A SIMPLE MODEL OF TORTS AND MORAL WRONGS.

• Author: Schaus, Steven

INTRODUCTION 1030 I. RUPTURES AND RECOGNITION 1034 II. WRONGS AND RECOGNITION 1037 III. DOES DOCTRINE STAND IN THE WAY? 1050 A. A Bad Model of Tort Law--or a Bad Model of Morality? 1054 B. A Bad Model of Tort Law--or a Bad Model of Tort Doctrine? 1061 C. A Bad Model of Tort Law- -or Just Bad Tort Law? 1066 CONCLUSION 1069 INTRODUCTION

If I were to shove you to the ground, or take your laptop, or burn down your house in an ill-advised attempt to burn the paint off mine, I would wrong you (other things being equal), just as a matter of interpersonal morality. (1) By the same token, I would commit torts against you too--the torts of battery, conversion, and negligence (other things again being equal). This partial convergence of torts and moral wrongs is more or less obvious, I take it. Yet, the nature of the relationship between the two--between the wrongs of tort law and the sometimes-coinciding wrongs of interpersonal morality--is far less obvious, at least if we're to judge by how much has been said about the question. If you weren't familiar with these debates in tort theory, though--if you weren't yet burdened by thoughts of reversing unjust transactions, let alone by thoughts of cheapest cost avoiders--you might think the question has a more or less obvious answer--that there's a simple story to tell about the basic relationship between torts and moral wrongs.

Tort law, in this telling, is an institution that aims to recognize and respond directly to moral wrongs. When you discover that I took your laptop, for instance, you're entitled to lodge a moral complaint with me. If for some reason that isn't enough, however--if I do not recognize my own wrong in response, for instance--then you have the option to file a legal complaint against me too. At that point, tort law stands ready, if you make your case, to recognize my wrong against you--that is, to recognize the very moral wrong that you might have complained of outside the courts. Of course, there are often good reasons for tort law to recognize only certain kinds of wrongs, and then only under certain conditions, and then only in a coarse-grained, easy-to-administer way. So we shouldn't expect tort law to track the moral features of our relationship with total precision, even in this simple story. All the same, you might think, a "tort" is nothing more than a moral wrong in which tort law takes a distinctive kind of interest.

Now, it would take some work to spell this out in any kind of detail--to explain why tort law should recognize certain moral wrongs in the first place, for instance, and when (and to what degree) the law may do so only roughly. Even in outline, though, a story of this kind seems to promise both parsimony and explanatory power. It's striking, then, that the simple story is not the standard one told: It's not the story told by the best-known economic theories of tort law, to no one's surprise. (2) But it's not the story told by the leading moral theories of tort law either, and that is more puzzling. Instead, moral theories of tort law--theories that emphasize tort law's ability to secure corrective justice or provide civil recourse, for instance (3)--tend to say that tort law aims to recognize and respond to distinctively legal wrongs, not moral wrongs. Tort law, in the more standard telling, confers primary rights and imposes primary duties that are distinct from, and only roughly coincide with, our preexisting moral rights and duties. Tort law then recognizes and responds to breaches of these tort-generated rights and duties, not their moral counterparts. So, for instance, if you file a legal complaint after I take your laptop, tort law stands ready to impose liability on me for my legal wrong, but not for the distinct moral wrong that you might have complained of outside the courts. A "tort" is a distinctive kind of wrong, in this picture, not simply a moral wrong in which tort law takes a distinctive kind of interest.

I will call this the "standard model" of torts and moral wrongs, because I believe it is implicit in a wide range of tort theories today. To fix ideas, though, take John Goldberg and Benjamin Zipursky's civil recourse theory of tort law. (4) Goldberg and Zipursky have long maintained that tort is a law of genuine wrongs, and they have defended the suhstanee and structure of tort law in moral terms. (5) At the same time, Goldberg and Zipursky have been anxious to deny that torts are moral wrongs.(6) Instead, they say, a tort is a legal wrong--the breach of a genuine but nonmoral duty that is "generated by," and "exist[s] by virtue of," the "entrench[ment]" of a particular kind of norm in our legal practices. (7) For this reason, civil recourse theory provides a clear example of the standard model, and I will use it as a stand-in for that model here. But I suspect that the standard model is also implicit in other theories that embrace the claim that tort law "creates" or "imposes" its primary duties, for instance, or endorse the thought that these tort-generated duties "overlap with" or are the "counterparts of our ordinary moral duties. (8)

In this Article, I suggest that the standard model gets moral theories of tort law pointed down the wrong track. The model posits a set of rights and duties in the space between our underlying moral rights and duties, on one hand, and tort law's distinctive forms of institutional recognition, on the other. And I think that's a mistake--an unnecessary and misleading epicycle. That said, I think it takes only a small shift in perspective to get back on course. To do so, moral theories of tort law should abandon the standard model and adopt a more streamlined model in its place--a model that dispenses with a distinct realm of tort-generated duties and recovers much of the parsimony and promise of the simple story we started with. According to the "simple model" of torts and moral wrongs, tort law pursues moral ends, just as the standard model says, but it does so by directly recognizing our ordinary moral rights, duties, and wrongs in a distinctively legal way, not by creating a parallel set of distinctively legal rights and duties. The model's claim, then, is not that there's nothing distinctive about tort law, only that tort law's distinctiveness lies in the form of recognition it provides and in its reasons for providing it, not in the normative order that it recognizes.

In my view, the simple model provides a more parsimonious and illuminating way to think about the relationship between the duty-specifying norms of interpersonal morality and the institution of tort law, and a more fruitful framework in which to pose questions about the point and value of that institution. Ultimately, I believe that the simple model has meaningful implications for the practice of tort law too, even if the initial shift in thinking it calls for is quite abstract. I attempt to illustrate some of the simple model's practical and theoretical potential in what follows. But my primary goal in this Article is more preliminary: it's to loosen the standard model's grip on our thinking, so that we're in a position to see the alternative more clearly. My claim, in pressing for this shift in perspective, is not that the simple model is entirely novel, though aspects of it may be.(9) Rather, my suggestion is that the simple model has been neglected--that the model, and the arguments that can be advanced for it, have been incorrectly discounted or dismissed. By the end, I hope to convince supporters of the standard model to give the simple model another look.

Part I begins with what might seem like a surprising suggestion: we can get a better grip on the simple model of torts and moral wrongs by thinking about how and why a political community might strive to recognize ruptures of a very different kind. Part II sketches the simple-model in more detail and explains why it promises to provide a better framework in which to construct and compare moral theories of tort law. Part III turns to tort doctrine--the feature of tort law that makes the standard model seem irresistible to many. I offer several reasons to think that tort doctrine and morality diverge less (and less objectionably) than is sometimes supposed. Even in cases where tort doctrine is stubbornly (even appallingly) out of step with morality, however, I suggest that tort theorists can explain our predicament in simple-model terms.

1. RUPTURES AND RECOGNITION

   California sits at the intersection of the world's two largest tectonic plates.(10) As these plates negotiate their tense meeting, they release a tremendous amount of energy, which radiates outward in waves. As these waves spread across the surface of the Earth, they cause the ground to shake in complex and sometimes violent ways. For the people who live in California, this means earthquakes, lots of them--something on the order of ten thousand a year in Southern California alone." Fortunately, the vast majority are imperceptible; others are unnerving but endurable; only a rare few are harrowing. All the same, the people of California must live with the knowledge that the ground beneath them might shift at any moment. To deal with this fact, Californians have created institutions that can recognize earthquakes and respond to them appropriately. (1) '- Consider just two (slightly stylized) examples.

   First, Caltech is home to the Southern California Earthquake Data Center. In that capacity, Caltech pulls in "real-time" signals from "over 600 remote seismic stations" (13) and keeps fine-grained records of the ruptures beneath California, stretching back to 1932." Caltech is a research institution, so it cares about recognizing and documenting subtle differences among earthquakes. (15) Fault type, wave type, magnitude, and more--all the scientific detail matters. Civen these aims, Caltech is careful to avoid false positives and remains open to refining its published records as better...