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(Cite as: 75 Tex. L. Rev. 1801)

Texas Law Review

June, 1997

W. Page Keeton Symposium on Tort Law

*1801 MIXED THEORIES OF TORT LAW: AFFIRMING BOTH DETERRENCE AND CORRECTIVE

JUSTICE

Gary T. Schwartz [FNa]

Copyright © 1997 Texas Law Review Association; Gary T. Schwartz

Introduction

Currently there are two major camps of tort scholars. One understands tort liability as an instrument aimed largely at the goal of deterrence, commonly explained within the framework of economics. The other looks at tort law as a way of achieving corrective justice between the parties. If these are alternative camps, they are also to a large measure unfriendly camps: much of the time each treats the other with neglect or even derision. The development of each scholarly group and the explanations for their attitudes toward each other are dealt with in Part I below.

The debate within tort scholarship can be both compared and contrasted with scholarly discussions concerning the law of crimes. In the modern era many analysts have emphasized deterrence as a primary goal of the criminal law. Others have evaluated the criminal law in terms of the goal of justice--not corrective justice, but rather the justice of retribution. Yet while discussions among criminal law scholars are frequently contentious, these scholars generally recognize that each school of thought--deterrence and retribution--is enduring and deserving of respect. Furthermore, leading scholars have developed mixed theories of the criminal law, which affirm the relevance of both deterrence and retribution. My review of the criminal law literature is set forth in Part II.

In Part III, I propose we take seriously a mixed theory of tort law, which can attend to both deterrence and corrective justice. In suggesting this, I review a limited number of tort doctrines and show how the combination of deterrence and justice can provide a better or fuller explanation for these doctrines than can either theory standing on its own. In this Paper, however, I am somewhat tentative as to what form a mixed theory should actually take: Part III sketches out and discusses several possibilities.

*1802 Part III completed, Part IV looks more carefully at the tort-law objective of deterrence. That Part points out that while deterrence can be seen as a way of achieving the somewhat austere goal of economic efficiency, deterrence also has deep roots in a humane and compassionate view of the law's functions. Hence there are both economic and noneconomic ways of understanding deterrence--which itself turns out to be a mixed tort-law goal. In particular, tort liability can properly be seen as a practice designed to deter defendants from violating the moral rights of potential victims. To this extent, tort law may serve as an instrument of deterrence--but its ultimate objective might be the achievement of justice, or at least the prevention of injustice. Understood in this way, deterrence is a tort objective that can partly overcome the supposed dichotomy between the economic and the justice approaches.

I. Tort Law's Justice and Deterrence Theories

Prior to 1970, most of the discussion by American academics of the purposes underlying the law of torts was either empty [FN1] or banal. [FN2] Liability rules were justified most frequently in terms of fairness, [FN3] and the concept of fairness was typically treated in an intuitive and common-sense way. [FN4]

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In the early 1970s, however, the scholarly situation changed dramatically. Those years witnessed a surge of interest in theories interpreting tort law as an expression of what Aristotle called corrective justice. [FN5] The leading scholars then espousing a corrective justice point of view were George Fletcher [FN6] and Richard Epstein. [FN7] Since the early 1980s, *1803 Jules Coleman [FN8] and Ernest Weinrib [FN9] have become the most prominent corrective justice scholars, though a number of other scholars [FN10] are impressively active. The original articles by Fletcher and Epstein, while richly and elaborately reasoned, were in a way philosophically modest. Fletcher referred twice, rather briefly, to Aristotle and except for a somewhat casual analogy to Rawls did not rely on other moral philosophers. [FN11] As for Epstein, his first two articles were almost entirely lacking in formal philosophical references. [FN12] By contrast, more recent corrective justice scholars have delved deeply into Aristotle and likewise have offered extensive interpretations of moral philosophers such as Kant and Hegel. [FN13] Furthermore, many of these scholars claim that a corrective justice approach does an excellent job in explaining the key features of the tort system. [FN14]

But of course the corrective justice literature has not been the only modern scholarly development. In the early 1970s, the work of Guido Calabresi [FN15] and Richard Posner [FN16] precipitated what has proved to be an explosion of scholarship analyzing tort law in economic terms and emphasizing deterrence as a primary tort objective. [FN17] One major school of legal economists claims that economics provides a splendid and nearly complete account of the body of tort doctrine. [FN18]

*1804 As it happens, deterrence had not played a significant role in traditional tort scholarship. When Landes and Posner expounded their theory of deterrence as a basic tort objective, they reviewed the record of early tort writings to determine what support they could find for this theory; they ended up merely reporting that "with the benefit of hindsight, it is possible to find . . . prefigurings of the modern economic approach in Holmes's chapters on tort law and later articles by Ames and Terry." [FN19] Beginning with its first edition in 1941, the influential Prosser treatise suggested that deterrence, while it sometimes "has weight" in tort opinions, "seldom" is the "controlling" factor in the selection of liability rules. [FN20] As late as 1964, the third edition of that treatise opined that "[n]o one supposes" that the negligent conduct of motorists is in any way influenced by the prospect of liability. [FN21] From the 1920s to the 1950s, a number of somewhat maverick scholars joined together in support of an "enterprise liability" theory that called for broad expansions in the coverage of tort liability rules. [FN22] Yet in developing its recommendations, this school relied almost exclusively on the criterion of the wide social distribution of accident losses. School members such as Charles Gregory [FN23] and Albert Ehrenzweig [FN24] made no mention of any idea that liability might be justifiable as a deterrence measure. The Harper-James treatise also viewed loss distribution as the primary purpose of broadened liability. [FN25]

*1805 In general, prior to the late 1960s the few writers who did emphasize deterrence as a tort objective realized that they were swimming against the tide of prevailing opinion. In 1965, Ralph Nader supported the deterrent potential of products liability in cases involving auto design; in doing so, however, he acknowledged that "[t]he deterrence function of tort liability is now rather soundly debunked by commentators who view it largely as a myth employed in law school courses to round out a pedagogical repertory." [FN26]

During the 1960s Guido Calabresi published several articles, [FN27] and his book came out in 1970. [FN28] Those writings set forth Calabresi's normative view that economic principles (including deterrence) are essential in the evaluation of rules of accident law. [FN29] To this extent Calabresi's writings can be regarded as formative. As late as 1970, however, Calabresi believed that the relevant economic norms call for a legal regime that would bear little if any resemblance to tort law. [FN30] Only at the end of his book did Calabresi give any consideration to the tort system, [FN31] and there he subjected this system to a barrage of criticisms. In Calabresi's 1970 view, tort rules were filled with a range of moralisms that were entirely inappropriate from a deterrence perspective. [FN32] For economic purposes, the tort system didn't even begin to ask the appropriate questions; it was indeed "absurd." [FN33] Calabresi referred only once to the Learned Hand formula for negligence, [FN34] and this reference took place in a subordinate clause within a long, complex sentence that ended up disparaging the traditional tort system. [FN35]

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This account of Calabresi helps to clarify the distinctive significance of Posner's early work. In late 1970, Posner, noting that "[t]orts is not my *1806 field," authored the first review of Calabresi's book. [FN36] Though commending Calabresi for introducing economic concepts into torts discourse, Posner was remarkably unappreciative of the actual content of Calabresi's analysis. In 1971 and 1972, Posner published his own first torts articles. [FN37] Interpreting the negligence concept in light of Judge Hand's formula, the 1972 article set forth and elaborated on Posner's view that tort doctrines one-by-one are generally impressive in the economic logic they contain. [FN38] Posner, then, was the first to explain and commend the common law of personal injury torts in the terms of economic analysis. [FN39] He has in turn been followed by waves of scholars, many of whom publish in journals such as the Journal of Legal Studies and the International Review of Law & Economics. [FN40] While these scholars do not always agree with the Posner premise that common-law rules are presumptively efficient, they follow Posner's general approach in giving scrupulous attention to specific common law doctrines and problems. [FN41]

Discussed above has been the development of schools of thought that emphasize either a corrective justice or a deterrence rationale for tort law. What should be observed next is the extent to which each school commonly downplays or disparages the other. [FN42] As noted, the first of the modern corrective justice articles was by George Fletcher, and his article was *1807 caustic in its reference to "journals [that] cultivate the idiom of costspreading . . . and cost-avoidance." [FN43] Epstein's first article, which appeared a year after Fletcher's, was eager to show how a proper moral analysis of tort issues "stands in sharp opposition to . . . economic theory." [FN44]

Among more recent writers, Richard Wright finds that economics is of no value whatsoever in explaining the common law of torts; [FN45] moreover, Wright indicates that the moral appeal of the economic efficiency norm is essentially zero. [FN46] George Fletcher's current book both supports a corrective justice approach to tort law [FN47] and provides an account of economics that makes modern efficiency reasoning seem morally obtuse. [FN48] Ernest Weinrib and Jules Coleman each focus on the very "structure" of the tort suit, [FN49] which they see as both confirming a corrective justice interpretation of tort and refuting any idea of deterrence as an appropriate tort goal. [FN50] Alan Calnan's new book seemingly dismisses economic analysis in one sentence as a fad whose "novelty" has "faded." [FN51]

*1808 Of corrective justice scholars, the most one can say is that a few have expressed passing interest in deterrence reasoning. [FN52] And as for deterrence writers, almost all of them have been neglectful or dismissive of corrective justice. [FN53] Posner, at least in his original form, declined to attach any independent significance to justice reasoning. Justice arguments, he seemed to say, were merely efficiency arguments in disguise. [FN54] "[T]he logic of the law is really economics . . . ." [FN55] Writing in 1987, George Priest declared that from an economic perspective it is "unimportant" and "irrelevant" that a judge, in supporting liability, may be relying on a "sense of justice" or even a "moral imperative." [FN56] Move forward now to the 1991 ALI Reporters' Study, prepared by a team of social-policy-minded scholars who concluded that a corrective justice approach to tort law is old-fashioned and obsolete. [FN57] One key member of that team has recently dismissed as arid Ernest Weinrib's corrective justice approach to tort law; in critiquing Weinrib, he suggests that the corrective-justice norm is undercut in modern tort law by the commonness of both firstand third-party insurance and the dominant role played by organizational defendants. [FN58]

Indeed, in any number of private encounters I have had with economically minded scholars, I have heard them dismiss corrective justice writings as out of date, empirically unverifiable, and inherently "mush." Corrective justice is a "value" that can perhaps be analogized to a "tone"; *1809 given this analogy, it would be quite appropriate to say that most modern deterrence scholars are essentially tone-deaf.

In short, corrective justice scholars display a lack of appreciation for the work of efficiency scholars, and the latter return the (dis)favor. What are the explanations for this? Several explanations certainly concern scholars' intellectual commitment to the merits of their ideas and positions. Consider here both the structural point raised by Weinrib and Coleman [FN59] and the association between deterrence reasoning and the efficiency objective,

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[FN60] an objective that non-economists plausibly perceive as cold and amoral in the positions it takes and the analyses it pursues. [FN61] As for economists, their standard methodology is to analyze the efficiency properties of a problem, and then to classify all other elements as merely raising issues of wealth distribution. [FN62] Yet this dichotomized combination of concepts--while no doubt highlighting the issue of distributive justice- -tends to suppress the very possibility of corrective justice. [FN63](Of course, because of this suppression the methodology provokes annoyance among corrective justice scholars. [FN64]) Other explanations concern matters of staffing: many of the modern torts-and-economics writers are largely economic technicians, who are inclined to evaluate the economic properties of *1810 tort liability problems without even considering broader questions as to what tort law is all about. [FN65]

Further explanations relate to scholarly style and the lay of the scholarly land. Relevant here is the excitement generated by the law and economics movement. There was enormous power in Posner's "the logic of the

[[[common] law . . ." maxim, [FN66] a power that would have been considerably reduced had the maxim been modified so as to recognize the independent relevance of corrective justice. In any event, thanks to Posner and Calabresi the economic analysis of tort was receiving enormous attention when the new corrective justice literature began with Fletcher and Epstein in the early 1970s. [FN67] Because this instantly celebrated economic analysis tended to ignore or disdain justice concerns, it was understandable for Fletcher and Epstein to respond by suggesting that an economic analysis is not merely incomplete but fundamentally misguided. [FN68] And the continuing disrespect that economically-oriented scholars show for corrective justice writings [FN69] provides a continuing explanation for the negative reaction by corrective justice scholars to economics writings.

As for economists' attitudes, while the early articles by Fletcher and Epstein provided intellectual respectability to the corrective justice approach, [FN70] the fact that Fletcher and Epstein disagreed not only on final positions but even on the relevant frame of reference made it possible for economists to regard corrective justice approaches as suffering from a basic lack of discipline. [FN71] Moreover, the more recent literature on corrective justice produced by writers such as Weinrib, [FN72] Coleman, [FN73] Wright, [FN74] Perry, [FN75] and others has become highly abstruse and abstract in ways that render it all but inaccessible to readers lacking a formal training in philosophy. Trying to work one's way through a recent 875-page law review symposium on corrective justice [FN76] is undeniably off-putting; and the fact that the various contributors to that symposium disagree with each *1811 other as sharply as they do permits the non-philosopher to believe these are intramural disputes he can properly ignore. [FN77]

II. Deterrence and Retributive Justice in the Criminal Law

Having reviewed the deterrence and corrective justice theories advanced by groups of tort analysts, this Paper can now look at a somewhat similar set of theories developed in the scholarship of criminal law. The principal justifications for criminal punishment are currently understood to be deterrence and retribution. The theory of deterrence was effectively set forth by eighteenth-century philosophers such as Bentham. [FN78] Classical statements of the theory of retributive justice come from such philosophers as Kant and Hegel. [FN79]

During the twentieth century, however, each of these theories fell into some disrepute. Deterrence was increasingly seen as a "myth" or fiction: [FN80] people believed that it simply did not work. Retribution, in turn, was increasingly interpreted as simply a fancy way to refer to the public's vindictive desire for revenge; retribution theory was perceived as being "outmoded and reactionary" [FN81] because of its apparent failure to appreciate the complex psychological processes operating on those who commit criminal acts. [FN82]

Given the emphasis on such psychological assessments, by mid-century a primary theory of punishment had become that of rehabilitation and treatment. [FN83] The widespread acceptance of this theory led to the indeterminate sentence, pursuant to which the convicted criminal could *1812 remain incarcerated until public authorities could render a finding that he was no longer dangerous. [FN84] Yet by the late 1960s, skepticism about the efficacy of rehabilitation had become intense. [FN85] The psychological assessments that gave rise to the notion of rehabilitation now seemed naive and simplistic; and the indeterminate sentence--which could continue im-

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prisonment long after the period warranted by any theory of "just deserts"--came to be seen as quite unjust. [FN86] New schools of writers then began developing "neo-classical" theories of deterrence and retribution. [FN87] Gary Becker's seminal formulation of the economics of deterrence was published in 1968. [FN88] Though empirical research on deterrence was a "neglected field" prior to 1970, since then "research activity has been intense." [FN89] Moreover, beginning in the late 1960s "after decades of official neglect, the role of retribution in the theory of punishment . . . staged a remarkable revival." [FN90] Herbert Morris, [FN91] Michael Moore, [FN92] and Jeffrie Murphy [FN93] have been among those whose consideration of the criminal law has placed primary reliance on retribution as the appropriate rationale.

In recent decades, then, both deterrence theory and retributive justice theory have been advanced and defended in effective ways. At this point, the criminal law literature can be intriguingly compared to that of tort law. The modern criminal law writings on the economics of deterrence began with Gary Becker in 1968; [FN94] the modern writings on retributive justice, with Herbert Morris in 1968. [FN95] The modern literature supporting tort law in economic terms began with Richard Posner in early 1972; [FN96] the literature on tort-law corrective justice, with George Fletcher in late *1813 1972. [FN97] Both Becker and Posner were then at the University of Chicago; both Morris and Fletcher were at UCLA.

Yet if there are interesting similarities in dates and places, there are important contrasts as well. [FN98] The writings of Becker and Morris were "neo-classical" in the sense that they revived and expanded on theories of deterrence and retribution which had a very deep basis in traditional criminal law scholarship. [FN99] By contrast, in tort law the work of Posner and Fletcher (and also Calabresi and Epstein) was dramatically original: tort law's traditional scholarship had ignored or downplayed deterrence and treated fairness issues in a simplistic, unintellectualized way. [FN100]

Another contrast concerns the extent to which modern criminal law scholars, rather than choosing sides, have tended to recognize the relevance of both deterrence and justice. Criminal law coursebooks typically begin with introductory chapters on the purposes of the criminal law that give substantial attention to deterrence and retribution. [FN101] Each rationale is taken seriously and treated respectfully; the assumption is that each has a major role to play in understanding the criminal law. Moreover, a number of writers have attempted to develop mixed theories of the criminal law that attempt to incorporate both rationales. H.L.A. Hart, for example, has set forth his understanding that deterrence is the "justifying aim" of the criminal law, while retributive justice is the principle that explains the "distribution" of punishment to particular individuals. [FN102] So understood, retribution places limits on who can be punished and on both the severity and the types of the punishments that can be inflicted. [FN103] Under this mixed theory, deterrence is the primary purpose for inflicting punishment, while retribution serves as a side constraint. To this extent, Hart supports only a "weakened version" of retribution, [FN104] and deterrence acquires a kind of primacy within his mixed theory. On the other hand, his theory also accords a kind of primacy to retribution, because this criterion proves decisive for most specific issues that criminal law scholars want to discuss. [FN105]

*1814 But mixed theories can take other forms as well. For example, deterrence and retributivism may "subtly blend" if retributive ideas held by public officials and the general public contribute through various mechanisms to a reduction in the crime rate. [FN106] Here retribution, while perhaps valued for its own sake, also serves as a means or technique for achieving the primary goal of deterrence. Moreover, other scholars might regard retribution and deterrence as goals each of which is both substantial and independent. The goals can concur either in justifying the system as a whole or in explaining particular doctrines within the system. For example, in supporting the overall practice of criminal punishment, Andrew Von Hirsch relies on a combination of retribution and deterrence. [FN107] As for particular doctrines, Kent Greenawalt refers to the concurrence of deterrence reasoning and retributive reasoning in explaining both the criminal law's reluctance to make inadvertent negligence a crime and its recognition of self-defense as a privilege. [FN108]

Recent discussions of sentencing practices have raised interesting questions as to the balance between retribution and deterrence. In Norval Morris's view, a broad range of sentences is at least minimally or sufficiently fair;

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within the broad limits established by retributive reasoning, the actual level of sentences can be determined in accordance with deterrence needs. [FN109] By contrast, Paul Robinson, noting the ability to rank crimes in terms of their degree of wrongdoing, recognizes retribution or "just deserts" as the primary criterion for sentencing. [FN110] Yet his reasoning affirms that deterrence can place an outer limit on the range of retribution results: if a penalty geared to the degree of wrongfulness would produce an "intolerable level" of crime, then in setting the penalty, society's interest in deterrence should override the retribution norm. [FN111]

In sum, while criminal law scholarship is quite receptive to mixed theories, a considerable variety of theories has been advanced. No one theory has achieved official or consensus status. For that matter, each theory that has been recommended has attracted criticism. For example, *1815 the "weak" retribution advocated by Hart [FN112] is regarded by some as not acceptable, [FN113] while others claim that Norval Morris [FN114] is too bland in finding that a broad range of results complies with the retribution norm. [FN115] Also, Robinson's effort to work out a hybrid practice for sentencing has been criticized as non-operational. [FN116] Yet despite both the lack of a single agreed-on mixed theory and the criticisms individual theories provoke, it certainly is noteworthy that so many criminal law scholars have displayed a strong interest in developing ways in which deterrence and retribution might cooperate with each other.

III. Mixed Theories of Tort Law

A. Assessing the Structural Objection

Given the evident similarities in the sets of rationales available in criminal law and in tort law, the discussions of mixed theories by criminal law scholars should certainly be of interest to tort scholars. [FN117] Admittedly, the very possibility of a mixed theory needs to cope at the very outset with the structural objection conspicuously posed by Weinrib and Coleman.

As noted, [FN118] their basic position is that while corrective justice inheres in the very structure of a tort suit, that structure is hostile to any deterrence rationale. Their position points to and analyzes several structural features. First, tort liability is imposed not on every defendant who operates tortiously, but only on those defendants whose tortious conduct turns out to produce harm; this complies with the logic of corrective justice yet departs from the logic of deterrence. Also, the extent of the defendant's liability is not the expected value of the risk the defendant creates but rather the amount of the harm suffered by the injured plaintiff; this makes good sense from a corrective justice perspective yet no sense *1816 from an economic perspective. Third, the tort suit is brought by the accident victim. This makes perfect sense from a corrective justice perspective, yet it can be justified in economic terms only insofar as it gives the victim an incentive to bring the lawsuit that will eventually serve the ends of deterrence; because the role of private attorney general could be assigned to parties other than the victim, the victim's status as the tort plaintiff hence becomes non-essential, contingent. Fourth, the tort suit imposes liability on the party whose tortious conduct has "caused" the plaintiff's injury. While the causation requirement entirely fits a corrective justice theory, for economic purposes it is deficient because the focus of liability should be on the best risk avoider, who may or may not be the actual accident cause. Coleman's example concerns the auto accident victim who brings a tort suit against the negligent driver, even though "the party best suited to optimize accident costs may well be the relevant car manufacturer(s), who is (are) party neither to the accident nor to the litigation." [FN119]

In evaluating this overall structural argument, it is useful to separate out its affirmative claim and its negative claim. The affirmative claim is that corrective justice inheres in the very structure of a tort action; the negative claim is that this structure rules out deterrence as a meaningful tort law objective. The affirmative claim is in my judgment correct; the very structure of a tort action seems so rooted in corrective justice [FN120] that any effort to exclude (or to refuse to acknowledge) a corrective justice rationale for tort law is bound to be unsatisfying and unsatisfactory. [FN121]

However, the negative structural claim--that it would be incoherent to regard deterrence as a rationale for tort--is marred by real overstatement. Granted, the tort action imposes liability only on those particular negligent actors

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whose conduct fortuitously produces injury, and the amount of liability is the size of the particular injury rather than the value of the expected risk. Still, for economic purposes what is important is not the burden of liability ex post but rather the prospect of liability ex ante. So long as the defendant can anticipate bearing liability for the *1817 range of injuries his tortious conduct foreseeably can produce, this prospect can induce in him an appropriate deterrence response. Moreover, by allowing claims only when an injury results rather than whenever a party behaves negligently, the tort system is able to sharply reduce its overhead.

As far as tort law's causation requirement is concerned, the Coleman-Weinrib position [FN122] is hardly frivolous; economic analysts often are uncomfortable with tort law's causation requirement. [FN123] Moreover, in a limited number of cases, that requirement can produce results that seem economically unwise. [FN124] Nevertheless, in the vast majority of routine tort situations, the actual causation test produces results that are roughly acceptable for deterrence purposes. In particular, Coleman's auto manufacturer example [FN125] is obviously ineffective: under modern tort doctrine, if the victim can show that some feature of the car's design has causally contributed to either the original auto accident or the subsequent so-called "second collision," the victim can sue the car manufacturer in tort and secure an appropriate recovery. [FN126]

As far as the status of the plaintiff is concerned, affording him a compensation right indeed gives him an incentive to bring the suit that *1818 serves the purpose of deterring injurers; to this extent, for deterrence purposes the standing of the victim can be called external and contingent. But in other respects--not attended to by Weinrib and Coleman--the standing of victims plays a much larger role in an economic analysis. In many cases, the plaintiff's negligence (or at least the plaintiff's conduct choices) combines with the defendant's negligence or conduct choices in bringing about the plaintiff's injury. By giving victims tort claims but then conditioning those claims on defenses such as contributory or comparative negligence and assumption of risk, tort law can be understood in economic terms as supplying appropriate incentives to injurers and victims alike. [FN127]

Thus, tort law's deterrence rationale can be adequately defended against the structural accusations leveled by Weinrib and Coleman. [FN128] While the tort suit for damages is structurally imperfect as a device for achieving optimal deterrence, [FN129] it can still function reasonably well. Moreover, alternative deterrence strategies--such as regulation--are imperfect as well. In any event, many regulatory programs are already in place; and tort law, through doctrines such as negligence per se and preemption, [FN130] acknowledges regulation and attempts to interact with it advantageously.

*1819 On balance, then, the structural argument advanced by Weinrib and Coleman, [FN131] while confirming a corrective justice rationale for tort law, fails to disconfirm a deterrence rationale. Because a mixed theory for tort law is hence not ruled out, consideration can begin as to what such a theory might look like. [FN132] I shall proceed somewhat inductively, looking at individual doctrines in an effort to ascertain whether they can be interpreted in terms of justice, deterrence, or some combination of the two.

B. Trying Out a Mixed Theory

The negligence standard of liability obviously plays a major role in the tort system. That standard was interpreted by Learned Hand in 1947 as calling for a balancing of the cost of risk prevention against the magnitude of the risk (taking both probability and severity into account). [FN133] The basic idea behind the Hand formula has long played some role in tort opinions; [FN134] indeed, its basic elements can be found in the First Restatement of Torts, approved in 1934. [FN135]

From an economic perspective the Hand formula makes excellent sense. The formula can be seen as designed to encourage efficient investments in safety and risk reduction; as such, it has served as a cornerstone for economic analysis. Yet despite its economic implications, the Hand formula is also conducive to an ethical explanation of the negligence liability standard. Typically the burden of risk prevention is borne in the first instance by the defendant. Take the defendant whose conduct creates a risk to others that can be measured as $100--a risk which the defendant could prevent by incorporating a $50 precaution. If the defendant fails to adopt this precaution and hence acts negligently, the defendant's choice shows that he attaches a greater weight to his own interests than to

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the *1820 interests of others. By ranking his own welfare as more important than the welfare of others, the defendant's conduct can correctly be reproached as ethically improper.

This, at least, is an evaluation I set forth in a 1979 article. [FN136] Several years later, the evaluation was advantageously elaborated on by Ernest Weinrib. [FN137] More recently, it has been restated by David Owen, [FN138] and supported as well by Ken Simons [FN139] and by Robert Rabin, who indicates that a "general fairness analysis" calls on defendants to implement "cost-effective safeguards" of the sort endorsed by the Hand formula. [FN140] Moreover, the evaluation is in line with the Restatement, which in discussing risk-benefit balancing emphasizes that the actor should be "impartial" in considering his own interests and the interests of others and should avoid any element of self-preference. [FN141] In short, insofar as the negligence standard is expressed by the Hand formula, [FN142] that standard can be interpreted as geared to the goals of both corrective justice and efficient deterrence. [FN143]

Negligence rules of liability are supplemented within the tort system by certain rules of strict liability. Traditional strict liability rules and the *1821 modern American rule of strict liability for abnormally dangerous activities are noteworthy here. [FN144] These rules can be seen as aiming at a certain category of cases--those in which the defendant deliberately engages in an activity knowing that it will impose a risk of injury on an innocent bystander. The relevant problem here is that most injuries are caused not by the defendant's activity alone, but rather by a combination of that activity and the actions of other parties--including the plaintiff. [FN145]

There are, however, a core of cases in which a finding of exclusive defendant causation can easily be made. Take, for example, the airplane flown by the defendant that crashes onto the plaintiff's land or the blasting engaged in by the defendant which projects debris onto the plaintiff's property. In these cases, a corrective justice argument in favor of strict liability is convincing: the defendant and the defendant alone has engaged in the risky conduct that has brought about the plaintiff's injury. Yet in such cases there are likewise strong incentives arguments in favor of strict liability: because the defendant's activity is the sole cause of the accident, the defendant is obviously the best risk avoider--the party most capable of reducing risk by either adopting precautions, reducing the level of its activity, or abstaining from the activity altogether. [FN146] In these core cases of strict liability, then, corrective justice and efficient deterrence provide concurrent rationales.

What has been emphasized so far are doctrines that can be equally supported by deterrence and fairness reasoning. Other doctrines whose support does not seem so broad-based can now be identified. In many tort cases the immediate cause of the plaintiff's suit is negligent conduct, but suit is brought not against the negligent actor but rather against that actor's employer. Since the employer itself has been guilty of no negligence, the employer is liable only on account of the strict liability doctrine of vicarious liability. As a recent article of mine notes, this doctrine is fundamental to the tort system yet frequently hidden in discussion of particular tort cases and tort issues. [FN147] That article reviews the justifications offered on behalf of vicarious liability by corrective justice scholars--and concludes that they are essentially ineffective. [FN148] On the *1822 other hand, it identifies a deterrence argument on behalf of vicarious liability that is adequately persuasive. [FN149]

Yet if the vicarious liability rule is best explained in deterrence terms, the same is not true of certain other tort doctrines. For example, tort law's causation standard (given its retrospective character) is an essential component of a corrective justice account of tort law; but that standard fits somewhat awkwardly into deterrence accounts, given their own ex ante interests. [FN150] Consider next one interesting area of substantive tort law--the liability of landowners to trespassers. While landowners owe a full duty of non-negligence to their invitees, under the traditional rules that most jurisdictions still accept [FN151] landowners' liability to trespassers is sharply limited. [FN152] Landes and Posner have explained the limited liability rules by suggesting that "the cost of avoiding" the injury-producing activity of trespassing "normally is very low," [FN153] much lower than "the landowner's cost" of adopting precautions. [FN154] This explanation, however, seems unsatisfactory, because in many cases the trespasser neither knows nor has reason to know of the particular hazard on the landowner's property. [FN155] Much more satisfactory is the ethical perception that when the plaintiff's encounter with the defendant's danger has been a consequence of the plaintiff's flouting of the defendant's rights as landowner, the

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plaintiff cannot claim that the injury he ends up suffering *1823 is a result of any injustice imposed on him by the possibly negligent defendant. [FN156]

Another interesting example concerns a tortfeasor's liability for wrongful death. In a wrongful death action, the measure of recovery is essentially the flow of income the victim would have provided his family had he not suffered the tortious death. [FN157] Yet a wrongful death also eliminates the non-pecuniary value the victim would have placed on the experience of living during those years. Since wrongful death awards do not take this elimination into account, it is clear that those awards fall drastically short of the full loss occasioned by the defendant's tort. Hence wrongful death liability is seriously deficient from an economic perspective; accordingly, Landes and Posner have recommended a significant increase in wrongful death awards so as to make tortfeasors pay for the full value of the extinguished life. [FN158]

Consider the issue, however, from the perspective of corrective justice, concerned as it is with compensating the victims for their wrongful losses. When, in the context of death, those losses consist of the income the primary victim would have received, those family members whom that income would have supported can be regarded as derivative victims who can insist on compensation. [FN159] But when the loss is the value of life to the victim himself, there simply is no way in which the defendant can afford compensation to the victim so as to compensate or correct for the tortious harm. [FN160] The point is not that existing wrongful death practices are ideal from a corrective justice perspective. Rather, such a perspective shows why those practices are at least satisfactory and appropriate. [FN161]

*1824 C. Conceptualizing a Mixed Theory

To recap, [FN162] for basic doctrines of negligence and strict liability, deterrence and justice evidently identify equal or concurrent rationales. [FN163] For the fundamental rule of vicarious liability, the deterrence rationale gets the job done in a way that corrective justice does not. [FN164] Yet for the denial of the trespasser's claim, corrective justice seems to provide the relevant frame of reference. [FN165] Corrective justice likewise explains the limitation on damages in wrongful death actions, a limitation that seems unsound from a deterrence perspective. [FN166]

What sort of mixed theory might these various examples support? Consider here H.L.A. Hart's mixed theory for the law of crimes, under which deterrence serves as the affirmative reason for imposing punishment, while retribution works as a limiting principle, specifying (for example) which harm-causers cannot be subjected to the criminal sanction. [FN167] An analogy to Hart might provide a mixed theory that could explain the tort doctrines discussed above. This theory indicates that tort law imposes or assigns liability for proper deterrence reas- ons--unless this result is not compatible with the criterion of corrective justice. This Hart-like formulation is consistent with my explanation for negligence liability and strict liability, [FN168] since here deterrence reasoning favors liability, while corrective justice provides support rather than opposition. It is also consistent with the landowner-trespasser example, [FN169] since here corrective *1825 justice reasoning can properly object to the liability that deterrence reasoning might possibly favor. Moreover, it is in harmony with current wrongful death practices, because the expansion of damages recommended by economists simply is not compatible with the corrective-justice tort structure. [FN170] Finally, the proposed mixed-theory formulation seems consistent with the vicarious liability rule, even when that rule is primarily justified in deterrence terms. Granted, the prophylactic quality of the rule prevents the rule from securing the active endorsement of corrective justice, but it does not follow that the rule is incompatible with corrective justice. After all, the rule's concern for the employer's possible failure to adopt reasonable safety measures [FN171] gives the rule something of a corrective justice dimension. [FN172] Given that dimension, and given also the advance notice of the rule with which the employer is provided, it cannot be said that the rule is disapproved of by corrective justice. [FN173]

On balance, then, there is considerable promise in the formulation of a mixed theory that can be derived from Hart. [FN174] Yet attention can also be given to a converse theory that would regard corrective justice as the criterion guiding liability-rule choices, subject to the constraint that these choices be compatible with proper de-

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 75 Tex. L. Rev. 1801)

terrence policy. This theory has the advantage of accounting for particular tort doctrines whose justification flows primarily from corrective justice rather than any deterrence analysis. [FN175] (These are doctrines that a Hart-like theory might not be able to accommodate.) This mixed-theory proposal runs into trouble, however, when it encounters the tort system's rules on causation, landowner liability to trespassers, and wrongful death practices. While all *1826 of these make good sense for corrective justice purposes, they might well seem inconsistent or out of line with a basic deterrence analysis.

It may be difficult, then, to develop a mixed theory that can account for all of tort law, and this Paper does not attempt to do so. [FN176] It is certainly possible that tort law has developed haphazardly over time, drawing on deterrence on some occasions and corrective justice on others. If this has happened, then tort law in its current form might be quite eclectic. Yet despite this possibility, there are (as previously noted) certain important tort doctrines, including the basic rule of negligence liability, that seem solidly based in both corrective justice and deterrence. [FN177] A partial mixed theory that focuses on such doctrines merits discussion here.

Certainly, recognizing the doctrines' dual objectives can have a clear impact on an overall evaluation of the tort system that prominently features those doctrines. After all, that system imposes a variety of costs on the public and also on a range of private parties. The question hence arises whether those costs are justified by whatever advantages or benefits the system provides. [FN178] Take deterrence first. If the tort system actually provided as much deterrence as economic models suggest, its deterrence benefits would certainly justify its costs. Yet reality clearly departs from the models: the most one can say is that the tort system achieves something of significance by way of deterrence. [FN179] Turning now to corrective justice, one can similarly say that if the tort system operated smoothly in achieving corrective justice, the system's costs would plainly be acceptable. Yet here too one must consider a variety of complicating factors, including the unpleasantness the system often inflicts on victims who file claims [FN180]--the extent to which victims emerge from the tort system psychologically unsatisfied. [FN181] Apparently, on the corrective justice front as well, reality falls short of theory.

It is an open question, then, whether the tort system's deterrence benefits standing on their own justify the system's quite substantial costs. The question is similarly open whether the system's corrective justice *1827 advantages independently provide that justification. Consider, however, the idea that negligence law supports both deterrence and corrective justice. If its deterrence and corrective justice benefits can be combined or aggregated, it becomes far more likely that benefits exceed costs--that negligence law is on balance worthwhile. The ability, then, to affirmatively deploy two rationales rather than one in defense of certain portions of the tort system may well play a crucial role in the evaluation of those portions' overall value.

The possible form and nature of such a mixed theory can now be approached in a somewhat different way. Whether or not the purpose of negligence law is to deter, one apparent effect of tort is to reduce the rate of negligent conduct. Corrective justice scholars frequently focus on the implications of negligently caused harm. Yet were tort law consistently successful in achieving its deterrence objectives, almost all instances of negligent conduct would be prevented. With society largely free of harm caused by negligence, corrective justice scholars would have almost nothing to talk about! [FN182] To be sure, tort law obviously fails to achieve its goal of comprehensive deterrence: there is, after all, an ample amount of negligence in society. [FN183] Still, inasmuch as tort law is sometimes successful in deterring tortious conduct, this success should be of keen interest to corrective justice analysts, since it minimizes the problem of injustice that those scholars address. [FN184]

Corrective justice scholars hence have a huge natural interest in the success (and failure) of tort law's deterrence function. As for deterrence scholars, so long as they are realistic in assessing societal results, they need to acknowledge that despite the liability threat many parties do behave negligently and in doing so inflict injuries. Moreover, these scholars, in considering those victims' situation, can take into account the Posnerian evaluation that because the squandering of resources is bad, "a judgment of negligence has inescapable overtones of moral disapproval . . . . [I]ndignation has its roots in inefficiency." [FN185] Note two points about this evaluation. First, it identifies an after-the-fact attitude; hence, the support it provides for negligence liability does not really rest on any forward-looking concern for incentives. Secondly, the evaluation needs to be clarified or revised.

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.