The Origins of Tort law
The purposes of tort law have expanded over the centuries of its evolution. In its earliest forms in England in the 12th century, tort claims provided a means of ordering civil society and keeping the peace. By defining certain conduct as wrongful and enabling a means of redress for harms caused by deviations from that standard, tort law reflected and helped shape social behavior and expectations.
It was the industrial revolution in England (roughly defined as the late 18th through early 19th century) that paved the way for the rise of modern tort law. Changes in manufacturing and transportation transformed the agricultural economy and brought sweeping changes to labor practices. Innovative technologies continued to be developed to meet the demands of operating efficiently at this new scale. Increasing mechanization in the industrialized workforce forced new patterns of behavior and exposed human bodies to increased risks of catastrophic harm. The rise of railway travel, likewise, brought a new wave of accidents—and accident law—both in England and in the United States, whose jurisprudence borrowed heavily from English law. While tort law first began to be recognized as a distinct field in England in the 18th century, in the U.S., tort did not consolidate into a recognized area of law until later in the 19th century.
Initially, workers found tort law’s rigid strictures to be barriers to recovery. Various protective doctrines insulated employers from the costs of employee injuries and made it difficult for employees—and often their widows—to recover legally for injuries and death. Indeed, some have argued that the rise of negligence law was rooted in the legislative efforts to insulate businesses from liability that might otherwise attach more easily under a strict liability standard. Under this theory, negligence law developed partly as a way to support the growth of businesses whose operations could have been hindered by expansive tort liability in this era prior to the creation of alternative mechanisms for dealing with employee injuries. Ultimately, tort law played a critical role in increasing worker safety and in the early twentieth century, its changing rules helped give rise to our current systems of workers’ compensation, private insurance and consumer protection law. In some respects, tort law both reflects the values of the jurisdiction that develops it and contributes to shaping behavior and values in the community it regulates.
In addition to its common law evolution, tort law in the modern era has taken shape from a significant amount of state and federal legislation. In the United States the 20th century witnessed the growth of a culture of governance through agencies and statutes, sometimes referred to as the rise of the “administrative state.” Many actions that might have been addressed through common law principles are now governed by state or federal statutes, administrative regulations or municipal ordinances. Consequently, studying tort law also provides a valuable exploration of the common law’s interaction with statutory and administrative regimes.
Introduction to Studying Tort Law
Welcome to the study of tort law. The word tort comes from the Latin torquere, “to twist.” In Middle English, it meant “injury” –or the idea of twisting or turning that leads to harm—and in contemporary French it still means “wrong.” “Torts” are wrongful actions that cause some kind of harm for which the victims of the harm may seek legal relief. Torts are not usually wrongs arising from the breach of a contract. While there is a tort called “tortious interference with contract” (which is what it sounds like), and there are a few other instances where tort and contract law intersect, generally torts pertain to actions between parties who might have never made any sort of contract or promise to collaborate. Tort actions mostly arise between strangers. Whereas the typical remedy under tort law is compensation through money damages, a common remedy for breach of contract law is “performance,” or forcing the party to complete what they promised to do by contract. Keep in mind as you launch your study of torts the different way harms are redressed in this context of harms arising usually outside of any contract or promise. An important feature of the torts litigation landscape is the contingent fee arrangement: the plaintiff’s attorney takes the tort case in the hopes of winning it and receives payment only if the plaintiff wins. In such cases, the attorney commonly receives around a third of the plaintiff’s award.
Legally speaking, tort lawsuits are civil, not criminal actions, which means they are brought by private parties against other parties. As with almost every legal generalization, there are exceptions to the dividing line between tort law and criminal law. A driver who causes significant losses and harms at the wheel could be guilty under criminal law as well as liable for negligence under civil law. Different actions—or lawsuits—would be brought by different entities seeking different remedies, animated by different purposes and subject to different procedural and substantive rules. The introductory torts course will rarely dwell much on the tort/criminal intersection. Torts is a class that typically introduces law students to civil law and most professors focus accordingly.
Tortious conduct may involve physical harm caused to people or property by car accidents, machinery malfunctions, medical malpractice, trespass on land, false imprisonment, and assault and battery, to name the most common kinds. Victims may also recover in some cases where there has been no physical harm, where they can show that the tortious conduct has caused harm to their reputation, dignity, privacy, mental wellbeing or in a narrower subset of cases, when they have suffered because their family members or loved ones have been physically harmed.
Effects of Contemporary Tort Law
In the modern era, the effects of contemporary tort law are hotly debated. The torts “system” is not some centralized agency with consistent and predictable rulings but rather a complex set of interactions between state laws—which vary greatly—and federal laws. In addition, agency regulations and constitutional limits further shape the contours of contemporary law. Partly as a result of this decentralization, amassing systematic data is challenging if not impossible. Moreover, most cases settle in private agreements or never rise to full legal disputes in the first place or are handled as a matter of insurance and thus remain “off the radar” of cases and published opinions that can be tracked and studied.
Nonetheless, there is some consensus that tort law continues to play a role in disciplining the behavior of manufacturers, corporations and even government entities who may otherwise have incentives to cut costs on safety measures. Class action lawsuits brought to help those who have been injured, say by chemicals (like asbestos or diacetyl) or products (like tobacco, baby powder or certain breast implants) attempt to compensate and protect those who have suffered due to conduct that caused harm on a vast scale. These lawsuits arguably play a deterring role and encourage entities to adopt a safer calculus in their risk assessments as they contemplate their choices for the future. However, the extent of that deterrence is debated and difficult to measure empirically. Once again, there is some consensus that almost all entities that operate on any significant scale anticipate and accept some liability as a cost of doing business. They will usually be forced to adjust their liability projections and behaviors after major litigation, for both economic and legal reasons.
Consequently, tort law disciplines actors by incentivizing them to determine and maintain optimally safe choices and by forcing them to internalize the costs of any injuries arising when they have failed to do so. Yet tort law seeks an optimal level of safety, not 100% protection against all possible risks. If companies could guarantee perfect safety, they would probably be taking such burdensome precautions that they would be overdeterring, that is, behaving in a way that was not necessarily justified by efficiency concerns and likely not required by morality concerns. This is especially the case if in adopting excessive precautions, entities chose to pass on the added costs to consumers. Under the economic (efficiency-maximizing) theory, tort law operates in light of a calculus that balances the kinds of harms likely to flow from certain conduct against the costs of refraining from that conduct or taking precautions to minimize risk. Under the corrective justice (compensation or recourse) theory, it seeks to vindicate those that have been harmed. But even in that view of tort law, rights and duties are always relative: how will they affect all the relevant stakeholders?
Because tort law is so malleable and diverse by jurisdiction, there are regularly opportunities to reflect on the law’s present and future state and to consider the rights it recognizes and the values it expresses. What will society look like if cases develop in one way versus another? How faithful is the law not just to precedents and legal history but to the future our society wishes to develop?
Thus far, this Introduction has described tort law mostly in terms of its effects on industrial actors and customers or consumers, presuming injuries that are physical. Yet in addition to structuring some of the risks and protections around corporate behavior and consumer safety, tort law plays an important role with respect to intangible injuries in our information-rich society. In protecting against misrepresentations, fraud and false speech, for example, tort principles underpin the laws of false advertising, securities regulation, product warnings and labeling and defamation. In your second and third years as law students, you will likely choose to pursue at least some classes that are rooted at least in part in tort law, such as environmental law, intellectual property law, corporate governance, insurance law and agency law, among others. In these upper-division areas, you will find that many of the key concepts you learn in your first year remain relevant, such as how courts and policymakers identify, define and balance rights and duties.
Tort law also plays a significant role in the sphere of our social lives. In providing compensation under wrongful death statutes and compensating for loss of consortium when individuals lose family members and spouses, tort law clearly signals certain values about the primacy of family in society and the importance of emotional ties to others. In allowing recovery for a wrongful sterilization or the loss of a fetus or and in subordinating injuries to property and pets below injuries to humans, tort law signals its values. With regard to defamation claims, tort law similarly reveals choices embedded in the system. For instance, certain categories of allegedly defamatory statements permit the plaintiff to avoid proving harm. Until as recently as 2020 in the socially progressive state of New York, one of these categories was still homosexuality–along with criminality, professional incompetence and loathsome disease. Tort law signals that the system—albeit while making efforts to be or to sound neutral—displays certain choices and values. Tort can become a conduit for social change or an impediment to it, in other words.
Systemic Biases in Tort Law: Physical vs Emotional Harm
In many respects, tort law’s role in regulating—and perpetuating—certain kinds of discrimination has not been the focus of scholars and law professors. Much of twentieth-century tort law has been centered on strict liability and negligence, which is to say on the law of accidents. Various doctrines predicated recovery on proof of physical harm which has historically had the effect of making recovery for emotional distress very difficult other than when it accompanied physical injuries. Contemporary tort law has been slow and reluctant to recognize injuries that are purely emotional: there was initially thought to be no way to recover for “purely emotional” harm. Tort law’s historical reluctance to allow recovery for emotional harm and its insistence on proving physical harm both reflected biases that can now be seen to have fallen disproportionately on women. There was a corresponding lack of scholarly attention to some of the kinds of harms suffered by women and people of color. To be sure, courts applying tort law’s doctrines might have felt bound by precedents and rules but scholars need not have ignored or marginalized injuries resulting only in emotional harm. Yet they did; the exaggerated emphasis on accidental harms and physical injuries goes beyond courts alone.
In their now-seminal book The Measure of Injury: Race, Gender, and Tort Law (NYU Press, 2010), Martha Chamallas and Jennifer Wriggins have shown that the focus on negligence came with a corresponding devaluation of the intentional torts. This lopsided account of tort law has been reflected in law school syllabi, legislative agendas and efforts by jurists who study and “restate” or catalog the law, as well as by those who would attempt to reform tort law. Chamallas and Wriggins demonstrate how treating intentional torts as secondary in importance has systematically minimized the suffering of women and people of color.
A revolution in the courts in the second half of the century led to a patchwork of rules created to permit some claims associated with emotional distress under particularly heightened circumstances and narrow cases. A new tort, intentional infliction of emotional distress, was created out of an older cause of action based on “outrage.” The emergence of claims for recovery based on purely emotional distress generated some greater attention to the intentional torts, but there remains much work to do in recognizing the structural biases inherent in tort law.
In addition to the rigid distinctions between physical and emotional harms, for instance, tort law has also treated certain categories of behavior and certain entities as immune from tort liability. In some cases, this has meant that pathological or harmful behavior routinely went unrecognized by tort law. For instance, survivors of domestic violence rarely had viable claims in court even though they would have had winning battery, assault and other intentional torts claims had their assailant not been a romantic partner. This state of affairs has not changed much and domestic violence cases often present genuine challenges for both civil and criminal law.
Skeptics of this account might reply that tort law was never intended to remedy marital or domestic controversies, which is true. Indeed, when we inherited English tort law, interspousal immunity—a ban on spouses’ ability to sue each other—came along with it. The renowned 18th-century English jurist, William Blackstone, set out the rationale for that immunity:
“By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything; and is therefore called in our law-french a feme-covert, foemina viro co-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. … If the wife be injured in her person or her property, she can bring no action for redress without her husband’s concurrence, and in his name, as well as her own: neither can she be sued without making the husband a defendant.”
The woman’s legal personhood was effectively dissolved into her husband’s. The two were not commingled in such a way as to make one interchangeable for the other, each with rights to exercise equally. Instead, the husband absorbed her legal personhood and was required to act as the legal person on her behalf if she wanted to exercise legal rights. For this reason, it was thought to be illogical for an entity to … sue itself. (Intraspousal immunity was slowly abandoned, one state at a time, throughout the 20th century, partly because of the sexist rationale.)
Be that as it may, the effect of excluding certain kinds of harms and including others at any given point in time sends signals about the values that are embedded in the legal regime and the interests it seeks most to protect.
Tort Law’s System Biases (Gender, Race and Intersectional Identity Effects)
Tort law may have begun to wrestle with gender and attendant sociological differences, but gender is only one dimension to identity. The challenge is that the impact of injuries lands intersectionally, of course, as a function not just of gender or of race but also of ability, sexual orientation and class, among other identity markers. In the visionary work of Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1249 (1991) she writes of ways that different dimension of identity may typically “intersect” to produce particular experiences of vulnerability. The problem is structural rather than personal or individual: “Intersectional subordination need not be intentionally produced; in fact, it is frequently the consequence of the imposition of one burden that interacts with preexisting vulnerabilities to create yet another dimension of disempowerment.” Exploring the systemic biases in tort law requires grappling with the intersectional effects of its rules and rulings and considering the fundamental principles in tort law with a fresh eye.
Thankfully, there has been some progress on issues of social justice. Yet there is no doubt that tort law continues to reflect signs of deep structural bias. Studies have shown that race and gender biases enter into damages awards in ways that ought to be concerning for policy makers. A recent empirical study using mock jurors demonstrated that “[t]he dollar awards for the injuries suffered by black plaintiffs were lower than awards for the same injuries experienced by white plaintiffs,” suggesting that race—and implicit racial bias—are bound up with how the legal system evaluates both responsibility and harm. Jonathan Cardi, Valerie P. Hans and Gregory Parks, Do Black Injuries Matter?: Implicit Bias and Jury Decision Making in Tort Cases, 93 S. Cal. L. Rev. 507 (2020). Actual damages awards have been also measurably lower in patterns that reflect racism and sexism. See, also Jennifer B. Wriggins, Torts, Race, and the Value of Injury, 1900–1949, 49 How. L.J. 99, 101–03 (2005); Jennifer B. Wriggins, Whiteness, Equal Treatment and the Valuation of Injury in Torts, 1900–1940, in Fault Lines: Tort Law and Cultural Practice (David Engel & Michael McCann eds., Stan. Law Books 2009).
The parties’ identities may exert more pronounced and pernicious effects beyond merely skewing the amounts of damages. Per professors Ronen Avraham and Kimberly Yuracko, “not only does tort law’s remedial damage scheme perpetuate existing racial and gender inequalities, but also it creates ex ante incentives for potential tortfeasors that encourage future targeting of disadvantaged groups.” Torts and Discrimination, 78 Ohio St. L.J. 661, 666–67 (2017). Avraham and Yuracko describe how the structure of tort law can distort behaviors merely in anticipation of liability, thus perpetuating further discriminatory behaviors.
Tort law has traditionally not been taught in law schools in ways that take account of its systemic biases. Yet various doctrines and limitations that tort law treated as neutral had disproportionate effects that were anything but neutral in whom they most impacted or protected. Correcting the various biases will require seeing them first. Our legal system operates by stare decisis, that is, by building on and usually following precedents. In turn, this means that the lawyerly mind is trained to identify and gravitate towards tried and true authorities. In keeping with that inclination, perhaps, the legal academy has tended to teach the same torts cases, thus entrenching not only particular cases but to some extent, also traditional viewpoints. Correcting tort law’s biases may require a revisionist approach to tort law that begins with a reset.
It seems urgent in 2021—and not out of the mainstream—to call for reexamining tort law’s biases. Theorists associated with various “critical” positions have long called for such a focus on all areas of law. Valuable contributions by critical race theory, critical feminist theory, critical legal studies, “LatCrit” as well as disability crit have laid a foundation for this work. But the work of reenvisioning tort law is not constrained by any one ideological approach, or it ought not to be. It is of concern for all of us engaged in teaching and learning about tort law.
Consider that tort law is a domain whose disputes were decided, for a long time, only by white adjudicators and white jurors and navigated only by white male lawyers; even as that began to change, it remained a system that continued to benefit white cisgendered able-bodied people, especially men and those with more resources and social and cultural privilege. Calling that out does not require any particular political or methodological affiliation. And not calling out should no longer seem like a defensible option.
The good news is that tort law is capable of incredible nuance, flexibility, and particularization. Those qualities are what can make it frustrating for law students seeking a single hard and fast rule. Yet they are also the very qualities that make tort law lively and fun to study as well as being capable of significant systemic change.
Tort Law’s Dynamic Nature Depends on—and Changes with—Culture
Tort law is laudably dynamic: it can and does change in response to changing perceptions of both identity and justice. This is why it is especially important for students first learning torts to understand this legal area as one that can play a role in either entrenching various forms of inequality or helping to minimize it. In delineating the behavior our society deems acceptable or out-of-bounds, tort law reflects and defines our social relations. As such, the study of tort law offers students the opportunity to think deeply about their values and belief systems. And it offers them an opportunity to carry into their professions the desire to participate in changing the law as the arc of justice bends, we hope, towards greater justice.
Tort law provides an excellent introduction to the common law precisely because of its capacity for adaptation: it is flexible and changes over time in response to sociocultural, economic and technological pressures. It is flexible by design: several key doctrines use open-ended standards (like “reasonableness”) and disputes often require fact-sensitive assessment. This means that tort cases may be slow or cumbersome or expensive to litigate. The upside is that the law can be tailored to each particular situation, thus allowing for dynamic change that can be harder to achieve when using legislation to regulate behavior.
Tort law’s principles are applied in ways that are contingent (or depend for their application) on the culture and historical moment of those who apply them. That means that tort law’s standard of “reasonableness”—which plays a starring role in negligence but is also embedded in various other doctrines—reflects particular values and perspectives at a given place and moment in time.
A Thought Exercise on “Reasonableness”
Imagine you are a judge and you have been asked to make a decision about whether to allow a case to move forward in an action over a car accident. Ordinarily, a driver has a duty to exercise reasonable care in everything she does related to the car and driving and any risks to others her driving may cause. You will therefore need to evaluate the reasonableness of the defendant’s actions, and specifically, whether it was reasonable not to have replaced the brakes on the car after the brake light had been on for four days, given that the brakes failed on day five and caused an accident which caused significant injury to the plaintiff. At this point, you’ve got only the barest amount of information based on some preliminary filings.
What would you want to know in order to assess whether this was reasonable?
Now picture the reasonable person. Who appears in your mind?
What is the person’s race, gender, ethnicity and age? Did you imagine a person with a disability? What is the person’s cognitive level? What do you presume about this person’s education level and professional status?
There are two points to engaging in this thought exercise. The first is that the assessment of reasonableness is often highly factual and requires balancing. If the car is new and has never malfunctioned before, four days may be very little time from a routine service light’s first appearance to the brake’s failure. If the car is unreliable and the light simply one more sign that it requires maintenance, then waiting four days may seem less excusable. Would it matter to you how difficult it was for the driver to make time to get it to the repair shop? What if the driver was a single mother holding down two jobs and she had booked a service appointment for the first day she was off work, which was two days later than the accident? What if the driver was a collegiate athlete involved in exams and training and hadn’t wanted to distract themselves from those goals, thus postponing the maintenance? What if the driver was forgetful and kept meaning to fix the brakes when they saw the light on the dashboard but would forget to make a plan to do so upon leaving the car?
The second point is that tort law’s “reasonableness” standard is highly constructed. We ask jurors—or judges, sitting as factfinders—to determine it in each case because it can and must be considered in light of all the circumstances. But that does not make it impartial; humans bring their implicit biases and cognitive limitations to the task of determining what is reasonable. As you study tort law, pay attention to ways in which the very idea of reasonableness embeds cultural values or reflects ageist, sexist, ableist, racist or otherwise outdated and harmful notions. Part of changing the law is learning to identify hidden defaults and highlighting their impact.
In our era, tort regulation can be a lightning rod for political and cultural controversy. Tort actions are commonly brought by individuals against other individuals or entities, but their sociocultural context matters and many rulings can have broader impact beyond their individual verdicts. Our approach to tort law will be to ground cases in their sociocultural context and potential impact as we are reading and seeking to apply or distinguish them. I encourage you to think about torts and tort cases “in the real world” not as ancient legal precedents far removed from your experience as a law student and aspiring lawyer.
As your knowledge of this area increases, it may interest you to think about how tort law helps to enforce and balance social and economic norms of fairness and responsibility. Tort law becomes most interesting when considered as a form of civil justice. Consider, too, the ways in which the law fails to achieve the proper balance or justice, in your view, and how and why that might be.
Purposes and Theories of Tort Law
Purposes. In one sense, merely describing the purposes of tort law is challenging; the field is politicized and animated by sharp philosophical disputes over how to define its scope and purposes. However, the following are noncontroversial starting points: Tort law exists to “(a) to give compensation, indemnity or restitution for harms; (b) to determine rights; (c) to punish wrongdoers and deter wrongful conduct; and (d) to vindicate parties and deter retaliation or violent and unlawful self-help.” Restatement (Second) of Torts § 901 (1979)
Tort theorists have argued over whether the purposes of tort are better understood in terms of (1) the positive legal rights of the victim (and compensation they may be owed as well); (2) the rights and duties of members of society to one another (and thus fairness to all individuals); (3) limits on the rights of those who engage in risky conduct or carelessly cause accidents (and the deterrence tort law imposes on them); and (4) the potential benefits to victim, tortfeasor and members of society if the costs of prevention and remuneration are maintained at optimal levels (which reflects a commitment to efficiency). Indeed, some casebooks and approaches to tort law focus very heavily on the economics of tort law, consistent with the views tort law’s core purposes are efficiency and compensation. Others may take a more philosophical approach, grounding rights and duties in different theories of justice, highlighting tort law’s purposes of fairness and deterrence.
These terms and theories could be defined at great length and still seem overly simplified to some and mysterious to others. This text does not purport to be a substitute for an in-depth treatment of jurisprudence (which is the study of theories or philosophies of law). But it will use these terms—efficiency, compensation, fairness and deterrence—repeatedly throughout the text, and to ensure that readers understand them, it is helpful to define them in terms of theories of justice with a grounding in tort law.
Theories. Tort law is also commonly framed in terms of several theories of justice: procedural justice (with an emphasis on fairness, notice and transparency); distributive justice (balancing compensation, loss-spreading and efficiency concerns); retributive justice (in seeking to punish and deter wrongdoing); and corrective justice (in providing compensation to the victims of tortious wrongdoing). There isn’t a perfect overlap between the four sets of terms since, for example, distributive justice balances both compensation and efficiency, but it is still helpful to understand the philosophical underpinnings that attach to the 20th-century development of tort law.
Procedural justice focuses on the transparency and fairness of processes by which rights are created and enforced. As such, it is primarily concerned with fairness. Designing a fair and balanced process is not a guarantee of fair outcomes because parties are not equally situated before the law; decisionmakers are not perfectly impartial or incapable of error; and many laws are outdated and lag behind contemporary views of fairness. Nonetheless, our legal system stakes significant importance on making an attempt at procedural fairness.
For example, the idea of “notice” plays an important role in many tort doctrines, which is a nod to procedural justice and reflects the idea that it seems fairer to hold someone responsible when they were “on notice,” if they knew or should have known that some harm was likely to happen and still took whatever action they took.
Distributive justice concerns allocating resources and liabilities fairly based on some pre-set understanding of the right to a “fair share” of both the benefits and burdens. The values driving that distribution may change over time, by jurisdiction, or in connection with political administrations. In our era, the driving concerns behind distributive justice have primarily been economic: who can bear the costs of liability and who should bear the costs of preventing accidents given the ability of various actors to insure against injury or to internalize the expenses associated with both injury and prevention. Indeed, contemporary tort law has been strongly influenced by late 19th-century philosophers who advanced utilitarian theories of law, as well as 20th-century scholars and judges working in the law-and-economics tradition. Such theorists often seek the “cheapest cost avoider”–the entity best positioned to absorb the costs of preventing harm and compensating for it when preventions fail—so as to maximize efficiency regardless of moral culpability.
For example, the doctrine of strict liability (liability without fault) has evolved in ways that allow parties to engage in behavior that they know in advance will be risky, such as blasting with dynamite prior to construction. However, merely engaging in the action will cause them to be liable for harms they cause through their actions, which allows them to internalize the costs of precautions and to make their behavior as safe and efficient as possible. Or at least, that’s one theory of how it works.
Retributive justice is more commonly associated with criminal law, which seeks to punish wrongdoers. Tort liability is not typically defined so as to impose suffering or punishment on the wrongdoer. A tortfeasor may be liable in tort even when morally not blameworthy but merely careless. Likewise, an actor may be liable even when behaving carefully but nonetheless causing harm by taking an action to which the law applies strict liability.
In rare or egregious cases, however, courts may award punitive damages that do reflect theories of retributive justice, namely, that the wrong was so significant the wrongdoer deserves to suffer.
Corrective justice frames tort law as a form of moral or ethical obligation, structured in terms of first- and second-order duties. First-order duties specify particular behaviors (such as driving reasonably or refraining from trespass). Second-order duties arise if an actor breaches their first-order duties. Accordingly, second-order duties are duties to repair or make the injured party “whole,” thus correcting the tortfeasor’s wrongs and compensating for the losses their breach of first-order duties caused. Corrective justice is oriented around the duties owed by the defendant to those they injure because its central logic is the “making whole” of the plaintiff.
For example, most plaintiffs sue to recover compensatory damages so that they will be “repaid” for the costs they incurred in connection with the defendant’s wrongdoing.
One problem with this theory arises when injuries are irreparable; under such circumstances, tort law may still allow a victim to recover, thus broadening the right of recovery to the suffering caused by the injury even when the harm is irreparable, that is, something that cannot be “corrected.” It is also worth noting that the very idea of “wholeness,” when applied to the body, hints at an ableist understanding of selfhood. Wholeness, of course, is not simply a literal reference to body parts; it applies to compensation for pain and suffering and medical bills and many other ways in which catastrophic injury can derail and burden one’s regular way of life. Hence it is a good idea to keep the literal and figurative uses of “wholeness” conceptually distinct.
A related theory of tort law is that of civil recourse theory: when a person suffers a particular kind of harm, they have a right to bring a civil action against the one who harmed them and seek recovery. Yet unlike corrective justice, the duty to repair does not justify civil recourse theory. Rather, the individual whose right has been invaded merely has a right of recourse, that is a right to have their legal claim evaluated. The distinction may seem purely academic, but it can have important implications for how we conceive of the nature and scope of the plaintiff’s possible rights and remedies. Proponents of both of these approaches commonly treat tort law as containing moral obligations (that is, they case it in deontological terms). Tort law expresses these moral values through rules and outcomes, and efficiency concerns may be subordinated accordingly rather than prioritized the way they are in the economic account of torts.
Scholars in the field have produced elegant refinements of each of the theories briefly sketched above; whole books could be and have been dedicated to each, in fact. There are also deep disagreements about the justifications of tort law that are much elaborated elsewhere. The debate between the two dominant views of (1) “corrective justice or civil recourse” and (2) “the efficiency or utility-maximizing account” is so longstanding, in fact, it “shown signs of being tired […] midway through its sixth decade at the very least[,]” and has prompted “increasingly prominent effort of scholars across generations to move beyond it, either by declaring a truce or by asserting a third model for the field altogether.” Nathaniel Donahue & John Fabian Witt, Tort As Private Administration, 105 Cornell L. Rev. 1093, 1094–95 (2020).
A recent synthesis of tort theories has argued that “morality and efficiency are not mutually exclusive theories of tort”; instead, “tort law operates as a vehicle through which communities perpetually reexamine and communicate their values, encouraging individuals to coordinate private relationships without undue state involvement. In short, the goal of tort law is to construct community.” Cristina Carmody Tilley, Tort Law Inside Out, 126 Yale L.J. 1320, 1324 (2017). The approach in this book most resembles this last view, of tort law as a means of constructing communities, a force that is legal and social and psychological, and one which can be studied through law but also through economics, sociology, anthropology, and various theories of identity.
To learn the basic contours and doctrines of tort law you need not reconcile deeper conflicting theories, of course, but it is helpful to gain at least an introduction to the theories that are underpinning the way tort law was created, has developed and continues to evolve. When the materials refer to these first four purposes of tort law—efficiency, compensation, fairness and deterrence—you will now have at least a preliminary sense of their origins and interconnections.
A More Inclusive Approach to Tort Law
The classic accounts of tort law do not typically lay out racial and social justice as a goal, per se, the way efficiency, compensation, fairness and deterrence are routinely cited as the core reasons for the system. One reason for this is that tort law has been treated as though it is neutral in application, perhaps as a concession to anti-discrimination laws and nationwide efforts to make the law more equitable or at least, constitutional. Indeed, in the modern era tort law often explicitly sought to proceed as though it were “color blind,” gender-neutral, and otherwise not taking any categorical differences into account. Thus even doctrines that had once been helpful to some vulnerable groups weakened: “[g]ender and race have disappeared from the face of tort law. The old doctrines that explicitly limited recovery exclusively to one gender have been either abolished or extended on a gender-neutral basis.” Martha Chamallas, The Architecture of Bias: Deep Structures in Tort Law, 146 U. Pa. L. Rev. 463 (1998)
In the last two decades, a growing volume of scholarship considers the intersection of civil rights and tort law and builds on various philosophical theories of law to consider how factors like race, gender, social class, ability and sexual orientation may all play into the tort system’s rights and duties. Yet casebooks are typically slow to take scholarly changes into account. This casebook’s approach to tort law deliberately frames social justice as one of tort law’s goals, even if it does so aspirationally, building on the work of scholars who have called for a more inclusive and sociologically informed account of tort law. If we take seriously the notion that tort law exists to remedy civil wrongs which the law has defined as such, it seems important that we define those wrongs in terms of what we know in our present moment, based on sociological, psychological, cultural and empirical evidence.
In the 21st century, we know that many laws fall with disparate impact on vulnerable communities and individuals. That’s why this book begins with the premise that tort law can be envisioned in a way that provides a form of access to civil justice or becomes a means of perpetuating civil injustice. In practice, the law might land somewhere in between those two binary choices, but conceptualizing it in this way from the start can provide a capacious and progressive vision toward which to advance. Only by understanding how tort law “works,” when it fails, and what it means for it to fail can we collectively work towards improving the system. Readers of the book do not have to share the same definitions of what it means for laws to work or fail; nor need they agree on what it might mean to improve the system. But engaging in dialogue on those questions while you’re learning substantive doctrines will greatly enrich your understanding of the law and deepen your ability to analyze and apply it. It may also make the experience of learning the law more fun and rewarding. That’s the hope, anyway.
The cases selected for our discussion are designed to give you a sample of the kinds of wrongdoing tort law does (and does not) redress, as well as the kinds of legal and policy considerations courts use in the course of their adjudication. They are also selected to encourage you to think about the balance of rights and duties in the world: tort law is relational. A person has a right, in relation to another person, to be free from the foreseeable harms that second person would carelessly cause to happen to the first. Put another way, that second person has a duty to take reasonable precautions to avoid causing foreseeable harms to the first person (and to others who could be harmed). That sounds easy enough, in the abstract, and it’s often cited as a first-order principle: where the law creates a right, the law also creates a duty. But it is often not all that clear what that actually means as applied to facts in the world, which is a complicated, messy place in which human actors don’t have perfect foresight and often make mistakes. This is one of the central challenges courts face as they attempt to strike a reasonable balance and develop and apply fair rules over time.
Challenging Subject Matter & Studying Tort Law
Because tort law is so situated in the “real world,” most cases focus heavily on factual questions with sometimes quite complicated technical issues. You might find yourself having to pay close attention to map out the facts or to draw a diagram for yourself so that you can understand how a court describes, for instance, the angle of collision between a train and a car or pedestrian. Likewise, you may find yourself struggling to make sense of the theories of causation when a victim is seeking relief from harm that ensued from a chain of events, or from a combination of multiple factors. Sometimes tort law is quite gory, and if there is any law school class that needs a trigger warning, it really might be this one: there will be train accidents and severed limbs; parents claiming emotional distress after watching their child suffer in agony (perhaps even die before their eyes); there will be fires, and burns, and medical procedures gone wrong that might make you squirm with discomfort just reading the facts. There are also dignitary and privacy harms that can be upsetting whether the conduct in question features sexist, racist, ableist, or otherwise hateful language or actions, or whether the court itself uses terms or rhetoric that are dismayingly biased even as it speaks in the voice of our country’s justice system.
This book’s selection of cases features some challenging subject matter. The choice to center issues of racial and social justice stems from the belief that sweeping things under the collective rug—or pretending that our civil justice system isn’t sometimes a part of the problem—is a recipe for moving backwards in terms of greater equity in our country, rather than moving forwards. However we define “moving forwards,” that’s the better direction to conceptualize as we bend collectively towards justice.
The Textbook’s Terminology
There are three terms you need to understand from the outset, as they are critical to the perspectives on tort law offered here and they’ll be used throughout this casebook. When you read a case, you’ll often be asked what it holds. It’s critical to be able to distinguish the parts of an opinion that are most meaningful, including which facts, if changed, could alter the outcome. It’s also important that you be able to characterize the case analytically, that is, descriptively, and evaluate its reasoning. I believe it’s also helpful to be able to evaluate the case in terms of how it makes you feel, that is, to understand it intuitively. Identifying your own intuitions about the law can help you in the identity formation that takes place in law school as you’re refining and revising your values and ideas about the law. You may find yourself grudgingly agreeing that an outcome that seems correct as a matter of policy, that is, an outcome that seems normatively correct, nonetheless feels dissatisfying or unfair. In some cases, your intuition may point in one direction while your normative opinion points in another. A descriptive approach to the law seeks to interpret or explain existing law while a normative approach to the law seeks to critique, justify or reform existing law. (There are, of course, some overlaps between the various approaches but as a starting proposition, it is important to try to maintain a distinction.)
You also need to be able to analyze and describe the law dispassionately, whatever you feel about it intuitively or normatively. It may seem touchy-feely to ask you about your intuitions. However, being able to acknowledge and validate your own intuitions but disaggregate them from your analysis is an incredibly powerful way to hone your analytical skills. You need to be able to answer questions about the black-letter law descriptively and accurately (to pass the bar, to predict likely outcomes and counsel clients). And you ought to be able to think about the normative implications of the law as you learn it; that’s what drives home how much your legal education matters and what differentiates law school from a bar-exam preparation class. Tuning in to your intuitions can also make it easier to manage the sometimes-challenging subject matter you’ll encounter in tort law: we are heading into the law of accidents and intentional harms and while it will often be lively, it’s occasionally tragic or bloody or dehumanizing or all of the above.
Here’s a summary of these three approaches to discussing the law:
- Intuitive: how you feel about the facts or ruling; this is something you can do without a legal education
- Descriptive: an accurate analytical statement of what the law is or does in a given case, which requires learning how to read a judicial opinion and may require understanding the context or case law simply to identify the correct legal rule
- Normative: a statement of what the law ought to be, in your opinion, and why based on policy factors you’ll learn or gain practice discussing throughout the course
Not all professors use exactly the same terminology or emphasize these as centrally but they will all expect you to be able to shed intuitive modes of thinking and state the rule of a case descriptively without conflating your normative evaluations at the same time. Law school requires that you routinely differentiate the “is” from the “ought,” in other words. Whatever the terms anyone uses, learning to distinguish between intuitive, descriptive and normative modes of analysis is critical to your success in law school, especially in your first year as you are learning how to “think like a lawyer.”
Differentiating Negligence, Strict Liability and the Intentional Torts
Most torts casebooks focus on either negligence or intentional torts as a means of introducing students to torts. Intentional torts are typically considered to be “easier” to understand because they are a bit more black-and-white whereas negligence is an area with a lot of “gray” or conceptually less crisp doctrines. Even this framing, however, may be the result of the overemphasis on negligence that has historically informed legal education. There can be considerable complexity in aspects of the intentional torts even though it’s true that they have qualities that can make them easier to teach and learn at a superficial level.
Our approach in this first module gives you a cross-cutting look at the three primary regimes of tort law all at once: negligence (fault-based), intentional torts (intent-based) and strict liability torts (no-fault based). This approach helps you gain an overview view of what it is you’re going to be learning to do with what you learn.
One of the things law school most trains you to do is apply your knowledge effectively. It’s not just a matter of gaining a bunch of knowledge but learning how to apply it judiciously. Another thing law school does is train your brain to sort things quickly. You’re going to be asked over and over again to take a messy fact pattern and distill it down to a rule or prediction. How you distill it down in torts is partly a function of what you know about these three systems and their purposes and limitations. When you hear about issue-spotting exercises, for example, you’re being asked to learn rules and apply them to facts quickly. The speed isn’t the point as much as gaining sufficient practice and comfort so that you can use this skill in real-time, as though you were in court or speaking with a client or working on a deadline under pressure. When you see a torts fact pattern, you will learn automatically to begin to sort things into buckets, by regime, by doctrines you know, and by other factors (such as jurisdiction and available defenses). This introductory approach gets you to start thinking like a lawyer by learning to spot and sort different kinds of torts regimes from each other.
You may understandably be anxious to learn the individual elements of each of the torts and get into the doctrinal weeds. However, by approaching the three regimes in this way, you will gain altitude over the whole ecosystem before we drop down into the forest. You will learn why we use different regimes, what the impact of that decision is from a policy perspective and why the regimes require different standards of culpability and different evidence. You will also see commonality and differences in the kinds of interests protected and the kinds of conduct protected against. Two main questions guide our inquiry throughout this first module:
What sorts of conduct does the law seek to regulate here, and why?
What sorts of interest does the law seek to protect here, and why?
We begin with negligence, which is the core area for most 1L torts courses.
- Echoing the earlier distinctions between civil and criminal law, note that civil assault and battery are torts, dealt with in private law, which may allow the victim to seek money damage for their harms or to stop future harms by the assailant. Criminal assault and battery are crimes, dealt with in public law, which may allow the state or government to prosecute and penalize the assailant. It’s important to keep these distinct because the elements necessary to prove that the conduct was criminal differ from the inquiry into whether the conduct was tortious. Additionally, the remedies and the burden of proof differ. ↵