!!Экзамен зачет 2023 год / Unified theory of tort law

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evolved. As a result, by the middle of the nineteenth century, tort law consisted in an essentially uncoordinated set of rules which 1) had proven successful at resolving disputes and 2) corresponded to the common person's sense of what is fair in the circumstances.

* * *

[T]here was no guiding intelligence behind it. Tort law did not embody any ideal of justice; it did not exemplify any rational conception of what the law should be. It was merely a collection of rules that facilitated the peaceful coexistence of human beings in society. Juries would respond to changing social conditions and the concomitant changes in human sensitivities and conflicts with new judgments of what was fair to the parties. These new precedents would expand, contract, or simply change the rules which constituted the tort system. As a result, tort law was constantly evolving to meet the changing needs of the citizenry for dispute settlement. [FN164]

Thus, tort rules were created on an ad hoc basis. [FN165]

*393 The rules emerging from the process described by Hasnas were not conceived as being necessarily related to one another. Torts were essentially the common law's residual category, "Although William Blackstone and his eighteenth-century contemporaries, in their efforts to classify law, identified a residual category of noncriminal wrongs not arising out of contract, torts

was not considered a discrete branch of law until the late nineteenth century." [FN166] Specifically, Blackstone referred to torts as, "all actions for trespasses, nuisances, defamatory words, and the like." [FN167]

To emphasize the fact torts was not considered a discrete area of the law until the late nineteenth century, Professor White noted the following. The first American treatise on [T]orts appeared in 1859. [FN168] Torts was not taught as a law school subject until 1870. [FN169] Finally, the first torts casebook did not appear until 1874. [FN170] As late as 1871, Holmes himself did not consider torts a discrete subject. He referred to torts as a collection of unrelated writs. [FN171]

Thus, the identity of tort law was nebulous. As White noted: "From its origins the field of torts has been defined by its residual status. It has been conceived as a field of civil actions, but not encompassing those arising out of contract; a field separate from criminal law, but often overlapping it." [FN172]

Tort law's residual status is significant in two ways. First, the fact torts were regarded as residual in the common law means, by definition, they were not regarded as a coherent subject with an integrating principle. Second, because torts, as a residual category, did not have an integrating principle, it *394 was easier for concepts from other discrete areas of law to seep into tort doctrine. As White noted, tort and criminal law often overlapped. However, criminal law was not the only area of law to intermingle with torts; contracts and property did so as well. The existence of criminal, contract and property concepts within tort doctrines makes it even less likely that torts has an integrating principle.

As an illustration, I will offer an example from each area, starting with criminal law. Criminal law is regarded as different than torts in several respects. First, the state brings an action for an injury to the general welfare. In torts, a party brings a lawsuit to rectify a wrong to that party. Second, the consequences facing the defendant in a criminal matter include the possible loss of life and liberty. In torts, the defendant can normally only lose money. Third and, for our purposes, most significant, there is general agreement that the purposes of criminal law are deterrence and retribution (punishment). [FN173] Punishment is not generally regarded as one of tort law's goals. [FN174]

One instance of criminal law concepts operating in tort doctrine is punitive damages. [FN175] The Supreme Court characterizes punitive damages solely as serving the twin aims of punishment and deterrence, the two goals most commonly associated with criminal law. [FN176] One article coins the term "crimtort" to describe "the expanding middle-ground between criminal law and tort law." [FN177] The authors describe punitive damages as "the classic crimtort remedy." [FN178] Many scholars acknowledge the dual nature of punitive *395 damages. [FN179] However, some go even further and base punitive damages on punishment alone:

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What I am suggesting is that punitive damages are more closely akin to criminal punishment than they are to tort compensation. We have grown used to thinking of tort in social-efficiency terms: we want tort rules that minimize the sum of the costs of accidents and the costs of prevention. But punitive damages are doctrinally reserved for misadventures that are not entirely accidents, because the injurer has caused them by behaving especially badly. That is why an analysis rooted entirely in social efficiency concerns misses the point of punitive damages, and why economic arguments such as those concerning enforcement error bear no relation to actual legal doctrine. They don't call them "punitive" for nothing. [FN180]

Furthermore, this is not a minor doctrine. "Punitive damag[es] can no longer be dismissed as a curious artifact of the common origins of tort and criminal law." [FN181] They are "being sought and awarded in a growing number of cases, often for substantial amounts." [FN182]

There has been similar encroachment into tort doctrines from contracts. One of the major goals of contracts is preserving the autonomy of the parties. [FN183] Express assumption of risk is an instance of contract invading tort doctrine. [FN184] Express assumption of risk, for our purposes, involves a written document in *396 which one party agrees to release, or "exculpate," another from potential tort liability for future conduct covered in the agreement. [FN185] The doctrine is used most often for recreational activities, such as skiing. As is obvious, this strongly resembles contracts. In fact, it is even in the written form of a contract document. However, even though express assumption of risk is a contract in form, it is also sometimes categorized as a tort doctrine and it is addressed in the Restatement of Torts. [FN186] On this basis, one scholar has referred to express assumption of risk as having a "multifaceted analytical personality." [FN187]

If many contract doctrines are based on autonomy, there is no doubt that express assumption of risk is one of them: "the ultimate autonomy-enhancing rule of law would be free choice, assumption of risk, and caveat emptor." [FN188] The connection between autonomy and assumption of risk in all forms, even those less directly contractual, has been noted by many scholars. [FN189] In fact, some scholars advocate even more reliance on the contractual principles undergirding assumption of risk. [FN190] Therefore, a significant doctrine embraced by tort law, governing the way many injuries are treated in the variety of instances covered by recreational activities is taken straight from contracts. It is *397 only one instance of doctrines that, in Professor Prosser's memorable phrase, are "freak hybrid[s] born of the illicit intercourse of tort and contract." [FN191]

Tort law has also been influenced by property law. Consider premises liability status categories. A landowner's duty to someone injured on her land depended on her relationship to the injured entrant. Only in the case of an "invitee," traditionally defined as someone on the landowner's property for the landowner's economic benefit, did the landowner owe the entrant the traditional duty of due care. [FN192] If the entrant was a "licensee," essentially someone entering for purposes other than the economic benefit of the landowner, such as a social guest, the landowner was liable only for known, hidden dangers about which she failed to provide a warning. [FN193] If the victim was a trespasser, the landowner could only be held liable for willful misconduct. [FN194]

As Professor Rabin noted, these categories have very little to do with fault liability. Instead, the status categories have their genesis in the protection of property rights. In the leading case of Humphrey v. Twin State Gas & Electric, [FN195] the defendant-utility company was licensed to run a power line over the land of another. The issue was whether the defendant could claim the property protections of the landowner against a trespasser who had been injured by the defendant's transmission wire. The court rejected the defendant's attempt:

[T]he rule exempting a landowner from liability to a trespasser injured through the condition of the premises, is found to have originated in an overzealous desire to safeguard the right of ownership as it was regarded under a system of landed estates, long since abandoned-under which the law ascribed a peculiar sanctity to rights therein.The object of the law being to safeguard and protect the various rights in land, it is obviously going quite far enough to limit the immunity to one whose rights have been invaded. [FN196]

*398 Rabin noted that the landowner cases were filled with such historical assertions and stated, the "status

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concerns-born of another age-did not die easily." [FN197]

Rabin noted that in the status categories, there is an impulse to deny or limit liability. However, when the landowner is the victim rather than the injurer, "the rationale for limited liability-the primacy of land occupancyis sufficiently powerful to embrace the counter-principle of strict liability as well." [FN198] Rabin stated that many of the early land-related categories of strict liability could thus be viewed as "reverse no-liability" situations. [FN199] Therefore, landowners owed virtually no duty of care to entrants on their land, but the entrants generally owed an absolute duty to compensate for harm done. For Rabin, this explained a cluster of disparate strict liability cases-wild animal, blasting and nuisance actions, as well as the rule in Rylands v. Fletcher. [FN200] In conclusion:

To put it simply, virtually unlimited enjoyment of one's own land was a two-sided coin, at once supporting a conditional freedom to maintain land as one wished, and, at the same time, promoting a conditional freedom affirmatively to enjoy one's land without interference. The critical point is that in neither case did the emergence of the fault principle supersede the dominant system of privileged status afforded to land occupancy. [FN201]

The foregoing are only examples of the prevalence of tort doctrines that have been affected by concepts from other areas of law. There are certainly other doctrines that could be discussed from these three areas and perhaps even other areas of law that have molded torts. However, the examples are sufficient to indicate that mixed in with doctrines reflecting the traditional rationales for tort law-deterrence, corrective justice and com- pensation-are doctrines based on foreign concepts. Doctrines seeking retribution, party autonomy and the protection of land are not necessarily consistent with tort's other rationales. In light of tort law's status as an ad hoc, residual category of the common law inundated with doctrines from other legal areas, it seems unlikely there is an integrating principle for torts. In the next section, I analyze, as illustrative, two significant torts areasautomobile accidents and medical malpractice-to determine if doctrine is more supportive than history of a unified theory of torts.

*399 III. Tort Doctrine: Drivers and Doctors

Doctrine offers no greater hope of a unified theory of torts than does history. In assessing whether doctrine supports a unified theory of torts, I compare two doctrinal areas for consistency. If a unified theory of torts cannot encompass two discrete doctrines of torts, it clearly cannot encompass all of torts. Because these two torts (automobile accidents and medical malpractice) are so ordinary, this suggests that some of the more exotic torts would produce even greater disparities. The comparison leads me to conclude that various areas in tort law will be understandable only in terms of different rationales.

I have chosen automobile accidents and medical malpractice as illustrative for two major reasons. First, both areas are widely recognized as significant areas of tort law. [FN202] Thus, I am not analyzing areas around the margins of torts. Second, as far as torts areas are concerned, automobile accidents and medical malpractice are similar. Both are unintentional torts. Both are consistently based on the negligence standard, in the sense that the defendant's liability is premised on a failure to comply with the applicable standard of care. [FN203] Both seem more likely than other torts areas to involve the traditional assertion by an individual against an individual or individuals, although certainly not in all cases. [FN204]

Despite the similarities in automobile accidents and medical malpractice, the areas of tort law have remarkable differences that call into question whether the law is achieving, or should attempt to achieve, the same goals through both. I will examine four significant differences: reciprocity, causation, incursion of foreign doctrines and litigation patterns. I do not hope to be comprehensive, *400 only illustrative. The differences suggest that each of the three traditional rationales for the tort system-deterrence, corrective justice and compensation-is undermined in one or the other of the causes of action. In fact, the existence in medical malpractice of a rationale foreign to any of the traditional torts rationales, autonomy-based contract doctrine, undermines the ability of all three traditional torts rationales to unify torts.

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A. Reciprocity

A significant difference between the two areas of tort law is based on Professor Fletcher's concept of reciprocity. Recall Fletcher, based on corrective justice concerns, argued that liability should attach to a party that injured someone through a nonreciprocal risk. [FN205] Nonreciprocal risks occur when, for example, person A imposes a risk on person B greater in magnitude than the risk person B imposes on person A. Automobile accidents are an area of reciprocal risk; medical malpractice is not.

When a person is driving in their car, they are at risk from other drivers on the road. However, that same person is, at the same time, creating risks for those other drivers. Although Fletcher's was a justice theory, the context in which reciprocity has become most important is the debate over deterrence. Some scholars argue that deterrence is not an important consideration in the context of automobile accidents because drivers already have all the incentive they need to drive safely: self-preservation. Thus, "Drivers already have an incentive to take care because they face a substantial risk of personal harm if they drive negligently, whereas in many other areas governed by the tort systemthe potential tortfeasor is not led to take precautions by any interest in selfprotection." [FN206] In a similar vein, another scholar noted, "the risks associated with automobiles are so universally understood and reciprocal in nature that the question of fault holds little dramatic interest." [FN207]

On the other hand, medical malpractice is a clear example of a nonreciprocal risk. The risk a doctor imposes on her patients far exceeds the risk those patients impose on her. Of course, in this context, the quintessential *401 example of a nonreciprocal medical malpractice risk is surgery. In that case, the patient is usually anesthetized and the doctor is cutting on her body:

Risks in medical malpractice cases are non-reciprocal; the risk of harm runs only to the patient and not to the health care provider. A recent Florida case provides illustration. In the clearest case of negligence, the healthy kidney was removed from the patient during surgery rather than the cancerous kidney. There was no risk to the tortfeasors, while the innocent plaintiff had a loss of the quality of life. [FN208]

On the issue of deterrence, the difference in reciprocity raises the issue of whether the law does, or should, pursue it as a goal in both automobile accidents and medical malpractice. One can argue that automobile accidents are deterred by self-preservation and the desire not to injure others and that the prospect of liability adds no additional deterrence. Indeed, there does not appear to be conclusive evidence that tort law deters automobile accidents. The empirical evidence is mixed. There have been multiple empirical studies reaching the conclusion that the tort system does not have a deterrent effect in the automobile area. [FN209] These studies were made in the wake of the transition to no-fault in some American jurisdictions. [FN210] Specifically, the studies found no increase in the accident or fatality rates in jurisdictions adopting no-fault.

There have also been empirical studies reaching the conclusion that tort law has some deterrent effect. Some of the studies were also based on the transition *402 to no-fault in American jurisdictions. [FN211] Several of these studies have been subjected to serious criticism. [FN212] Other studies from Canada and Australia also concluded tort law has some deterrent effect on accidents. [FN213] However, one group of scholars criticized these studies and noted this evidence comes from jurisdictions in which no-fault insurance premiums are not risk-rated. [FN214] The authors argue that risk-rating would make up for the lost deterrence. [FN215] One study from New Zealand concluded the number of highway fatalities actually decreased after a comprehensive no-fault scheme was adopted. [FN216] However, confounding factors prohibited the author from isolating the effect of the transition to no-fault.

Professor Schwartz examined these studies a decade ago in attempting to determine whether and how much the tort system deterred accidents in several different areas of law. [FN217] After weighing the evidence, Schwartz concluded that tort law has a moderate deterrent effect in the field of automobile accidents of *403 about ten percent (compared to no-fault). [FN218] However, in a subsequent article, Schwartz candidly acknowledged his limitations in analyzing empirical evidence, particularly those studies assessing the significance of a transition from tort to no-fault. [FN219] He further acknowledged the studies "frequently reach different results

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or at least provide diverging interpretations for what might be similar results." [FN220] It appears to be an open question whether tort law deters in the context of automobile accidents.

Furthermore, and more significantly for comparative purposes, Schwartz conducted a similar review of deterrence in the medical malpractice context. [FN221] Schwartz discussed several empirical studies of doctors responding to individual tort cases by adopting revised medical procedures. [FN222] Schwartz also discussed studies that addressed the practice of medicine generally. In a comprehensive population-based study of medical malpractice in New York in 1984, a group of Harvard researchers surveyed doctors regarding whether liability was a factor in their standard of care. [FN223] On a scale of 1 to 5, the doctors gave liability a rating of 2.54, higher than "clinical care rules and practice guidelines" (at 2.52) and "external organized peer review" (at 1.78), but not as high as "continuing medical education" (at 3.73). [FN224] Additionally, surveys of doctors in 1983, 1984 and 1989 demonstrated the perceived threat of liability caused them to spend more time with patients, increase the number of follow-up appointments and prescribe more tests and procedures. [FN225]

*404 Schwartz conceded that some of the evidence he reviewed was "soft." [FN226] The type of evidence discussed above falls into that category because it is evidence of safety efforts, not safety results. Schwartz acknowledged there was no one-to-one ratio between efforts and results but added, "[s]till it is reasonable to assume that efforts yield something by way of results. Also, when evidence as to results is unavailable, information as to efforts becomes especially worthy of consideration." [FN227] Similarly, Schwartz accepted an estimate of the probable deterrent effect of medical malpractice law (that is to say, the actual results), even though it was not conclusive. Paul Weiler, the author of Harvard's survey of malpractice law in New York, reviewed data from the study and estimated the deterrence rate of malpractice law at "about thirty percent." [FN228] Schwartz essentially adopted this estimate himself. [FN229]

I do not purport to determine whether tort law deters accidents in the contexts of automobile accidents and medical malpractice and, if so, by how much. However, it appears that Schwartz's estimate concerning the deterrence rate for malpractice is more defensible than his estimate regarding automobile accidents. Schwartz estimated tort law has a ten percent deterrent effect in the automobile accident context despite multiple empirical analyses to the contrary. Furthermore, many of the studies upon which he relied in reaching his conclusion have been subjected to methodological criticism. By contrast, Schwartz marshaled a fair amount of "soft" evidence that tort law deters medical malpractice. He further accepted the estimate of the author of the Harvard study of New York malpractice law as to its deterrent value. Significantly, in contrast to automobile accidents, there is no contradictory empirical data concluding that medical malpractice law does not deter accidents or that it does so by a much smaller percentage.

Thus, I find Schwartz's acceptance of the Weiler figure reasonable and his estimate that tort law deters automobile accidents by approximately ten percent not fully supported. There is a possibility that the entire rationale for tort law according to some scholars, deterrence, has not been verified as it pertains to automobile accidents. Of course, this would impugn any unified theory of torts based on deterrence. Automobile accident law would have to be premised on a separate rationale. However, even if one accepts both figures, there is still a *405 deterrent effect operating in medical malpractice approximately three times that operating in automobile accidents. If this is the case, deterrence is considerably more important for medical malpractice than it is for automobile accidents. To the extent another torts goal is inconsistent with deterrence, it would be stronger vis-a-vis that rationale in the automobile accident context than in medical malpractice.

B. Causation

A second significant difference between medical malpractice and automobile accidents is the issue of causation. Causation in automobile accidents tends to be relatively simple to establish. Causation in a medical malpractice action tends to be complex and very difficult to establish. Jeffrey O'Connell explained the difference in a common-sense manner:

If you go into an auto accident in reasonably good shape and come out with a terrible gash on your

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forehead or even a severed leg, it isn't very hard to determine that it was the automobile accident that caused the gash or the amputation. But if you go to a health care provider for treatment, the law cannot decree that the health care provider must automatically pay you for any adverse conditions that appear after the treatment. Some adverse conditions may be due not to the treatment but to your presenting complaint. It may be that no matter what the doctor did, you were going to get worse. After all, you were sick when you went to the doctor in the first place, weren't you? [FN230]

A decade later and writing for an academic audience, Professor O'Connell and a co-author elaborated on the issue:

Comparing a person's physical health prior to an automobile or industrial accident, and determining which injuries were caused by that accident is relatively easy. Normally, all the accident victim's injuries are demonstrably caused by the workplace or auto accident itself. Medical malpractice victims are, however, in a very different situation. Prior to suffering any negligently inflicted injury, most suffer from a condition serious enough to warrant complicated treatment or invasive surgery. Many would suffer some lingering infirmity, regardless of whether their health care providers were negligent. Most complicated treatment (and all invasive surgery) necessarily produces subsequent "injuries," even absent negligence. It is therefore necessary to distinguish between the injuries caused by negligent treatment, *406 and those caused by the "presenting complaint," which are simply unavoidable attendant to medical treatment. [FN231]

The difference has been widely noted by commentators [FN232] and courts [FN233] alike.

The causation issue has practical consequences that affect the ability of medical malpractice to achieve some rationales advanced for the tort system. Because of the difficulty in establishing causation (and also the custom-based standard of the content of negligence), a plaintiff must hire one or more experts. The experts, usually highly qualified doctors, are extremely expensive. Professor Schwartz noted the cost of a single expert in California (in 1998) is often $20,000 [FN234] and the total cost of a malpractice action (in 2002) was at least $50,000. [FN235] Needless to say, the costs are prohibitive to all but the most serious claims. Furthermore, even if a potential plaintiff is willing to pursue a moderate claim, she still needs to find a lawyer. Schwartz noted, "unless the victim's damages are well in excess of $100,000, developing a malpractice claim is not economically sensible on the part of the lawyer whom the malpractice victim might consult." [FN236]

There is a category of small and moderate medical malpractice claims for which there is no meaningful opportunity of redress. According to one group of scholars, at most, only twenty percent of negligently injured patients initiate malpractice claims, and only forty percent of those result in payment. [FN237] The most serious injuries tend to result in payment of much less than economic *407 damages. [FN238] As Schwartz noted, this poses a real problem for the corrective justice rationale and a moderate problem for its deterrence rationale. [FN239] It poses a problem for the compensation rationale as well, although Schwartz is not a proponent thereof. The problem it poses from a corrective justice perspective is obvious: the majority of people injured by medical negligence do not initiate a claim to correct the injustice. It appears many of them are prohibited from so doing by the cost of access to "justice." Similarly, this lack of access impugns medical malpractice from a compensation perspective. The deterrence rationale may not suffer as greatly because of the idea of general de- terrence-deterrence of malpractice based on the fear, rather than the reality, of a lawsuit. [FN240]

On the other hand, it appears most victims of motoring negligence are able to recover in tort for their losses. [FN241] Of course, this means automobile accidents are better able to achieve the goals of corrective justice and compensation. More victims of motoring negligence have access to the "justice" and compensation available through the tort system.

C. Contractual Incursion

A third significant difference is the existence of the goal and doctrines of contract law operating in tort law's malpractice context: "As many commentators have noted, medical malpractice cases are on the boundary

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between tort and contract. Since medical malpractice cases involve parties who are not strangers and have been involved in a preexisting consensual undertaking, they are in some ways more closely related to contract than to tort." [FN242] In fact, the contract is the basis on which the tort duty is premised: "The contract is what creates the relationship between the professional and the *408 client-patient, which relationship forms the basis of the court's imposition of a duty on the professional's part to exercise ordinary care." [FN243]

The contractual underpinning has several important effects on doctrine, none more significant than the effect on the content of the standard of care. In automobile accident cases, the negligence standard is premised on the idea of what the "reasonable person" would have done under the circumstances. [FN244] However, in medical malpractice cases, the defendant's conduct is evaluated in terms of custom. [FN245] In other words, the defendant's conduct is measured against how other doctors perform the same medical service; the medical profession sets its own standard. [FN246] Judge Posner justifies this alteration of the content of the negligence standard on the basis of an implicit contract between doctor and patient that the doctor will provide care according to the prevailing norms of her profession. [FN247] Professor Epstein has stated, "custom prevails because it is the best evidence on the terms of the agreement." [FN248]

Another tort doctrine with a contractual origin, and one that has expanded significantly in the modern era, is informed consent. [FN249] Pursuant to the doctrine of informed consent, a doctor must obtain the consent of a patient prior to the patient making a treatment decision. Furthermore, the patient's consent must be "informed," meaning the doctor must explain to the patient the nature of the risks involved in the various treatment options. [FN250] If a doctor has not properly informed her patient of the risks of treatment prior to providing the treatment, *409 she may be held liable. Significantly, liability can attach even if the treatment was successful. [FN251] As Schwartz noted, "Of course, the goal of informed consent is not improved patient safety but rather improved patient autonomy." [FN252]

Schwartz's comment about informed consent is also true of the content of the medical malpractice negligence standard and other torts doctrines based on contract. A major goal of contracts is the promotion of autonomy. [FN253] The promotion of individual autonomy is not necessarily consistent with deterrence, corrective justice or compensation. It is possible that in allowing doctors to set their own standard for malpractice, the incentives to safety are not sufficiently strong. [FN254] One group of scholars noted the sole exception to the custom standard in malpractice was consequently one of the few decisions discussed by deterrence theorists. [FN255] Furthermore, to the extent a custom standard is lower than a "reasonable person" standard, it prevents recovery of damages, thwarting the corrective justice and compensatory objectives.

The existence of an autonomy-based contracts rationale within medical malpractice (compared with automobile accidents) poses a problem for a unified theory of torts. There are portions of malpractice doctrine that serve a function separate from any of the traditional rationales for the tort system. This is not only a deviation from a single rationale of the tort system toward one of the other torts rationales, this is a deviation away from all three traditional torts rationales. On this issue, the historical and doctrinal perspectives merge. Torts doctrine is not amenable to a unified theory of torts because of torts history. The incursion into torts doctrine of doctrines from other fields due to tort law's residual status negatively affects the cohesion of torts doctrine.

D. Litigation Patterns

Litigation patterns of automobile accidents and medical malpractice reinforce the conclusions in the discussions on reciprocity and causation. In *410 1987, RAND released a study, principally authored by Deborah R. Hensler, that examined issues in tort litigation. [FN256] The authors examined three questions: 1)How much litigation is there? 2) Are jury awards stable or out of control? 3) How much does litigation cost, and who gets the money? The conclusion the authors reached is that the answer to the questions depended upon the type of tort litigation to which one referred. Based on the findings, the authors divided tort litigation into three separate tiers: "There is no longer, if there ever was, a single tort system. Instead, there are at least three types of tort litigation, each with its own distinct class of litigants, attorneys, and legal dynamics." [FN257]

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The three tiers "discovered" by the authors are: routine personal injury torts, high-stakes personal injury suits and mass latent injury cases. [FN258] Although the third tier is not relevant for this article, the first and second tiers are important. The first and second tiers mirror the divide between automobile accidents and medical malpractice. In fact, the authors stated the first tier is "exemplified by auto suits." [FN259] The authors included malpractice as one of three illustrative types of second tier litigation when it is first introduced [FN260] and then consistently referred to it as one of two types (along with products liability) in the rest of the study. [FN261]

The first tier, epitomized by automobile accidents, involves a high volume of litigation and stable substantive law. [FN262] Because of these features, it has been possible to routinize claim processing and resolution. [FN263] Thus, there has been increasing reliance on alternative dispute resolution procedures for these claims. Most first tier cases involve relatively modest injuries and small amounts of money and the parties to the dispute involve individuals rather than entities. [FN264] The authors concluded deterrence is not a central feature of first tier torts, specifically automobile cases. [FN265] Because transaction costs are the lowest, automobile plaintiffs receive the highest percentage of total tort expenditures in compensation of any of the tiers. [FN266] Finally, automobile cases are growing *411 slowly in frequency and costs and their outcomes-inflation adjusteddid not change much over the twenty-five years examined in the study. [FN267]

By contrast, second tier torts, such as medical malpractice, have a lower volume and the law is somewhat more evolving. [FN268] Second tier torts are higher-stakes cases. [FN269] Deterrence is a central concern in second tier torts. [FN270] Thus, plaintiffs' attorneys and, in response, defense attorneys, tend to invest substantial funds into litigation. As a result, pretrial discovery and not alternative dispute resolution is a prominent feature of these cases. [FN271] Second tier torts have higher transaction costs and, thus, plaintiffs receive a lower percentage of total tort expenditures in compensation than automobile plaintiffs. [FN272] Finally, second tier torts are growing faster in frequency and costs and their outcomes increased dramatically in both the short and long term. [FN273]

This study supports the conclusions from the discussions on reciprocity and causation. The authors concluded deterrence is a central feature of second-tier torts, including medical malpractice, but it was not central to first-tier torts, epitomized by automobile accidents. This is consistent with the feature of reciprocity, present in automobile accidents and lacking in medical malpractice. Similarly, the authors noted transaction costs were higher in second-tier torts such as medical malpractice than in first-tier torts such as automobile accidents. This is a direct result of the greater complexity of medical malpractice and need for expensive experts based on the causation requirement. It also deepens the concerns about medical malpractice from the compensation and corrective justice perspectives. In the earlier discussion, I noted the causation requirement and its related expenses prevented injured victims from filing a lawsuit and recovering damages. This undermines the corrective justice and compensation rationales. However, the authors' conclusion about transaction costs applies to the approximately eight percent [FN274] of victims actually filing suit and recovering damages. Thus, even for the small number of victims recovering in medical malpractice, the compensation rationale is undermined by transaction costs. *412 Furthermore, because the most serious claims are under compensated, [FN275] the corrective justice rationale, which requires the restoration of the status quo ante, is further undermined by transaction costs as well.

E. Summary

The review of doctrine through the use of an example further erodes one's confidence in the plausibility of a unified theory of torts. In comparing just two areas of torts doctrine, each of the traditional torts rationales is undermined in either automobile accidents or medical malpractice based on structural features. Deterrence is undermined in automobile accidents based on the reciprocity of the risks faced by drivers. Corrective justice and compensation are undermined in medical malpractice based on causation and the costs it entails. In fact, the ability of all three traditional rationales combined to explain torts is undermined by the existence of autonomybased contracts doctrine in medical malpractice. A unified theory of torts based on any of the three traditional rationales does not appear possible.

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IV. Conclusion

For over a century, many torts scholars have demonstrated a tendency to pat a part of the elephant that is tort law and believe it is representative of the whole. The result is what one scholar, citing Holmes, Posner, Epstein and Fletcher, has labeled the "perennially unsuccessful quest to articulate a unified theory of torts." [FN276] Tort law's history makes it an unlikely subject to be unified by an integrating principle. It was created on an ad hoc basis as problems developed in communities in medieval England. It "did not embody any ideal of justice; it did not exemplify any rational conception of what the law should be." [FN277] Furthermore, it was the common law's residual area of civil liability; not conceived to be a coherent subject matter. Perhaps as a result, there has been a significant influence on tort doctrines of concepts from other areas of law. These concepts from criminal law, contracts and property are based on goals foreign to, and not necessarily consistent with, the tort goals.

Tort law's doctrine also appears hostile to a unified theory. In examining two torts doctrines-automobile accidents and medical malpractice-each of the *413 three traditional tort rationales may be problematic in one context or the other. The deterrence rationale is undermined in automobile accidents due to reciprocity. The corrective justice and compensation rationales are undermined in medical malpractice due to the complexity of the causation requirement and the transaction costs it entails. Furthermore, all three rationales are undermined by the existence of doctrines based on rationales foreign to tort law. In this sense, the historical and the doctrinal arguments are connected. Therefore, it appears tort law must be based on multiple rationales.

What are the implications of this conclusion? For scholars, it would mean a shift in resources from attempting to discover or create an integrating principle for tort law. There is important and more productive work to be done in examining the pluralist nature of torts. In particular, I urge scholars to focus on solving pluralism's greatest shortcoming: its inability to resolve debate about how any given issue should be handled. If more than one theory deserves respect, how does one know when to apply any given theory instead of another? As John C. P. Goldberg recently noted, "[p]art of the problem is that the various tort theories often entail opposing interpretations and prescriptions." [FN278]

It appears to me that the way to determine when to prioritize any particular torts goal is to disaggregate torts. Instead of trying to unify the field, it is more instructive to pay attention to its particularities. In essence, analyze torts on a case-by-case basis to determine which theory is best suited to each tort, or even which theory is best suited to each part of each tort. The contexts of torts claims present significant differences in terms of the parties, the complexity of the evidence, the nature of the injuries, etc. Such contexts strongly influence what tort law can and should accomplish in a particular tort area. By focusing on the contexts, as opposed to ignoring them for the sake of cohesion, scholars may be able to determine under what circumstances a particular torts goal should be emphasized.

To promote a torts goal in a particular torts area will require a detailed, descriptive, and normative analysis highly sensitive to context. Disaggregating torts is a difficult and painstaking task full of nuance. However, I urge it as a research agenda because success would be such an important contribution to the understanding and functioning of tort law. Tort scholars have spent much time and energy attempting to unify all of tort law. That effort can be put to a better use.

[FNa1]. Honorable Abraham L. Freedman Fellow and Lecturer in Law, Temple University School of Law. J.D., 1996, University of Virginia School of Law. I am grateful to Jeffrey O'Connell, Scott Burris, Rick Greenstein, Diane Maleson, Frank McClellan and Byron Stier for their comments and suggestions. I would also like to thank Catherine Gowa and Jessica Weinstein for their excellent research assistance. Errors and omissions are mine alone.

[FN1]. Paraphrased from The Blind Men and the Elephant, a Hindu fable by John Godfrey Saxe.

[FN2]. See, e.g., Gary T. Schwartz, Mixed Theories of Tort Law: Affirming both Deterrence and Corrective Justice, 75 Tex. L. Rev. 1801 (1997).

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

[FN3]. See, e.g., Richard Posner, Economic Analysis Of Law 143 (2d ed. 1977); George Priest, Modern Tort Law and Its Reform, 22 Val. U. L. Rev. 1, 20 (1987).

[FN4]. See, e.g., Stephen R. Perry, The Moral Foundations of Tort Law, 77 Iowa L. Rev. 449 (1992).

[FN5]. See Schwartz, supra note 2, at 1806-1811.

[FN6]. See, e.g., Richard A. Posner, A Theory of Negligence, 1 J. Legal Stud. 29, 33-34 (1972); Jules L. Coleman, Risks and Wrongs 376-82 (1992); Ernest J. Weinrib, The Idea of Private Law 36-38 (1995).

[FN7]. See, e.g., Don Dewees, Et Al., Exploring the Domain of Accident Law 5-10 (1996); 2 Fowler v. Harper & Fleming James, Jr., The Law of Torts 759-64 (1956); Jeffrey O'Connell & Christopher J. Robinette, The Role of Compensation in Personal Injury Tort Law: A Response to the Opposite Concerns of Gary Schwartz and Patrick Atiyah, 32 Conn. L. Rev. 137 (1999).

[FN8]. Oliver Wendell Holmes, The Common Law (Mark Dewolfe Howe ed., Back Bay Books 1963)(1881).

[FN9]. See, e.g., Fleming James, Jr., Tort Law in Midstream: Its Challenge to the Judicial Process, 8 Buff. L. Rev. 315 (1959).

[FN10]. Id.

[FN11]. See Schwartz, supra note 2, at 1802-03.

[FN12]. Id. at 1803.

[FN13]. Id. at 1802.

[FN14]. See id.; O'Connell & Robinette, supra note 7.

[FN15]. Holmes, supra note 8, at 63.

[FN16]. Holmes, supra note 8, at 63 (Lecture III on unintentional torts is entitled "Torts-Trespass and Negligence.") and 104 (Lecture IV on intentional torts is entitled "Fraud, Malice, and Intent-The Theory of Torts.").

[FN17]. Id. at 67 (emphasis in original).

[FN18]. Id.

[FN19]. Id.

[FN20]. Id. at 66.

[FN21]. Id. at 67.

[FN22]. Holmes, supra note 8,at 72-73.

[FN23]. Id. at 73.

[FN24]. Id. at 73-74.

[FN25]. Id. at 74-75.

[FN26]. Id. at 75.

[FN27]. Id. at 75-76.

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