Person:

Goldberg, John

Tort law has little patience for excuses. Criminal law is more forgiving—it recognizes nominate excuses such as duress and provocation, as well as innominate excuses that temper punishment. Excuses are also commonplace in ordinary morality. Like criminal law and morality, tort law seems concerned with holding persons accountable for their wrongs, and excuses seem to go hand-in-hand with accountability. So why—or in what sense—are torts inexcusable wrongs?

This Article explains how tort law, understood as law that enables victims to hold wrongdoers answerable to them, cogently can refuse to recognize excuses. In doing so, it offers a unified account of many of tort law’s core features, including the objectivity of negligence law’s ordinary care standard, the courts’ insistence on injury as a condition of liability, and the strictness of certain forms of tort liability. More generally, it invites us to broaden our understanding of what it means for law to identify conduct as wrongful, and for law to set up schemes for holding wrongdoers accountable.

Scholars ranging from Holmes to Posner have supposed that, when judges and scholars treat tort as a law for the redress of wrongs, they embrace primitive ideas of vengeance, or empty and sanctimonious notions of morality. This supposition is mistaken. In order to make sense of tort law, one must appreciate that it identifies wrongs and provides rights of action not in the name of vengeance or piousness, but to enable us to hold each other accountable for injuries that we wrongfully inflict on one another.

In Ethics for Enemies, Frances Kamm argues that, under certain conditions, it is mor-ally permissible for a state to launch a war for opportunistic reasons. We consider how law might shed light on Kamm’s argument. Part I addresses the application of criminal and tort law to individual acts of violence analogous to the acts of war analyzed by Kamm. It primarily argues that these bodies of law rely on a framework for determining legal permissibility that runs counter to, and perhaps demonstrates weaknesses in, Kamm’s framework for assessing moral permissibility. Part II considers the law of war. It maintains that, although modern law permits certain opportunistic acts of war, the law does so on terms that cut against Kamm’s claim as to their moral permissibility.

John Kenneth Galbraith coined the phrase "the conventional wisdom" to refer to a collection of ideas that members of a group find acceptable. Acceptability, he observed, rests on a variety of considerations other than veracity, which means conventional wisdom can be wrong. Sometimes it is dead wrong. Other times it blurs truth and falsity. In the latter case, it might be said to contain half-truths.

Because professors are in the business of critical inquiry, one might think that they are less reliant on "mere" conventional wisdom, but this supposition is false. Conventional wisdom plays as much of a role in academia as in other walks of life. The concern of this Article, based on the 2007 Valparaiso University Monsanto Lecture, is to explore conventional wisdom among torts professors, and perhaps law professors more generally. Specifically, it identifies ten half-truths embedded in standard academic depictions of tort. Because each distorts as much as or more than it enlightens, each must be discarded. The point of this exercise is conceptual and pragmatic. The immediate goal is to clarify; the further hope is that clarification might lead to better judgments about how to adjudicate tort cases, how to undertake legislative reform of tort law, and how to teach torts.

It is not difficult to come up with a rough definition of private law. Private law defines the rights and duties of individuals and private entities as they relate to one another. Yet, whereas scholars in commonwealth jurisdictions generally are comfortable invoking this category, U.S. legal academics are not. The idea that “all law is public law” is no less taken for granted than the idea that “we are all realists now.”

This essay, written as the Introduction to a 2012 Harvard Law Review symposium, traces academic skepticism about private law to the dominance in the Twentieth Century of a particular species of pragmatism, which it labels “brass tacks pragmatism.” The essay then identifies an alternative but equally pragmatic approach to law — “inclusive pragmatism” — that permits less skeptical approaches. Finally, it outlines the elements of an emerging body of private law scholarship that is new precisely in its rejection of skepticism.

In his influential History of American Law, Lawrence Friedman suggests that tort law was “totally insignificant” prior to the late Nineteenth Century. Implicit in this assessment is a judgment that a body of law is significant only insofar is it addresses a large-scale social problem as such. This criterion stacks the deck against tort law, which is not law of this kind. Rather, it is a law of civil recourse. In fulfillment of a governmental responsibility to its citizens, tort defines a certain kind of wrong and empowers victims of this kind of wrong to obtain redress from wrongdoers.

Written for a 2011 symposium held at Florida State University, this essay melds the insights of civil recourse theory with recent historical scholarship to demonstrate that tort law was central to American legal practice and legal thought long before the Industrial Revolution. In fact, the tort notion of civil recourse set the terms on which this nation was founded. Quite self-consciously, Jefferson cast the Declaration of Independence in the language of civil recourse; the Declaration is our founding lawsuit. The inclusion of the Alien Tort Statute in the Judiciary Act of 1789 and the emergence of the nineteenth-century congressional practice of indemnifying officials for their tort liabilities further demonstrate our early embrace of the core tort notion that government bears a responsibility to provide citizens with law for the recourse of wrongs.

This is a review of "Cunning," by Don Herzog. "Cunning" criticizes as unilluminating a set of dichotomies that are routinely invoked by modern academics to explain human behavior and to describe practical reason, including those between fact and value, reason and desire, and self-interest and morality. The first part of the review attempts to unravel some of the threads of Herzog's elegant and playful argument. The second maintains that law professors, in particular, will both enjoy and profit from the book's engaging, insightful, and unsettling blend of philosophical pragmatism, historically grounded casuistry, and unsentimental humanism.

Should our tort law serve as a model for other nations? The answer depends in part on what one understands it to be. Since the mid-Twentieth Century, progressives have favored 'thin' accounts that treat tort law as having but two dimensions: forum and function. Tort, they say, provides a general forum for grievances and, by doing so, performs certain governmental functions, such as deterrence of anti-social conduct, compensation of injury victims, and the bringing to light of abuses of power. Progressives have favored thin accounts mainly because those accounts emphasize the extent to which tort law enables courts to achieve social goods. Unfortunately, the very thinness of progressive accounts has left tort law highly vulnerable to the conservative criticism that tort is an irrational and illegitimate mode of regulation. As a result, tort law today tends to comes off as an unstable, unprincipled combination of certain plaintiff-friendly features that are said to serve salutary regulatory objectives and certain defendant-friendly features that are said to be necessary to ward off undesirable regulation. In fact, tort law’s "bipolar" appearance is an unfortunate byproduct of the inadequacies of two-dimensional accounts, whether progressive or conservative. Simply put, tort will inevitably appear arbitrary and mysterious until one appreciates its third dimension – its fill, or substance. Seen in "3D," tort law emerges as a relatively coherent body of law, yet still one that progressives have reason to embrace. Indeed, with tort law in full view, one might even believe that it can profitably be emulated elsewhere.

Tort liability often turns to a substantial degree on an actor's good or bad luck. For example, a driver may be lucky to be more skilled than average, or unlucky to be less. Alternatively, she may be lucky to avoid hitting a pedestrian, or unlucky to hit him, or very unlucky to hit a person with an 'eggshell skull.' Whether a person's conduct falls below the relevant standard of conduct, whether it causes injury, and how much liability results - these matters determine whether someone is a tortfeasor and, if so, how much she will have to pay in damages. And yet each of these factors lies outside of her control. Because tort liability is sensitive to luck in these ways, scholars such as Christopher Schroeder and Jeremy Waldron have condemned tort law as morally arbitrary. Others, such as Justice Holmes and Judge Posner, have seized on tort law's luck-sensitivity to argue that tort - which seems on its face to be a law of wrongs - really has nothing to do with wrongs. Assessments of conduct as right and wrong, they suppose, cannot possibly attribute so much significance to dumb luck.

In this Article we are argue that the role of luck in torts does not undermine the case for understanding tort as a law of wrongs, nor does it make the case for dismissing tort law as morally arbitrary. Drawing upon the canonical articles on "moral luck" by Bernard Williams and Thomas Nagel, we argue that is false to suppose that an actor cannot be held responsible for having committed a wrong unless all the relevant features of the situation in which she acted were in principle subject to her control.

The Article proceeds by distinguishing and explaining two aspects of tort law's luck-sensitivity: (1) luck regarding whether one's tortious conduct causes damage, and, if so, how much ("causal luck"); and (2) luck regarding whether one's efforts to comply with tort law's objective standards are successful ("compliance luck"). Causal luck, we argue, does not introduce objectionable arbitrariness into tort law. On the contrary, it is a natural and necessary feature of a body of law that is concerned to permit those who have been wronged to redress the wrongs done to them. As to the problem of compliance luck, we explain why it is sensible for courts and legislatures to fashion tort norms of conduct with external measures of compliance, and why such norms can properly count as norms that define "wrongs." We conclude by suggesting that careful attention to the particular senses in which torts are wrongs not only entails the rejection of familiar critiques of tort, but also sheds light on values that tort law can serve within in our legal system, as well as the content and operation of legal and extra-legal notions of wrongdoing and responsibility.

To prevail on a claim of common law fraud, the plaintiff must prove reliance on the defendant's misrepresentation. This requirement is puzzling, given that, under many modern formulations of the tort, the plaintiff must also prove that the misrepresentation was a factual and proximate cause of the plaintiff's detriment. One standard view of reliance emphasizes its role as the mechanism by which defendant's misrepresentation generates harm to the plaintiff. But, cast as such, it seems redundant with factual causation. Another way reliance is understood is as setting a practical limit on the amount of liability that a misrepresentation can generate. So regarded, it seems redundant with proximate cause.

In this Article, we explain why reliance forms a distinct element of fraud. Conceptually, we argue, the wrong of fraud is not an interference with the victim's interest in avoiding certain types of harm, such as economic loss, but instead an interference with her interest in being able to make certain kinds of decisions free of misinformation generated by others. Thus, a knowing misrepresentation that foreseeably causes harm to another does not defraud that other unless and until she is induced by that misrepresentation to make a decision she would not have otherwise made. Structurally, we argue that the requirement of reliance is linked to a more general feature of tort law, namely, the relational structure of tort duties. To commit a tort is to breach a duty that is owed by an actor to a class of potential victims. Therefore, to prevail, a tort plaintiff must establish not merely that wrongful conduct has caused harm to her, but that the conduct was wrongful as to a person in her position. When it comes to fraud, plaintiff's reliance is essential to establishing that the defendant's conduct was wrongful as to her, and hence to establishing her right to recover.

Having explained the place of reliance within fraud, we next explain why reliance need not be central to other wrongs that bear some resemblance to fraud, including, for example, private enforcement actions brought under consumer protection statutes. Likewise, we demonstrate that some claimants who have been injured by misrepresentations without relying on them will have valid claims for other torts, such as negligence and tortious interference with contract. The take-away point is this: An understanding of why reliance functions (or doesn't function) as a component of a legal wrong that involves misrepresentation must be sensitive to the institutional source of the legal prohibition that defines the wrong and, relatedly, the interests that are meant to be served by that prohibition.