Recognizing Wrongs

John C. P. Goldberg, Benjamin C. Zipursky

• Publisher: Belknap Press
• Year: 2020
• ISBN:
  9780674246522
• Topic: Jura
• Subtopic: Schadenersatzrecht

Two preeminent legal scholars explain what tort law is all about and why it matters, and describe their own view of tort's philosophical basis: civil recourse theory. Tort law is badly misunderstood. In the popular imagination, it is "Robin Hood" law. Law professors, meanwhile, mostly dismiss it as an archaic, inefficient way to compensate victims and incentivize safety precautions. In Recognizing Wrongs, John Goldberg and Benjamin Zipursky explain the distinctive and important role that tort law plays in our legal system: it defines injurious wrongs and provides victims with the power to respond to those wrongs civilly.Tort law rests on a basic and powerful ideal: a person who has been mistreated by another in a manner that the law forbids is entitled to an avenue of civil recourse against the wrongdoer. Through tort law, government fulfills its political obligation to provide this law of wrongs and redress. In Recognizing Wrongs, Goldberg and Zipursky systematically explain how their "civil recourse" conception makes sense of tort doctrine and captures the ways in which the law of torts contributes to the maintenance of a just polity. Recognizing Wrongs aims to unseat both the leading philosophical theory of tort law—corrective justice theory—and the approaches favored by the law-and-economics movement. It also sheds new light on central figures of American jurisprudence, including former Supreme Court Justices Oliver Wendell Holmes, Jr., and Benjamin Cardozo. In the process, it addresses hotly contested contemporary issues in the law of damages, defamation, malpractice, mass torts, and products liability.

PART I

Civil Recourse

1

Civil Wrongs and Civil Rights

IN THIS CHAPTER we make two claims that stand in some tension with one another. After sketching tort law’s basic features, we first suggest that these features reflect a principle that is central to our legal and political traditions. We then explain (in the chapter’s final section) how many contemporary legal scholars, as well as the lawyers and judges they have trained, have come to misunderstand tort law and to lose sight of its animating principle.

What Is a Tort? What Is Tort Law?

Just as there are many crimes—murder, arson, burglary, treason—there are many torts. Like the different crimes, each tort has a name and readily recognizable exemplars.

Battery is one tort. For a person to commit a battery is for her intentionally to touch another in a manner that is harmful or offensive. One who punches another commits battery.¹ So does one who kicks, spits on, or fondles another. In the course of deciding lawsuits brought by persons seeking redress for having been punched, kicked, spat upon, or fondled, courts have fashioned the legal rule that gives battery its substantive content. A person who violates this rule in turn incurs a legal vulnerability. He or she can be sued by the victim and, if the lawsuit prevails, will be the subject of a court judgment requiring him to pay money damages to the victim.

Other torts go by names such as “assault,” “conversion,” “fraud,” “libel,” “negligence,” “outrage”—a particularly evocative name!—“products liability,” and “trespass.” Like battery, each of these torts sets a rule or rules specifying how one must refrain from mistreating others or, less frequently, identifying steps one must take to protect or rescue another from certain dangers. It also enables persons injured by violations of these rules to obtain a remedy, whether in the form of a damages payment or a court order directing the defendant to take or refrain from taking particular actions.

Some scholars argue that, despite appearances, the various conduct-rules of tort law reduce down to a single substantive principle—for example, that each is an expression of the Golden Rule (“Do unto others …”). Others argue, oppositely, that tort law is an almost haphazard collection of those instances in which courts happen to have decided that conduct will generate liability. Our view falls in between these two extremes. We do not believe that the wrongs of tort law express a single, foundational principle. Nonetheless, they are united by certain features. Each tort is a legally recognized wrong. Each is also an injury-inclusive, relational wrong, in that it involves one person wronging another by interfering with an aspect of individual well-being. Finally, each is a civilly actionable wrong. Taken as whole, tort law defines wrongs and provides an avenue through which victims can obtain redress. This book is largely devoted to explaining these ideas. Here it will suffice to offer a few thoughts about each.

The word “tort” was incorporated long ago into English legal usage from French. It means “wrong.” Each of the recognized torts is a wrong. It is not merely that courts have used words such as “battery” and “negligence” to identify conduct to which the law attaches adverse consequences. After all, the law regularly attaches such consequences to acts that are not wrongs. So far as the law is concerned, there is nothing wrong with buying a car or a bicycle. Still, one who buys a car or a bicycle may be required by law to pay a tax on the purchase. It would be farcical to describe such a payment as “redress” for a “wrong.” By contrast, it is wrong intentionally to cause someone to believe that they are about to be shot (assault), to spy on a person in her bedroom (invasion of privacy), and constantly to use noisy machinery that keeps one’s neighbors up at night (nuisance). None of these is an instance of acceptable-but-taxed conduct. Nor is the injurer’s after-the-fact failure to make a compensatory payment what renders these acts wrongful. They are wrongful when done. The same is true even for those parts of tort law that are commonly said to impose “strict liability,” including modern products liability law.²

The wrongs identified by tort law tend to be familiar. One needs no legal training to know that one mistreats another by defrauding him, defaming him, and so forth. But the reverse is not true. It is obviously wrong to humiliate a stranger at a social event by gratuitously commenting on his obesity. Wrong, but not a tort. Courts have defined the tort of slander to exclude insults and true statements, and for the most part have refused to deem emotionally injurious conduct to be tortious when it is merely insensitive or rude, as opposed to outrageous. To assert that a particular way of interacting with others is a tort is to assert that it is of a type that has been recognized as a wrong in an authoritative legal source, such as a judicial decision or legislation, or at least that it is properly deemed to belong to the class of such wrongs. Because the task of interpreting prior judicial decisions and legislation often is not straightforward, the line between wrongs that are legally recognized and those that are not can be difficult to discern. Moreover, the list of torts has changed over time as lawmakers have fashioned new torts and discarded existing ones. And even for a well-established tort such as battery or negligence, there are uncertainties about how it applies to particular cases. These important qualifications notwithstanding, it remains true that for a wrong to be a tort it must be a legally recognized wrong.

Just as there are injurious wrongs not recognized by the law as torts, so too there is conduct marked off as wrongful by bodies of law other than tort law. Possession of narcotics is an example: although the law deems such conduct wrongful, it does so by designating it as a crime. In one respect, possession is an unusual crime. Many crimes have tort counterparts—to beat up another person is at once to commit the crime of assault and the tort of battery; to burn down another’s house is to commit the tort of trespass to land and the crime of arson. The crime of drug possession by contrast, lacks a tort counterpart. That it does so will help us to isolate distinctive features of tortious wrongdoing.

Drug possession lacks an equivalent in tort for a simple but important reason: it is defined such that it is capable of being committed without any injury being inflicted on another person. To be sure, a given instance of drug possession might cause harm to a particular person (for example, one who possesses illegal drugs might suffer an overdose) or even to many. The point is that injury is no part of the definition of the offense. Thus, the crime of narcotics possession is complete as soon as a person exercises the requisite control over the relevant substance with the requisite mental state: no proof of a setback to another is required. The same cannot be said of the legal wrongs that are torts. Every tort involves a person injuring another person in some way, or failing to prevent another’s injury: every tort is an injury-inclusive wrong.³ There are some difficult questions about what counts as an “injury.”⁴ But these difficult questions presuppose the present point. If there has been no injury, there can be no tort.

So, torts are legally recognized and injury-inclusive wrongs. Further, they are relational wrongs.⁵ Each tort identifies conduct that is not merely wrongful in the sense of being antisocial, but wrongful as to a particular person or wrongful as to each member of a defined group of persons. Felling trees located on someone else’s property is not merely wrong in a generic sense. It is a wrong to their owner. Knowingly publishing an article falsely asserting that a political candidate takes bribes is not merely antisocial. It is a wrongful injuring of the candidate. Carelessly driving one’s car so that it collides with and injures a motorcyclist is not a wrong “in the air.” It is a wrong to the motorcyclist (and an injurious one at that). By contrast, in the eyes of tort law, the same careless car driver commits no tort as to a stranger who happens to witness the collision of car and motorcycle and its gory aftermath from the balcony of his second-floor apartment. This is so even if the stranger is predictably traumatized as a result.

About this aspect of torts, too, we will have more to say. In particular, it will be important to explain what does and does not follow from recognizing the relational structure of tortious wrongdoing. For now, however, we will turn to consider how the features of torts we have thus far identified connect organically to the idea of civil recourse.

When a crime is committed, the offender is vulnerable to certain actions by government officials, including prosecution at the hands of a state or federal official, and punishment by judge and jury. When a tort is committed, a legal power is conferred on the victim to obtain redress from the tortfeasor via a judicial proceeding. This power is conditional: the putative victim’s right to redress hinges on her ability to prove that she has actually been the victim of a tort at the hands of the defendant(s) being sued. The point is that the commission of a tort renders a tortfeasor vulnerable not to the state per se but to the victim (or her representative), who in turn can invoke the power of the courts in pursuing her claim. It is the putative victim, not a government official, who decides whether to assert a claim and demand a remedy. It is also the putative victim who decides whether to drop her lawsuit, settle it for a monetary payment, or see it through to judgment.

Today judges and scholars are fond of saying that tort law is a system for compensating injury victims and deterring wrongdoers by the threat of liability. While not entirely off-base, this way of speaking is misleading, for it puts a regulatory cast on law that is at least as much “private.” It is true that injury victims often obtain compensation for their injuries through tort suits, and the threat of tort liability probably does deter individuals and firms from injuring others. But compensation and deterrence—understood as aggregate or social goods—are beneficial effects of having tort law. Neither is its purpose. When money changes hands as a result of a tort suit, it is not paid out as part of a public benefits program, nor is it paid out as a fine. It is paid to the victim (or her representative or survivors) as redress. Our claim is not that lawmakers who fashion the rules of tort law are indifferent to whether it will affect behavior or benefit injury victims. Rather, it is that tort law is structured such that it guides conduct and protects and empowers victims in a particular way that is not accurately captured by describing it as a scheme of deterrence and compensation.

Civil Recourse as Constitutional Principle

We hope that we have said enough to provide an initial feel for the distinctive features of tort law and for how they hang together. To summarize: A tort is a wrong of a special sort. Specifically, a tort is a legally recognized wrong, an injurious wrong, a wronging of another person, and a wrong that is civilly actionable by a victim who seeks redress for it. These attributes mesh well with one another. Relational, injurious wrongs are wrongs that involve a special kind of victimization and hence are appropriately deemed actionable by means of suits by victims seeking compensation, as well as injunctive relief and other remedies.

In the next section of this chapter we will canvas significant instances in U.S. legal history that demonstrate the centrality of tort law to our legal traditions. Before doing so, however, we wish to take a brief but we hope illuminating detour from tort law to the more general idea of civil recourse. This lesson concerns the centrality to American legal thought—including American constitutional law—of the idea that when a person has suffered a legal rights violation at the hands of another (whether a tort or some other legal wrong), then, ordinarily, she is entitled to recourse against the wrongdoer. In the words of the old legal maxim, ubi jus ibi remedium. Where there’s a right, there’s a remedy.

The importance and breadth of this principle can be grasped by considering the first comprehensive treatise on English law, published on the eve of the American Revolution by William Blackstone. Book 3 of Blackstone’s Commentaries focuses on “private wrongs” (co...