What Does Tort Law Do? What Can It Do?

It’s not hard to describe what tort law does. As a first approximation, we might say that tort empowers those who suffer certain sorts of injuries or invasions to seek remedies from those who brought about those injuries or invasions. The challenge is to explain why tort does that, or to explain what tort is trying to do when it does that. After all, it is not obvious that we should have an institution specially concerned with the injuries and invasions that count as torts

The End of Jurisprudence

For more than forty years, jurisprudence has been dominated by the HartDworkin debate. The debate starts from the premise that our legal practices generate rights and obligations that are distinctively legal, and the question at issue is how the content of these rights and obligations is determined. Positivists say that their content is determined ultimately or exclusively by social facts. Anti-positivists say that moral facts must play a part in determining their content. In this Essay, I argue that the debate rests on a mistake. Our legal practices do not generate rights and obligations that are distinctively legal. At best, they generate moral rights and obligations, some of which we label legal. I defend this view by drawing analogies with other normative practices, like making promises, posting rules, and playing games. And I try to explain why it looks like legal practices generate distinctively legal rights and obligations even though they do not. I conclude with some thoughts about the questions that jurisprudence should pursue in the wake of the Hart-Dworkin debate

Harry Potter and the Trouble with Tort Theory

Economists argue that tort law promotes an efficient allocation of resources to safety, while philosophers contend that it dispenses corrective justice. Despite the divide, the leading tort theories share something in common: they are grounded in an unduly narrow view of tort. Both economists and philosophers confuse the institution of tort law with the rules that are distinctive of it. They offer theories of tort\u27s substantive rules, but for the most part ignore the procedures by which those rules are implemented. As a consequence, both miss and misconstrue much about tort law. The problem is particularly acute for economists. They analyze the impact of tort\u27s substantive rules on accident and accident avoidance costs. Yet, the institution of tort law generates many other costs and benefits for society, and those costs and benefits affect the optimal arrangement of tort\u27s rules. The fact that economists have not factored these additional costs and benefits into their analyses calls into question their descriptive and normative claims about tort. Corrective justice theory is not in as much trouble as the economic approach, but it is troubled still. Philosophers\u27 neglect of the procedural dimension of tort has caused them to overlook ways that tort does justice between wrongdoers and victims. And it has led them to make misleading claims about the nature of both corrective justice and tort law. This Article draws out the trouble with tort theory through a thought experiment, starring Harry Potter. Potter\u27s magic helps to highlight the features of tort that the leading theories overlook Once they are in view, the Article considers the ways in which the omissions cast doubt on the claims those theories make, investigates ways they might improved, and offers several observations about the choice between them

Tort as a Substitute for Revenge

In 1872, the Supreme Court of Illinois decided a case called Alcorn v Mitchell. It was not the first litigation between the parties. Some years earlier, Alcorn had sued Mitchell for trespass. That suit did not go well, and at the close of the trial, just after the court adjourned, Alcorn spit in Mitchell’s face. Mitchell then turned the tables and sued Alcorn for battery. He won a judgment for $1,000, which was a lot of money back then—depending on how you think about the change in value of money over time, the present day equivalent would range from just about$20,000 to a bit more than $250,000. Alcorn appealed. The question put to the Illinois Supreme Court was whether he had “been made to pay too dearly for [his] indulgence.

Treating Wrongs as Wrongs: An Expressive Argument for Tort Law

The idea that criminal punishment carries a message of condemnation is as commonplace as could be. Indeed, many think that condemnation is the mark of punishment, distinguishing it from other sorts of penalties or burdens. But for all that torts and crimes share in common, nearly no one thinks that tort has similar expressive aims. And that is unfortunate, as the truth is that tort is very much an expressive institution, with messages to send that are different, but no less important, than those conveyed by the criminal law. In this essay, I argue that tort liability expresses the judgment that the defendant wronged the plaintiff. And I explain why it is important to have an institution that expresses that judgment. I argue that we need ways of treating wrongs as wrongs, so that we can vindicate the social standing of victims. Along the way, I consider the continuity between tort and revenge, and I suggest a new way of thinking about corrective justice and the role that tort plays in dispensing it. I conclude by sketching an agenda for tort reform that would improve tort’s ability to serve its expressive function

Foreword: From Personal Life to Private Law: The Jurisprudence of John Gardner

John Gardner was a great philosopher. He was appointed as the Professor of Jurisprudence at Oxford when he was still quite junior in the profession. It was a big job. Ronald Dworkin held the post before Gardner, and H.L.A. Hart before him. Gardner delivered on his promise. He had wide-ranging interests. He wrote about jurisprudence, criminal law, and tort law. His pushed those fields forward—and others too. Gardner’s scholarship was incisive, creative, rigorous, generous, and witty. He had a knack for illuminating law and life too. In recent years, Gardner published two books that tackled tort law: From Personal Life to Private Law (2018) and Torts and Other Wrongs (2020). Gardner passed away in 2019—claimed too young by cancer. It was a tragedy for his family and friends, for the many scholars he mentored, and for all those who found inspiration and illumination in his work. At the Association of American Law Schools (AALS) Annual Meeting held on January 5, 2020, the AALS Section on Torts and Compensation Systems convened in joint session with the Jurisprudence Section for a celebration of Gardner’s life and work. Three distinguished scholars discussed aspects of Gardner’s scholarship

Late-Night Law Firms

But it turns out that those late-night lawyers may not deserve the scorn that they get. In Sunlight and Settlement Mills, Nora Freeman Engstrom argues that firms like the ones that advertise late at night have developed practice models that achieve many of the aims that reformers have for no-fault accident compensation schemes. They deliver compensation cheaply and quickly, because they settle almost every claim and nearly never go to court. They resolve claims predictably and consistently, on account of cozy relationships with insurance adjusters that lead to a shared sense as to what different sorts of claims are worth. And perhaps most important, they increase access to justice, offering representation to clients with meritorious claims who would otherwise not seek lawyers or find ones willing to pursue their low-value claims. The story Engstrom tells about late-night law firms is not all rosy, however. They process claims so fast that they hardly screen clients, and presumably pursue more fraudulent claims as a result. Their rush to settle cases leaves many clients undercompensated, and the problem grows with the extent of the client’s injuries. They often rely on paralegals and other non-lawyers to handle settlement negotiations, running afoul of ethics rules. And they claim fees that look high in light of the cookie-cutter nature of their work

Late-Night Law Firms

But it turns out that those late-night lawyers may not deserve the scorn that they get. In Sunlight and Settlement Mills, Nora Freeman Engstrom argues that firms like the ones that advertise late at night have developed practice models that achieve many of the aims that reformers have for no-fault accident compensation schemes. They deliver compensation cheaply and quickly, because they settle almost every claim and nearly never go to court. They resolve claims predictably and consistently, on account of cozy relationships with insurance adjusters that lead to a shared sense as to what different sorts of claims are worth. And perhaps most important, they increase access to justice, offering representation to clients with meritorious claims who would otherwise not seek lawyers or find ones willing to pursue their low-value claims. The story Engstrom tells about late-night law firms is not all rosy, however. They process claims so fast that they hardly screen clients, and presumably pursue more fraudulent claims as a result. Their rush to settle cases leaves many clients undercompensated, and the problem grows with the extent of the client’s injuries. They often rely on paralegals and other non-lawyers to handle settlement negotiations, running afoul of ethics rules. And they claim fees that look high in light of the cookie-cutter nature of their work