"[A]lthough `we are under a Constitution, the Constitution is what the judges say it is.'"(1)
"There is a duty [of care] if the court says there is a duty; the law [of
negligence], like the Constitution, is what we make it."(2)
In Lochner's Legacy, Cass Sunstein noted that scholars have tended to build their positive and normative theories of constitutional law around a few judicial decisions that are taken to reflect fundamental and progressive transformations of the field.(3) In particular, he argued that much of modern constitutional theory might be described as an attempt to identify the moral in the story of how West Coast Hotel v. Parrish(4) rid constitutional law of Lochner v. New York(5) and the doctrine of economic substantive due process.(6)
Modern tort theories, particularly modern theories of negligence, have likewise been built around narratives of progress that attribute special significance to certain transformative cases. One of the most important moments in these narratives is the tale of the "assault upon the citadel of privity."(7) In this story, the part of Lochner is played by Winterbottom v. Wright,(8) the decision that gave birth to the restrictive liability rule that a manufacturer cannot be held liable for injuries caused by its negligently-made products absent privity between it and the plaintiff. The part of West Coast Hotel, in turn, is played by MacPherson v. Buick Motor Co.,(9) in which then-Judge Cardozo, "wielding a mighty axe, burst over the ramparts, and buried the general [privity] rule under the exception."(10)
The parallel between constitutional and tort scholarship is more striking than this, however. It is not just that tort scholars, like constitutional scholars, have constructed theories of negligence around interpretations of transformative cases. Rather, many of our most prominent tort scholars have in fact drawn the same moral from their analysis of MacPherson that the first generation of post-Lochner scholars drew from cases like West Coast Hotel. Indeed, according to the still-predominant scholarly view, MacPherson's overruling of Winterbottom represents the exposure and rejection of the same jurisprudential mistakes that many constitutional scholars writing in the period 1890-1960 attributed to Lochner.
According to the latter group---represented by judges and scholars including, for example, Learned Hand and Edwin Corwin--the critical premise of Lochner and other substantive due process decisions consisted of a claim by the courts that regulatory legislation posed a set of justiciable questions that could be resolved by applying a concept of constitutional rights.(11) Thus, the courts relied on an ostensibly legal and moral concept--the right to economic liberty--to explain why the Constitution entitled, and indeed obligated the judiciary, to block legislative efforts to protect workers from the perceived risks and costs of industrialization, including economic exploitation. This reliance was Lochner's mistake. Legal scholars--Holmes, in particular--had shown that when judges talked of rights, they did not actually invoke a distinctive kind of concept, but instead were disguising, through rhetoric, their own legislative or policy decisions about which rules would promote the public good.(12) West Coast Hotel. on this view, marked the judiciary's belated concession that its prior interference with economic legislation could not be justified by a claim that it possessed a special competence to enforce rights, but instead amounted to the imposition of its own outdated policy views on a populace that did not share them.(13)
The story tort scholars have told, and continue to tell, about the transition from Winterbottom to MacPherson bears a remarkable resemblance to the story just told about Lochner and West Coast Hotel. According to these scholars--who range from Leon Green and William Prosser to Richard Posner and Robert Rabin--the Winterbottom court, like the Lochner Court, claimed that the doctrine of privity was entailed by an autonomous and judicially-identifiable legal and moral concept--in this case, the concept of duty.(14) Thus, just as the Lochner Court held that the notion of rights contained in the doctrine of substantive due process constrained its decision, the Winterbottom court concluded that the concept of duty contained in negligence doctrine obliged it to rule that manufacturers could not be held liable for many of the injuries that they caused.(15) Similarly, these tort scholars maintain that the mistake of Winterbottom was exactly the mistake of Lochner. "Duty," no less than "right," is nothing more than a conclusory label for judicial assessments of prudent policy.(16) Finally, just as West Coast Hotel marked the judicial renunciation of rights, MacPherson marked the judicial renunciation of duty. Thus, according to most mainstream tort scholars, the moral of MacPherson is that the contours of negligence typically are, and ought to be, determined by judicial assessments of the public policy implications of permitting or prohibiting liability.(17)
The troubling aspect of the parallel just described is that tort scholars have not yet reconsidered the foregoing account even as many, if not most, contemporary constitutional scholars have abandoned the parallel account of Lochner and its overturning. Even in its heyday, Holmesian skepticism about rights was never fully endorsed by the courts. Moreover, in the last twenty-five years, the rights-skeptical critique of Lochner has encountered a vast array of criticism from scholars who have little else in common, and who have widely divergent attitudes toward the particular doctrine of substantive due process, including Sunstein, Bruce Ackerman, Robert Bork, Ronald Dworkin, John Hart Ely, and Laurence Tribe.(18) The problem with the account, each has pointed out, is that West Coast Hotel cannot be understood as rejecting rights-based thinking in constitutional law. As demonstrated by court decisions dating from the time of West Coast Hotel to the present, rights-based thinking is essential to constitutional law.(19) Rather, the problem with Lochner was its unwarranted assumption that certain libertarian conceptions of property and contract rights fixed the proper understanding of rights under the Constitution. Armed with this insight, modern constitutional theorists of all stripes have revitalized rights-based thinking in a manner that attempts to account for the judiciary's special role in our constitutional system, yet renders constitutional law capable of accommodating social change.(20)
Unfortunately, no such reassessment has occurred within the world of tort scholarship. On the contrary, mainstream tort theory has remained deeply Holmesian and deeply antagonistic towards notions of duty. Indeed, with the rise to academic dominance of law and economics,(21) and the recent flurry of legislative efforts at tort reform,(22) tort law is today more than ever regarded as raising policy problems that ought not be analyzed in terms of duty-based thinking. Even corrective justice theorists, who have presented powerful and insightful critiques of conventional scholarly accounts of tort law, have focused principally on the duty of repair, and thus have not directly challenged Holmesian skepticism about duty as it relates to the primary conduct of natural and corporate citizens.(23) In short, while rights have been disassociated from Lochner and have regained respect in constitutional discourse, duty still carries the stigma of Winterbottom in torts.(24)
One might be tempted to conclude that the absence of any such reexamination by tort scholars indicates that in tort law, unlike constitutional law, neither the judiciary nor the academy has any reason to question Holmesian skepticism and the concomitant notion that the contours of negligence ought to be determined by judicial assessments of public policy. Certainly it is fair to say that the scholarly critique of duty and the model of negligence developed around it--particularly as articulated in Prosser's treatise--have been enormously influential. Indeed, the critique was a major force behind the
negligence "revolution" effected by the California Supreme Court in decisions such as Dillon v. Legg(25) and Rowland v. Christian.(26) Nonetheless, the supposition that the "Holmes-Prosser" (or "instrumentalist") model of negligence has proved unproblematic turns out to be quite implausible.
As a descriptive legal theory, the model has always had a hard time explaining some of the most basic limitations on negligence liability. These limitations often derive from doctrines that, on their face, raise issues of duty including the existence of a duty to rescue, the duty to take precautions against economic or emotional harm, and the duty of care owed by professionals to nonclients.(27) Faced with these limitations, scholars working within the Holmes-Prosser paradigm have been forced into one of two unenviable positions: either they concede that these doctrinal areas are anomalous,(28) or they develop ad hoc explanations as to why such duty issues are really questions about socially-optimal levels of liability.(29)
At a more basic level, Holmesian skepticism about duty has not merely failed to explain the contours of negligence doctrine. It has rendered problematic the very institution of the common law of torts. According to Prosser, judges are to set the limits of negligence liability by making all-things-considered decisions as to whether it would be good or bad for society to permit such liability. Yet our understanding of the relative strengths and weaknesses of political institutions often leads to the conclusion that the legislative and executive branches are more capable, or at least more appropriate, institutions for making such decisions.(30) Given the predominance of instrumentalist thinking about negligence, it is therefore not...