Tort law inside out.

Author:Tilley, Cristina Carmody

ARTICLE CONTENTS INTRODUCTION I. JUSTIFICATIONS FOR TORT LIABILITY A. A Brief History of Tort Theory B. The Externality of Existing Tort Theories C. The Degenerative Results of Competing External Tort Theories D. Using Doctrine To Devise an Internal Account of Tort 1. Approach 2. Results E. "Community" as the Doctrinal Source of Liability Norms II. UNPACKING COMMUNITY A. Political Community and Public Law B. Sociological Community and Tort C. Toggling Between Different Sociological Communities D. Sociological Community in the United States 1. Early American Community 2. Modern American Community 3. Nested American Community III. THE DOCTRINAL SIGNIFICANCE OF SOCIOLOGICAL COMMUNITY A. Community in Case Law 1. The Colonial and Antebellum Period 2. Doctrinal Pivot Points 3. The Modern Period B. Community in the Restatement C. The Prescriptive Implications of Community in Tort Doctrine IV. TORT LAW'S COMMUNITY TOGGLE IN OPERATION A. Intentional Torts B. Strict-Liability Torts C. Negligence D. Implementing the Toggle V. COMMUNITY AS A MEANS FOR MEASURING TORT LAW'S OVERLAP WITH OTHER BODIES OF LAW A. Tort Versus the Constitution 1. Dignitary Torts and Freedom of Speech 2. Negligence and the Right To Keep and Bear Arms 3. Other Potential Clashes Between Tort and Public Law Rights B. Preemption CONCLUSION APPENDIX INTRODUCTION

For more than a century, scholars have been looking at tort law from the outside in. Theorists committed to external goals like efficient allocation of resources or moral justice have treated tort law as a mere vehicle for the achievement of their policy preferences, rather than as a body of law with a discernible internal purpose. It is time to revisit tort on its own terms.

This Article takes its cue from the New Doctrinalists, (1) who urge that extralegal normative insights from fields such as economics or philosophy aid adjudication only when they are directly tethered to legal concepts--that is, to doctrine. Scrutinizing tort doctrine yields a surprising insight: tort law is not primarily concerned with efficiency or morality, as the instrumentalists have long contended, but with community. A linguistic study of the Restatement of Torts reveals that doctrine alludes to the concept of community more frequently and more comprehensively than it does to any other justificatory concept. Specifically, throughout the Restatement's discussion of negligence, strict liability, and intentional wrongs, doctrine disfavors stating interpersonal duties in positive terms, preferring to let them float with community values. Consequently, 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.

Tort doctrine acknowledges that two distinct kinds of community--closed and open--can generate the values that govern resolution of interpersonal disputes. Accordingly, tort doctrine embeds a choice between the morality norms of traditional, closed communities and the efficiency norms of the modern, open community, depending on whether the dispute is local or national in scope. Thus, a descriptive account of tort doctrine suggests that morality and efficiency are not mutually exclusive theories of tort, but rather complementary manifestations of tort law's broader community-constructing purpose. Furthermore, as a prescriptive matter, this Article suggests that tort should embrace and refine its ability to toggle between local morality and national efficiency. Making this normative toggle explicit would enhance the internal integrity of tort and improve its external standing relative to other bodies of law such as the Constitution or federal statutes.

Part I of this Article rehearses the history of tort theory in the United States, situating its evolution within the wider academic tension between doctrinal formalism and Legal Realism. Broadly speaking, tort theory has split into two camps: economists view tort as a method of encouraging efficient private behavior, while philosophers and political scientists view it as a method of achieving a kind of moral justice. These schools of thought are antagonistic and each levels an effective critique against the other. Part I then shifts from external accounts of tort by these disciplines to an internal view of the law itself, as represented by standard tort doctrine. The Part demonstrates that doctrine is less concerned with efficiency or morality than it is with the concept of community.

Part II unpacks the concept of community. First, it distinguishes between political and sociological versions of community. It demonstrates that while public law "communities" are political organizations, the private law tort community is a sociological organization. It summarizes the devices that sociological communities use to develop and maintain relational norms, and shows how those devices are replicated within the operation of tort. Further, it explains that sociological community can organize itself in either a closed, traditional configuration or an open, modern configuration, and that both types of sociological community can be nested within a single political community. It demonstrates that at the founding, the United States comprised multiple closed communities, whereas by the end of the nineteenth century a unitary open community had been forged atop those many local groups.

Part III shows that, as a descriptive matter, the primary goal of tort doctrine is community construction. Tort has historically served as a means of determining community norms, encouraging observance of those norms to enhance private cooperation, and stigmatizing those who deviate. During the colonial and antebellum periods, most private interpersonal disputes were restricted to closed communities whose values tended to arise from a shared morality that could provide the liability referent in nominate, strict liability, and negligence causes of action. As the nature of American community evolved to comprise both traditional, closed communities and a modern, open community, courts consciously adapted two key tort doctrines, the privity requirement and the equation of custom and reason, enabling tort to draw liability-determining values from the open community when a dispute arose between remote parties or from the closed community when a dispute arose at that level. As a result, courts in the modern period began to move fluidly, drawing liability norms from either the closed or the open community depending on the particulars of the case at hand. Part III suggests that tort doctrine's reliance on community as the source of norms for open-textured liability elements implicitly encourages decision makers to toggle between traditional and modern values--between morality and efficiency. Finally, Part III concludes that tort doctrine has not explicitly acknowledged the capacity to toggle between communities or between norms. Thus, as a prescriptive matter, it argues that acknowledging tort law's capacity to toggle would clarify the basis of tort liability in individual cases and would reconcile the theoretical impasse between morality theorists and efficiency theorists.

Part IV illustrates how the task of assigning interpersonal liability would be improved by making tort law's historically implicit use of distinct community norms explicit. Using as examples the intentional tort of battery, strict liability for child football injuries, and negligence liability for failure to vaccinate, Part IV demonstrates how tort could impose liability to do "justice" in local disputes and to achieve "utility" in national ones.

Part V sketches how a bifurcated community theory of tort might influence tort law's standing vis-a-vis other bodies of law. First, it proposes that when the Constitution appears to insulate behavior that might otherwise be considered tortious--such as revenge porn or careless gun storage--fixing the community scope of a damage verdict might reduce the need for a robust constitutional override. Second, it suggests that obstacle preemption analysis--governing conflicts between federal regulation and state tort verdicts--would unfold more coherently if courts could better calibrate the community scope of the verdict under review.


Tort law is one of the oldest bodies of law. (2) For centuries, tort law's purpose was thought to be "corrective justice"--identifying "wrongdoers" obliged to return victims to a pre-injury position. (3) But in the mid-nineteenth century, many American judges and tort theorists began to describe this theory as overtly moral and therefore incompatible with a liberal democracy designed to ensure fairness rather than goodness. (4) As Legal Realism introduced the idea that judges giving lip service to doctrinal rules were in fact motivated by extralegal concerns, some scholars concluded that tort was better understood as an instrumental scheme designed to achieve social policy goals. (5) Ultimately, the policy goal that emerged as the favorite of twentieth-century tort theorists was the optimal allocation of accident costs to incentivize care without discouraging socially useful activities. (6) Although this efficiency view of tort has moved into the mainstream, it has not displaced entirely the earlier understanding of tort. In fact, American tort theorists today are "split between two competing conceptions of tort liability. One conception is economic; the other, for lack of a better word, is moral." (7)

  1. A Brief History of Tort Theory

    Explanations for tort liability dating back to Aristotle have referred to its "distinctive moral structure." (8) The idea that individuals were entitled not to be harmed by their fellows, and that the doing of harm triggered in the doer an obligation to compensate, was termed by Aristotle...

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