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Brandeis Law Journal

Spring, 2005

Articles

*369 CAN THERE BE A UNIFIED THEORY OF TORTS? A PLURALIST SUGGESTION FROM

HISTORY AND DOCTRINE

Christopher J. Robinette [FNa1]

Copyright © 2005 University of Louisville; Christopher J. Robinette

A community of blind men once heard that an extraordinary beast called an elephant had been brought into the country. Because they did not know what it looked like and had never heard its name, they resolved to obtain a picture, and the knowledge they desired, by feeling the beast - the only possibility that was open to them! They went in search of the elephant, and when they had found it, they felt its body. One touched its leg, the other a tusk, the third an ear, and in the belief that they now knew the elephant, they returned home. But when they were questioned by the other blind men, their answers differed. The one who had felt the leg maintained that the elephant was nothing other than a pillar, extremely rough to the touch, and yet strangely soft. The one who had caught hold of the tusk denied this and described the elephant as, hard and smooth, with nothing soft or rough about it, moreover the beast was by no means as stout as a pillar, but rather had the shape of a post. The third, who had held the ear in his hands, spoke: "By my faith, it is both soft and rough." Thus he agreed with one of the others, but went on to say: Nevertheless, it is neither like a post nor a pillar, but like a broad, thick piece of leather." Each was right in a certain sense, because each of them communicated that part of the elephant he had comprehended, but none was able describe the elephant as it really was; for all three of them were unable to comprehend the entire form of the elephant. [FN1]

Much of contemporary torts scholarship reflects the problem of the blind men in the parable: an exclusive focus on one aspect of the object of study and a concomitant failure to acknowledge the validity of competing perspectives. *370 There are currently two major camps of torts scholars. [FN2] One camp regards the consequentialist goal of deterring accidents as the rationale for tort liability. [FN3] The other camp regards tort law as a way to vindicate individual moral rights or to achieve "corrective justice" between the parties. [FN4] Corrective justice theories are not based upon their effects or consequences, but rather upon an assertion that an act or rule of law is right or wrong "in itself." The scholars in these camps frequently ignore or attack scholars in the "opposing" camp. [FN5] Furthermore, both deterrence and corrective justice scholars frequently deride the importance of compensation, [FN6] a third goal many scholars deem crucial to tort law. [FN7]

The current tendency of scholars to focus exclusively on one rationale of the tort system is part of the historical search for a "unified" theory of tort law. Dating back to Oliver Wendell Holmes' classic The Common Law, [FN8] scholars have tended to articulate theories of torts that explained the law with reference to a solitary doctrine or rationale.

Holmes himself advanced negligence as the unifying theory by which all of torts could be explained. The search for a unified theory of torts receded during the era in which the realists dominated legal scholarship. A significant dogma of the realists was the necessity of treating issues differently based on their individual characteristics, often through the use of empirical data. [FN9] Thus, Fleming James, an eminent realist, argued against the possibility of a unified *371 theory of torts. Instead, Professor James called for scholars to carefully differentiate among areas of torts based on their individual characteristics. [FN10]

The search for an integrating principle of torts changed, but not in the manner James advocated. Scholars

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continued to seek a unified understanding of torts. However, instead of seeking a unity of doctrine, modern scholars sought a unity of rationale. The current debate between deterrence and corrective justice scholars dates to the early 1970's. [FN11] At that time, Richard Posner and Guido Calabresi began writing articles advocating deterrence as the rationale for the tort system. [FN12] Similarly, George Fletcher and Richard Epstein began writing articles advocating corrective justice as the rationale for the tort system. [FN13] Throughout the past three decades, these two views have become the most prominent in torts scholarship. Occasionally, scholars have advocated a theory embracing both rationales; some scholars have even embraced the third goal of compensation. [FN14] However, most scholars seem to have an "either/or" mentality.

In this article, I suggest that the search for a unified theory of torts is unlikely to succeed. Despite the immense talent of the scholars espousing a unified theory of torts, history and doctrine counsel that the endeavor will beunsuccessful. In the past, scholars have written on various issues that undermine the plausibility of a unified theory of torts. This article, relying in part on that evidence, constructs an indictment of a unified theory of torts from a historical and doctrinal perspective. To that end, in section I, I describe the highlights of the scholarly search for a unified theory of torts and the current friction among scholars of the major camps. Section II examines historical reasons against such a theory. In section III, I analyze, as illustrative, two significant areas of torts-automobile accidents and medical malpractice-and conclude doctrine does not support a unified theory of torts. In the Conclusion, based on the implausibility of a unified theory, I urge consideration of a pluralist theory of tort law, i.e., a theory of torts based on multiple rationales.

*372 I. The (Recurring) Search For a Unified Theory of Torts

A. Holmes and James

In beginning his chapters on torts in The Common Law, Holmes stated: "The object of the next two Lectures is to discover whether there is any common ground at the bottom of all liability in tort, and if so, what that ground is." [FN15] So began the search in the scholarly literature for a unified theory of torts.

Holmes argued that fault was the integrating principle behind all of tort law. In doing so, he divided torts into two categories: unintentional and intentional. These categories correspond with Holmes' two chapters on torts. [FN16] In addressing unintentional torts, he contrasted two theories, each of which had support in case law. The first theory is that of strict liability or, as Holmes described it, that a "man acts at his peril." [FN17] The second, "directly opposed," [FN18] theory is that liability ought only to be based upon personal fault. [FN19] Holmes attributed the theory to John Austin and emphasized it as the theory of a criminalist. [FN20] Because of its basis in criminal law, the theory posited a correlation between personal fault and a party's state of mind. [FN21]

Holmes took issue with both theories, starting with strict liability. He argued fault is required for liability because of consistency and policy concerns. [FN22] Holmes argued that if a person acts at their peril, they would be responsible for all damage, however remote, of which their act could be called a cause. [FN23] Holmes stated an act is always a voluntary muscular contraction and nothing else. [FN24] He argued that courts do not follow this logic to its natural conclusion. Courts, Holmes argued, make distinctions among cases in which voluntary acts cause injury. As an example, Holmes proffered a man on a horse *373 running a pedestrian down on the street. [FN25] There are times courts hold a person liable for injuring someone in the street and times when no liability attaches. The difference, according to Holmes, is "not between results which are and those which are not consequences of the defendant's acts: it is between consequences which he was bound as a reasonable man to contemplate, and those which he was not." [FN26] In other words, the crucial element is whether a person was in some way at fault acting as they did. Returning to the horse and rider example, Holmes stated:

Hard spurring is just so much more likely to lead to harm than merely riding a horse in the street, that the court thought that the defendant would be bound to look out for the consequences of the one, while it would not hold him liable for those resulting merely from the other; because the possibility of being run

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away with when riding quietly, though familiar, is comparatively slight. [FN27]

Holmes next addressed the "policy" argument against strict liability:

A man need not, it is true, do this or that act,-the term act implies a choice,- but he must act somehow. Furthermore, the public generally profits by individual activity. As action cannot be avoided, and tends to the public good, there is obviously no policy in throwing the hazard of what is at once desirable and inevitable upon the actor. [FN28]

Thus, on the basis of both positive and normative arguments, Holmes concluded that fault liability was superior to strict liability for unintentional torts.

However, Holmes did not accept the "criminalist" theory of fault "in the sense of personal moral shortcoming, as would practically result from Austin's teaching." [FN29] He argued that the defendant's moral blameworthiness is not relevant to tort liability. As an example, he stated that a defendant who had injured another could testify that, before acting, he "considered carefully the circumstances, and, having formed the best judgment he could, acted *374 accordingly." [FN30] Holmes argued that if the testimony were believed, it would conclusively determine that thedefendant was without moral blame. However, Holmes stated the court would inform the jury the "question is not whether the defendant thought his conduct was that of a prudent man, but whether you think it is." [FN31]

In other words, Holmes argued tort's fault liability standard is objective:

The standards of the law are standards of general application. The law takes no account of the infinite varieties of temperament, intellect and education which make the internal character of a given act so different in different men. It does not attempt to see men as God sees them, for more than one sufficient reason.when men live in society, a certain average of conduct, a sacrifice of individual peculiarities going beyond a certain point, is necessary to the general welfare. If, for instance, a man is born hasty and awkward, is always having accidents and hurting himself or his neighbors, no doubt his congenital defects will be allowed for in the courts of Heaven, but his slips are no less troublesome to his neighbors than if they sprang from guilty neglect. His neighbors accordingly require him, at his proper peril, to come up to their standard, and the courts which they establish decline to take his personal equation into account. [FN32]

After having argued that an objective fault standard, or negligence, governs unintentional torts, Holmes examined intentional torts. Holmes argued that even in the area of intentional torts, which he identified as those involving fraud, malice and intent, the law was not based on personal moral blameworthiness. Holmes stated the greatest difficulty to overcome in analyzing unintentional torts was the doctrine that a person acts at their own peril. In intentional torts "the difficulty will be to prove that actual wickednessis not an element incivil wrongs." [FN33]

In dealing with this difficulty, Holmes relied on his analysis of criminal law. He asserted that, in criminal law, malice and intent could be reduced to a lowest common denominator of foresight: "the general basis of criminal liability was knowledge, at the time of action, of facts from which common experience showed that certain harmful results were likely to follow." [FN34] He then suggested intentional and negligent harms could be "brought into a *375 philosophically continuous series." [FN35] Just as in criminal law, Holmes suggested a possible common ground:

Foresight is a possible common denominator of wrongs at the two extremes of malice and negligence.When a man foresees that harm will result from his conduct, the principle which exonerates him from accident no longer applies, and he is liable. [FN36]

Furthermore, just as in his treatment of unintentional torts, Holmes argued the standard for foreseeability was objective: "[H]e is bound to foresee whatever a prudent and intelligent man would have foreseen, and therefore he is liable for conduct from which such a man would have foreseen that harm was liable to follow." [FN37] Thus, the "known tendency of the act under the known circumstances to do harm may be accepted as the general test of conduct." [FN38]

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Therefore, the theory of torts presented in The Common Law was that liability was premised on fault. More specifically, Holmes offered a "general theory of negligence and a category of intentional torts." [FN39] But note the extent to which Holmes minimized the difference between negligence and intentional torts. He said they can be "brought into a philosophically continuous series," [FN40] "organized according to the degree of the foreseeability of the harm." [FN41] In other words, the difference is a matter of degree, not kind. Furthermore, foreseeability is judged by an objective standard for both negligence and intentional torts. Personal moral blameworthiness has no place in tort. In addition, Holmes minimized the importance of some intentional torts. [FN42] Thus, in Holmes' 1881 view, tort law is unified by fault. In fact, tort law is really unified on an even more basic level by negligence.

The drive to unify tort theory may distort the manner in which scholars view the tort system. Holmes presented a view of tort law in 1881 narrower in scope than views he held both previously and subsequently. In an article published eight years prior to The Common Law, Holmes argued tort law could *376 be subdivided into three categories: strict liability, negligence and intentional torts. [FN43] According to Holmes' view in 1873, strict liability was a component of tort law. Yet in constructing the unified theory in The Common Law, Holmes questioned whether strict liability ever existed, "unless in that period of dry precedent which is so often to be found midway between a creative epoch and a period of solvent philosophical reaction." [FN44] Of this alteration, legal historian G. Edward White has written:

So infatuated was Holmes with his discovery of "the great mass of cases" in which a negligence standard was applied and so convinced was he of the soundness of conditioning tort liability on a policy determination that a general duty of care had been violated, that only eight years after his first theory of Torts he was prepared to argue that absolute liability had never truly existed in tort law and that fault, either in the strict (intentional) or looser (negligent) sense, had always been a prerequisite for liability. [FN45]

As another scholar noted, "Holmes does not confront seriously the pockets of strict liability found in the system." [FN46]

One can also question whether Holmes' view of intentional torts was affected by the desire to produce a unified theory. In The Common Law, Holmes was at pains to demonstrate that personal blameworthiness was not an element of intentional torts. The problem was that "a few torts of some importance in his day required proof of actual malice or improper motive." [FN47] Therefore:

Holmes' solution was to create a category of intentional torts which could swallow up malicious torts. In his discussion of criminal law in Lecture II of The Common Law, Holmes had argued that malice, as used in criminal statutes, simply meant intent. It became his rhetorical device thereafter routinely to pair malice and intent as if essentially synonymous. In this way, he collapsed malicious torts into intentional tort. [FN48]

*377 Thirteen years later, while not involved in an attempt to present a unified theory, [FN49] Holmes acknowledged malice was sometimes relevant to liability in tort. In Privilege, Malice, and Intent [FN50], Holmes stated there were some cases in which "actual malice may make [a defendant] liable when without it he would not have been." [FN51] Holmes argued malice functioned as a factor in determining whether a defendant's act was justified. He offered the example of a person giving advice about whether to become a patient of a particular doctor. [FN52] Holmes stated it was desirable that people should be free to give one another advice, but it was commonly not desirable that a man would lose business. A line of liability must be drawn somewhere and Holmes used malice to do so, "[I]f the advice was believed to be good, and was given for the sake of benefiting the hearers, the defendant would not be answerable. But if it was not believed to be for their benefit, and was given for the sake of hurting the doctor, the doctor would prevail." [FN53] Holmes, in 1894, saw nuances in tort law that, in 1881, he did not.

Thus, one can question whether Holmes' desire to establish a unified theory of tort law distorted the way in which he saw the tort system. In writing The Common Law, Holmes espoused a view of torts that was narrower than both his prior and subsequent writings. Holmes essentially denied the existence of strict liability, which he

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had earlier acknowledged. Similarly, Holmes essentially denied the existence of personal moral blameworthiness as an element of tort law, which he subsequently accepted.

Holmes was a contemporary of the "legal scientists," a designation for an influential group of legal scholars writing in the late nineteenth and early twentieth centuries. [FN54] The search for a unified theory of torts, and the implications of such a theory, constituted a major part of the legal scientists' agenda. In general, the legal scientists sought to find common principles and produce a theory of torts that would explain the various sets of rules that *378 determined when the injured were entitled to compensation for their injuries. [FN55] Holmes took the lead in the discovery of a general duty of care, the negligence principle, in seemingly unrelated specific duties. [FN56] The legal scientists then focused on bounding the negligence principle with liability-limiting doctrines such as contributory negligence, assumption of the risk and proximate cause. [FN57]

The quest for a unified theory of torts slowed considerably during the period in which the realists dominated scholarship. [FN58] This is due to the fact that one of the central tenets of realism was antiuniversalism. [FN59] Realists "proposed either to eliminate altogether academic quests for universal principles or to ground those quests on a disinterested empirical examination of contemporary social conditions." [FN60] Fleming James, Jr. was one of the most influential of the realists. Professor James and many other realists were proponents of the compensation rationale of torts. [FN61] They believed it was preferable "to divide a loss among a hundred individuals than to put it on any one." [FN62] Despite the fervency of their belief in compensation, the realists generally resisted the temptation to advance it as a unifying theme of torts. A significant factor underlying the realists' general failure to champion compensation as a unifying principle of tort law is likely their general antipathy to such universalization. [FN63]

*379 In 1959, James delivered the James McCormick Mitchell Lectures at the University of Buffalo School of Law. James argued that the search for a unified theory of torts was not only futile, but also counterproductive. He claimed that the search consumed scholarly energy that could be better-employed addressing tort law's problems. The first section of James' argument was entitled "The Quest for an Integrating Principle in Torts: A Pursuit of Futility." [FN64] James noted, "[E]ver since the law was liberated from the procedural shackles of the forms of action, there has been a strong school of thought which has sought to find, or to construct, a unifying principle which could give integrity to the whole law of torts." [FN65] He then discussed the most significant effort to construct a unified theory of torts: that based in fault, including negligence and intentional torts. James conceded that fault was dominant in the tort system, especially at the time the unified theory of fault was conceived. [FN66] However, James argued the concept of fault is ambiguous. [FN67]

James identified at least three different ways in which the word "fault" can be used. First, fault may refer to "personal blameworthiness," [FN68] which James defined as "the choice of a bad alternative by an actor who has two alternatives or more and at least one good one." [FN69] Citing Holmes, James stated that which makes the choice a bad one must be perceivable. [FN70] Second, fault may refer to negligence, "[Fault] still has meaning when it is used to refer to conduct which is substandard or unreasonably dangerous to the eye of the average reasonable man, even where the particular actor cannot perceive the danger or take the needed precaution, because he is dull or awkward." [FN71]

*380 Third, and most significantly, James argued fault "may be given a much more mechanical meaning." [FN72] According to James, fault "may simply mean the failure to meet a legal standard." [FN73] James noted the failure to meet a legal standard may be a "legal wrong," but it is often neutral from the perspective of blameworthiness. [FN74] James provided several examples of such legal wrongs. A person who uses real or personal property in the honest and reasonable belief it belonged to them incurs legal liability if they are mistaken. [FN75] A motorist whose brakes fail because of a latent, undiscoverable defect incurs liability if a statute requires functional brakes. [FN76] A retailer who sells impure food in a sealed container of unsuspicious appearance that he got from a reputable supplier incurs liability. [FN77] Finally, James noted, "we vary the figure of speech slightly when we 'impute' the wrong of a servant to his altogether blameless master" for purposes of respondeat superior. [FN78] In summarizing the third usage of the word fault, James declared:

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It is clear, I think, that in cases like these liability is strict in the sense that the careful, conscientious man could not avoid it by using the knowledge and perception open to him when he acted. If the language of fault is used to describe such cases, doctrinal unity may perhaps be attained, but it is attained by a play on words. [FN79]

In reviewing the senses in which the word fault is used in the tort system, James arrived at essentially the same conclusion Holmes arrived at in 1873, prior to the effort to discover or construct a unified theory of tort law. In addition to negligence-based fault, there are elements of tort based on personal, moral blameworthiness and strict liability. Thus, James concluded there is no unified theory of torts: [FN80]

*381 And is this not inevitable? Remember what torts are: those various heterogeneous instances where the law has sought to impose liability on people for real or supposed reasons of policy, without much regard to their consent. These instances cover the spectrum of human affairs. They touch matters of individual privacy, things that happen within a family; uses of neighboring land that interfere with each other; the incidents of public and private transportation; fights, affrays and brawls; competition among business; police activities; the content of newspapers and broadcasts; industrial and other work accidents, and so on. Why should we not expect the agencies of the law-courts and legislatures-to have many different reasons for imposing liability under so many different circumstances, stressing deterrence here, compensation there; expediency here, morals there; concern for the individual here, subordinating it there? [FN81]

After arguing the search for a unified theory of torts is futile, James offered suggestions about pursuing "a more fruitful quest." [FN82] James believed that "inquiry into the facts of the social problems with which the law of torts seeks to deal" [FN83] would be more helpful than "conceptual classification and analysis." [FN84] Thus, James was a proponent of the use of empirical data in torts scholarship. James argued that the initial inquiry of the scholar would be to identify an area of study indicated by the "dimensions of a significant social problem." [FN85] As an example, James offered automobile accidents. [FN86] Once the problem was identified, James argued scholars should begin to study the causes and potential solutions of the problem. [FN87] What is significant about James' recommendations is that they involve the opposite of the search for a unified theory of torts. James advocated disaggregating torts into discrete problem areas with "significant common features" [FN88] in order to seek solutions specific to the problems. The underlying assumption was that thinking of torts as a monolithic system may lead to myopically treating all torts issues in the same *382 manner. Thus, James urged scholars not to attempt to unify the "heterogeneous law of torts." [FN89]

He was virtually ignored.

B. Modern Scholarship: Corrective Justice and Deterrence

A little over a decade after James' lectures, additional efforts arose to unify all of tort law. However, there was a significant difference in the emphases of the scholars espousing the unified theories. In earlier efforts to discover or create tort law's unifying principle, scholars focused on doctrinal elements of tort, e.g., Holmes' emphasis on negligence. Beginning in the early 1970's, scholarship advocating a unified theory of torts focused on tort law's rationales. [FN90] Writing in 1980, Professor White noted:

But it is suggestive that much of the recent scholarship on tort law has not focused on case analysis, or doctrinal synthesis, but on the formulation of theoretical approaches to the entire field of Torts. Two theoretical perspectives are evident in the recent literature, one based on economic theory and one on notions of "corrective justice." [FN91]

Economics-based deterrence and corrective justice have become the dominant theoretical approaches to torts and have constituted the most recent attempt to unify tort law.

The deterrence and corrective justice theories have interesting parallels. [FN92] Both were founded in the early 1970's. Both theories originally had two principal proponents. The leading scholars then espousing a deterrence point of view were Guido Calabresi and Richard Posner. [FN93] George Fletcher and Richard Epstein were the primary advocates of tort law's corrective justice theory. [FN94] At the time of their introduction,

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both theories aroused considerable interest. Most *383 significantly, for our purposes, proponents of each theory tended to view it as the exclusive way to understand tort law.

In the early 1970's, works by Guido Calabresi and Richard Posner "precipitated what has proved to be an explosion of scholarship analyzing tort law in economic terms and emphasizing deterrence as a primary tort objective." [FN95] After publishing several suggestive articles in the 1960's, [FN96] Calabresi's book, The Cost of Accidents appeared in 1970. [FN97] These pieces established Calabresi as an advocate of an economic theory approach to torts. Specifically, Calabresi championed deterrence as one of tort law's goals. [FN98] At the time, this was a novel claim. In traditional torts scholarship, deterrence had not been emphasized as a goal of torts. [FN99]

However, in 1970, Calabresi's view of the role of deterrence in the tort system was not empirical. In other words, Calabresi did not claim that the tort system as it existed actually deterred accidents. He argued from a normative perspective that tort law should be designed to deter accidents. [FN100] Calabresi spent little time analyzing the tort system as it actually functioned and then only to subject it to "a barrage of criticisms." [FN101] Calabresi argued the existing tort system was "filled with a range of moralisms that were entirely inappropriate from a deterrence perspective." [FN102] In Calabresi's opinion, the tort system was "absurd." [FN103]

In The Cost of Accidents and in a later article, [FN104] Calabresi asserted that strict liability should replace negligence as the primary standard of liability in tort. Calabresi argued that strict liability conditions liability on the nature of an "injuring" enterprise and not on specific behavior causing discrete accidents. [FN105] Thus:

*384 If an enterprise is the kind that is in a good position to avoid the cost of accidents cheaply (purportedly by making its products safer), then it would presumptively be strictly liable for accidents it caused unless, for some reason peculiar to the circumstances of the accident, it was not in a position to implement its cost-avoidance.Courts (or legislatures) develop categories of "cheap cost-avoiders" who are in a good position to determine and minimize the accident costs of their products. Such enterprises can assume in advance that they will have to pay for accidents they cause; thus (if certain assumptions about behavior are made) they have an incentive to reduce the number of accidents traceable to their products. [FN106]

Richard Posner, who authored the first review of Calabresi's book, [FN107] applauded the introduction of economic concepts into tort scholarship. However, Posner argued that existing tort doctrines are generally supported by economic analysis. In 1971 and 1972, Posner published his first articles on torts and began asserting his own analysis of tort principles from an economic perspective. [FN108] Posner argued the fear of a negligence suit created incentives on the part of enterprises to make their activities safer, up until the point that it became cheaper to pay tort damages. Similarly, the defense of contributory negligence created incentives for potential plaintiffs to avoid damage to himself or his enterprise. [FN109] The existence of contributory negligence made negligence superior to strict liability from a deterrence perspective because potential injured parties had no incentive to take precautions for their own safety under a regime of strict liability. Thus, negligence's "dominant function" was "to generate rules of liability that [would] bring aboutthe efficientlevel of accidents and safety." [FN110]

Posner has reviewed tort doctrines one-by-one and found them to be "generally impressive in the economic logic they contain." [FN111] Thus, Posner was "the first to explain and commend the common law of personal injury torts in the terms of economic analysis." [FN112] However, unlike Calabresi, Posner did not consider efficient deterrence one of the several goals of tort law. For him, it *385 was the goal of tort law: "the logic of the law is really economics." [FN113] Posner, and a major school of legal economists, came to believe "economics provides a splendid and nearly complete account of the body of tort doctrine." [FN114] As noted previously, the formative work of Calabresi and Posner created a significant amount of law and economics scholarship, of both a positive and normative nature, emphasizing deterrence. [FN115]

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At about the same time Calabresi and Posner founded the deterrence movement in tort law, George Fletcher and Richard Epstein were beginning to write from a corrective justice perspective. As with most of the deterrence theorists, Fletcher and Epstein sought to unify all of tort law with their theories. For many corrective justice theorists, deterrence had no place in the tort system. Fletcher and Epstein "explicitly reject[ed] the applicability of economic theory to the tort system" and "emphasize[d] the importance of corrective justice." [FN116]

George Fletcher began his analysis of tort law from a corrective justice perspective by disparaging consequentialist rationales, such as deterrence; "Tort theory is suffering from declining expectations.[T]he journals cultivate the idiom of cost-spreading, risk-distribution and cost-avoidance. Discussed less and less are precisely those questions that make tort law a unique repository of intuitions of corrective justice." [FN117] He argued that the conception of justice undergirding tort law was justice between the parties, without reference to the welfare of the broader community. Fletcher asserted "that a victim has a right to recover for injuries caused by a risk greater in degree and different in order *386 from those created by the victim and imposed on the de- fendant-in short, for injuries resulting from nonreciprocal risks." [FN118] On the other hand, if the risks are "reciprocal" or relatively equal in magnitude, the defendant would not be liable. Fletcher claimed his theory was not a species of strict liability; it was "part of a larger rationale of liability that cuts across negligence, intentional torts and numerous pockets of strict liability." [FN119]

Fletcher offered examples of nonreciprocal risks in the context of all three standards of liability. Regarding strict liability, Fletcher argued the paradigm of reciprocity explained the holding of Rylands v. Fletcher. [FN120] In Rylands, the defendant lawfully erected a reservoir on his own land. Water from the reservoir flooded plaintiff's coal mine, causing him damage. The court held for the plaintiff despite the lack of negligence on the part of the defendant. According to Fletcher, the decision can be explained because the defendant created a risk to the plaintiff greater in magnitude than the risk the plaintiff created for the defendant. Strict liability makes the risks reciprocal by creating a risk for the defendant. It "does no more than substitute one form of risk for another-the risk of liability for the risk of personal loss." [FN121] Similarly, Fletcher argued the negligence standard generally applied in the context of activities, such as driving an automobile, in which the participants all "normally create and expose themselves to the same order of risk." [FN122] Thus, liability would attach if the plaintiff could prove the defendant caused harm "from a specific risk negligently engendered during the course of the activity." [FN123] Finally, intentional torts are one of the primary expressions of the paradigm of reciprocity because they represent a rapid one-sided acceleration of risk, directed at a specific victim. [FN124] Fletcher's theory, covering strict liability, negligence and intentional act, included the whole of tort law.

Richard Epstein published his first corrective justice article a year after Fletcher. [FN125] Like Fletcher, he rejected utilitarian approaches to law generally and economic analysis specifically. Epstein noted his theory "stands in sharp opposition to much of the recent scholarship because it does not regard economic theory as the primary means to establish the rules of legal *387 responsibility." [FN126] Epstein also distinguished his theory from Fletcher's; he noted Fletcher did not explain how to determine whether risks were reciprocal. More significantly, he noted, "even if two risks were reciprocal, it does not follow that neither party should have his action when injured." [FN127]

Epstein believed the tort system should be used to protect individual liberty and private property, as well as police civil conduct by rectifying changes in wealth distribution brought about by impermissible conduct. [FN128] Epstein associated these goals with corrective justice. [FN129] Epstein believed consequentialist theories allowed judges too many opportunities to undermine the rights of individual parties. To that end, Epstein proposed, "a complex system of pleadings and presumptions, roughly resembling the earlier writ system. Like the writs, [the] pleadings are intended to serve as substantive rules of tort law: failure to plead successfully defeats one's claim." [FN130] Because of Epstein's belief that people have a right not to be injured, he proposed a strict liability standard. Professor White argued that Epstein's pleading system was designed to undermine the consequentialist thrust of the tort system by forcing a focus on the particular parties to the suit:

The probable purpose of Epstein's system of pleading, as noted, is to serve as a heuristic technique for

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exposing the extent to which a negligence standard of tort liability lumps together a whole series of elements, giving no particular weight to any of them, under the heading of "reasonableness." Epstein is concerned that a reasonableness standard delegates too much power to judges to make decisions involving individuals on the basis of a calculus of social values. [FN131]

Since the early 1980's, Jules Coleman [FN132] and Ernest Weinrib [FN133] have become the leading proponents of a corrective justice point of view. [FN134] Coleman and Weinrib have argued that corrective justice inheres in the very *388 structure of a tort suit and that structure eliminates deterrence (and compensation) as a rationale for the tort system. [FN135] Gary Schwartz succinctly summarized the Weinrib/Coleman position:

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 tortuous 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 harm suffered by the injured plaintiff; this makes good sense from a corrective justice perspective yet no sense 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. [FN136]

These scholars are making the claim that corrective justice is the theory of tort law.

As would be expected of two camps of scholars generally claiming to have the only true understanding of tort law, deterrence and corrective justice scholars show little or no respect for the opposing theory. Schwartz illustrated the tension with examples from both camps. With respect to deterrence scholars, he stated, "almost all of them have been neglectful or dismissive of corrective justice." [FN137] Posner did not attach any significance to corrective justice reasoning in his original works. He has argued that corrective justice can be reduced to an economic concern. [FN138] For Posner, in summary, "the logic *389 of the law is really economics." [FN139] George Priest declared that from an economic perspective it is "unimportant" and "irrelevant" that a judge, in finding a defendant liable, may be relying on intuitions of justice or a "moral imperative." [FN140] In 1991, the ALI Reporters' Study was prepared by a group of consequentialist scholars who concluded that a corrective justice theory of tort law was old-fashioned and obsolete. [FN141] In summary Schwartz noted, "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."' [FN142]

Corrective justice scholars are no more charitable. As noted, both Fletcher and Epstein were eager to distance themselves from economic analysis. [FN143] Coleman and Weinrib argue that not only does the structure of tort law confirm a corrective justice perspective, it rejects a deterrence perspective. [FN144] Other recent corrective justice scholars are equally dismissive of deterrence. Richard Wright argues economics has no value in explaining tort law: "[T]ort law, which is an expression of individual rights and individual responsibility, has no room for efficiency theory." [FN145] Alan Calnan describes economic analysis "as a fad whose novelty has faded." [FN146]

Thus, "corrective justice scholars display a lack of appreciation for the work of efficiency scholars, and the latter return the (dis)favor." [FN147] Both camps generally believe they have identified the unified theory of tort law, the rationale for the tort system. Therefore, they tend to dismiss any insights the opposing camp has to offer. [FN148] This is consistent with efforts that date back to *390 Holmes to discover or create an integrating principle for the whole field of torts. I turn now to history and doctrine to examine whether such a quest is feasible.

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

(Cite as: 43 Brandeis L.J. 369)

II. Tort History: Ad Hoc and Residual

Based on the history and status of tort law at the time Holmes and his peers began to conceptualize it, it would be surprising if scholars could successfully discover or create a unified theory of torts. Tort law developed on an ad hoc basis as new fact situations presented themselves, to be resolved as best suited the needs of the communities in which they arose. Furthermore, the "rules" that were created in this process were not conceived to be related to one another; what has become torts was essentially the residual category or "catch-all" of the common law. As such, it was constantly intermingled with concepts from the more "pure" areas of law, such as criminal law, contracts and property.

According to Professor John Hasnas, for most of its history the tort system functioned as an alternative to violence that facilitated peace among members of society. [FN149] In medieval England, when someone was assaulted, killed or otherwise wronged, members of the injured party's clan were entitled to extract (frequently violently) compensation from the wrongdoer. According to Hasnas, this "blood feud" served as an admirable deterrent to wrongful behavior. [FN150] Despite this advantage, the blood feud was inconvenient, both to the clan members expected to carry it out at great risk to their safety and to members of the public placed in the role of innocent (and vulnerable) bystander. These disadvantages created incentives for negotiation, typically carried out in the moot, a public assembly serving as the chief instrument of social administration. [FN151]

*391 If an agreement could be reached, the blood feud was bought off. This "settlement" was very popular because it avoided the strife to the community associated with physical violence. Thus, community pressure gradually transformed the optional negotiation into a prerequisite to receiving help from one's clan and allies. [FN152] The negotiations were typically successful and resulted in compensatory payment to the injured party.

To illustrate the process, Hasnas offered an example of two farmers, Alfred and Aethelred, owning adjacent fields. [FN153] "One day, Alfred's cow breaks through the hedges and eats a substantial amount of Aethelred's vegetables." [FN154] This is a serious matter because Aethelred was relying on the vegetables to feed his family throughout the winter. As a result, he is in serious need of compensation. Aethelred is entitled to resort to the blood feud to make good his loss. However, that response is risky and costly. Aethelred and his clan might lose the blood feud. Furthermore, Aethelred will have to expend significant good will to have his clan support him. Therefore, it is likely Aethelred will summon Alfred to the moot and make an "appeal," a public statement of his grievance and a request for the help of the community in redressing it. [FN155] Community members will discuss the case and bargain with the "parties;" perhaps someone will suggest Alfred provide Aethelred's family with milk during the winter months to replace the destroyed vegetables. [FN156] If this solution is accepted and it works, peace will be restored. If it is not accepted or it does not solve the problem, the blood feud may begin. Either way, "there is fairly immediate feedback about whether the proposed solution was a good idea." [FN157]

Because conditions did not change very much in those days, it was very likely a similar dispute would arise, perhaps involving a farmer's goat getting loose and eating his neighbor's hay. [FN158] If the dispute between Alfred and Aethelred had a happy ending, the community would likely suggest a similar resolution. If the solution to Alfred and Aethelred's dispute was unsuccessful, the community would likely try a different approach. As the process of copying successful methods and rejecting unsuccessful ones is repeated over time, *392 established rules of behavior are created. [FN159] Eventually, all future cases will be dealt with in the same way: the community will require the owner of livestock that damage another's property to compensate the injured party using the livestock's products. [FN160] These default rules were "labor-saving devices." [FN161] They allowed people to avoid the blood feud, save bargaining time at the moot and serve as "a guide for future behavior that enabled people to avoid disputes in the first place." [FN162] Eventually cases were decided by juries exercising "both law and fact-finding functions." [FN163]

Hasnas asserted that there was no unifying principle or theory undergirding the rules evolving out of this system:

These decisions, which reflected the jury's opinion of what was fair to the parties rather than the demands of any abstract theory of justice, established the precedents out of which the rules of tort law

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