What is a tort? (III)
Central Issues
Backward looking
Tort lawsuits, ordinarily, begin with an injury to person or property and a question: who should bear the cost? In its basic orientation, thus, torts is backwards looking. Unlike a regulator that might ask how to structure an activity so as to prevent accidents, torts actions arise only after the injury has occured. To be sure, intelligent answers to the backwards looking question will usually take into account future effects -- if this actor is required to bear the costs of the accident as opposed to that one, how will people react in the future? Nonetheless, the explicit focus is always backwards. No court requires litigants to provide evidence of how a decision will affect future behavior, and indeed, doctrine often seems perversely uninterested in future consequences. Future orientation expresses itself, instead, in implicit judgments underlying the backward-looking doctrines and often influencing choices between competing rules of law.
"Bad mental state" or "Clean up your mess"
Perhaps the most significant doctrinal divide in tort law is the proper scope of the fault principle. Holmes insisted, and tort lawyers sometimes assume, that tort liability is imposed because the defendant acted badly: intentionally sought to harm someone or negligently failed to take precautions that anyone should take to avoid harming others. On this view, liability requires a finding of fault and is a judgment on the character of the defendant. People who act reasonably, by definition, cannot be responsible for torts. Accordingly, we can refer to this as the "bad actor" theory of tort.
But most torts aren't committed by human beings but rather by institutions. Moral notions of intent and ordinary care founded in understandings of individual character and behavior apply to institutions only metaphorically, and even so generally the fit is rather poor. Institutions act differently from individual people, respond to different motivators, and make decisions in different ways. Notions of intent and negligence founded in individual psychology often don't make much sense when applied to institutions. Institutions are mere tools for human ends; if they don't serve those ends, we should have no hesitation about radically restructuring them or even closing them down in ways that would be unthinkable in the case of individuals. Still more important, ordinary care concepts transform radically when applied to the statistical world of mass production: there is no such thing as an "accident" in the ordinary sense when the scenario is repeated so often that even highly unusual incidents are certain to occur sooner or later.
As a result, a second major strand in modern tort law is simply uninterested in questions of blame and character. On this view, the key issue is whether the defendant should be required to clean up messes it made or make its victims whole, rather than whether it acted inappropriately.
The moralistic overtones of fault tend to shift on this view. While the first, criminal-law influenced, view looks for people who've done something wrong, the second one recognizes that even quite appropriate behavior often makes messes. In ordinary life, those who make messes are expected to clean them up. No one thinks that mess-makers are entitled to require others to clean up after them just because making the mess was reasonable. So, in the kindergartens where we learn our basic morality, there is nothing wrong with fingerpainting. At home, there is nothing worng with using every pot in the kitchen to cook up a feast, or spreading your work out on the living room floor. In manufacturing, it is entirely appropriate to make a useful product even if it requires using some raw materials to do so or leaves some scrap at the end of the process. None of those actions show a flaw in character, and none are acts that society or the courts have a reason to ban or deter. Still, each makes a mess and someone needs to clean it up, and ordinarily, barring some conflicting claim, the person who made it is the best candidate to clean it up.
On this view, tort liability is not a reflection on character at all, and a finding of "fault" is not a finding of bad behavior so much as a judgment about causation and responsibility: that the mess should be associated with the defendant's action and not someone elses. This view has been explicated largely by scholars with an economic orientation -- most famously, Ronald Coase and Guido Calabresi -- and therefore is often referred to as the "pricing" theory of tort.
In economic terms, this view sees tort as a way of internalizing externalities so that price of a given activity includes all the costs associated with it. Just as a manufacturer must pay for the raw materials and labor it uses even if the product is useful, so to it should pay for the pollution, garbage and injuries it causes, regardless of how useful the product is. Tort, then, corrects a problem in markets: if producers are allowed to walk away from the messes and injuries they cause, their private costs will not match social costs; customers will pay a price that does not fully reflect the resources used in producing the product. By correctly pricing the product, we can increase efficiency -- create more of what people really want and are willing to pay for.
I prefer, however, to think of it as the "clean up your mess" theory, first to avoid the economic jargon, and second to emphasize that the central issue on this view of the law is likely to be only partly explicable by narrow economic analysis. To answer the question, "Whose mess is it anyway?," we are likely to need moral and legal analyses that go well beyond pricing theory.
"No fault" liability
The clean up your mess view is sometimes, confusingly, referred to as "no fault" liability. This locution is a misnomer. While the "clean up your mess" view of tort law does not require a finding that the defendant was a bad actor in Justice Holmes' sense, it still requires judgments about fault. Events have an infinite number of causes. Only some people who cause messes are responsible for cleaning them up; this is a moral judgment about responsibility even when no one acted improperly.
In my house, for example, kitchen messes are generally viewed as the "fault," or at least the responsibility, of the eaters rather than the cook. On a Holmesian view, this would be silly. Neither hunger nor cooking are unreasonable and we certainly don't want to deter either one (at least in reasonable quantity). Holmesian tort would, therefore, hold that the mess is no one's responsibility. Presumably the mess would simply stay there until it rotted away or someone decided they couldn't stand it any more.
The clean up your mess view takes a different perspective. The mess needs to be cleaned up, and the issue is who is responsible for doing so. The issue is normative rather than physical. "Causation" won't resolve the issue. The mess was "caused" by cook and eaters alike along with an infinte number of other circumstances and actors. Instead, the question is who should clean. That is a question of "fault," but not in Holmes' sense. You can be responsible for something without having done anything wrong; there is no reason to fetishize bad acting in the way Holmes did. Our view (other families take different views) is that those who eat and do not cook should clean. This is a judgment about responsibility, easily assimilated to traditional fault language ("the mess is your fault because you made it, or because it is your turn to clean") without any suggestion that the person who must clean is being punished or did something wrong.
Difficult tort issues often involve the difference between these two views of the goal of the system: defendants who clearly should be liable under the mess view will try to deflect discussion into Holmesian terms, where they will be allowed to walk away from messes they've clearly caused so long as they caused them responsibly. The conflict is rarely articulated explicitly, however, so lawyers who consciously consider its implications will have a significant advantage over those who assume that the system is internally consistent and unproblematic.
Reasonable: not insane or proper?
On less dramatic levels, similar conflicting views appear in many other difficult areas of the law. As just one example, standard Holmesian negligence law holds that people and institutions have a duty to act "reasonably" and will be held liable if they do not do so. But even within the Holmesian conception of liability based only on bad action, "reasonable" is ambiguous. Usually it means something like normal, average, usual, not insane, the man on the Clapham bus, the way most people would act under the circumstances. Not infrequently, however, it shifts to a more normative sense: the way a civilized person should act under the circumstances, the way most people would if they were thinking about it or on reflection, or with due regard for the costs they are imposing on others. Although these two views overlap, they have a clear area of difference. Indeed, taken seriously, the second account of reasonable action can press Holmesians towards a convoluted and sometimes circular version of the clean up your mess view, where reasonable people only make messes when the benefits of the act are worth the mess -- but apparently also believe that they are entitled to walk away from worthwhile messes without cleaning them up.
In Fundamental Disagreement
Tort, in the end, concerns very basis -- if not always simple -- problems in human relations. When one person hurts another one or damages their property, or doesn't do something that would have prevented the injury, tort is the body of law that determines whether an apology is enough or, instead, compensation is due as well. Because the issues are fundamental, the law rarely strays far from ordinary moral intuitions.
This does not mean that the law is easy to understand, simple or consistent, however. Our moral intutitions are neither simple nor consistent, so the law based on them is unlikely to be so either.
Some moral philosophers -- most famously, John Rawls -- have claimed that if we thought hard enough about our moral views we would reach a state of "reflective equilibrium" in which we would have one, and only one, consistent view of the right way to behave in a given situation. Dworkin extended this idea to the law itself, contending that ideally, the law ought to reflect this reflective equilibrium; a great judge would be able to construct an internally consistent view of the law.
But disagreement is too fundamental for these views to be correct. Not only do we disagree with each other, we disagree with ourselves. Our moral views are not consistent and cannot be made consistent. Different people have differing moral intuitions about given situations. Indeed, each of us, taken individually, are likely to have different and conflicting moral intuitions about any given circumstance that is worth litigating about. That is why "socratic method" practitioners can so easily lead students into untenable positions. That is why lawyers can make good faith arguments on both sides of many issues without the law descending into moral nihilism or indeterminacy. Good arguments tap into one or more of the available moral premises. And they give a reason -- more often rhetorical than logical, in the nature of a novel rather than a formula -- why that premise and its associated line of doctrine ought to be preferred to the available alternatives.
The system does not collapse simply because the available moral and doctrinal arguments are not infinite. We share a collection of basic principles, which each of us learned at home and in kindergarten. Clean up your mess is not a mysterious principle; neither is Holmes' s "I didn't mean it" defense. "Everybody does it" is a familiar and often valid excuse, as is the standard mother's reproach - "if everyone was going to jump off the Brooklyn Bridge, would you do it too?". Good lawyers identify these principles, explicitly or implicitly, and learn to predict when and where particular ones will be more likely to persuade than their competitors.
Thus, to analyze tort issues, the first step is to identify the fundamental principles that could make each side's position sensible. If a case was litigated, each side thought their position was good enough to warrant paying legal fees and taking the chance of total loss instead of apologizing, conceding or compromising. It is possible that one side was just pig-headed. But it is more likely that both had a valid appeal to a standard, widely held, moral view. You should be able to name it, and in tort, you should be able to reduce it to an aphorism you learned as a pre-schooler. Consider whether the moral intutition is directed towards a particular social goal -- getting the mess cleaned up, for example, or protecting the innocent and helpless, or encouraging the competant and resourceful. Those social policies are generally reflected in the moral aphorisms and generally embody the same conflicts. Next, identify the legal doctrines that embody the kindergarten principles. Having identified the conflict, you are now in a position to consider what arguments or facts would make you (or a judge or jury) more likely to see the problem as governed by one set of doctrines rather than another. Don't get too lost in the legal jargon; if you can translate the doctrine into the ordinary language of living together, you will make a more powerful argument. And most of all, don't assume that the doctrine can speak for itself. Results that make no sense are results that invite judicial correction. The litigator's job is to explain the sense of the position she is defending; the planner's job is to forsee the ways in which the rules he is relying on might change, or the perspective from which they will look completely different. Only after you have placed the issue in its moral, policy and legal frameworks can you intelligently exercise judgment: a considered opinion about how the conflicts should, or most likely will, be resolved.
Tort is common law. If judges find that the precedents conflict with their sense of right and wrong, they will almost always attempt to do what is the right thing. Usually the precedents will allow this, and generally if the judge is convinced of the right answer, that answer will also appear to be the best available reading of the precedents. Precedents frame any legal discussion; they rarely determine it. (And when they do, lawyers become utterly superflous).