (noting that writs were feebased and favored the wealthy and powerful).
426. Woodbine, supra note 22, at 802.
427. Id.
428. See supra note 97 and accompanying text (placing the birth of negligence liability in the midnineteenth century).
429. 3 BLACKSTONE, supra note 420.
430. Rustad & Koenig, supra note 100, at 10.
503
Blackstone did not use the word torts, but rather "private wrongs,"
which comprised only "a small piece of what he took to be the gorgeous
mosaic of the liberal state's complex system of law." 43 1 Goldberg asks us to
return to downsized tort law where the dispute is about the plaintiff and the
defendant rather than telescopic issues that occupy the legal academy
Blackstone's account of eighteenth-century English torts
today. 43 2
demonstrated that although verdicts for injuries were private wrongs they
were hardly value-free since they reflected the biases of a patriarchal
society. 4 33 Protecting the integrity of the patriarchic family and the
community was an urgent problem for eighteenth-century torts.434 Males
received civil redress "for the mortification they suffered when defendants
seduced their female servants, debauched their daughters, or formed illicit
sexual attachments with their wives." 4 35 The torts system of the mid-1700s
did not redress the injury to the wife brutalized by an abduction, seduction,
or sexual assault.436 The Blackstonian period of tort law evidences "genderlinked limitations on recovery."437
Eighteenth and early nineteenth century court dockets included actions
for seduction, abduction, criminal conversation, and alienation of
affections.438 Familial torts vindicated the right of the male head of
431. Goldberg, supra note 22, at 1504.
432. See id. at 1519. Goldberg suggests "that we must recapture the idea that tort cases are
concerned with the focused task of identifying and remedying instances in which an actor has
wronged another, as opposed to providing localized compensation or insurance schemes, regulating
antisocial conduct for the good of society, or the like." Id.
433.
Some legal historians contend that Blackstone's principal ideological motive was to
defend the rights and privileges of the English elite. These theorists characterize
Blackstone as "the supreme apologist for the English political hierarchy and for the
distribution of wealth and power that existed in England in the mid-eighteenth century."
In contrast, the libertarian torts scholar Richard Epstein praises Blackstone's absolutist
vision of property rights as establishing important bedrock principles that have a
continuing vitality."
Rustad & Koenig, supranote 100, at 11 (footnotes omitted).
434. See id. at 19.
435. KOENIG & RUSTAD, supranote 239, at 106.
436. See id. ("[T]orts committed against females were classified as affronts to the family as a
social instruction, and therefore awards were given to the male as the head of the household."); see
also Townsend v. Townsend, 708 S.W.2d 646, 647 (Mo. 1986) ("'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."' (quoting
1 BLACKSTONE, supra note 420, at *442)).
437. CHAMALLAS & WRIGGINS, supranote 158, at 3.
438. Such torts were seen as crimes against the community.
The French sociologist, Emile Durkheim, defined collective conscience as the "totality of
beliefs and sentiments common to the average members of a society." In pre-industrial
societies, crimes and quasi-criminal conduct can be seen as a violation of the collective
conscience. Punitive damages in early America were reflective and supportive of the
collective conscience of the day ...
Rustad, supra note 93, at 485 (footnotes omitted) (quoting DURKHEIM, supra note 51, at 38-39).
504
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household rather than the women and children who were the victims of
trespass.4 39 Eighteenth century tort law upheld the edifice of the patriarchal
family structure where women were classified as chattel.440 Therefore,
injuries to wives and children were considered an interference with the
husband's personal property."' Husbands had personal property actions
against other men that trespassed upon their conjugal or parental property by
engaging in illicit sexual relations.442 By the middle of the twentieth
century, tort actions for seduction, criminal conversation, alienation of
affections and defilement were dead or dying." 3 However, Blackstone's
private wrongs model to enjoy hegemony from the 1760s to the middle of
the nineteenth century.
The civil recourse theories portray Blackstone's "gorgeous mosaic"
without acknowledging its patriarchal assumptions that reflected wider
societal values.445 Eighteenth-century tort law upheld the edifice of the
patriarchic family structure where women were classified as chattel." 6
Blackstone's discussion of private wrongs against the family is particularly
telling of the fact that his conceptual lens is clouded by then prevailing
norms:
We may observe, that in these relative injuries, notice is only taken
of the wrong done to the superior of the parties related by the breach
and dissolution of either the relation, itself, or, at least, the
advantages accruing there from; while the loss of the inferior, by
such injuries, is totally unregarded. One reason for which may be
this: that the inferior hath no kind of property in the company, care,
439. See Rustad & Koenig, supra note 100, at 19.
At common law, women were classified as personal property of the male head of
household. Tort law provided remedies for theft of property, including a cause of action
for abduction. Abduction was the taking of a man's wife by fraud, persuasion or open
violence-a tort that reflected the status of women as chattels. Husbands could recover
damages from another man who "persuade[d] or entice[d his] wife to live separate from
him without a sufficient cause." A husband could receive damages for the defendant
having taken his wife, but could not repossess his spouse without her consent.
Rustad & Koenig, supra note 100, at 20; see also KEETON ET AL., supranote 7, at 901-02.
440. Rustad & Koenig, supra note 100, at 19 ("Eighteenth century tort law reflected the
patriarchal family values of an era in which males were absolute rulers of the intimate environment.
Men enjoyed extensive rights over their chattels, which included wives, children and servants.").
441. See Koenig & Rustad, supra note 239, at 105 (discussing injuries to wives).
442. See id.
443. Id. at 109.
444. Goldberg, supra note 22, at 1505.
445. See id at 1504.
446. See Rustad & Koenig, supra note 100, at 19.
505
or assistance of the superior, as the superior is held to have in those
of the inferior: and, therefore, the inferior, can suffer no loss or
injury. The wife cannot recover damages ... for she hath no
7
separate interest in anything, during her coverture.4
The familial torts of Blackstone's day reflected a patriarchal society
where the husband's role as household head was paramount."8 Under
Blackstone's model, husbands could be injured in three ways: if another man
abducted his wife, had "criminal conversation" with his wife, or beat his
wife." 9 The actual victim, the wife, could seek no such redress. 450
Blackstone's Commentaries is not only a grand theory of the then known
private wrongs, but it is also a wider ideological project justifying the values
451
and the power structure of English society.
I.
Civil Recourse Theory Is Reductive
In his American Mercury magazine, H.L. Mencken ridiculed the
smugness of 1920s Protestant sects. When asked why he stayed in America
given its smug fundamentalism, Mencken reportedly responded: "Why do
people visit zoos?" 45 2 Christopher Robinette describes the tort menagerie as
consisting of diverse species, but most theories are broadly classifiable as
hedgehogs and foxes. 453 Hedgehogs are torts scholars who view the world
monistically, whereas foxes are pluralistic in their outlook.454 Steven Smith
described the tendency of modem legal academics to engage in reductive
thinking:
[T]he institutions of law perform multiple functions and that the
law, in performing its different functions, must work in different
ways. That proposition seems so obvious, and so singularly
unexciting .... However obvious, the law's functional multiplicity,
as well as the jurisprudential implications of that multiplicity, are
regularly overlooked. Because lawyers, judges, and even (or
especially) legal scholars often seem afflicted with a compelling
447. 3 BLACKSTONE, supranote 420, at * 142-43.
448. Prentice L. White, Stopping the Chronic Batterer Through Legislation: Will it Work This
Time?, 31 PEPP. L. REV. 709, 714-17 (2004) (contending that Blackstone formulated a theory of the
husband as disciplinarian in a patriarchal family structure).
449. Id. at *138-39.
450. Seeid.at*143.
451. Steve Sheppard, Casebooks, Commentaries, and Curmudgeons: An Introductory History of
Law in the Lecture Hall, 82 IOWA L. REV. 547, 561 n.54 (1997) (describing Blackstone's ideological
project).
452. See 2 PAUL S. BOYER ET AL., THE ENDURING VISION: A HISTORY OF THE AMERICAN PEOPLE
SINCE 1865, at 546 (concise 6th ed. 2010).
453. See Christopher J. Robinette, supra note 177, at 332
454. See id.
506
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need to reduce law to a unitary image or theory, legal theory-and
law-suffer.45
Reductionism is the tendency of theorists to boil the complexity of tort
law into one thing, whether it is corrective justice, civil recourse, or
allocative efficiency.456 The problem with this approach is that torts
performs multiple functions and has no single organizing principle. As
Justice William 0. Douglas reminds us: "The law is not a series of
calculating machines where definitions and answers come tumbling out
when the right levers are pushed." 457 Civil recourse's monism makes it a
theory that excludes gender, race, power, social change, and social context in
general.458 Jane Stapleton compares the complex mosaic of tort law to a
very "distinctive sculptured garden that is being built up by usually
incremental contributions from generations of cases."459 She notes that civil
recourse theory has attempted to reduce tort law "to a unitary idea," when
what is needed is a "nuanced plural account.",4 60
J.
Civil Recourse Theory Fails to Explain JurisdictionalDifferences
One last point needs to be made about civil recourse theory's monism.
Tort law is more complex and heterogeneous than civil recourse theorists
would acknowledge.4 61 Civil recourse theorists generally use featured cases
455. Steven D. Smith, Reductionism in Legal Thought, 91 COLUM. L. REv. 68, 68 (1991).
456. Id. at 84 ("[Al reductionist depiction of law, regardless of which form the particular
reductionism takes, will distort legal understanding by presenting one perspective as if it were the
whole picture."). Jane Stapleton criticizes civil recourse theory's reductionism as well as
unnecessarily obscure vocabulary. Stapleton, supra note 121, at 1560 ("We can see what is
distinctive about a tree, but we cannot reduce this to a unitary notion. Indeed, why would we want to
do so?").
457. William 0. Douglas, The Dissent:A SafeguardofDemocracy, 32 J. AM. JUDICATURE SOC'Y
104, 105 (1948).
458. See Goldberg, supra note 208, at 1252. John Goldberg acknowledges that civil recourse is
monistic in his Monsanto lecture at Valparaiso Law School:
So the civil recourse account excludes things from the domain of tort. In that sense, at
least, it is monistic rather than pluralistic. Yet at the same time it is capacious. Because
it frames the enterprise in terms of defining wrongs and empowering victims to respond
to wrongs, rather than as an enterprise that seeks to achieve a collective goal such as
deterrence or loss-spreading, it is not embarrassed by features that other theories are
forced to regard as facially dysfunctional.
Id.
459. Stapleton, supra note 121, at 1560-61.
460. Id. at 1561.
461. I am indebted to Tim Kaye who pointed out the deficiencies of contemporary tort theories in
accounting for jurisdictional differences. See generally Kayne, supra note 386 (examining rightsbased and economics-based tort law theories). A monistic theory such as civil recourse does not
507
without fleshing out or explaining jurisdictional differences. Just by way of
example, New York has never recognized the tort of wrongful discharge but
it has enacted a number of whistleblower statutes.462 In many other states, a
discharged whistleblower may file tort claims.463 New York, along with a
number of Southern states, "refused to recognize any exceptions to
employment-at-will, concluding that the meaning of 'contrary to public
policy' was simply 'too nebulous' to justify the judicial creation of a new
tort.",4 6 Thirteen other states did not wait for their legislatures to carve out a
public policy tort.4 65 The joy of torts can be experienced in our federalist
system because states have the ability to serve as local laboratories of social
experimentation.466
Civil recourse theory ignores the empirical reality of tort law's diverse
local traditions, which do not fit well with its paradigm. For example, civil
recourse theory holds that punitive damages reflect "a judgment about the
[individual] plaintiffs right to be punitive." 467 The empirical reality of
punitive damages is that it is a multidimensional remedy that performs
manifold functions. 468 A multidimensional theory of tort law acknowledges
that functions performed by the civil justice system change, are abandoned,
or are replaceable by other social institutions. 4 69 The problem with a
monistic theory is that it cannot account for the diversity of state approaches
to punitive damages and the way states serve as laboratories for tort
experiments.470 Monistic theories, such as civil recourse theory, do not
account for the complexity of tort law and indigenous jurisdictional
differences.4 71
explain why there are variations in important tort rights and remedies such as punitive damages, noneconomic damages, joint and several liability, lost chance recovery, premises liability, comparative
negligence, and the like. See Rustad & Koenig, supra note 100, at 9 (noting that writs were feebased and favored the wealthy and powerful).
462. Elletta Sangrey Callahan & Terry Morehead Dworkin, The State of State Whistleblower
Protection, 38 AM. BUS. L.J. 99, 115 (2000).
463. Id. at 123.
464. Deborah A. Ballam, Employment-at-Will: The Impending Death of a Doctrine, 37 AM. Bus.
L.J. 653, 661 (2000).
465. Id at 661-62.
466. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) ("It
is one of the happy incidents of the federal system that a single courageous State may, if its citizens
choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest
of the country.").
467. Benjamin Zipursky, A Theory of Punitive Damages, 84 TEX. L. REV. 105, 167-68 (2005)
(articulating civil recourse approach to punitive damages).
468. Calabresi, supra note 127, at 337-46 (describing five functions beyond compensating a
particular plaintiff, including the enforcement of social norms through the attorney general, the
multiplier, the "tragic choice" function, recovery of generally unrecoverable compensatory damages,
and righting private wrongs).
469. Id. at 349.
470. See supra note 466 and accompanying text.
471. See, e.g., Michael L. Rustad, The Closing of Punitive Damages' Iron Cage, 38 LOY. L.A. L.
508
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Punitive damages as private retribution meshes well with a prehistoric
tort law where the focal point is private wrongs. However, this limited
viewpoint of tort law slights more than 250 years of court decisions
establishing the critical functions of punishment and deterrence.4 72 The U.S.
Supreme Court has noted how "[p]unitive damages may properly be
imposed to further a State's legitimate interests in punishing unlawful
conduct and deterring its repetition." 4 73 However, this well-established
function of general deterrence is not acknowledged by civil recourse's view
of punitive damages as vindicating private wrongs.474
Specific deterrence sends a message to the individual defendant that a
tort does not pay. However, general deterrence for defendants exists in the
larger industry outside the bubble of the specific lawsuit.475
Zipursky describes tort law's function as giving the injured plaintiff an
avenue to be vindictive or punitive as a matter of civil recourse.476 Sebok
views punitive damages as a remedy chiefly about "private redress."477 He
writes that: "The wrong of violating a private right shows contempt for the
relational duties owed between the wrongdoer and the victim." 478 He
describes punitive damages as serving as a means of "private retribution." 4 79
Therefore, civil recourse theorists deny the historically-based character of
punitive damages as a method of societal punishment and general
deterrence. 4 80 Their restricted interpretation impedes tort law from
functioning as a free market, low cost alternative to heavy, expensive
regulation and bureaucracy.
Many, but not all, states use the term "punitive damages." The terms
"vindictive," "exemplary," or "smart money" are used in different
REV. 1297, 1299-1300 (2005) (noting "significant variation among the states in the availability of
punitive damages" with a handful of states not recognizing them, capping them, or allocating a
portion to a state fund).
472. See infra notes 473-74 and accompanying text.
473. Philip Morris U.S.A. v. Williams, 549 U.S. 346, 352 (2007) (citations omitted).
474. See supranote 467 and accompanying text.
475. See Anthony J. Sebok, Punitive Damages in the United States, in 25 PUNITIVE DAMAGES:
COMMON LAW AND CIVIL LAW PERSPECTIVES 155, 179-80 (Helmut Koziol & Vanessa Wilcox eds.,
2009) (explaining that most states award punitive damages to extend the deterrent effects beyond the
conduct of the initial wrongdoer to the public at large).
476. Zipursky, supra note 467, at 152-53 ("It is the state's permission and empowerment of a
plaintiff to be vindictive, and to be punitive, albeit in a well-circumscribed and civil way. This is the
civil aspect of punitive damages.").
477. See Anthony J. Sebok, Punitive Damages: From Myth to Theory, 92 IOWA L. REV. 957, 957
(2007).
478. Id. at 1028.
479. Id. at 1025.
480. See supranotes 468-71, 473 and accompanying text.
509
jurisdictions. 48'
Oregon describes this remedy as a "legal spanking"
administered to bad actors that violate important societal norms. 4 82 Five
states-Louisiana, Massachusetts, Nebraska, New Hampshire, and
Washington-do not recognize the remedy of punitive damages at all.483
The states are almost unanimous in recognizing the twin purposes of
punitive damages: punishment and deterrence.484 Nevertheless, Michigan
does not recognize deterrence and punishment, limiting exemplary damages
to compensation for injured feelings.485
The Michigan Supreme Court described the extra compensatory role of
exemplary damages in assuaging the plaintiffs injured feelings in a case
arising out of a libelous newspaper story entitled, "How a Sneak Made
Love." 4 86 Connecticut imposes punitive damages to pay a plaintiffs
litigation expenses.487 Anthony Sebok conceptualizes punitive damages as
66
"state-sanctioned
revenge. ,488 For example, courts evaluating punitive
damages in product liability cases consider the existence and magnitude of
the danger to the public and what the manufacturer did to discover and
481. See Note, Exemplary Damages in the Law of Torts, 70 HARV. L. REv. 517, 517 (1957)
(describing the diverse vocabulary for civil punishment in the tort system).
482. Rustad, supra note 471, at 1303-04.
483. Id. at 1304. In Louisiana, a plaintiff may not recover punitive damages unless such damages
are expressly provided for in the state's civil code. See Young v. Ford Motor Co., 595 So. 2d 1123,
1131 n.13 (La. 1992). Massachusetts, for example, does not recognize punitive damages, absent
statutory authorization, but permits increasing compensatory damages to punish the defendant.
Smith v. Holcomb, 99 Mass. 552, 553 (1868). In Panasv. Harakis, 529 A.2d 976 (N.H. 1987), the
New Hampshire Supreme Court explained that 'when the act involved is wanton, malicious, or
oppressive, the compensatory damages awarded may reflect the aggravating circumstances."' Id. at
987 (quoting Vratsenes v. N.H. Auto, Inc., 289 A.2d 66, 68 (N.H. 1972)).
484. See Lake Shore & M.S. Ry. Co. v. Prentice, 147 U.S. 101, 107 (1893) (describing punitive
damages functions as punishment and deterrence); Moskovitz v. Mt. Sinai Med. Ctr., 635 N.E.2d
331, 343 (Ohio 1994) ("The purpose of punitive damages is not to compensate a plaintiff, but to
punish and deter certain conduct."); Michael Rustad & Thomas Koenig, The HistoricalContinuity of
Punitive Damages Awards: Reforming the Tort Reformers, 42 AM. U. L. REv. 1269, 1318 (1993)
("The punishment and deterrence functions are the most frequently cited rationales for the remedy of
punitive damages.").
485. Punitive damages in Michigan fulfill a broader compensatory function. See, e.g., Peisner v.
Detroit Free Press, Inc., 364 N.W.2d 600, 606 (Mich. 1984) (discussing availability of punitive
damages in Michigan in context of defamation suit); Jackovich v. Gen. Adjustment Bureau, Inc., 326
N.W.2d 458, 464 (Mich. Ct. App. 1982) (holding that punitive damages are to compensate plaintiff
for humiliation and indignity suffered resulting from defendant's tort); see also Rustad, supra note
471, at 1342.
486. Scripps v. Reilly, 38 Mich. 10, 23 (1878).
487. Connecticut limits awards of punitive damages to full compensation for litigation expenses
less taxable costs. See, e.g., Gagne v. Town of Enfield, 734 F.2d 902, 904 (2d Cir. 1984) (explaining
Connecticut law on punitive damages); Bates v. McKeon, 650 F. Supp. 476, 481 (D. Conn. 1986)
(permitting police officer to collect punitive damages to compensate for litigation expenses in
aggravated assault action); Vandersluis v. Weil, 407 A.2d 982, 986 (Conn. 1978) (explaining that
punitive damages recovery is limited to litigation costs of action being tried and does not include
expenses of former trial); Collens v. New Canaan Water Co., 234 A.2d 825, 831-32 (Conn. 1967)
(maintaining that punitive damages award is purely compensatory).
488. Sebok, supra note 477, at 961.
510
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reduce the danger. 489 A strong torts system makes it less likely that
companies will trade profits for safety and take unnecessary risks
endangering the environment. Therefore, a strong torts system functions as
general deterrence for defendants in the larger industry, those outside the
lawsuit bubble.4 90
Similarly, jurisdictional differences can be found with respect to other
important tort doctrines such as joint and several liability,49' contributory or
comparative negligence,4 92 non-economic damages, 493 tort defenses, 494 and
views of legal causation.495 In states with a weak attorneys general or public
law, torts may be more expansive than in states with strong public
regulations. Indeed, it is hypothesized that tort law has much less of a role
to play in countries with comprehensive social insurance.496 In the future,
the global, cross-border legal environment will need to be addressed by torts
489. David G. Owen, Punitive Damages in Products Liability Litigation, 74 MICH. L. REV. 1258,
1369 (1976).
490. See supra note 475 and accompanying text.
491.
At early common law, joint tort liability was a narrow doctrine that "referred to
vicarious liability for concerted action." The rationale for doing away with joint liability
is the assumption that the defendants should not pay more than the percentage of fault
attributable to them. Corporations oppose joint and several liability because it makes a
co-defendant responsible for paying an entire award if the other party is bankrupt or
otherwise insolvent. In jurisdictions where there is only several liability, the defendant
pays only her share of the claim and there is no need for contribution. However, joint
and several liability gives a co-defendant who is paying more than her fair share, the
possibility of contribution or indemnity.
Thirty-five states limited joint and several liability as the result of tort reform.
Rustad & Koenig, supra note 100, at 69-70 (footnotes omitted) (quoting PROSSER, supra note 113,
at § 3.
492. Comparative negligence jurisdictions vary depending on whether they are "modified" or
"pure" regimes. In a modified system, negligent plaintiffs may recover provided their negligence is
neither equal to, but not greater than that of the defendant. See 65A C.J.S. Negligence § 327 (2010).
In a pure comparative negligence regime, the plaintiffs recovery is diminished by the degree of
negligence, even if it is greater than or equal to that of the defendant. § 325. In a modified
comparative negligence jurisdiction following the fifty-fifty rule, a plaintiff may not recover if his
fault was fifty percent or more in contributing to his injury. See § 327.
493. See generally Rustad, Heart ofStone, supra note 67, at 370 ("Yet a growing number of states
already cap noneconomic damages at a fixed ceiling. Texas caps noneconomic damages at $250,000,
while Mississippi caps them at $500,000.").
494. See, e.g., Ellen M. Bublick, Comparative Fault to the Limits, 56 VAND. L. REV. 977, 993
(2003).
495. Thomas C. Galligan, US. Supreme Court Tort Reform: Limiting Power to Ariciulate and
Develop Tort Law-Defamation, Preemption and Punitive Damages 74 U. CrN. L. REv. 1189, 1199
(2006); see, e.g., Posecai v. Wal-Mart Stores, Inc., 752 So.2d 762 (La. 1999) (summarizing
jurisdictional differences for duty/risk liability for third-party acts).
496. See generally David Corbe-Chalon & Martin A. Rogoff, supra note 297, at 235 (arguing that
civil code systems prefer comprehensive social insurance to private tort law).
511
theorists. A functional approach to tort law is non-reductive, but this creates
its own problems of accounting for its complexity. 497 Functionalists do not
conceptualize law as existing in a "vacuum or as a self-contained and selfconcerned system." 49 8 The latest Supreme Court decisions have moved
toward the civil recourse theory of torts. In Philip Morris USA v. Williams,
the Supreme Court miniaturized the remedy when it held that a defendant
must not be punished for harm to third parties or other bad acts. 499 The
Williams Court further held that "the Constitution's Due Process Clause
forbids a State to use a punitive damages award to punish a defendant for
injury that it inflicts upon nonparties, . . . those who are, essentially,
strangers to the litigation." 00 In so holding, the Court tacitly assumed that
Philip Morris reached out and harmed Jesse Williams, an individual
smoker.50 ' While the Court still celebrates the historic functions of
punishment and deterrence, its reasoning in Williams is very similar to what
the civil recourse theorists propose.50 2 Indeed, the Court held that
punishment is solely between the plaintiff and the defendant.50 3 In making
this assertion, the Court adopted unrealistic assumptions about how mass
torts work in the real world.50"
V. TORT LAW AS PUBLIC WRONGS: LIVING WITH MULTIPLICITY
Journalist Mika Brzezinski describes the multitasking nature of working
mothers in her new book All Things at Once.so' It would be unrealistic to
497. "The difficulty in framing any concept of 'law,"' Karl Llewellyn wrote, "is that there are so
many things to be included, and the things to be included are so unbelievably different from each
other." This difficulty is a perpetual source of frustration for lawyers and scholars who crave a
cleaner image or a tidier theory of law-hence the allure of reductionism.
Steven D. Smith, supra note 455, at 109 (footnote omitted) (quoting Karl N. Llewellyn, A Realistic
Jurisprudence-TheNext Step, 30 COLUM. L. REV. 431,431 (1930)).
498. Calabresi, supranote 127, at 333.
499. Philip Morris USA v. Williams, 549 U.S. 346, 357 (2007) ("Due Process Clause prohibits a
State's inflicting punishment for harm caused strangers to the litigation.").
500. Id. at 353.
501. Williams held that a jury may not impose punitive damages to punish a defendant for "harm
caused strangers to the litigation." Id at 357. But the Court acknowledged that "harm to others
shows more reprehensible conduct." Id. at 355.
502. All eight cases that the U.S. Supreme Court has decided in its punitive damages
jurisprudence "dealt with corporate punishment for group injuries that have a social impact beyond
the immediate victim." Michael L. Rustad, The Supreme Court and Me: Trapped in Time with
Punitive Damages, 17 WIDENER L.J. 783, 804 (2008) (footnote omitted) (summarizing the U.S.
Supreme Court's punitive damages jurisprudence from 1989 to 2008).
503. See id. at 357.
504. For one thing, it will be difficult to construct jury instructions that advise the jury that they
may not punish a defendant for harm caused to strangers, but that the "harm to others" is emblematic
of more reprehensible conduct.
505. MIKA BRZEZINSKY WITH DANIEL PAISNER, ALL THINGS AT ONCE 4 (2009) (describing the
balancing of marriage, family and a career).
512
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imagine a contemporary American woman who could do only one thing.
Tort law is also a "cultural reflector" of the complexities of American
society in the new millennium.506 Tort law and its remedy of punitive
damages functions on many levels and performs a multitasking role.507
Judge Allen Linden describes tort law as multifunctional working as "a
compensator, a deterrer, an educator, a psychological therapist, an economic
regulator, an ombudsperson, and an instrument for empowering the
injured. . . ."so That is the beauty of American tort law and there is no
point in miniaturizing it to serve the single function of redressing civil
recourse function.509 I argue that tort law has multiple functions, while civil
recourse theorists would collapses tort law's multiplicity into a single thing:
civil redress.s1 o This part of the Article examines these multiple functions.
A.
Torts Right Private Wrongs
Judge Calabresi notes that "America is a rights-based society" and this
cultural value creates a "desire to make others 'pay' for the wrongs they
have done us."511 Justice Allen Linden was the first to conceptualize tort
law as an ombudsman that gives plaintiffs a public voice in "condemnation
of the activity that produced their suffering." 512 Nevertheless, the other face
of tort law is no less significant. Plaintiffs filing tort lawsuits serve a
broader purpose in uncovering and punishing corporate wrongdoing. Civil
recourse theorists are tort hedgehogs in arguing that this subject is only
about one thing: civil redress.' 3 Nevertheless, civil redress can accomplish
506. MARSHALL S. SHAPO, TORT LAW AND CULTURE 6 (2003).
507. Guido Calabresi contends that tort law has "long been characterized by complexity of
functions, goals, and methods of achieving these. That is true of notions like causation, duty,
punitive damages, and respondeatsuperior to name but a few." Calabresi, supra note 127, at 350
(2005).
508. Allen M. Linden, Viva Torts!, 5 J. HIGH TECH L. 139, 142 (2005).
509. Stapleton, supra note 121, at 1557.
510. "Multiplicity in law is merely one instance of the more general phenomenon of multiplicity
in life; for that reason, it presents problems with which we are all familiar and with which we have
learned, to one degree or another, to cope." Smith, supra note 455, at 87.
511. Calabresi, supra note 127, at 345.
512. Linden, supra note 508, at 144. See generally Allen Linden, Tort Law as Ombudsman, 51
CAN. BAR REv. 55 (1973).
513. See supra notes 453-54 and accompanying text. Judge Calabresi comments on the U.S.
Supreme Court's tendency to view multiple damages as one thing. He contends that punitive
damages in tort law play multiple roles including the enforcement of social norms through private
attorneys general. Calabresi, supra note 127, at 333, 337. Judge Calabresi takes issues with law and
economics proponents who reduce complex tort rights and remedies to economic efficiency. Id. at
334.
513
more than one thing. Tort foxes would acknowledge this because they find a
place for both microtort and macrotort functions.5 14
B. Torts SafeguardIntellectualPropertyInfrastructure
The shift to an information-based economy is built upon
"information (financialservices, accounting, software, science) and
cultural (films, music) production, and the manipulation of symbols
(from making sneakers to branding them and manufacturing the
culturalsignificance of the Swoosh)."
Yochai Benkler515
Hidden from the history of tort law is the reality that intellectual
property infringement claims were classified as "particular torts." 516 Patent
and copyright have long been regarded as creatures of federal statute, but
infringement was historically considered to be a tort. 1 For instance, the
infringement of a patent was classifiable as a tort-namely, trespass on the
case."' In England, owners of trademarks employed the common law
action of deceit as the sole remedy for infringement. 51 9
Plaintiffs in trademark infringement cases often sought equitable
remedies to redress "the fraud upon the public"520 during the formative era
of U.S. tort law, and such infringement actions were recognized as torts in
acknowledgment of the principle that no wrong should be without a
remedy. 521
Today, patent and copyright laws are governed entirely by
comprehensive federal statutes with no residual role for tort law. However,
business torts are still important to vindicate intellectual property interests
such as the right of publicity, unfair competition in trademark law, and the
misappropriation of trade secrets. 522 What is different about intellectual
property infringement is that it not only harms the property owner but the
514. See supranotes 453-54 and accompanying text.
515. YOCRAlI BENKLER, THE WEALTH OF NETWORKS: How SOCIAL PRODUCTION TRANSFORMS
MARKETS AND FREEDOM 3 (2006).
516. UNDERHILL, supra note 6, at 612 (discussing particular torts in the section entitled "Of
Infringements of Trade-Marks and Patent and Copyright?").
517. Id. at 638.
518. Id. at 652-53 (explaining patent infringement as a wrongful action classified as trespass on
the case).
519. FRANK I. SCHECHTER THE HISTORICAL FOUNDATIONS OF LAW RELATING TO TRADE-MARKS
141, 143 (The Law Book Exchange, 2008) (1925) ("[T]he law was definitely settled that the proper
common law action form trade-mark infringement is an action in deceit.").
520. Id. at 144 (stating that not only does trademark piracy injure the owner of the mark but
commits a "fraud upon the public and upon the true owner of the trademark").
521. UNDERHILL, supra note 6, at 652.
522. See discussion infra Part V.B.1-2.
514
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public as well who may be misled by predatory or unfair business
practices.523
As noted in my critique of civil recourse, that theory does not account
Civil recourse theory does not
for the complexity of tort law.524
acknowledge that intellectual property torts protect the public as well as
private infringement actions.5 25 Intellectual property constitutes the crown
jewels of our information-based economy as infrastructure is based upon
software and intangible assets rather than durable goods.526 Therefore,
business torts play an increasingly important role in protecting these
intangible assets. Moreover, the tort of misappropriation is increasingly
vital to national security as tort actions supplement weak federal and state
statutes addressing economic espionage.5 27 The next subsection examines
the roots of the tort of unfair competition, which developed to protect
business interests, not the interest of David in a David versus Goliath
scenano.
1. Trademark Infringement as Unfair Competition
At common law, the trademark was a "symbol by which a man causes
his goods or wares to be identified .... "2 8 Trademark infringement was
purely a business tort prior to Congress passing the Lanham Act in 1946.529
At common law, the tort of trademark infringement vindicated public
wrongs as well as civil recourse to the trademark owner: "The doctrine of
the protection of trade-marks does not depend entirely upon invasion of
individual rights, but upon the broad principles of protecting the public from
deceit."530 Trademark law has long been regarded as a business tort of
unfair competition including claims for palming off and deceit on the
523. See infra text accompanying notes 530-33.
524. See discussion supraPart IV.
525. See discussion supraPart IV.A.
526. See supra Beckerman-Rodau, note 224, at 228; supra notes 224, 268 and accompanying text.
527. See Rustad, Negligent Enablement, supra note 67, at 458 (arguing that Congress should
amend the Economic Espionage Act to arm trade-secret owners with tort remedies to pursue those
who misappropriate trade secret across national borders); see also Susan W. Brenner & Anthony C.
Crescenzi, State-SponsoredCrime: The Futility of the Economic EspionageAct, 28 Hous. J. INT'L L.
389 (2006) (describing the Economic Espionage Act as a failed strategy to control cross-border trade
secret theft).
528. UNDERHILL, supranote 6, at 618.
529. 15 U.S.C. §§ I1l4, 1125 (2006), invalidated in part by Coll. Say. Bank v. Fla. Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999).
530. UNDERHILL, supra note 6, at 616.
515
public."'
Palming off occurred when a defendant used symbols
substantially similar to that of the trademark owner.532 Misstatements in
advertisements and palming off were regarded as frauds against the
consuming public.533 In the late nineteenth century, merchants were liable
for misrepresentations about the curative power of elixirs and other products
if the merchants transgressed business norms of fair dealing.53 The gist of
these unfair competition actions is the wrong done to the public. 3 5
In these cases, the courts were unclear whether the legally protectable
interest was the right of the trademark owner in property or in preventing
fraudulent misrepresentation.536 At common law, a plaintiff had an action
for the tort of misappropriation of a trade secret for "improperly disclosing
or using a trade secret in violation of a contractual agreement entered into
between that party and the trade secret owner."5 37
In the new millennium, intellectual property claims are largely governed
by statutory remedies. However, trademark infringement continues to be
classified as unfair competition, a business tort vindicated by state common
law and federal statutory remedies.
2. The Tort of Trade Secret Misappropriation
The origin of trade secret law is murkier than trademarks or other
branches of intellectual property. Trade secrets are neither patentable nor
subject to copyright because these forms of intellectual property mandate
disclosure. The FirstRestatement of Torts, published in 1939, was the first
attempt to bring order to the confusing business tort of misappropriation. 1 8
Today, the First Restatement of Torts section 757, still followed by
important states such as Massachusetts and New York, reads:
One who discloses or uses another's trade secret, without a privilege
to do so, is liable to the other if. . . (c) he learned the secret from a
third person with notice of the facts that it was a secret and that the
third person discovered it by improper means or that the third
531. FRANCIS M. BURDICK, THE LAW OF TORTS: A CONCISE TREATISE ON THE CIVIL LIABILITY
AT COMMON LAW AND UNDER MODERN STATUTES FOR ACTIONABLE WRONGS TO PERSON AND
PROPERTY 443-48 (3d ed. rev. & enlarged 1913) (describing unfair trademark competition as an
infringement of the plaintiff's property interest).
532. Brett Thomas Reynolds, Comment, Appellate Review of Lanham Act Violations: Is
Likelihoodof Confusion a Question of Law or Fact?,38 Sw. L.. 743,743 n.8 (1984).
533. Burdick, supranote 531, at 443,448.
534. Id. at 448&n.17.
535. SCHECHTER supra note 519, at 144 (describing how trademark infringement actions were a
"fraud upon the public" as well as an action against the true owner of the mark).
536. UNDERHILL, supra note 6, at 621-23.
537. Beckerman-Rodau, supra note 224, at 230-31.
538. RESTATEMENT OF TORTS § 757 (1939).
516
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person's disclosure of it was otherwise a breach of his duty to the
other .
. ..
The First Restatement provides the following factors in determining
what information is protected as a trade secret:
An exact definition of a trade secret is not possible. Some factors to
be considered in determining whether given information is one's
trade secret are: (1) the extent to which the information is known
outside of his business; (2) the extent to which it is known by
employees and others involved in his business; (3) the extent of
measures taken by him to guard the secrecy of the information; (4)
the value of the information to him and to his competitors; (5) the
amount of effort or money expended by him in developing the
information; (6) the ease or difficulty with which the information
could be properly acquired or duplicated by others.54 0
The Restatement (Third) of Unfair Competition defines trade secrets
broadly to include "any information that can be used in the operation of a
business or other enterprise and that is sufficiently valuable and secret to
afford an actual or potential economic advantage over others." 54 1 Neither
the Restatement (Second) nor the latest Restatement (Third) of Torts
addresses trade secrets. Massachusetts, New York, and Texas continue to
follow the First Restatement of Torts approach to trade secrets. 542 The
American Law Institute approved the Restatement (Third) of Unfair
Competition, which incorporates the ideas of the FirstRestatement.
"Trade secret" under the Uniform Trade Secrets Act means:
information, including but not limited to, a formula, pattern,
compilation, program, device, method, technique, or process, that:
1. [d]erives independent economic value, actual or potential, from
not being generally known to, and not being readily ascertainable by
proper means by, other persons who can obtain economic value
from its disclosure or use, and 2. [i]s the subject of efforts that are
reasonable under the circumstances to maintain its secrecy.543
539. Id.
540. RESTATEMENT
541.
§ 757 cmt. b.
RESTATEMENT (THIRD) OF UNFAIR COMPETITION
§ 39 (1995).
542. Michael Risch, Why do We Have Trade Secrets?, 11 MARQ. INTELL. PROP. L. REV. 1, n.63
(2007).
543. E.g., VA. CODE ANN. §59.1-336 (West, Westlaw through 2010 Sess.).
517
Forty-three states and the District of Columbia have adopted the
Uniform Trade Secrets Act (UTSA), which preempts common law
principles. 5" The UTSA draws upon torts concepts in its distillation of
trade secrets rights and remedies. 54 5
UTSA, in many respects,
conceptualizes trade secret misappropriation as a contort since
misappropriation often flows out of breach of contract or confidential
relations.
The UTSA defines the tort of misappropriation as the use of improper
means such as misrepresentation or breach of a duty to maintain secrecy.5 46
A trade secret owner has the right to control use, access, and to take
measures to prevent disclosure, however, the UTSA requires that
information that is the subject of a trade secret be protected by means that
are "reasonable under the circumstances to maintain its secrecy." 547
The U.S. Supreme Court in Kewanee Oil Co. v. Bicron Corp., explained
that trade secret misappropriation actions have a societal function in
advancing the "commercial ethics and the encouragement of invention." 548
Trade secret law adumbrates the principle of "good faith and honest, fair
dealing, [which] is the very life and spirit of the commercial world." 54 9
Thus, the tort of misappropriation of trade secrets protects the marketplace,
which is a larger interest than mere civil recourse.
The expansion of regulatory litigation employing the tort of
misappropriation is necessary to teach foreign governments as well as
domestic spies that torts do not pay.550 Business torts must evolve to protect
intellectual property assets.'
Businesses are finding it more difficult to
protect their intangible assets because of the cross-border, seamless Internet
544. Legal Info. Inst., Cornell Univ. Law Sch., Uniform Business and FinancialLaws Locator
(April 2003), http://www.law.cornell.edu/uniformi/vol7.html#trdsec.
545.
The Uniform Act codifies the basic principles of common law trade secret protection,
preserving its essential distinctions from patent law. Under both the Act and common
law principles, for example, more than one person can be entitled to trade secret
protection with respect to the same information, and analysis involving the "reverse
engineering" of a lawfully obtained product in order to discover a trade secret is
permissible.
Nat'l Conference of Comm'rs on Unif. State Laws, Prefatory Note to the Uniform Trade Secrets Act
with 1985 Amendments, (Aug. 1985), at 2, available at http://www.law.upenn.edulbll/archives/ulc/
fnact99/1980s/utsa85.pdf.
546. See UNIF. TRADE SECRETS ACT § 1(1) (amended 1985).
547. See id. § 1(4)(ii).
548. Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470,481 (1974).
549. Id at 481-82.
550. See Rustad, Negligent Enablement, supra note 67, at 460-61.
551. As the Supreme Court of Maine put it: "'[T]he criminal system cannot always adequately
fulfill its role as an enforcer of society's rules. . . .' Tuttle v. Raymond, 494 A.2d 1353, 1358 (Me.
1985) (quoting Jane Mallor & Barry Roberts, Punitive Damages: Towarda PrincipledApproach, 31
HASTINGS L.J. 639, 658) (acknowledging the role that tort law plays as a gap-filler, especially via
the remedy of punitive damages in constraining corporate wrongdoing).
518
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and ease with which intellectual property assets may be converted to digital
data and disseminated around the world for almost zero cost. 552 Corporate
and industrial espionage is one of the greatest threats to U.S.
competitiveness in a networked world where a company's trade secrets can
disappear with a click of the mouse. A robust regime of private enforcement
is needed to supplement the criminal law and to protect American
competitiveness. Civil recourse theory is unconcerned with the public
purpose served by business torts in protecting intellectual property and the
information infrastructure of the new economy.
C. Torts as Social Control
Law must be stable andyet it cannot stand still.553
Roscoe Pound
Twenty years ago, I had the pleasure of spending a week studying alone
in Roscoe Pound's personal library then housed at the Roscoe Pound
Foundation in D.C. 554 I was most impressed by Pound's eclectic reading
interests in the field of sociology. His library was a treasure trove of classic
works of the founding fathers of sociology such as Weber, Marx, and
Durkheim, all in untranslated editions and often interlineated in Pound's
handwriting. In Pound's collection of sociological works, there were copies
of works by sociologists Albion Small, William Ogburn, George Gurvitsch,
and Gabriel Tarde. Roscoe Pound first alluded to his theory of law as social
control in his 1910 essay, Law in Books and Law in Action.555 In this essay,
he described how the legal formalists of his day were creating a gulf
between social justice and legal justice.156 He coined the term "sociological
552. Beckerman-Rodau, supra note 224, at 228-29 (discussing the importance of intellectual
property assets and how they can be easily distributed around the world in the networked economy,
wired networks, email, and other computerization risks).
553.
ROSCOE POUND, INTERPRETATIONS OF LEGAL HISTORY 1 (1930).
554. Pound's complete library was then housed in the Roscoe Pound Foundation in Washington,
D.C., which was located in the same building as the Association of Trial Lawyers. For an excellent
account of Pound's connection to the personal injury bar, see Joseph A. Page, Roscoe Pound,Melvin
Belli, and the Personal-InjuryBar: The Tale of an Odd Coupling, 26 T.M. COOLEY L. REv. 637
(2009), examining relationship between Pound and NACCA, which was the predecessor to ATLA
and now to the American Association of Justice. In the late 1980s and 1990s, the Roscoe Pound
Foundation's library was located in the same building that housed ATLA. See, e.g., Michael L.
Rustad, supranote 471, at, 1299.
555. Pound, supra note 210.
556. Id. at 30 ("When in a period of collectivist thinking and social legislation courts and lawyers
assume that the only permissible way of thinking or of law-making is limited and defined by
519
jurisprudence" in 1911 and preferred it to August Comte's sociology which
His sociological
he dubbed that "philologically unhappy name.", 57
jurisprudence was shaped in large part by the structural-functionalism of
classic sociologists discussed in Part I.558 His sociological school was a
pragmatic reaction to nineteenth century neo-Kantian formalism that was
His
then the "dominant analytical and historical jurisprudence."' 59
functional approach was in sharp contrast to the "teleological school" that
sought "a proper answer to the problem of the validity of law" and "stresses
that law is intimately related to justice."560
Pound's sociological approach was a response to the then hegemonic
Pound regarded jurisprudence as
view of law as "authoritative precepts.
part of the social sciences as opposed to analytical jurists' view of law as
precepts.562 The most significant attribute of the sociological school was its
emphasis "upon the social purposes which the law (in all of its three senses)
In Pound's sociological of
subserves rather than upon sanctions."
jurisprudence, "legal institutions and doctrines and precepts" were functional
"as a matter of means only." 56
He contended that the common law served a larger purpose as an
instrumentality of social control. 565 He wrote that tort law reflected a "social
interest in the general security."566 He also contended that, "'except in
certain cases based on public policy' the [tort] law of today makes liability
dependent upon fault.", 6 1 In fact, Pound viewed the entire common law as
an instrumentality of social control.568 During the first half of the twentieth
century, he sketched out a macrosociological theory that had profound
individualism of the old type, when, while men are seeking to promote the ends of society through
social control, jurists lay it down that the only method of human discipline is 'to leave each man to
work out in freedom his own happiness or misery,' conflict is inevitable. With jurisprudence once
more in the rags of a past century, while kindred sciences [(such as sociology)] have been reclothed,
we may be sure that law in the books will often tend to be very different from the law in action.").
557. 1 ROSCOE POUND, JURISPRUDENCE 297 (1959).
558. Roscoe Pound, The Scope and Purposeof SociologicalJurisprudence,25 HARV. L. REV. 489
(1912); see also Roscoe Pound, The Need of a Sociological Jurisprudence, 19 GREEN BAG 607
(1907).
559. POUND, supra note 557, at 294.
560. Id. at 297.
561. Id. at 291 (arguing that "sociological jurists regard the working of the law (that is, of the
legal order, of the body of authoritative guides to decision, and of the judicial and administrative
process) rather than the abstract content of the authoritative precepts").
562. Id. at 292.
563. Id. at 293.
564. Id.
565. ROSCOE POUND, SOCIAL CONTROL THROUGH LAW (Archon 1968) (1942) [hereinafter
POUND, SOCIAL CONTROL]; Roscoe Pound, The Theory ofJudicialDecision, 36 HARv. L. REv. 940,
954-58 (1923).
566. See Roscoe Pound, A Survey ofSocial Interests, 57 HARV. L. REv. 1, 5 (1943).
567. Id. (quoting James Barr Ames, Law and Morals, 22 HARV. L. REv. 97, 99 (1908)).
568. POUND, SOCIAL CONTROL, supra note 565.
520
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implications for courts that conceived of torts as an instrument of social
control. Pound's grand theory invited courts to consider the social interest
when evaluating and weighing competing interests:
Looked at functionally, the law is an attempt to satisfy, to reconcile,
to harmonize, to adjust these overlapping and often conflicting
claims and demands, either through securing them directly and
immediately, or through securing certain individual interests, or
through delimitations or compromises of individual interests, so as
to give effect to the greatest total of interests or to the interests that
weigh most in our civilization, with the least sacrifice of the scheme
of interests as a whole.56 9
The arguments of Pound go to the heart of my critique of the civil
recourse school. The great value of torts lies in its ability to evolve to meet
the emergent harms of each era.
Roscoe Pound broke with the legal realists by the 1930s.570 His theory
of social control drew upon Holmes' instrumentally inspired theories of
deterrence and compensation. Pound also drew extensively upon Rudolph
von Thering's taxonomy, which recognized three protectable interests in the
law: public, social, and private."7 Jhering contended that the common law
advanced "moral and social interests of mankind." 572 Roscoe Pound
described tort law as weighing individual interests to arrive at decisions
advancing social interests. He called this process of adjusting conflicting
interests "social engineering." 73 He argued that the common law consisted
"of adjustments or compromises of conflicting individual interests,"
classified as social interests, "under the name of public policy, to determine
569. Pound, supra note 566, at 39.
570. Legal realists argue that the focus of legal analysis must be on empirical behavioral studies,
not on abstract doctrine. See Karl N. Llewellyn, Some Realism About Realism-Responding to Dean
Pound,44 HARV. L. REv. 1222, 1236-3 8 (1931) (presenting legal realism as "movement in thought
and work about law" within which certain points of departure are common); see also Roscoe Pound,
The Callfor a Realist Jurisprudence,44 HARv. L. REv. 697, 697 (1931) (discussing approach of
legal realists as requiring "faithful adherence to the actualities of the legal order as the basis of a
science of law").
571. Pound, supra note 566, at 1. See generally WOLFGANG GASTON FRIEDMANN, LEGAL
THEORY 366 (1966) (describing Pound's classical formulation and advocacy for law as social
engineering).
572. HUGH
CHISHOLM,
THE
ENCYCLOPEDIA
BRITANNICA
413
(1911),
available
at
Rudolph
http://encyclopedia.jrank.org/JEE-JUN/JHERINGRUDOLFVON_1818_1892_.html.
von Jhering was a German legal academic who lived between 1818 and 1892. Id His work was
counterhegemonic to Savigny's jurisprudence in its argument that jurisprudence should "adapt[ed]
the old to new exigencies." Id.
573. See Pound, supra note 566, at 4.
521
the limits of a reasonable adjustment." 574 Pound believed that "'Public
Policy... is that principle of the law which holds that no subject can
lawfully do that which has a tendency to be injurious to the public or against
the public good..
. .
Pound's sociological jurisprudence prefigured Prosser and Green
advancing their consciously instrumental view of the common law. Dean
Pound wrote about the new thinking which rejected considering
jurisprudence an exercise in "adjusting the exercise of free wills to one of
satisfying wants."576 He also contended that the common law involves "a
weighing or balancing of the various interests which overlap or come in
conflict and a rational reconciling or adjustment."s 77 Therefore, Pound had a
macro approach in that he argued tort law was a form of social control that
"channeled people into orderly behavior."578
In American society, it is up to tort to serve as "the default regulator of
safety and economic power."79
Regulatory torts mobilize private claimants
"to identify and deal with problems that have not been adequately addressed
by other institutions."580 As Judge Jack Weinstein notes, the law of torts
serves as a "bottom-up" alternative to "the top-down bureaucratic method
operating through administrative agencies (such as most states' workers'
compensation schemes) . . ."8 Beginning in the 1960s, common law torts
served the quasi-regulatory and public law function of resolving social
problems where regulators or the criminal law failed.5 82 Judge Weinstein's
574. Id at 4 ("The body of the common law is made up of adjustments or compromises of
conflicting individual interests in which we turn to some social interest, frequently under the name of
public policy, to determine the limits of a reasonable adjustment.").
575. Id. at 4 n.8 (quoting Egerton v. Lord Brownlow, [1853] 10 Eng. Rep. 359 (Q.B.) 438).
576. Id. at 1.
577. Id. at 4.
578. Matthias Gross, Introduction to
EDWARD ALSWORTH Ross, SOCIAL CONTROL: A SURVEY OF
THE FOUNDATIONS OF ORDER xiii (Transactional Books, 2009) (1901).
579. Nockleby & Curreri, supra note 116 at 1036-37 ("[T]ort law establishes the background
operating rules under which the social and economic system operates").
580. Richard B. Stewart, Crisis in Tort Law? The InstitutionalPerspective, 54 U. CHI. L. REV.
184, 198 (1987).
581. Weinstein, supranote 1, at 167.
582. Just by way of example, the four-decade long record of the Consumer Product Safety
Commission reflects a history of poor funding and failed objectives. Section 15(b) of the Consumer
Product Safety Act requires that businesses report to the U.S. Consumer Product Safety Commission
(CPSC) all instances in which the businesses obtain information that "reasonably supports the
conclusion" that their products fail to comply with safety rules, contain defects that may "create a
substantial product hazard," or create "an unreasonable risk of serious injury or death." Consumer
Product Safety Act § 15(b), 15 U.S.C. §2064(b) (2006). Section 37 of the Consumer Product Safety
Improvements Act of 1990 requires businesses to report to the CPSC if a "particular model of a
consumer product is the subject of at least 3 civil actions . . . for death or grievous bodily injury"
within a 24-month period. Consumer Product Safety Improvements Act of 1990 § 37(a), 15 U.S.C.
§ 2084(a) (2006). In my empirical study of CPSC penalties, I found that the agency had a weak
record of enforcement. Product manufacturers were sanctioned for their failure to meet reporting
requirements. "The sum total of all CPSC penalties assessed in 1990 approximates the median
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four decades on the bench signifies how creative courts filled the regulatory
gap in developing solutions to collective injury problems:
In cases such as Agent Orange,DES, asbestos, pharmaceutical, civil
rights, school segregation, prison, cigarette, gun, social security,
family abuse and other mass actions that I have had, the intersection
of substance and procedure is critical. Procedure profoundly affects
rights-in-fact, particularly those of our less well-situated Americans.
Sometimes special problems, such as drug and family abuse, require
a new form of integrated courts that combine civil, criminal, social
services, and mediation practice, but that does not justify closing
traditional courts of general jurisdiction.
In current litigations in our rapidly changing technological,
sociological, and political world, what is required-in the absence
of specific legislation-is a firm, yet sensitive, control of lawyers
by the judiciary. Supervision by the courts when ethical issues
arise, such as a fair division of group settlements among clients
and control to make sure that wider populations and classes are not
adversely affected, are essential.583
Many of the high profile tort cases of the past few decades fit into the
rubric of collective injury with complex causation and indeterminate
punitive award obtained by plaintiffs in one study of product liability cases." Rustad & Koenig,
supra note 484, at 1325 n. 282 (reporting study of two decades of CPSC lax enforcement and
comparing it to giving a single Fortune 500 company a parking ticket). See also Robert S. Adler,
From "Model Agency" to Basket Case-Can the Consumer Product Safety Commission be
Redeemed?, 41 ADMIN. L. REV. 61, 70 (1989) (discussing the weak record of CPSC in adopting
safety standards for consumer products). In recent years, the CPSC has been a lapdog not a
consumer watchdog. For instance, it failed to protect Americans from the epidemic of dangerously
defective products from China and other importing countries with less developed safety standards.
In his recent book, Import Safety, Cary Coglianese explains that the import safety problem cannot be
resolved without ratcheting up deterrence:
If products entering the domestic marketplace from foreign countries are harder to
regulate through traditional means, will consumer safety risks increase in an era of global
trade? It seems likely they will. If foreign firms are harder to regulate, then the law's
deterrent effect will presumably also be diminished for such firms, making safety
problems more likely at the margin. With trillions of dollars worth of goods crossing
international borders each year, even a slight reduction in deterrence could lead to
hundreds, if not thousands, of additional injuries or fatalities annually. If nothing
changes, the recent spate of import safety crises-from lead-painted toys to melamine in
milk-could mark just the beginning of a dangerous trend.
CARY COGLIANESE, Preface to IMPORT SAFETY: REGULATORY GOVERNANCE IN THE GLOBAL
ECONOMY vi, vii (Cary Caglienese, Adam M. Finkel, & David Zaring eds., 2010).
583. Weinstein, supra note 1, at 114.
523
plaintiffs or defendants.84 Agent Orange, the Dalkon Shield, Copper-7
IUD, toxic shock syndrome, tobacco, lead, and asbestos cases are examples
of how injuries were collectivized in the torts system." In these cases,
corporate defendants did not have a bipolar relationship with individual
plaintiffs.
In fact, the causal connection is probabilistic and statistical
rather than clearly between a particular injurer and victim.587
Judge Weinstein would agree that the state has a duty to provide a law
for the redress of private wrongs, but he takes a broader view of tort law
than John Goldberg, his former clerk, does. 8
Weinstein contends that
judges "must take account of changing winds and tides" in society,
technology, and the economy. 5 89 However, he disagrees with Goldberg's
''somewhat broader view of legislative power to provide equivalent
administrative substitutes for tort remedies, if they are effectively
administeredto provide appropriate compensation to the aggrieved."590 In a
panel presentation to the Federalist Society, Goldberg took a strong stand
against torts as redressing public wrongs:
The question posed for this panel reads as follows: Should tort law
be a form of public regulatory law? My answer is no. What I mean
by that will become clearer in a moment, but let me offer an
immediate set of qualifications. I do not mean to dispute that there
are certain respects in which tort law is public. For one thing it is
law, provided by government-no service, no sheriff, no tort law.
For another, its operation can have widespread effects-a tort suit
584. See, e.g., Wangen v. Ford Motor Co., 294 N.W.2d 437,452 (Wis. 1980) (noting that punitive
damages are particularly useful in situations where large numbers of individuals have been slightly
or moderately injured by defective product).
585. See, e.g., Weinstein, supra note 1, at 114.
586. See, e.g., Williams v. Philip Morris Inc., 127 P.3d 1165, 1181-82 (Or. 2006) ("Philip Morris,
with others, engaged in a massive, continuous, near-half-century scheme to defraud the plaintiff and
many others, even when Philip Morris always had reason to suspect-and for two or more decades
absolutely knew-that the scheme was damaging the health of a very large group of Oregoniansthe smoking public-and was killing a number of that group").
587. One of the difficulties in characterizing Goldberg and Zipursky's civil recourse theory as
being purely a model of private wrongs is that they concede that civil recourse may have wider
purposes. Goldberg & Zipursky, supra note 189, at 406-07 (arguing for their theory of civil
recourse). For examples, in their Calabresi symposium piece, they acknowledge that civil recourse
has the societal effect of lowering the expense of governmental enforcement:
For one thing, it reduces the role that government must take. Whether this is a diminution
in tertiary costs is debatable; our point is that there may be social and political benefits to
reducing the reliance upon government. As political thinkers from Blackstone to Nader
have recognized, there are also political benefits to the existence of separate repositories
of power for holding tortfeasors accountable.
Id.
588. Weinstein, supra note 1, at 169.
589. Id.at231.
590. Id. at 169.
524
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can change how cars are designed and how health care is delivered,
for example. Finally, through its day-to-day operation, tort law
undoubtedly promotes public objectives including deterrence of
risky or otherwise undesirable conduct, maintenance of social
cohesion, vindication of individual rights, affirmation of the
equality of persons under law, and reinforcement of the ideal of
limited government.5 9'
The U.S. Supreme Court in Wyeth v. Levine recognized that state tort
law and regulation has long supplemented, but not supplanted the federal
regulation of medical products and pharmaceuticals.5 92 Tort law, is
indeed, even more effective than criminal law in modifying behavior
because it does not require that defendants receive advance warning that
some specific conduct is punishable by punitive damages. This greater
flexibility gives tort law a considerable advantage over criminal law in
controlling socially harmful conduct on the borderline between civil and
criminal law.
D. Crimtorts to Vindicate Public Wrongs
Crimtorts is a concept I coined and developed with Tom Koenig to
describe the expanding middle ground between criminal law and tort law.5 93
Crimtorts describes this middle ground as emblematic of the synergistic
combination of public and private law purposes.5 94 The concept of crimtorts
bridges the gap between the sociological and legal approaches to tort law.595
Crimtorts describes how private litigants serve the public good when they
591. Goldberg, supranote 10, at 3 (footnote omitted).
592. Wyeth v. Levine, 129 S. Ct. 1187, 1202-03; see also Rachel v. Rose, U.S. Consumer
Protection: Striking a Balance Between the FDA Approval Process and State Tort Law Claims
Through the Medical Device Safety Act of 2009, 43 HEALTH LAW'S. WKLY 1, 1 (Oct. 30, 2009),
available at
http://works.bepress.com/cgilviewcontcnt.cgi?article=101 1&context-rachel rose
(noting how Congress and the Court recognize the need for tort law to supplement public regulation
for FDA governed products and drugs).
593. I coined the term "crimtorts" as a portmanteau in my 1986 Harvard University Law School
LL.M thesis entitled The Social Functions of Punitive Damages and the Rules of Evidence.
Professor Koenig and I developed the concept further in our 1998 article entitled "Crimtorts" as
CorporateJust Deserts, explaining that, "crimtorts are an explicit recognition that the criminal law
principles of punishment and deterrence have been assimilated into tort remedies." Supra note 3, at
294; see also Thomas H. Koenig, Crimtorts: A Curefor Hardeningof the Categories, 17 WIDENER
L.J. 733, 735 (2008) (reviewing the origins of the crimtorts concept).
594. Just as Grant Gilmore described "contorts" that lie on the borderline between contract and
tort law, we developed the concept of "crimtort" to identify the expanding common ground between
torts and crimes.
595. Thomas Koenig, supranote 593, at 735-36.
525
"expose and financially punish entities that commit torts causing 'group
injuries,' that are not rectified on the criminal side of the docket."'
In
Mathias v. Accor Economy Lodging, Inc., Judge Posner noted that the
"function of punitive-damages awards is to relieve the pressures on an
overloaded system of criminal justice by providing a civil alternative to
criminal prosecution of minor crimes." "
Tort law's signature has been its flexibility in enabling consumers to
uncover developing dangers or risks affecting them and others in society.'"
Nursing home negligence cases, for example, show the role of torts in filling
the regulatory gap created by too few resources devoted to enforcing federal
safety standards:
Public regulation has proved insufficient to combat the problems
in our nursing homes. States differ in the effectiveness with which
they enforce Medicare and Medicaid nursing home
regulations....
Although every jurisdiction has a reporting
requirement for elder abuse, the regulation of the reporting is not
consistent and there is widespread underreporting of elder abuse
despite criminal penalties for omissions.
Moreover, inspectors are often too lenient when it comes to
protecting our most vulnerable elderly citizens. The Center for
Medicare and Medicaid Services has expressed concerns that
inspector leniency leads to substandard facilities and patient care.
For example, . . . eighty-six percent of Texas nursing homes have
substantial deficiencies in safety, causing potential or actual harm
to nursing home residents. Nearly forty percent of the nursing
home violations in Texas facilities cause actual harm to patients or
place them at risk of imminent death or serious injury. Further,
ninety-four percent of Texas nursing homes failed to comply with
Health and Human Services' minimum staffing levels. While
Texas is just an example of substandard living conditions in
nursing homes, the record of failure in nursing home compliance
is a serious issue in most states. Something needs to be done to
ensure that safety standards-governmental standards as well as
societal standards-are met. Often regulation by litigation, in the
596. Id. at 736-37.
597. Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672, 674, 678 (7th Cir. 2003) (upholding
high ratio punitive damages where the defendant concealed the infestation of bedbugs, hotel knew of
the endemic bedbug problem prior to the guests' complaints, and where the failure to warn guests
amounted to fraud or even battery).
598. Constantly evolving health care technologies requires a tort law that keeps pace. See
generally Nicolas P. Terry, When the 'Machine That Goes "Ping" Causes Harm: Default Torts
Roles and Technologically-Mediated Heath Care Injuries, 46 ST. Louis U. L.J. 37 (2002)
(developing the case for a flexible and progressive tort law that keeps pace with changes in the
health care industry).
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form of nursing home lawsuits, can provide a remedy for the
problem.5 99
In many nursing home cases, the elderly residents suffered catastrophic
injury that was the functional equivalent of manslaughter. 6 0 Crimtorts
describes conduct between crime and tort that threatens the public safety as
in nursing home neglect cases, and has "considerable promise" so long as it
can avoid "oversimplified instrumentalism and .. . an excessive demand for
doctrinal purity and insulation."60' Injured consumers and their lawyers
serve as early responders by uncovering "smoking gun" evidence of
corporate abuses. The concept of private lawsuits involving both civil
recourse and public interest is nothing new, as illustrated by civil and
criminal penalties of the Racketeer Influenced and Corrupt Organizations
Act (RICO), federal securities laws, antitrust law, and much of
environmental law. This theme of private litigants uncovering misconduct
involving and thereby benefiting the larger society is also found in civil
forfeiture litigation, civil rights cases, and whistleblower actions.
Jerome Frank, a prominent legal realist, developed the concept of the
private attorney general in his Second Circuit opinion in Associated
Industries of New York State v. Ickes.602 Torts scholars that emphasize the
599. Rustad, Heart of Stone, supranote 67, at 63 (footnotes omitted).
600. See, e.g., id at 367.
There are many reported instances of private attorneys general suing nursing homes,
resulting in an increase in the homes' overall living conditions. In Estate of Beale v.
Beechnut Manor Living Center, a Texas jury awarded one million dollars to an elderly
nursing home resident's estate when the resident slipped, fell, and drowned in a bathtub.
The decedent, who had Alzheimer's, was left unattended in the bathtub. Water flowed
over the edge of the tub for fifteen minutes before the staff discovered the elderly patient
drowning. After the litigation, the defendant nursing home installed safety strips in
bathtubs throughout its facility. The publicity from the case also led to the enactment of
an elder abuse statute benefiting all Florida nursing home residents. Similarly, in Davis v.
FairburnHealth Care Center, a seventy-year-old male stroke victim died because of
severe bowel impaction that resulted in toxic shock. His death was due to excessive,
preventable danger brought on by the nursing home's failure to follow stated protocol for
discovering and preventing impaction. In the wake of this case, the nursing home
instituted new protocol to prevent fecal impaction. As in Beale, the private attorney
general's suit resulted in increased safety in the nursing home: after the Davis verdict, the
nursing home administrators, as well as the chief nurse, were terminated and new staff
training programs were implemented.
Id. (footnotes omitted).
601. Kenneth W. Simons, The Crime/Tort Distinction: Legal Doctrine and Normative
Perspectives, 17 WIDENER L.J. 719, 732 (2008).
602. 134 F.2d 694, 704 (2d Cir. 1943) vacated by 320 U.S. 707 (per curiam) (describing how
Congress authorized a "non-official person to institute a proceeding involving ... a controversy,
even if the sole purpose is to vindicate the public interest" and stating that "[s]uch persons, so
authorized, are, so to speak, private Attorney[s] General[]").
527
role of the private attorney general are not liberal, but conservative. As
Stephen Sugarman notes, this brand of tort scholarship is conservative in its
emphasis "on individual responsibility for wrong-doing."60 3 He expresses
the torts narrative of David and Goliath or that of the "private attorneys
general ... able to expose corporate wrongdoing that government regulators
have ignored" as a conservative ideology, not liberal politics. 6 04 The Fifth
Circuit pointed to the private attorney general role of plaintiffs in asbestos
cases where they uncovered the industry's concealment of the risk of
unprotected exposure to that deadly product.64'
Goldberg, however, argues that "contrary to compensation-anddeterrence theory, the tort system is not best understood as arming victims
with the power to sue in order to serve public goals."o6
He seems to
suggest that private attorneys general are comparable to the bounty hunters
of the wild west or in today's terms, "Dog the Bounty Hunter." Bounty
hunting, however, is a well-established American institution and punitive
damages are a potential "bounty" for the successful plaintiff.60 Private
attorneys general, winnowed through the contingency fee system, also serve
the state by bringing assumedly meritorious claims, which prevents a fiscal
crisis due to court congestion.608
Private attorneys general serve the public interest by uncovering and
punishing dangerous products and practices while pursuing individual
justice for their clients. 609 Nursing home neglect cases again provide an
example, this time of the plaintiff's role as private attorney general:
Plaintiffs who bring nursing home lawsuits can similarly be dubbed
private attorneys general because they sue not only for individual
compensation, but also for the safety of other residents. Suing for
603. Sugarman, supranote 157, at 294.
604. Id. at 297.
605. Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 403 (5th Cir. 1986) ("Punitive
damages reward individuals who serve as 'private attorneys general' in bringing wrongdoers to
account" (quoting StandardLife Ins. Co. oflnd v. Veal, 354 So.2d 239, 247 (Miss. 1977)).
606. John C.P. Goldberg, What Are We Reforming? Tort Theory s Place in Debates Over
Malpractice Reform, 59 VAND. L. REv. 1075, 1077-78 (2006).
607. Hubbard, supra note 20, at 453 ("Plaintiffs in tort litigation are generally represented by
attorneys paid on the basis of a contingency fee in the range of 30-40% of recovery, which provides
an incentive for the plaintiffs attorney to maximize the amount of compensation per unit of his
input. This incentive scheme operates differently with different segments of the plaintiffs' bar."
(footnotes omitted)).
608. Id. at 453 ("The contingency fee system forces plaintiffs' attorneys to act as gatekeepers who
only take cases likely to generate a return greater than their investment. In ordinary cases, lawyers
may reject as many as nine out of ten potential cases. In complex expensive matters, like medical
malpractice, the rates of rejection are likely to be much higher.").
609. Calabresi compares the use of private attorneys general to enforce societal norms to the
private claimants receiving "treble damages in RICO or antitrust cases" focusing on conduct that "is
criminal or semicriminal." Calabresi, supra note 121, at 337.
528
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safety is especially necessary to help regulate the nursing home
industry, whose practices routinely violate state and federal safety
standards. The private attorney general's role is critical in
uncovering and correcting neglect, abuse, and mistreatment in
nursing homes where the residents do not have a voice. As in the
field of products liability, the private attorney general's role of
enforcement in the nursing home arena is a market-based solution
for the serious social problems of neglect and abuse. 0
The efficiency of the private attorney general institution with American
tort law was epitomized by the first successful asbestos case. 6 H In my
opinion, it was the plaintiffs with their attorneys, not regulators, who served
as whistle blowers, uncovering smoking gun evidence that asbestos
manufacturers deliberately concealed the danger of asbestos dust in order to
protect the industry's profits. Edward Rubin described the remedy of
punitive damages as a "runcible" tool that performs multiple tasks including
encouraging private lawsuits, which result in enforcement of the law:
This device, which is called a civil suit, gives an injured party the
right to sue the wrongdoer in an amount equal to the amount of its
loss. It thus deters the wrongdoer, compensates the victim, and
induces private law enforcement, all as part of a single legal
mechanism. Like Edward Lear's runcible spoon, a utensil with a
bowl for scooping and three tines for stabbing, it accomplishes
several purposes with a single device.612
Thus, plaintiffs and their attorneys act as private attorneys general serve
as consumer watchdogs where government watchdogs lack the resources, if
not the will, to carry out their role.6t3 The role of torts in addressing social
problems is more akin to traditional American values than liberalism. 614 The
610. Rustad, Heartof Stone, supra note 67, at 366-67.
611. See generally Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1083 (5th Cir. 1973)
(noting first official claim for compensation associated with asbestos occurred as early as 1927).
612. Edward L. Rubin, Punitive Damages: Reconceptualizingthe Runcible Remedies of Common
Law, 1998 Wis. L. REV. 131, 151.
613. Bryant Garth et al., The Institution of the PrivateAttorney General: Perspectivesfrom an
Empirical Study of Class Action Litigation, 61 S. CAL. L. REV. 353, 384-85 (1988) ("Diminished
resources have been allocated to governmental enforcement of the laws that typically have spurred
class action litigation-most notably antitrust, civil rights, and securities.").
614. Goldberg notes that social justice theorists are instrumentalists in their view of the "evolving
and open-ended nature of tort causes of action, a quality that permits tort plaintiffs to bring to light,
and seek remedies for, new forms of domination and exploitation as they emerge." Goldberg, supra
note 80, at 561.
529
role of tort law in uncovering social problems undetected by regulators is
reminiscent of the distinctly American brand of critical journalism:
[J]ournalists, like Lincoln Steffins, "publicized the problems social
workers faced and illuminated the business and political conditions
that made social work important in the modem city." In literature,
Upton Sinclair's The Jungle "investigates[d] conditions in
[Chicago's] stockyards." The outrage generated by Sinclair's novel
facilitated the passage of federal reform legislation aimed at
providing consumers with pure foods and drugs. Reform in the
Progressive sense was to intervene, whether privately or publicly, in
economic and social affairs to rid society of social problems.'
Tim Lytton's book, Bishops Accountable, is a case study of how torts
addressed the organizational roots of evil in the widespread problem of
sexual abuse perpetrated by clergy.616 He demonstrates how tort lawyers,
using the engine of discovery, uncovered the role of the Catholic Church's
hierarchy in covering up systemic sexual abuse of children." Indeed, it was
tort lawyers, not public prosecutors, who brought the Catholic Church's
massive cover-up to light.
The sexual abuse cases filed against Catholic priests are emblematic of
tort's policymaking role.6 ' 9 Tort law is not always about David versus
Goliath or about plaintiffs taking on large organizations such as the Catholic
Church. Nevertheless, tort cases are often about more than the interests of
the immediate parties. Goldberg is especially critical of the way the private
attorney general's role is overly romanticized.62 o In his Twentieth Century
Tort Theories piece, Goldberg critiques the "social justice" approach for its
bias favoring consumer interests and its narrow-minded narrative that torts is
largely about "David versus Goliath" struggles between consumers and
corporate wrongdoers:
Prescriptively, social justice theory presupposes a particular
conception of the political process as skewed consistently against
consumer and toward corporate interests. To the extent that picture
615. Rustad, supra note 319, at 725-26 (footnotes omitted). At the state level, corporate lobbyists
have convinced the majority of states to adopt one or more limitations on the remedy of punitive
damages. See Rustad, In Defense of Punitive Damages, supra note 67, at 6 (documenting the
success of tort reformers at the state level).
616. See generally TIMOTHY D. LYTTON, HOLDING BISHOPS ACCOUNTABLE: How LAWSUITS
HELPED THE CATHOLIC CHURCH CONFRONT CLERGY SEXUAL ABUSE (2008).
617. Id. at 137 (describing how tort lawyers uncovered the Church's pattern of concealing
information about abuse).
618. See id. at 81 (discussing the role of tort lawyers in framing the issue as institutional failure).
619. Id. at 190-94.
620. Goldberg, supranote 22, at 1511 n.41.
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is not borne out in individual instances of regulated conduct, the
theory gains no purchase. The theory can also mislead in
suggesting that all or most tort litigation takes the form of Davidand-Goliath litigation of the sort depicted in films such as Erin
Brockovich and A Civil Action.
In fact, suits against particular
industries, such as asbestos and tobacco, even if initially brought by
small, entrepreneurial lawyers, can come to be managed as a retail
business by well-financed and well-organized plaintiffs' firms that,
through organizations such as the Association of Trial Lawyers of
America, have political clout of their own. Whether this is a
desirable state of affairs or not, it is incumbent on social justice
theory to acknowledge that the legislative and litigation playing
fields are sometimes more level than its proponents suggest.621
Goldberg, however, exaggerates the power of the trial attorneys and
overestimates their organizational skills. Further, empirical research would
uncover, for example, an asymmetrical power relationship between Philip
Morris and trial lawyers, in the tobacco company's favor.622
1. Mr. Toyoda & Donald: Private vs. Public Wrongs
Assume Donald, our bubble boy, has his antiseptic world burst asunder
by a runaway Toyota. If Donald filed a product liability lawsuit against
Toyota, it does not just concern civil redress between Donald and Akio
Toyoda and his Japanese company. Neither individual cases nor their
societal impact can be placed in a bubble. Professor Goldberg and likeminded civil recourse theorists see torts as relational between the plaintiff
and the defendant, and they see government's central role as providing a
mechanism for redressing private wrongs.623 Now extreme ideas like civil
621. Goldberg,supra note 80, at 562.
622. In my twenty years of interviewing trial lawyers for my empirical studies of the civil justice,
I came across very few responding attorneys who had ever worked with the Association of Trial
Lawyers of America (ATLA) or the Association of Justice. Even if they had worked with the
Association of Justice, it is doubtful whether they match up in financial power with the U.S.
Chamber of Commerce or the tort reform alliances that Victor Schwartz represents. See supra text
accompanying note 23 (discussing Victor Schwarz). If the Association of Justice was as powerful as
Goldberg believes, they would have been able to stop tort reform in the states. However, all but a
handful of states have placed new limitations on punitive damages in the past twenty-five years.
623. At the Pepperdine Law Review Symposium, John Goldberg cited a Seinfeld episode
challenging my thesis that tort law should redress public wrongs as well as private wrongs. He noted
that my view of tort law as regulation was comparable to the episode where Kramer joined the
"adopt a highway" program but went beyond the scope of the program by widening lanes. He
reasoned that just as Kramer had no authority to widen the lanes, courts have no legitimate authority
531
recourse, of course, have no immediate role to play in explaining collective
injury cases such as the Toyota sudden acceleration cases.
The automobile, more than any other technological development is
emblematic of the collective nature of injury that separates modem tort law
from prehistoric private wrongs. In MacPhersonv. Buick Motor Co. Judge
Cardozo galvanized the field of automobile liability as well as product
liability in rejecting the harsh doctrine of privity reasoning that the law must
evolve to meet changing social conditions:
Yet the defendant [Buick] would have us say that he was the one
person whom it was under a legal duty to protect. The law does not
lead us to so inconsequent conclusion. Precedents drawn from the
days of travel by stage coach do not fit the conditions of travel
today.624
Cardozo was the first jurist to permit a consumer to recover for injuries
caused by a defective automobile in the absence of privity, reasoning that
"[i]f [the manufacturer] is negligent, where danger is to be foreseen, a
liability will follow." 625 Forty-four years later, another creative judge, John
Francis of the New Jersey Supreme Court, updated tort duties to
accommodate modem marketing methods in refusing to enforce privity
to use tort law for wider purposes thereby usurping the legislative role or regulatory agencies. My
answer is that courts have no choice but to respond to social problems because they are on the front
line. What would we give up if we were to adopt civil recourse? Suppose civil recourse was the
hegemonic theory from the onset. There are many tort causes of action that would not be
recognized, namely negligence (ninety percent of tort law), the intentional infliction of emotional
distress, the invasion of privacy, strict products liability, strict liability for ultra-hazardous activities,
premises liability, environmental torts, clerical malpractice, and recovery for prenatal or
preconception injuries. See, e.g., Brown v. Kendall, 60 Mass. (6 Cush.) 292 (1850) (acknowledging
negligence theory). These causes of action were all the product of the creative continuity of judges
who did not wait for the legislature or expert regulators to resolve social problems. Nor would the
theory of causation include approaches such as alternative liability, enterprise liability, lost chance,
the substantial factor test or market share liability. Courts, not legislatures or regulators developed
all of these tort doctrines. If torts followed civil recourse theory, we may still have rules such as
charitable immunity, family immunity, and employer immunity in the form of the fellow servant
rule. Even if state or federal legislatures were inclined to sit down in a seminar and try to anticipate
and legislate about every problem that might come up, that would be a tremendously expensive
undertaking. Courts have the advantage of amicus briefs where they can hear from stakeholders
when considering changes in the tort law. Conservative as well as liberal think tanks may present
their competing points of view in these briefs. Courts also have the inherent authority to appoint
their own experts or require the parties to brief unresolved issues. Judicial authority to respond to
social problems is not some recent invention of the common law; it is the common law. Civil
recourse theory's utopian political view of legislatures is inconsistent with the law in action. See
Hubbard, supra note 20, at 461 ("Like the rational model, the political model is subject to criticism,
primarily concerning the extent to which the legislature is democratic in the sense that it properly
represents the views of the electorate. Given practices like campaign contributions, lobbying, mass
advertising campaigns, 'safe' districts, and low attention and voting rates on the part of voters, there
is good reason to question the democratic nature of a decision about tort reform.").
624. MacPherson v. Buick Motor Co., Ill N.E. 1050, 1053 (1916).
625. Id, at 1053.
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requirements in law of warranties under the Uniform Sales Act that
prefigured UCC Article 2.626 It is clear then that the history of automobile
safety is the product of trial lawyers, not government regulators.
In the 1960s and 1970s, courts recognized that automobile
manufacturers had a duty to make automobiles that were "crashworthy." 6 27
The first one hundred-million dollar punitive damages award arose out of a
defective design claim in the Ford Pinto case. 62 8 In fact, the jurisprudence of
strict liability was in large part a judicial solution to the problem of
reallocating the cost of accidents caused by defective automobiles. Toyota's
recent sudden acceleration problems raise the question of who is in the better
position to identify wrongdoing and to protect the public interest. If Toyota
has knowingly sacrificed consumer safety to enhance their bottom line, it
will be punished to deter others from sacrificing profits for safety. If it turns
out the runaway car problem is due to driver errors, Toyota will be
vindicated. Toyota has a legal duty to recall or retrofit cars because they
have a monopoly of knowledge on a profile of developing danger. 629
Trial lawyers are attempting to depose Toyota's top employees to
determine what they know about the runaway car problem and when they
learned about it.630 In this case, then, trial lawyers are using discovery to
If plaintiffs'
benefit society by revealing evidence of corporate abuses.'
attorneys can prove through discovery that "Toyota knew about its safety
and quality issues well in advance of making them public," the auto giant
will face massive numbers of product liability cases and the possibility of
punitive damages.632
626. See Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69, 99-100 (N.J. 1960) (finding no
contractual privity for breach of warranty in accident arising out of a malfunctioning automobile
steering system).
627. See generally Barry Levanstam & Daryl J. Lapp, Plaintiffs Burden of Proving Enhanced
Injury in CrashworthinessCases: A Clash Worthy ofAnalysis, 38 DEPAUL L. REV. 55 (1988).
628. Grimshaw v. Ford Motor Co., 174 Cal. Rptr. 348, 358 (Ct. App. 1981) (remitting the $125
million punitive damages to $3.5 million).
629. See generally RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIAB. § 11 (1998) (providing
that sellers or distributors are subject to liability if they fail to act as a reasonable person in recalling
their product); cf Reed v. Ford Motor Co., 679 F. Supp. 873, 878-80 (S.D. Ind. 1988) (ruling that
because the automobile was defective at the time of sale the fact of a recall is relevant to the remedy
of punitive damages or tolling the statute of limitations).
630. Lara Misjak, No Depositions in Toyota Case, FLINT JOURNAL, Mar. 11, 2010, at 1, available
at LexisNexis.
631. Wendy Wagner cites scores of other mass torts where regulators failed to obtain "stubborn
information" withheld by corporate wrongdoers. It took trial lawyers, armed with discovery, to
uncover profiles of wrongdoing. Wendy Wagner, supra note 334, at 276.
632. Aaron Bragman, Estimated Cost of Class-Action Toyota Lawsuits May Top U.S. $3 Bil.,
GLOBAL INSIGHT (March 10, 2010), http://www.lexisnexis.com/lawschool/research/default.aspx?
ORIGINATIONCODE=00092&signoff-off.
533
Product liability is also well suited to address cases where defective
software causes personal injury or collateral property damage:
The paradigmatic products-liability action is one where a product
reasonably certain to place life and limb in peril, distributed without
reinspection, causes bodily injury. The manufacturer is liable
whether or not it is negligent because public policy demands that
responsibility be fixed wherever it will most effectively reduce the
hazards to life and health inherent in defective products that reach
the market. 63
Civil recourse theorists ask us to view collective injury problems one
case at a time without appreciating the larger societal function of general
deterrence.634 They would not emphasize the deterrent role of tort law but
rather see each product liability case as an opportunity for injured motorists
to be punitive or get even with a Japanese corporation. While the issue
between the automobile manufacturer and an injured consumer in the recent
Toyota "sudden acceleration" cases will involve civil recourse, the story will
not simply end there. Tort law is between not only the plaintiff and the
defendant, but also relates to the public's interest by alerting consumers and
regulatory agencies to problems.
The Toyota runaway-car problem is the latest in a long list of high
profile societal danger cases where tort lawyers, not government regulators,
The hazards posed by
uncovered dangerously defective products.63'
American Motor's CJ-7 Jeeps, sudden acceleration in General Motors'
vehicles, and the notorious Ford Pinto's exploding gas tanks have been
In addition to
uncovered by discovery not government regulators. 3
providing redress to victims of corporate abuses private redress, tort law has
acted to make America safer:
633. E. River S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 866-67 (1985) (citations and
internal quotation marks omitted) (articulating an economic loss rule that precluded tort recovery
where the injury suffered was the failure of a steam turbine to function without collateral personal or
property damages).
634. Goldberg questions "whether litigation through the tort system, which by its nature is
adversarial, confrontational, and public, is always or even typically the most effective means of
persuading corporate actors to adopt safer business practices." Goldberg, supra note 80, 563
(footnotes omitted).
635. Since the 1960s, injured plaintiffs, not regulators, have served as private attorneys general in
helping to bring about changes in safer automobile design involving gas tanks, side impact design,
seat belts, roof crush, tires, electronic stability control, door latches, illusory park, air bags, power
window, and seats. See AMERICAN ASS'N FOR JUSTICE, DRIVEN TO SAFETY: How LITIGATION
SPURRED AUTO SAFETY INNOVATIONS 3-9 (2010), available at http://www.justice.org/
cps/rde/xbcr/justice/Driven-toSafety.pdf
636. MEGHAN MULLIGAN & EMILY GOTTLIEB, LIFESAVERS: CJ & D's GUIDE TO LAWSUITS THAT
PROTECT Us ALL (2001), availableat http://www.centerjd.orglarchives/studies/Lifesavers.pdf.
534
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Flammable children's pajamas, backyard water slides, and
"Saturday Night Special" handguns are among the products taken
off the market after juries awarded significant damages. Similarly,
warning labels on charcoal bags and tampon packages, redesigned
infant cribs and jeeps, and revised policies on emitting toxic
chemicals and staffing pediatric units at hospitals--changes, which
have saved lives-are directly attributable to civil verdicts.'"
A decade ago, when In Defense of Tort Law was being written, the
dangerous synergy of the Ford Explorer and Firestone Tires was in the
headlines. 638 The National Highway Traffic Administration (NHTSA) took
action only after trial lawyers used the engine of discovery to uncover the
deadly profile of danger.639 Private attorneys general, not government
regulators, were the first to find proof that "Firestone tires mounted on Ford
Explorers caused hundreds of rollover accidents due to tread separation."640
It was the trial attorneys who uncovered a smoking gun document, proving
that Firestone had silently recalled this particular brand of tires in other
countries without informing NHTSA of the known dangers."' Stephen
Lubet observes that trial lawyers, who were driven by their profit motive,
were the first to break through the corporate wall of silence:
So how did the whole story finally come out, with Ford and
Firestone in deep denial and the NHTSA overwhelmed and shortstaffed? The answer is that a group of personal injury lawyers
began filing lawsuits-and eventually succeeded in bringing the
problem tires to public attention. Of course, they didn't do it out of
altruism or public spiritedness, but they did have all the right
incentives necessary to blow the whistle on a hazardous situation.
A single automobile fatality is nothing more than a statistic to a
corporate troubleshooter or a government bureaucrat. But to a
lawyer, it's a case-maybe even a big one. So the lawyer has ample
reason to investigate each accident, and to search out causes that
might make the potential verdict bigger (or easier to get).6 2
637. EMILY GOTTLIEB, CORPORATE LAWBREAKING AND CIVIL JUSTICE: THE LAST LINE OF
DEFENSE 1 (2009), availableat http://www.centerjd.org/archives/studies/CorpCrimeWhitePF.pdf
638. KOENIG & RUSTAD, supranote 239, at 5.
639. See id.
640. Id.
641. Id.
642. Stephen Lubet, In the Firestone Case, the Trial Lawyers Are the Real Heroes, THE SAN
DIEGO UNION-TRIBUNE, Oct. 11, 2000, at B-11, available at LexisNexis.
535
The Firestone-Ford Explorer cases are emblematic of how the tort
serves a larger purpose beyond the bipolar relationship between the plaintiff
and the defendant. Torts send a signal of general deterrence that "tort does
not pay."6 3 Judge James V. Selna, whose federal district courthouse is not
far from the Pepperdine School of Law campus, will try many of the actual
Toyota cases. The U.S. Judicial Panel on Multidistrict Litigation has
appointed him to hear the approximately 100 federal suits filed against
Toyota around the country. The plaintiffs contend that Toyotas equipped
with an electronic throttle system or ETCS "have a dangerous propensity to
suddenly accelerate without driver input and against the intentions of the
driver."6 In the Toyota class action litigation, the compensation awarded
to individual plaintiffs is an important issue but the public nature of these
cases cannot be denied. However, civil recourse theorists would deny it.
Specific deterrence sends a message targeted to the individual defendant that
includes the sting of shilling or the dollop of the dollar.645 However, there is
a general deterrence for defendants in the larger automotive industry, those
outside the lawsuit bubble. John Goldberg's view of punitive damages is
that they redress wrongs solely between the plaintiff and the defendant as
explained in his talk to the Federalist Society:
I want to suggest that Campbell [State Farm Mutual Auto Insurance
Co. v. Campbell, 538 U.S. 408 (2003)] provides a clear example of
the sort of slippage that legal academics have promoted and that has
led us into a bind in our thinking about punitive damages and other
subjects within torts. Many Federalist Society members will be
unsympathetic with Professor Bogus's claim that large punitive
awards are desirable from a regulatory perspective. But he is right
about one thing, and the Supreme Court agrees with him in this
particular instance: corporations and individuals commit egregious
wrongs that permit a certain kind of punitive response via the legal
system. Where he goes astray, in my view, is in thinking-as the
Supreme Court does-about the justification in terms of the state's
regulatory objectives. What is at stake in Campbell is not Utah's
interests in obtaining retribution on behalf of its citizens or in
deterring sharp business practices, but the Campbells' interest in
vindicating their rights not to be mistreated in the way that they
were. Thus, the proper question for the jury was not: How much
643. Rookes v. Barnard, [1964] A.C. 1129 (H.L.) 1127 (appeal taken from Eng.).
644. Thom Weidlich & Margaret Cronin Fisk, Toyota Speed-Up Suits Say Problem Goes Deeper
Than Gas Pedal, BLOOMBERG.COM (Jan. 29, 2010), http://www.bloomberg.com/apps/news?pid=
newsarchive&sid=a31C3yJN3xC4.
645. See Rustad, supra note 25, at 7-8 (noting Thomas Lambert's reference to "the sting of the
chastising shilling" to illustrate punitive damages' deterrent function) (quoting THOMAs F.
LAMBERT, JR., THE CASE FOR PUNITIvE DAMAGES: A NEW AUDIT (1988)).
536
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money may be extracted from State Farm in order to vindicate the
laws of Utah or to promote better insurance-company behavior in
Utah? Instead, the question should have been: How much money
will it take to make things right for the Campbells, not just in the
sense of compensating them for their losses, but in the sense of
providing them with satisfaction-a remedy adequate to
acknowledge and avenge State Farm's predatory conduct towards
them? 6
Civil recourse theory's narrow conception of punitive damages as solely
between the parties is inconsistent with the punitive damages mosaic
developed in two centuries of jurisprudence. Judge Calabresi criticized the
U.S. Supreme Court's recent decisions regarding punitive damages because
they failed to take into account that the remedy is multidimensional and
fulfills multiple functions. 4 ' Punitive damages will likely be an issue in the
future as they fulfill both punishment and deterrence functions in California
and the forty-four other jurisdictions that recognize this common law
remedy. Tort law and punitive damages provide largely monetary redress
for individual plaintiffs, but it also fulfill the larger societal functions of
protecting Americans who buy automobiles from foreign manufacturers.
The Toyota cases reflect the collective nature of tort injury because tort law
is not only about the individual victim of a runaway Toyota and the auto
giant, but it involves larger societal interests as well.64
646. Goldberg, Tort Law for Federalists,supranote 10, at 7.
647. Calabresi, The Complexity of Torts, supranote 127, at 333.
648. Goldberg acknowledges that tort law may play a role in improving safety. However, he
argues that I, along with other like minded, social justice theorists, "arguably have not paid sufficient
attention to the potentially regressive features of tort liability. Insofar as liability translates into
products rendered more expensive by safety features or the cost of liability insurance, tort will tend
to have a greater adverse effect on lower-income consumers than on their wealthier counterparts. "
Goldberg, supra note 80, at 563. The history of automobile litigation has resulted in more expenses
for the automobile industry. It is true that "brakeless cars" are cheaper than cars with electronic
stability control. The automobile liability cases illustrate how regulation not litigation resulted in
safety improvements. See, e.g., Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968)
(recognizing a duty of automobile cars to design cars that are crashworthy); Grimshaw v. Ford
Motor Co., 174 Cal. Rptr. 348 (Ct. App. 1981) (uncovering problems of placement of exploding fuel
tanks in rear-end collisions); see also AMERICAN ASS'N FOR JUSTICE, supra note 635 (documenting
automobile design improvements brought about by product liability lawsuits for safer gas tanks, side
impact design, seat belts, roof crush, tires, electronic stability control, door latches, illusory park, air
bags, power window, and seats).
537
2.
BP & Me
The British Petroleum (BP) oil spill occurred after an explosion and fire
aboard Transocean's Deepwater Horizon drilling rig on April 20, 2010.64 9 A
geyser of 210,000 gallons of oil flowed into the Gulf of Mexico creating the
world's worst environmental disaster.650 The Interior Department's Mineral
Management Service, the supposed regulator of oil drilling, was more a lap
What is clear already is that economic
dog than an industry watchdog.'
damages from this disaster are hundreds of times greater than the $75
million liability cap set by the 1990 Oil Pollution Act. 6 52 The damages will
also exceed the additional $1 billion covered by provided the Oil Spill
Liability Trust Fund. 5
The capping of justice by limiting BP's damages encouraged BP's
fearless exploration that led to this environmental disaster. The problem
with caps on liability is that they greatly decrease the deterrent power of tort
remedies by making total liability predictable. The issue of caps on damages
not only affects an individual plaintiffs ability to recover punitive damages,
but also sends a signal to potential defendants who are considering whether
they will chance it.
This is not the first time that BP's decisions have endangered the public,
649. Motor Vehicle Safety Act Hearings,supra note 321.
Then on April 20, a British Petroleum (BP) oil rig exploded in the Gulf of Mexico, off
shore from New Orleans and its fragile wetlands, marshes and estuaries. Eleven workers
were killed, others injured, fire ensued, the rig collapsed, and oil started leaking at 40,000
gallons a day. It is now estimated by the Coast Guard to be a raging torrent of oil pouring
out of the drilled hole a mile deep in the water at a rate of more than 200,000 gallons a
day and BP cannot stop it. The blowout preventer designed to seal the well was activated
by workers but did not work nor did the failsafe switch. The huge oil slick will exceed the
spill of the Exxon Valdez oil tanker in Alaska. It threatens wildlife all along the Gulf
Coast, where some 30 percent of U.S. fish and shell fish are harvested. The rest of the
nation will feel the impact of higher prices for these products. But thousands of workers
and small business owners along the Coast are now being shutdown, who knows for how
long, because their products are awash in oil. The Coast Guard is responsible for
supervising the clean up but regulation of oil drilling by the Interior Department is
minimal as the Wall Street Journal recently reported. Also, in federal legislation passed
after the Exxon Valdez debacle, oil industry lobbyists secured very low limits on
company liability (economic liability is capped at $75 million).
Id.
650. The flow rate from the ruptured well [is] as much as four or five times BP's estimate of 5,000
barrels (210,00[0] gallons/795,000 liters) a day." BP Makes Progress in Plugging Leak as Obama
Halts Drilling, MONEYNEWS.COM (May 27, 2010, 9:47 AM), http://www.moneynews.com/
Headline/US-Gulf-Oil-Spill/2010/05/27/id/360302.
651. Dana Milbank, New Plan: StuffSome BadApples in the Well, WASH. POST, May 26, 2010, at
A02.
652. See LOREN C. STEFFY, DROWNING IN OIL: PB AND THE RECKLESS PURSUIT OF PROFIT 251
(2011).
653. See, U.S. DEPARTMETN OF HOMELAND SECURITY & UNITED STATES COAST GARD, REPORT
ON OMPLIEMENTATION OF THE OIL POLLUTION ACT OF 1990, at 6 (2004), availableat http://www.us
cg.millnpfc/docsfPDFs/Reports/osltf report.pdf.
538
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taking a "death inviting risk assessment." 65 4 On March 23, 2005, an
explosion at BP's Texas City refinery started a fire that caused the death of
fifteen workers, and injured 180 others:
Local officials at the BP Texas City refinery repeatedly had been
rebuffed in their appeals for upgraded machinery and safety
equipment. On March 23, 2005, aging equipment and poor safety
precautions led to an explosion that killed fifteen workers and
injured more than 200.
OSHA fined the company $21.3 million, the largest penalty of its
kind ever levied. Why? Instead of putting excess cash into requested
maintenance and safety, BP executives had ordered the company to
"bank the savings." BP had led the industry in the number of
refinery deaths from 1995 to 2005, and over that entire decade,
there was a fire a week at the Texas City plant.
In the aftermath of the current, unprecedented oil spill, states are
beginning to study whether the disaster has a causal connection to
"respiratory and skin irritation problems in Louisiana and Alabama."6 16
Residents of the Gulf Coast and first responders will have a difficult time
proving individual causation for indirect injuries resulting from toxics
released by the spill and used in the clean up. First responders will need to
demonstrate a causal connection between their repeated and chronic
exposure and the manifestation of cancer and other diseases decades after
the spill. What is clear is that miles of shorelines, wetlands, and estuaries
will be polluted or destroyed.657 It is unknown and unknowable how much
the oil spill is ultimately going to cause in terms of total economic damages.
The spill is devastating the ecosystem, and has caused catastrophic losses in
at least five states. 658 Civil recourse theory's emphasis on one-on-one torts
does not fit the collectivization of injury reflected in the BP oil spill. 65 9 The
654. Marc R. Stanley, Risk and Responsibility in the Twenty-First Century: When Bad Companies
Happen to Good People, 56 DRAKE L. REV. 517, 522 (2008).
655. Id
656. CNN Wire Staff, BP Given Until Friday to Provide Backup Plansfor Oil Recovery, CNN,
June 92010, http://www.cnn.com/2010/US/06/09/gulf.oil.spill/index.html.
657. See WETLAND WIKl, http://wetlandresearch.com/wikilindex.php?title=2010_BPOil_Spill
%26 Wetlands.
658. See Jeffery Kofman, Three Gallons of Oily Water Collected Today, as Oil Hits Lousiana 's
Lake Pontchatrain:Crude Continues to Flowfrom BP's Well, as Oil Hits All Five Gulf Coast States,
ABC
NEWS,
July 6, 20010, http://abcnews.go.com/WN/bp-oil-spill-oil-hits-gulf-coaststates/story?id=1 109944 1&tqkw-&tqshow-WN.
659. Civil recourse is not of practical utility in mass torts cases such as those handled by Judge
539
BP oil spill is a modem example of how many mass torts, products liability,
and toxic torts tend to result in collective injury. This massive oil spill is an
illustration of the need for tort remedies that are not just about a particular
plaintiff and defendant. The immediate explosion ended eleven lives, but
the mammoth spill has affected the larger public. This includes the hotel or
resort operators and their employees who suffer economic loss from lost
reservations.
Civil recourse and corrective justice theorists "appear to leave victims of
diseases resulting from exposure to harmful products without a remedy." 6
The BP oil spill is a modem example of how many mass torts, products
liability, and toxic torts tend to collective injury. It is not between each
angler or tour operator or fisherman or hotel worker or beach dweller and
BP. Larger societal issues will play a central role in setting the level of
punitive damages to achieve the purposes of specific deterrence (BP and
codefendants before the court) and general deterrence (other potential
defendants). The late John Fleming said it best when he described tort law
as alleviating "the plight of the injured," but also advancing "the cause of
social justice. ,,661
Mass products liability cases, environmental torts,
abnormally dangerous activities, premises liability, and medical liability
cases have public, social, and private interests. The BP spill will
undoubtedly raise broader issues than only the "the individual interests of
plaintiff and defendant." 662
Jack Weinstein in his Brooklyn federal district courtroom. See, e.g., In re Breast Implant Cases, 942
F. Supp. 958 (S.D.N.Y. 1996); In re E. and S. Dist. Asbestos Litig., 772 F. Supp. 1380 (S.D.N.Y.
1991), aff'd in part, rev'd in part, sub-nom. In re Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831
(2d Cir. 1992); see generally, Jack B. Weinstein, Compensationfor Mass Private Delicts: Evolving
Roles of Administrative, Criminal, and Tort Law, 2001 U. ILL. L. REV. 947, 960-66 (2001)
(discussing mass torts decided in his court over the past few decades).
660. GIFFORD, supra note 143, at 58.
661.
JOHN G. FLEMING, AN INTRODUCTION TO THE LAW OF TORTS 1 (1967).
662. Pound, supra note 566, at 19 (arguing that courts need to consider the social interest).
540
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VI.
THE FUTURE OF TORTS IN THE INFORMATION AGE
But I know also, that laws and institutions must go hand in hand
with the progress of the human mind. As that becomes more
developed, more enlightened, as new discoveries are made, new
truths disclosed, and manners and opinions change with the change
of circumstances, institutions must advance also, and keep pace
with the times. We might as well require a man to wear still the
coat which fitted him when a boy, as civilized society to remain ever
under the regimen of their barbarousancestors.
Thomas Jefferson663
America is rapidly shifting its economic base from the production of
durable goods to software engineering and other types of information
production. Software malfunctions may have latent defects that prove
deadly. What will be the path of public tort law in the new millennium and
will it continue to evolve? In 1970, a young law professor dissented from
scholars such as Robert Keeton and Jeffrey O'Connell, who called for
downsizing tort law. He proposed "New Torts" that are concerned with
"remedies against the abuse of power-political, economic, intellectual as
well as physical." 66 That young professor was Marshall Shapo, who was a
conferee at the Pepperdine University School of Law's torts symposium.
Professor Shapo's clarion call for tort law to counter corporate abuses was a
lone voice of dissent against premature obituaries for tort law.
His 1970 Stanford Law Review essay was a retort to a 1969 American
Association of Law School panel where leading torts scholars "toyed with
the theme that 'torts are dead."' 665 Shapo, then only in his fourth year of
teaching law, proposed "New Torts" to confront "problems created by the
abuse of power." 666 He predicted "[t]he Torts of the future will stress to an
even greater degree, in Dean Green's felicitous phrase, that tort law is very
much public law."667 He called for public policy-based torts that would
check the private party much like constitutional law cases of that era
663. Letter from Thomas Jefferson to Samuel Kercheval (July 12, 1816) (quotation on the
Jefferson Memorial, panel four), available at http://www.monticello.org/site/jefferson/quotationsjefferson-memorial#PanelFour.html.
664. Marshall S. Shapo, ChangingFrontiers in Torts: Vistasfor the 70's, 22 STAN L. REV. 330,
333 (1969-70).
665. Id. at 332.
666. Id. at 334.
667. Id. at 334-35.
541
checked abuses of government power.668
Now, fast forward to the new century three decades later. Although tort
scholars had predicted that tort law was "doomed to die," as it was displaced
by a social insurance scheme,669 social insurance coverage has not gained
traction in American society because it is at odds with America's
individualistic ethic.
Shapo was writing only a month after Ralph Nader appeared on the
cover of Time Magazine in December of 1969. His book, Unsafe at Any
Speed, was a systematic call to investigate the way Detroit built
automobiles.670 Nader wrote of abuses of corporate power in the automobile
industry: "A great problem of contemporary life is to control the power of
economic interests which ignore the harmful effects of their applied science
and technology . . . 671 Just as in Nader's day, the Toyota runaway car
incidents implicate broader social interests greater "than the individual
672
interests of plaintiff and defendant."
A.
New Technology Torts
Justice Linden's clarion call is for a tort law of the new millennium to
"empower the injured ... who are hurt in the multifarious activities of
modern society."67 He acknowledges that if social compensation were to
expand, tort would contract. However, Justice Linden predicted that it is
more likely that social insurance will shrink, creating an even greater role for
tort law in the new century.674 The takeoff point for software occurred in
December of 1968, six months before Neal Armstrong walked on the Moon.
In December of 1968, IBM made the monumental decision to unbundle
software.675 "The software industry of the 1950s and 1960s did not price
-software separately. 676 Computer vendors included software as an incidental
The software industry did
part of a sale or lease of mainframe computers.
668. Id.
669. 3 EUROPEAN CTR. OF TOR & INS. LAW, supranote 300, at 1.
670. RALPH NADER, UNSAFE AT ANY SPEED: THE DESIGNED-IN DANGERS OF THE AMERICAN
AUTOMOBILE (1965) at x, 22.
671. Id. at ix.
672. The concept of social interests is drawn from Roscoe Pound. See Pound, supra note 566, at
19.
673. The Honourable Allen M. Linden, Torts Tomorrow-Empowering the Injured, in TORTS
TOMORROW: A TRIBUTE TO JOHN FLEMING 321, 321-22 (Nicholas J. Mullany & Allen M. Linden
eds., 1998).
674. Id. at 322.
675. Martin Campbell-Kelly, Development and Structure of the InternationalSoftware Industry,
1950-1990, at 74, http://www.dcs.warwick.ac.uk/-mck/Personal/Softindy.pdf.
676. Michael J. Madison, Reconstructing the Software License, 35 LOY. U. CHI. L.J. 275, 310-11
(2003).
677. Id
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not advance until the computer industry re-conceptualized software as a
product separately commodified from the computer system.17 8 IBM made
the monumental decision in December 1968 to unbundle software from
hardware, which was likely a response to pending antitrust litigation.679
Shortly after IBM's decision to separately market and license software, the
industry reached its takeoff point. The software industry transformed in the
early 1970s as licensing and leasing displaced sales.so
At the time Marshall Shapo published his prescient essay calling for
"New Torts," the software industry was just beginning to ramp up on both
coasts. During the 1970s, software companies developed a technology
corridor along Route 128 in Massachusetts that rivaled the West Coast for
leadership in the computer industry.681 For example, Massachusetts
software companies offered generous compensation to candidates with a
background in computer software design and engineering.682 Route 128
companies developed as the supernovas of the East Coast software industry
while the Silicon Valley on the San Francisco peninsula of California was
678. See id.at311.
679. Katharine Davis Fishman cites a March 1969 internal memorandum that explicitly states that
IBM's decision to unbundle was the result of pending litigation. KATHARINE DAVIS FISHMAN, THE
COMPUTER ESTABLISHMENT (1981). Professor Madison argues "IBM's unbundling decision was
made in anticipation of the Justice Department's" antitrust lawsuit and that. IBM's licensing strategy
was an attempt to respond to charges of "IBM's alleged anticompetitive marketing practices, not at
nurturing protection for computer software as an independent economic sector." Madison, supra
note 676, at 311-12.
680. Madison, supranote 676, at 311.
681. See Roger Voyer, Knowledge-Based Industrial Clustering: International Comparisons, in
Economics of Science, Technology and Innovation: Local and Regional Systems of Innovation 81,
88-89 (John de la Mothe & Gilles Paquet eds., 1998) ("Route 128 emerged as the result of industrial
restructuring in the 1970s and 1980s.... [B]etween 1975 and 1980, 225,000 new manufacturing
jobs were created, mostly in high-technology industries. Most of the new firms located along
Highway 128, the suburban beltway of Boston ... . The core of Greater Boston's new industrial
development [was] the computer industry, which had its start in 1950s with the establishment of
firms such as Digital Equipment Corporation." (footnote omitted)).
682. Ken Olsen founded Digital Equipment Corporation (DEC) in 1957.
Digital is best known for introducing the minicomputer to the information processing
industry, a development that altered the way potential customers perceived the computer.
In addition to being more accessible to non-specialists than traditional mainframes, the
minicomputer was smaller, faster, and less expensive. In defining the needs of a new
generation of computer users, Digital set the stage for the development ....
Digital Equipment Corporation, Company History, FUNDING UNIVERSE, http://www.
fundinguniverse.com/company-histories/DIGITAL-EQUIPMENT-CORPORATION-CompanyHistory.html (last visited Nov. 10, 2010). DEC sought computer technicians to build software
solutions for its PDP-1 released in 1961. Company: Digital Equipment Corporation (DEC),
COMPUTER HISTORY MUSEUM, http://www.computerhistory.org/brochures/companies.php?alpha--df&company=com42b9d67d9c350 (last visited Nov. 10, 2009). DEC's PDP-10 was an innovative
PC designed for time-sharing and scientific computing. Id.
543
the birthplace of Sun Microsystems, Cisco Systems, the Apple Computer,
and Yahoo!, just to name a few household names.683 Professor Nancy
Leveson, an MIT Aeronautics and Astronautics professor, states:
At the same time that computers are becoming indispensable in
controlling complex engineered, systems, quality and confidence
issues are increasing in importance. We are hearing more and more
failures due to computers: Software errors have resulted in loss of
life, destruction of property, failure of businesses, and
environmental harm. Computers now have the potential for
destabilizing our financial system.6
Software malfunctions may have latent defects that prove deadly.
Philip Dick's 1953 short story, The Colony, takes place on the distant
Planet Blue, a setting that appears to be ideal for colonization because of
its idyllic climate and no snakes or other predators.68' Nevertheless, the
A scientist was nearly
predators masquerade as everyday objects. 8
strangled by his microscope.8 A second traveler narrowly escaped from
a deadly encounter with his bath towel that violently wrapped around him
in an attempt to strangle him. Deadly organisms disguised as familiar
objects eventually kill all of the space travelers off. Similarly, Stephen
King's 1983 novel, Christine, features a 1958 Plymouth Fury possessed by
supernatural forces and is set in the mythical town of Libertyville.
Christine the runaway car commits a series of murders and each time is
Defectively
able to repair itself leaving no paint chips as evidence. 8
designed software, like Christine, the killer car, or the everyday objects
turned deadly in The Colony, can also have hidden dangers. 6 89 Thus, these
literary works provide the backdrop for actual software malfunctions that
prove to be fatal. In one high profile case, a New York City hospital did
683. See Chart: The SV150 Companiesfor 2009, SILICONVALLEY.COM (Apr. 17, 2010, 4:00 PM),
http://www.siliconvalley.com/companies/ci_14902728?sourcpkg&nclickcheck=1.
684. NANCY LEVESON, SOFTWARE AND SYSTEM SAFETY RESEARCH GROUP: A WHITE PAPER,
http://sunnyday.miot.edulwhite-paper.html (last visited Dec. 24, 2010).
685. Philip K. Dick, Colony, in THE BEST OF PHILIP K. DICK 127-28 (1977).
686. Id. at 128.
687. "The scientist was studying life forms from The Colony when the" two eyepieces of the
microscope had twisted suddenly around his windpipe and were trying to strangle him." Id.
688. "In the 1983 Stephen King horror novel 'Christine,' a car with supernatural powers drives
around by itself and murders people." Drew Winter, Sudden Acceleration Decelerating,WARD'S
AUTO WORLD (Apr. 1, 2010, 12:00 PM), http://wardsautoworld.com/ar/autosuddenacceleration
decelerating/.
689. "But the technology introduces its own risks: it has created new avenues for error in software
and operation, and those mistakes can be more difficult to detect. As a result, a single error that
becomes embedded in a treatment plan can be repeated in multiple radiation sessions." Walt
Bogdanich, As Technology Surges, Radiation Safeguards Lag, N.Y. TIMES, Jan. 26, 2010,
http://www.nytimes.com/2010/01/27/us/27radiation.html.
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not detect a computer software malfunction causing a patient to suffer an
excruciating death from excessive radiation:
As Scott Jerome-Parks lay dying, he clung to this wish: that his fatal
radiation overdose-which left him deaf, struggling to see, unable to
swallow, burned, with his teeth falling out, with ulcers in his mouth
and throat, nauseated, in severe pain and finally unable to breathebe studied and talked about publicly so that others might not have to
live his nightmare. 90
This patient's death was the direct result of excessive preventable
software errors. In this case, it was St. Vincent Hospital's failure "to detect
a computer error that directed a linear accelerator to blast his brain stem and
neck with errant beams of radiation. Not once, but on three consecutive
days." 691 A young breast cancer patient was administrated excessive
radiation in a Brooklyn Hospital on the same day that public authorities
warned hospitals about administering excessive radiation:
But on the day of the warning, at the State University of New
York Downstate Medical Center in Brooklyn, a 32-year-old breast
cancer patient named Alexandra Jn-Charles absorbed the first of 27
days of radiation overdoses, each three times the prescribed amount.
A linear accelerator with a missing filter would burn a hole in her
chest, leaving a gaping wound so painful that this mother of two
young children considered suicide. Ms. Jn-Charles and Mr. JeromeParks died a month apart. Both experienced the wonders and the
brutality of radiation. It helped diagnose and treat their disease. It
also inflicted unspeakable pain.692
The Food and Drug Administration studied 1,000 cases of errors in
radiation therapy and found most incidents were attributable to linear
accelerators.693 The New York Times reported how flaws in computer
software epidemics were causing an epidemic of radiation therapy injuries
and deaths.694 Software problems were the most "common cause for the
690. Walt Bogdanich, Radiation Offers New Cures, and Ways to do Harm, N.Y. Times, Jan. 23,
2010, http://www.nytimes.com/2010/01/24/health/24radiation.html?_r-1.
691. Id.
692. Id.
693. Walt Bogdanich, F.D.A. Toughens Processfor Radiation Equipment, N.Y. TIMES, Apr. 8,
2010, http://www.nytimes.com/2010/04/09/health/policy/09radiation.html?rf-radiationboom.
694. Id.
545
errors."69' The patients injured or killed by defective software could directly
file products liability actions and perhaps medical malpractice actions if
their physician violated a standard of care.
Hospitals seeking indemnification from software engineers who
designed defective computer software will not be able to assert an action for
computer malpractice. To date, no plaintiff has filed a lawsuit against the
computer software engineers or the software designers who wrote the
dangerously defective program. No U.S. court has ever recognized the
concept of computer malpractice analogous to that imposed on doctors,
lawyers, accountants, and other established professionals.696 Most software
makers disclaim all implied warranties and limit remedies. 9
A former
Microsoft lawyer contends that vendors disclaim these warranties because
the "repercussions are unknown." 698 Software makers disclaim performance
warranties such as merchantability and fitness for a particular purpose
because of uncertainty as to what these warranties mean as to software:
First, the doctrine of implied warranty of merchantability requires
that goods must "pass without objection in the trade"; however, all
programs are subject to criticism in the computer trade press.
Second, the court would have to determine the standard to which
the software would be compared. However, the dynamic nature of
the software industry makes such a comparison difficult.
Furthermore, such comparison would be difficult because computer
software is generally perceived as a collection of unique ideas.699
Every car has dozens of computers on board that control brakes,
throttles and other functions. On August 28, 2009, a Toyota Lexus driven
by an off-duty California Highway patrolman "careened through a fence,
rolled over and burst into flames," killing all four occupants.oo Shortly
695. Id.
696. The first court to refuse to consider and reject a plaintiff's theory of computer malpractice
was Chatlos Systems, Inc. v. National Cash Register, Corp., 497 F. Supp. 738 (D.N.J. 1979)
(rejecting new tort of "computer malpractice" for those who render computer seals and service),
affid in part, 635 F.3d 1081 (3d Cir. 1980); see also Analysts Int'l Corp. v. Recycled Paper Prods.,
Inc., No. 85-C8637, 1987 U.S. Dist. LEXIS 5611 at *16--17 (N.D. Ill. 1987) (stating that Illinois
does not recognize the tort of computer malpractice for computer software systems designers,
marketers, and installers); Invacare Corp. v. Sperry Corp., 612 F. Supp. 448, 453-54 (N.D. Ohio
1984) (refusing to recognize business negligence in a computer-related setting as computer
malpractice).
697. Robert W. Gomulkiewicz, The Implied Warranty of Merchantability in Software Contracts:
A Warranty No One Dares to Give andHow to Change That, 16 J. MARSHALL J. COMPUTER & INFO
L. 393, 393 (1997).
698. Id. at 393.
699. Abstract, The Implied Warranty of Merchantability in Software Contracts:A Warranty No
One Dares to Give and How to Change That, THE JOHN MARSHALL JOURNAL OF COMPUTER &
INFO. LAW, http://www.jcil.org/joumal/articles/243.html (last visited Dec. 26. 2010).
700. Bill Vlasic, Toyota's Slow Awakening to a Deadly Problem, N.Y. TIMES, Jan. 31, 2010,
546
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before the fatal crash, the state trooper told a 911 dispatcher that his Lexus
lost its brakes and that the accelerator was stuck on full throttle.70' The L.A.
Times reported that over sixty drivers complained of sudden acceleration
problems after their automobiles had been recalled and apparently fixed by
Toyota.702
Tort law's signature has been its flexibility in enabling consumers to
uncover developing dangers or risks affecting them and others in society.
Injured consumers and their lawyers serve as early responders uncovering
smoking gun evidence of corporate abuses.0 3 The concept of private
lawsuits involving civil recourse and public interest is nothing new; as
illustrated by civil and criminal RICO, the federal securities laws, the
antitrust law, and much of environmental law. This theme of private
litigants uncovering misconduct involving and benefiting the larger society
is also found in civil forfeiture litigation, civil rights case, and whistleblower
actions. The Toyota runaway car problem is the latest in a long line of high
profile societal danger cases where government regulators have failed to
protect the public. 7" If the recourse theorists manage to downsize tort law,
courts will be constrained with recognizing new causes of action or
categories of plaintiffs to address the social problems created by defective
software. The software industry is evolving rapidly and so must new torts
such as negligent enablement, computer products liability, and computer
malpractice.
B.
Computer Malpractice
Courts have uniformly rejected the theory of computer malpractice but
most decisions were handed down in the 1980s and 1990s during the early
years of the software industry. For instance, in Hospital Computer Systems,
Inc. v. Staten Island Hospital, a software developer filed an action against
the hospital for its failure to pay for computer services. 705 The hospital
counterclaimed charging that the plaintiffs technical staff committed
http://www.nytimes.com/2010/02/01/business/0ltoyota.html?-r-1.
701. Id.
702. Ken Bensinger & Ralph Vartabedian, More Owners of Toyota Vehicles Say Recall Repairs
Aren't Working, L.A. TIMES, Mar. 5, 2010, http://articles.latimes.com/2010/mar/05/business/la-fitoyota-complaints5-2010maD5.
703. See supranote 315 and accompanying text.
704. See supranotes 582-83 and accompanying text
705. See Hosp. Computer Sys., Inc. v. Staten Island Hosp., 788 F. Supp. 1351, 1356 (D.N.J.
1982).
547
computer malpractice.70 ' The court rejected this claim ruling that the
plaintiff could not establish that computer consultants were professionals.o7
The courts have all said no to recognizing a new tort of computer
malpractice and the result is that software makers disclaim all liability and
limit their warranties and enjoy a lawsuit immunity zone. Tort law is often
the first responder that alerts the public about excessive preventable dangers
in defective products, reckless business practices, and toxic hazards.70 s
News of the Toyota sudden acceleration cases is the latest chapter in how
tort law has served all Americans. To quote the great political philosopher
Yogi Berra: "'It's ddjti vu all over again."' 7 09 Neither Congress nor state
legislatures have addressed the problem of bad software with comprehensive
regulation that oversees the software industry. It will be up to courts to
recognize new causes of action for computer malpractice, the negligent
enablement of cybercrime, or other causes of action to address injuries of the
information age. Courts have yet to recognize a tort duty of care holding
software developers responsible for producing software that has excessive
preventable risks that it will be exploited by hackers or cybercriminals.
The bad software problem is a byproduct of the software industry's
virtual immunity from tort liability. Immunity breeds irresponsibility and
tort law requires accountability. The software industry's approach has been
rushing to market and reallocating the costs of making their products safe to
the consumer and other end users. The FDA has been slow to address the
problem of computer malfunctions in radiation therapy. 7'o As health care
costs veer out of control, hospitals need a tort remedy against the software
engineers or vendors that supplied the malfunctioning software. Hospitals
seeking indemnification from software engineers who designed defective
computer software will not be able to assert an action for computer
malpractice."
In response, to the acceleration issues with Toyota vehicles, federal
regulators asked Toyota to consider installing software to prevent cars from
racing out of control.712 The U.S. Department of Transportation is
proposing a $16.4 million fine against Toyota for "knowingly hid[ing]"
safety problem from the National Highway Traffic Safety Administration
(NIHTSA). 7" The "runaway car" problems in Toyota Priuses and other
706. See id at 1360-61.
707. Id. at 1361.
708. Supra note 636 and accompanying text.
709. Debra A. Estock, Baseball Hall of Famers: Yogi Berra 5 (2003).
710. See Bogdanich,supra note 693, and accompanying text.
711. See supra note 696 and accompanying text.
712. See Ken Bensinger & Ralph Vartabedian, Toyota Was Asked in 2007 to Consider Installing
Software to Prevent Sudden Acceleration, L.A. TIMES, Mar. 14, 2010, http://articles.latimes.com/
2010/mar/14/business/la-fi-toyota-brakel4-20 10marl4.
713. Josh Mitchell & Kate Limbaugh, Toyota Faces $16.4 Million U.S. Fine, WALL ST. J., Apr. 6,
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models may ultimately be traced to defective software design.714 The
American Law Institute's Principles of the Law of Software Contracts
impose a duty on the part of software makers to disclose known defects in
code to the customers and this duty cannot be disclaimed.1 This broadbased standard is a modest first step to developing new tort theories to
protect our information-based infrastructure.
VI. CONCLUSION: DON'T STOP THINKING ABOUT TOMORROW
For twenty-five years, I have defended our American common law of
torts on many grounds against constant attacks and calls for "reform." I
have not defended tort law because it is politically useful in any sense, or in
the interests of social justice, or in my own interests. In a nutshell, my
defense of our common law of torts is based on how it functions as a
flexible, free-market based, and cost- effective alternative to a burdensome
and expensive European-style regulation scheme, social insurance scheme,
or a combination of the tow, that would seek to redress harm, protect us
from harm, or both. Moreover, I am highly skeptical that any bureaucratic
construct could function as quickly and effectively as trial attorneys driven
by the profit motive to alert the public to danger and to protect them from
harm.
While I see the beauty of tort law as a consumer watchdog, younger tort
scholars like John Goldberg see the beast. Goldberg's vision of tort law
does not include celebrating trial attorneys as canaries in the coal mine, or
any other big picture, public oriented features. Tort law's expanded role in
modem society has made it way too subject to criticism. To save it, we need
to return to an older format- Ala Blackstone's concept of private wrongs.
The problem is that format, however suitable for a Gemeinschaft society,
pre-industrial revolution, is totally inadequate for the kinds of multifaceted
problems that arise in our Geselilschaft era. Tort law may be unpopular with
the American public now thanks to the tort reformers' well-funded campaign
against it, but raising taxes to fund a Swedish-style insurance scheme would
be far more unpopular. In any case, I suspect a monolithic compensation
system would fail in regard to deterrence and as a grievance mechanism for
injured plaintiffs.
While I agree with the civil recourse theorists that tort law should
2010, at Bl, available at Factiva, Doc. No. J000000020100406e6460001c.
714. See generally Holman W. Jenkins, Toyota and the Curse of Software, WALL ST. J., Feb. 5,
2010, at A19, available at Factiva, Doc. No. J000000020100205e62500017.
715. PRINCIPLES OF THE LAW OF SOFTWARE CONTRACTS §3.05 (Proposed Final Draft 2009).
549
redress private wrongs; torts is more complex than the notion of civil
recourse. The manifest function of tort law may be the equivalent of civil
recourse, but its latent functions are just as important.7 16 Our honoree,
Justice Allen Linden, calls for a tort law for the new millennium to
"empower the injured ... who are hurt in the multifarious activities of
modem society."717 In the recent Toyota "sudden acceleration" cases, which
may be software-related, the issue between the car manufacturer and an
injured consumer will involve civil or private recourse, but that is not the
end of the story. Trial lawyers are using the engine of discovery to unearth
issues of safety and quality and also to uncover a wider pattern of corporate
wrongdoing. 1
In other words, tort law is between the plaintiff and the
defendant, but it also serves the public interest by alerting consumers and
regulatory agencies to problems. If the civil recourse theorists have their
way, courts will be hesitant to look at the big picture and recognize new
causes of action for new types of injuries. In our information-based society,
new dangers include dangerously defective software, online stalking, the
misappropriation of trade secrets, and economic espionage. Cybertorts and
software-related injuries require creative problem solving from our courts.
Whether the consumer watchdog function of American tort law is beautiful
or beastly depends upon your worldview. My worldview is forward-looking
and that of the younger scholars seems to be backwards looking.
716. I draw upon sociologist Robert Merton's distinction between manifest (on the surface) and
latent functions (backstage or beneath the surface). See ROBERT K. MERTON, SOCIAL THEORY AND
SocIAL STRucTuRE (1957). The manifest functions of tort law are what courts discuss in their
opinions in contrast to latent social functions.
717. Linden, supra note 673, at 321-22.
718. See supranote 315 and accompanying text.
550