Instrumental Comparative Tort Law

This article examines the possible uses of comparative tort law in practice and theory. It takes the view that comparative law is always a means, never an end in itself, explains how it can be utilized by judges, legislatures, and legal scholars, and puts forward important caveats and qualifications. Part 2 demonstrates the traditional role of comparative law in interpreting and implementing shared or similar tort doctrines and in providing ideas for domestic tort law gap-filling and reform. It highlights the challenges that such utilization might present. Part 3 maintains that comparative research is the cornerstone of unification endeavors. Starting with coordinated projects, Part 3 argues that unification is in itself an instrument (making comparative law a second-order instrument) and that it cannot be pursued without taking into account some concerns about its desirability and practicability. Part 3 then discusses uncoordinated unification processes, whereby lawmakers in one jurisdiction identify a “global consensus” and decide to join it, and elaborates on the normative and positive components of these strategies. Part 4 acknowledges that comparative analysis usually uncovers trans-jurisdictional diversity and argues that such findings can underlie normative and positive theories of tort law. A comparison can offer a systematic taxonomy of possible legal solutions to a particular problem, enabling scholars to critically evaluate and compare the alternatives from their preferred theoretical perspective. Moreover, any hypothesis about the impact of cultural, economic, political, technological, and other conditions and changes on the law can be substantiated or refuted through comparative analyses that seek out legal differences (or similarities) among systems with different (or similar) underlying backgrounds. Through this analysis, the article aims to reignite and enrich the debate and inspire tort-law makers and scholars to integrate comparative research into their work.

From Liability Shields to Democratic Theory: What We Need from Tort Theory Now

In the United States, one startling response to COVID-19 has been a push for so-called “liability shields,” laws modifying tort doctrine so as to largely eliminate tort liability for negligently causing COVID-19. Though not enacted at the federal level, such changes have been adopted in numerous states. This article excavates and articulates the tort theory that lies behind this puzzlingly response to a pandemic. I call the theory “tort deflationism.” Grounded in modern American conservatism and with a doctrinal pedigree dating back to the 1970s, tort deflationism explains and justifies only minimal tort liability, out of deference to non-governmental actors – especially family, church, and business—and suspicion of government competence and power. Other tort theories should reckon with tort deflationism, and I discuss some challenges of doing so. The contest between tort deflationism and other theories speaks to ongoing debates about the legitimacy of law in pluralist democracies. I urge tort theorists to enter these debates and to consider their implications for tort law itself.

Strict Products Liability 2.0: The Triumph of Judicial Reasoning Over Mainstream Tort Theory

Strict products liability has evolved in a manner that is widely misunderstood. The liability rule was first formulated to govern defective products that did not minimally perform one of their ordinary functions as expected by consumers—a malfunction that violates the implied warranty of quality. After adopting this rule, courts began applying it to products that did not malfunction and found that a test for defect based on consumer expectations often is indeterminate or can otherwise unduly limit liability in an important class of cases. To address these problems, most courts adopted the risk-utility test, a form of cost-benefit analysis that functions like the negligence standard of reasonable care. Relying on these cases, the Restatement (Third) of Torts: Products Liability embraced the risk-utility test, jettisoned the consumer expectations test, and characterized strict products liability as a misleading label that perpetuates confusion about liability being strict when it instead is based on negligence. In response, a clear majority of courts have rejected this negligence-based framework and affirmed the continued vitality of strict products liability. Puzzled by this unexpected development, mainstream scholars claim that courts are confused by the rhetoric of strict products liability. The prevailing scholarly opinion about this matter is confused; its fixation on negligence ignores the implied warranty rationale for strict products liability. Having been largely formulated as a rule of contract law, the implied warranty is under-theorized as a tort doctrine. Once adequately developed, the tort version of the implied warranty shows why courts have transformed the rule of strict products liability from the last century into a more comprehensive regime—“strict products liability 2.0”—that relies on consumer expectations to incorporate the risk-utility test into the framework of strict products liability. As compared to ordinary negligence liability, the implied warranty defines the safety problem in the normatively appropriate manner, thereby sharpening the inquiry about what’s at stake. In dismissing this important development, mainstream tort theory relies on legal categories that fundamentally differ from the ones courts have used to develop strict products liability with analogical reasoning. Scholars have either resorted to overly general theories of tort liability or have otherwise focused on narrow doctrinal questions. By not engaging in the mid-level categorical theorizing required by analogical reasoning, the mainstream position could not see how this characteristic form of judicial reasoning has created the substantively sound regime of strict products liability 2.0.

The Public Right and Wrongs: Tort Theory and the Problem of Public Nuisance

Tort theory over the past two decades has been characterized by a fruitful dialectic between two models. Instrumentalism, especially, in its deterrence mode, has been promoted by a wide coalition of scholars and jurists. In response, various critics of instrumentalism have argued for the autonomy of tort law, first under the umbrella of corrective justice and later under civil recourse. The success of civil recourse depends in part on its ability to explain emerging areas of focus in tort law. One such area is public nuisance, which, despite some setbacks, is viewed by the plaintiffs bar, state actors, and some members of the academy as an effective tool to address significant social problems, such as the opioid crisis. This article asks whether, and how, civil recourse theory can accommodate modern public nuisance law.

The Inward Turn and the Future of Tort Theory

The future of tort theory cannot be sensibly imagined without understanding its past. Our aim is to understand where tort theory has been in order to predict where it may go. We contend that tort theory has experienced two different eras, and that it may well be about to enter a third. In the first era, spanning roughly the first three-quarters of the twentieth century, tort theory faced outward to the world, focusing on issues affecting redress for civil injuries that were being decided in the courts and emerging in American society at large. In the second era, roughly the last 30 to 40 years, tort theory turned inward and focused mostly on itself. The tort theory that has been done during this second era, valuable though it has been, may well have borne most of its scholarly fruit. We may therefore be ready to move into a third era, in which tort theory turns outward again and becomes occupied with the cutting-edge issues of tort law policy and principle that will be generated as the twenty-first century progresses. This Essay chronicles the first era, in which tort theory faced outward, the second era, in which tort theory turned inward, and identifies three issues that we believe may be on the tort theory agenda, when and if tort theory turns outward again. These involve the coordination and systematization of tort with other sources of regulation and compensation; redressing data theft and digital invasions of privacy; and heightened sensitivity to harm associated with sex, gender, and race-related misconduct.

Social Justice Tort Theory

Alongside the dominant law and economics and corrective justice approaches to tort law, a new genre of tort theory based on principles and perspectives of social justice has come into its own and deserves recognition. Social justice tort theory starts from the premise that tort law reflects and reinforces systemic forms of injustice in the larger society and maintains that the compensatory ideal of tort law cannot be extricated from these larger systems. It is multi-dimensional and intersectional, recognizing that the impact of injury lands intersectionally, sometimes changing the intensity of the injury or distorting the nature of the injury. Social justice tort scholars have examined torts in gendered and racialized contexts, as well as in ordinary cases that seem to have little to do with systemic injury. In addition to feminist and critical race theory, they have borrowed from critical disability studies, queer theory and political economy. Their work demonstrates how tort law unfairly distributes damages, fails to provide adequate relief for victims of sexual assault or for people who suffer racial insult and discrimination, and erases maternal and reproductive harms. In their work, we can see common deconstructive moves (an emphasis on disparate impacts and devaluation; a teasing out of cognitive bias; and a critique of exceptionalism in tort doctrine) as well as guiding principles for reconstruction (incorporating victims’ perspectives; treating boundaries between civil rights law and tort law as permeable; and enhancing dignity and recognition).

Q: What is Tort? A: Categorical Hurt

The capacious and hard-to-confine term Tort challenges observers to identify what it includes and does not include. Offered here to describe tort, the label “categorical hurt” makes reference to two foundational characteristics. “Hurt,” the noun in this phrase, insists that tort plaintiffs bring to court their experience of suffering. Its adjective, used in this article to echo the word Immanuel Kant chose to modify a different noun, “imperative,” means that tort courts hear claims of general rather than exclusively personal interest. To earn a tort remedy, the suffering reported by a hurt plaintiff must be of a kind that other people can experience and understand.

Form and Substance in the “Private Law” of Torts

Instrumentalist ideas have long been prominent in torts scholarship. Since the rise of legal realism, discussions of deterrence, compensation, the minimization of accident costs, and the distribution of losses have dominated scholarly discourse. In the past several decades, however, wholesale rejections of instrumentalist tort theory have arisen. The most uncompromising of these views rallies around the avowedly formalist battle cry that tort is “private law”. Ernest Weinrib’s elegant and influential book, The Idea of Private Law, declares its allegiance to that thesis in its title, and the idea figures almost as centrally in Arthur Ripstein’s recent and important Private Wrongs. Theorists who rally around the banner of “private law” claim that tort law’s governing principles of right and responsibility tumble out of the field’s characteristic legal form. Law, as they understand it, is constitutive of just relations among persons, not an instrument for the pursuit of independently valuable ends. For scholars like Weinrib and Ripstein, “private law” is the Kantian idea of reason that makes our actual law of torts intelligible. The claim that torts is a law of wrongs where persons bring claims in their own names for harms that they have wrongly suffered against those allegedly responsible for those wrongful harms is powerful and persuasive. The claim that the obligations persons owe one another in tort are obligations owed among equal and independent persons is likewise compelling. But theorists of tort as “private law” overshoot the mark by both asking and making too much of form. They ask too much of form when they attempt to make sense of the private law of torts solely in terms of form—eschewing all talk of interests. We cannot understand or justify the law of torts without attending to the interests that it protects. In tort, as elsewhere, rights and the duties they ground protect important individual interests. For example, it is our interest in the physical integrity of our persons that grounds the law of negligence. Theorist of tort as “private law” make too much of form when they present the legal category as its own private fiefdom walled off from surrounding legal fields. For Ripstein and Weinrib, “private law” is its own autonomous domain, sealed off against infection by any legal field whose form identifies it as “public law”. In our law, the private law of torts cooperates and competes with public law institutions as a response to the pervasiveness of accidental harm in an industrial and technological society. It is one way of institutionalizing our interest in safety. Establishing rightful relations among free and equal persons in civil society requires that institutions protect persons’ urgent interests, not just establish their formal independence. The theoretical understanding that we need will recognize that we misunderstand even the private law of torts itself if we sever it entirely from forms of collective responsibility for avoiding and repairing accidental harm with which it competes and cooperates.