Torts Against the State

This chapter argues that the dominant “interpersonal accountability model of tort law” must be significantly amended to accommodate tort law’s protection of the interests of artificial persons. The chapter focuses on protection of state interests, in particular. It begins with a critical exposition of the interpersonal accountability model, highlighting the extent to which leading tort theorists share the assumption that torts are wrongs that are suffered by natural persons alone. Next, the chapter shows that and how the interpersonal accountability model neglects torts against the state, and offers a schema for categorizing these torts. The chapter concludes by tracing the implications of arguments developed in it. Among other things, it notes that understanding that tort law includes torts against the state calls into question the tendency to gloss torts as “private wrongs” and supports the practice of treating them as “civil wrongs.”

It’s Something Personal

This chapter defends a bilateral or “personal” conception of relationality in tort law. It argues that a personalized conception of duty and civil wrongs is compatible with the forward-looking reorientation of tort theory, is interpretively defensible, and is normatively superior to a depersonalized form of relationality. This chapter begins by resisting the conceptual argument that the wrong of negligence is not an affront to anyone in particular. It goes on to explore the value of personhood and argues that only a personalized conception of duty respects the autonomy of persons as agents. Finally, this chapter defends the value of the pattern of relations that only a personalized conception of duty makes possible.

The Significance of a Civil Wrong

This chapter claims that the commission of a civil wrong generally holds no significance for the substantive rights and duties of the parties to the wrong, and that it holds but minor significance in the law of remedies. This chapter’s claims are based on an analysis of the relationship between the nature of particular civil wrongs and the content of associated remedies. It is true that wrongs are causally significant to remedies, in that proof of a wrong is frequently a condition requisite to the award of a remedy. But this does not imply that remedies are responsive to wrongs in the more robust and important sense of being addressed to the wrong as such. This chapter explains that many remedies do little more than insist on respect for an underlying right, in which case the wrong is just an occasion for an order for performance of a substantive duty. Remedies are robustly responsive to wrongs only where the wrong itself supplies reasons for “creative” court-ordered remedies, these reasons being reflected in the content of the remedies ordered.

Vosburg v. Baxendale

This chapter addresses a basic difference between the rules governing tort and contract damages. It also explains why this already puzzling divergence is all the more puzzling in virtue of a seemingly intuitive “foreseeable-at-breach” rule that tort law rejects in favor of one that is less restrictive, while contract law rejects in favor of one that is more so. The chapter sets out to explain this phenomenon, in the process defending and illuminating prevailing doctrine. Two cases provide the focal point for this discussion. Hadley v. Baxendale (1854) stands for the rejection, in contract law, of the foreseeable-at-breach rule in favor of foreseeability of loss at the time of contract formation. Vosburg v. Putney (1891), meanwhile, holds that damages may be recovered in a tort action even if not reasonably foreseeable at the time of breach.

Tort Law, Expression, and Duplicative Wrongs

This chapter examines puzzles that arise when both tort law and criminal law admonish the selfsame wrongs. It considers these “duplicative wrongs.” Engaging with the recent work of Scott Hershovitz, who draws insight from expressive theories of criminal law to defend an expressive theory of tort law, the chapter argues that Hershovitz cannot borrow from criminal law’s expressivism as straightforwardly as he suggests. According to expressive theories of criminal law, criminal sanctions send a message of condemnation. This chapter posits that, to the extent that tort law sends the message of wrongdoing rather than of condemnation, tort law may well need to designate new torts to properly calibrate its messaging. It cannot simply adopt criminal law’s denominations because that would risk undermining the condemnatory messages that criminal law sends. Any new expressive torts, this chapter concludes, must therefore be cast in tort law’s own terms.

Owning Bad

This chapter examines whether and how malign motives can convert the otherwise innocent exercise of a property right into a civil wrong. As a doctrinal matter, courts have been willing to grant that motives do indeed matter in certain cases. Tracking a distinction drawn within the theory of rights proper between specificationism and generalism, this chapter imagines two ways of making sense of this phenomenon: one might liken property rights to a lattice wherein they are defined permanently at the outset to exclude badly motivated conduct, or one might instead analogize them to a blanket in which holes can be cut around badly motivated acts piecemeal. The chapter opts for the second conceptualization because it meshes better with property’s in rem aspect—they “cover” all cases, one might say—and the organic way property rights evolve. Motives rarely alter property rights, but by factoring in the owner’s incivility as well as victims’ interests and broader social interests, exceptional cases come into focus that illuminate the structure of property rights.

Should Tort Law Demand the Impossible?

This chapter critically examines the moral justification of two settled features of tort law—the objective standard of care and strict liability—insofar as they appear to violate the putative moral stricture “ought-implies-can.” The proposition that duties must be possible of fulfillment (and likewise, compliance with applicable normative reasons) has a pedigree stretching back to Immanuel Kant and is still widely assumed. Thus, this chapter begins by defending this foundational proposition on the grounds that normative reasons must be able to guide conduct. It notes that reasons that fail to comply with ought-implies-can are incapable of guiding conduct. This chapter then confronts arguments on behalf of the objective standard of care in negligence and strict liability, respectively, that purport to show that both doctrines sometimes justifiably violate ought-implies-can.

Is Tort Law “Private”?

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

Tort Remedies as Meaningful Responses to Wrongdoing

This chapter argues that tort theorists’ conception of tort remedies is belied by several considerations. The first is that compensatory remedies are usually inadequate as compensation for the setbacks suffered by victims, which implies that they do a poor job of correcting for wrongs. The second is the routine practice of awarding extra-compensatory remedies that either are punitive or have punitive elements. According to this chapter, while sometimes tort law’s remedial responses to wrongs reflect the purely private interests of the victim, it is also important to recognize that they sometimes reflect matters of public interest, too. For these reasons, the chapter argues that one should replace the narrow conceptualization of tort remedies as “private responses” to injurious wrongs and replace it with a wider conceptualization of remedies as “substantive responses” to many-faceted wrongs.

Civil Wrongs and Civil Procedure

This chapter addresses the significance of civil procedure in private law’s treatment of civil wrongs. It begins by canvassing contemporary private law theory, focusing in particular on the civil recourse theory of tort law. The chapter notes that civil recourse theory incorporates assumptions about private law’s characteristic responses to wrongs, each of which is, ultimately, an assumption about the law of civil procedure. They include assumptions that civil litigation is strongly adversarial, that it provides plaintiffs with an opportunity to confront defendants for civil wrongs, and that it culminates in an authoritative judicial declaration of where things stand between the parties as a matter of right. This chapter also points out that civil recourse theorists tend to treat these features of procedural law as fixed and essential elements of tort law. But close examination shows this to be a mistake. The rise of routinized settlement and arbitration, among other things, suggests that private law’s procedural responses to civil wrongs are varied and changing, often in ways inconsistent with interpretations given by leading theorists.