Epsteinian Torts: Richard A. Epstein, Cases and Materials on Torts

• Publication year: 2001
• Citation: Vol. 25 No. 04

SEATTLE UNIVERSITY LAW REVIEWVolume 25, No. 1SUMMER 2001

Epsteinian Torts: Richard A. Epstein, Cases and Materials on Torts'(fn1)

Allison H. Eid(fn*)

Richard Epstein is one of the most influential legal thinkers of our time. Not long ago, a survey of the "most-cited legal scholars" ranked him number twelve, just behind Archibald Cox, Guido Calabresi, and Harry Kalven, Jr., and ahead of Lawrence Friedman, Henry Hart, and Cass Sunstein.(fn1) A recent retrospective of his work described him as a "world-class legal scholar and teacher."(fn2) Thus, it is not surprising that Epstein has produced a casebook on torts-now in its seventh edition-that lives up to this reputation. Cases and Materials on Torts(fn3) is a complex, challenging, and provocative casebook precisely because Epstein is a complex, challenging, and provocative scholar.

A fascinating aspect of Epstein's scholarly work is his exploration of the apparent tension between libertarian principles and utilitarian thought(fn4) -an exploration that comes alive in his casebook. To Epstein, these two competing principles often coalesce to yield a single "correct" answer to a problem. In other words, the answer that arises from a desire to protect a pre-determined set of individual rights-for example, private property rights, or the right of personal autonomy- often produces an outcome that is also beneficial to the overall common good.(fn5) Some scholars have critiqued Epstein's work by suggesting that there is more disharmony than harmony in the relationship between the libertarian and utilitarian approaches.(fn6) Who has the better argument on the point, however, is not relevant for present purposes. What is relevant is that Epstein introduces, confronts, and explores the potential for tension between the two approaches throughout his casebook in a way that provokes thoughtful and interesting classroom discussion.

A second, and closely related, theme that Epstein explores in his casebook is the overwhelming importance of the older, historic common law cases to the study of torts. In fact, the book devotes almost seventy pages to the age-old debate over whether negligence or strict liability should govern unintentional harms. This historical approach reinforces Epstein's emphasis on the libertarian/utilitarian divide; indeed, the strict liability versus negligence debate roughly parallels the libertarian/utilitarian tension, with strict liability generally (although not necessarily) associated with the former and negligence generally (although not necessarily) associated with the latter.(fn7) This historical grounding also gives students a basis for understanding why negligence governs some unintentional harms while strict liability governs others, and provides them with the tools to challenge the current boundaries between the two theories. Finally, a more historical approach to tort law gives students some sense of the expansion and contraction of tort liability over time-an understanding that puts "tort reform" in context.

A casebook author faces a difficult task: presenting the material in its fullest complexity, while at the same time developing some basic, and hopefully interesting and thought-provoking, themes that tie the material together. Cases and Materials on Torts finds this delicate balance through the twin themes of the libertarian/utilitarian tension and the importance of the historic common law. Thus, the casebook is ideal for classroom teachers who find these themes interesting and important lenses through which to view the subject of torts.

I. The Libertarianism v. Utilitarianism Tension

Throughout his scholarly work, Epstein challenges the age-old assumption that libertarian and utilitarian principles must, by definition, clash.(fn8) He admits that the relationship between the two is often "vexed" and "[u]neasy,"(fn9) and rightly so, for the relationship is a difficult one.

Libertarianism starts with a pre-defined set of individual rights, and then seeks to vindicate those rights when confronted with a legal problem. The "correct" answer to the problem is determined by identifying which party invaded the other party's rights. An overly simplified example of this approach is the following: One has a right to drive down the highway without being hit by another car. If Car A is driving down the highway, and Car B rear-ends it, then Car B is the wrongdoer because it invaded Car A's rights.

The outcome in a libertarian approach is determined by how, and by whom, the rights are defined.(fn10) Epstein defines his set of rights as the "libertarian quartet."(fn11) Under Epstein's account, the law must first "prevent collision between people" by recognizing the right of personal autonomy.(fn12) The law then must "find some way to assign rights in external things to individuals," i.e., to define and recognize property rights.(fn13) Next, the law must, through the vehicle of tort law, protect the rights of personal autonomy and property from invasion, and finally, it must "facilitate gains from trade by allowing the transfer and redefinition of rights" through contract law.(fn14) In his early work in tort law, Epstein grappled with the question of how to identify the "rights invader" and "rights invadee" through an analysis of causation.(fn15)

By contrast, utilitarianism confronts a legal problem not by seeking to identify the "invader" and "invadee," but rather by asking, what result would best further social utility?(fn16) Thus, utilitarianism is a consequentialist approach-that is, in confronting a legal problem, it looks at the consequences of legal rules. Again, the key is to define what social objective consequentialists seek to maximize-for example, utility, happiness, or wealth.(fn17)

Utilitarians and other consequentialists(fn18) do not approach a problem with a pre-defined set of rights to be vindicated, but rather put all the parties' behavior on the table for examination. As stated by Ronald Coase: The question is commonly thought of as one in which A inflicts harm on B and what has to be decided is: how should we restrain A? But this is wrong. We are dealing with a problem of a reciprocal nature. To avoid the harm to B would inflict harm on A. The real question that has to be decided is: should A be allowed to harm B or should B be allowed to harm A?(fn19)

Coase illustrates his fundamental insight of "reciprocal causation" with the case of the confectioner who produces noise and vibrations that disturb his neighbor, a doctor. The question is not who has the predetermined "right" to go about his work, but rather, which activity does society want to favor? According to Coase, "[t]he problem posed by this case was essentially whether it was worth while, as a result of restricting the methods of production which [sic] could be used by the confectioner, to secure more doctoring at the cost of a reduced supply of confectionary products."(fn20) All things considered, utilitarians define the "correct" answer as the one maximizes social utility.(fn21)

The conflict between libertarianism and utilitarianism is plain. In their purest forms, the former ignores consequences, and the latter suggests that only consequences matter. Additionally, libertarianism stresses the rights of individuals; utilitarianism stresses the collective good. (fn22) Although Epstein recognizes this potential for conflict, he suggests that, in practice, often the two approaches converge. In other words, the two approaches come up with the same "correct" answer- that is, the outcome that is protective of rights also happens to yield the best social outcomes.(fn23) Our society protects certain rights from invasion not simply because we favor rights in the abstract, but also because over the long term we have found that those rights serve the overall common good.

Although Epstein's critics commend him for his "touchin[g] optimism," they express doubts that the two approaches are reconcilable.(fn24) For his part, Epstein has remained committed to his mission to demonstrate, on a case-by-case basis, that the "forces that link individual liberty to the common good are far stronger than those that seemingly drive them apart."(fn25)

It is thus not surprising that Epstein has chosen to explore the potential for tension (and possible reconciliation) between these two approaches in his casebook. The casebook begins with one of the most celebrated and criticized cases in tort history: Vosburg v. Putney.(fn26) In Vosburg, fourteen-year-old Andrew Vosburg and eleven-year-old George Putney were pupils in a school in Waukesha, Wisconsin.(fn27) One day, George decided to get Andrew's attention by kicking him under the desk on his shin. Soon after the incident, Andrew became seriously ill and underwent two operations.(fn28) Eventually, he lost all use of the limb.

Vosburg raises a number of challenging questions to explore on the first day of first-year torts. Should George be held accountable for the unexpected damage that resulted from a seemingly innocuous kick in the shin?(fn29) To state a cause of action for an intentional tort, does the tortfeasor need to intend to inflict the damage, or is the intention to do the "wrongful act" sufficient to establish liability? Was the kick "wrongful" because it happened after school "had been called to order by the teacher"?(fn30) Did the doctor who gave Andrew...