Public Interest and Public Policy in Private Law

This chapter first considers the thoughts of Ronald Dworkin, who sparked the contemporary fashion, among lawyers and legal theorists, for contrasting ‘arguments of principle’ with ‘arguments of policy’. Dworkin did not regard the two categories of argument as jointly exhaustive, even in the special setting of the courtroom. But he did regard them as mutually exclusive. The chapter also discusses the way in which the courts cannot responsibly avoid counting the consequences of their decisions, or at least some of the consequences of their decisions, for the decisions of future courts. This is followed by a discussion of legal instrumentalism.

Backwards and Forwards with Tort Law

This chapter argues that there can be no successful type of objection to an economic analysis of tort law. Coleman’s attempts to make good such objections are the best we have, but still they fail. That is because legal economists can in principle account for any norm that can be accounted for. To show that their explanation fails we are always reduced in the end to arguing that they got their costings wrong, and once the argument gets to that point then the war is over. If we want to defeat the economic analysis of tort law in a less pyrrhic way, we have no alternative but to mount a different type of objection to it. We must establish that the economic analysis rests on a bad theory of value. This we do by exploring what really matters in life, for what really matters in life is also, by and large, what really matters in law.

The Many Faces of the Reasonable Person

The reasonable person is the longest-established of ‘the select group of personalities who inhabit our legal village and are available to be called upon when a problem arises that needs to be solved objectively’. These days, he has neighbours as diverse as the ordinary prudent man of business, the officious bystander, the reasonable juror properly directed, and the fair-minded and informed observer. In the minds of many, however, he is most closely associated with the law of torts, particularly the law of negligence. Because the reasonable person is used to set standards in so many corners of the law, it is natural to think that the standards he sets must be legal ones. This chapter seeks to convince the reader otherwise. It suggests that the services of the reasonable person are in such heavy demand in the law precisely because he sets extra-legal standards, and indeed extra-legal standards of a notably versatile kind.

Some Rule-of-Law Anxieties about Strict Liability in Private Law

Strict liability plays a significant role in many legal systems, in both criminal and private law. Its occasional use attracts a weary toleration from legal thinkers, but few stand up for it with enthusiasm, and few argue for its extension. Injustice challenges to strict liability take more than one form. This chapter focuses on those that see the injustice of strict liability as bound up with a failure, on the law’s part, to conform to the ideal of the rule of law. These challenges can be contrasted with those that complain of the injustice of attaching liability to morally blameless actions. Although strict liability is no-fault liability in a special lawyers’ sense of ‘fault’, it also extends in the process to many who are not at fault in the ordinary moral sense of ‘fault’, i.e. many whose actions are morally blameless.

What is Tort Law For? The Place of Distributive Justice

This chapter defends the claim that certain questions of distributive justice are central to the law of torts, and cannot but be faced by those who administer and develop it, precisely because the law of torts is a site of corrective justice. Those with pigeonholing instincts may be tempted to label this a ‘mixed’ or ‘pluralistic’ explanation of tort law. The chapter endorses Peter Cane’s thesis that corrective justice provides the structure of tort law within which distributive justice operates. It presents a version of this thesis which shows that the place of corrective justice in tort law enjoys some kind of explanatory priority.

The Negligence Standard: Political Not Metaphysical

This chapter considers the question of why the law might sometimes assign strict responsibilities and sometimes negligence-limited responsibilities. It argues that the explanation is political, not metaphysical. They relate to the desirability or appeal or merit or attractiveness of the arrangements whereby some people have responsibility for some things, and others have responsibility for others. They point to the fairness, the efficiency, or more generally the reasonableness, of responsibilities being carved up in that way, or in some other way. They do not relate to the tragedy of the human condition or the impossibility of our escape from our rational nature. They do not belong to the metaphysics of basic responsibility. They belong instead to the politics of assignable responsibility.

The Mysterious Case of the Reasonable Person

This chapter focuses on the ‘reasonable person’, that ‘excellent but odious character’ who seems to inhabit every nook and cranny of the common law. According to Ripstein, the reasonable person embodies not just a justificatory standard but a particular justificatory standard. But what exactly is particular about the justificatory standard that he/she embodies? The chapter sketches six possible solutions to the mystery, which enjoy varying degrees of support in Ripstein’s text. They are by no means mutually exclusive. But how combining them would mitigate, as opposed to compounding, their several difficulties remains unclear.

What is Tort Law For? The Place of Corrective Justice

This chapter considers the question of what tort law is for, building on the work of Jules Coleman and Ernest Weinrib. Weinrib claims that tort law itself is a justificatory enterprise, but he equivocates about whether he, in invoking corrective justice, is in turn attempting to justify the justificatory enterprise of tort law. Coleman denies that his enterprise of explaining tort law in terms of corrective justice is a justificatory one to explore, and ultimately to affirm, the view. The chapter argues that any complete explanation of tort law—whatever other considerations it may invoke—cannot but invoke considerations of corrective justice. Considerations of corrective justice cannot be reduced out. They are necessary even if not sufficient.

Torts and Other Wrongs

This chapter focuses on the law of torts, not in the United States, but in other major common law jurisdictions (England and Wales, Canada, Australia, and New Zealand) in which tort cases are normally adjudicated by judges sitting without juries. It considers the so-called classical interpretation of the common law of torts by John Goldberg and Ben Zipursky, and how they tend to equivocate on an important point of law in a way that puts them at odds with some writers with whom they would do better to make common cause. It suggests that this equivocation is where the law of the United States parts company with the law in the rest of the common law world. The problem, an English lawyer might then teasingly say, is with American tort law rather than with the Goldberg and Zipursky rendition of it.

Breach of Contract as a Special Case of Tort

This chapter discusses a way of distinguishing the law of torts from other parts of the law. It argues that the law of torts is a law of the following: civil recourse, for wrongs, in which primarily corrective justice is attempted, in a primarily reparative mode, in response to claims for unliquidated sums, and where the duties breached are non-contractual. The chapter also explains primacy of the law of contract over the law of torts, according to economists of private law. The best way to think of the law of contract is to think of it as augmenting, or supplementing, the law of torts. This does not entail that the best way to justify the law of contract is to justify it as an augmentation or supplementation of the law of torts. Possibly, as the economists think, the order of justification is the other way round.