Volume 15, Issue 1

Contemporary tort theory is a contest between instrumentalism and formalism. The prominence of instrumentalism is no surprise. American tort theory was born in the work of Oliver Wendell Holmes and his views were resolutely, if elusively, instrumentalist. Until very recently, economic views have dominated contemporary discussions of tort law in the American Legal Academy, and the economic analysis of torts is uncompromisingly instrumentalist. The rise of formalism, by contrast, is surprising. Legal realism swept over American legal thought long ago. Ever since, formalism has been treated more as epithet than as credible position by American legal scholars. In contemporary tort theory, though, formalism has roared back to life and struck some powerful blows against instrumentalism. Tort, these neo-formalists argue, is not an instrument for the pursuit of independently valuable ends. It is an institution whose norms are constitutive of just relations among persons. The bipolar, backward-looking form of the ordinary tort lawsuit has been the fulcrum that critics of economic analysis have used to pivot tort theory away from economic instrumentalism. That form, prominent tort theorists have persuasively argued, instantiates a backward-looking morality of responsibility, not a forward-looking morality of regulation. But the formalist enterprise has its own weaknesses. For one thing, formalist tort theory has tended to reshape tort law in ways that beg the questions that the theory purports to answer. For another, just relations among persons are a matter of substance as well as form. In the case of tort law, just relations require that tort law identify and safeguard those interests urgent enough to justify imposing reciprocal responsibilities of care and repair. We cannot, therefore, pull the rabbit of a convincing conception of tort law out of the hat of the field’s formal structure. What tort theory needs is two-pronged theory—theory that can both make sense of form and—by attending to tort law’s role in safeguarding our urgent interests from impairment and interference at each other’s hands—also illuminate tort law’s independently significant substance.

Modern corrective justice theorists of tort law remain critical of the Anglo-American common law doctrine that allows a plaintiff to be awarded damages beyond compensation, and for the distinct purpose of punishing a defendant in a civil tort action. From the corrective justice standpoint, punishment is an illegitimate remedial purpose of the law of tort. So much so, that the historical doctrine of civil damages that continues to allow for it – exemplary (or punitive) damages – should be totally abolished. This article revisits a historical tort case that modern corrective justice tort theorists have praised for very nearly abolishing the exemplary damages doctrine in one leading common law jurisdiction: it critically explores the 1964 decision of the Appellate Committee of the United Kingdom House of Lords in Rookes v. Barnard . In doing so, it strives to set this theoretically significant reform of the English law of civil tortious recovery more vividly in the historical context in which it was undertaken. It contends that a deeper appreciation of Rookes ’ theoretical significance requires taking fuller account of the context of ideas in which Lord Devlin – the Law Lord to whom the House’s decision on damages is ascribed – undertook it.

Suppose a legal rule makes it negligent to have a loaded gun out in the open in a place of business. Should a defendant who violated this rule by using a loaded gun as a paperweight be liable for his client’s broken toes when the gun falls onto her foot? Problems manifesting this basic structure have occupied scholars and Restatement reporters for decades. In this essay, I reframe untaken precautions as a bundle of risk control services, each of which counteracts a particular risky element, like “shooting capacity” or “heaviness” in the case of the gun. Tort law ought to induce actors to produce all, and only, the risk control services that are worth the cost of providing. Cashing out that prescription is tricky because precautions often jointly provide multiple risk mitigation services, and more than one precaution may meet the legal standard. Nonetheless, the task becomes tractable if we examine the cost structure of precautions — and, analogizing to break-even analysis for products, identify which risk control services contribute to rather than detract from a precaution’s bottom line. The risk services framework partially redeems but also revises harm-within-the-risk and negligence per se doctrines that limit negligence liability based on the type of danger or category of victim involved in a given accident. By enabling us to assess which ostensible risk control services are really societal disservices, this approach provides a firmer basis for calibrating the scope of liability.

Chancy causation is where the cause of an event can only be attributed probabilistically. Contrary to the understanding popular in legal theory, scientific fact plays only a minimal role in chancy causation cases. As a matter of metaphysics, factual inquiry can only determine whether an event has a tendency to cause an outcome. Yet tort doctrine requires that the plaintiff prove a counterfactual: that but for the event, the outcome would not have occurred. Understanding that in chancy causation cases proving the counterfactual is impossible is the first step towards a discussion of what really ought to matter in chancy causation cases: whether imposing liability is normatively desirable. Methodologically, the Essay builds on scholarship about the metaphysics of causation as a first step to understanding this legal concept. If it is true that causation cannot be pinned down deterministically, as chancy causation cannot, then what determines factual causation? The answer is policy. I call this approach “pragmatic” because it evaluates the use of an idea rather than claims regarding its metaphysical truth. But there is a metaphysical piece here as well. We only get to the point of applying a pragmatic analysis by understanding something about the metaphysics of causation.