On Tort Law's Dualisms
135 Harv. L. Rev. F. (2022 Forthcoming)
10 Pages Posted: 24 Feb 2022
Date Written: February 2022
Abstract
We read with interest Professors John Goldberg and Benjamin Zipursky’s new book, Recognizing Wrongs; Professor Catherine Sharkey’s Book Review; and Goldberg and Zipursky’s Response. Their exchange demonstrates that the field of tort law is alive. But is it well?
Goldberg and Zipursky (hereinafter GZ) and Sharkey put forward what are, at first glance, very different theories of tort law. GZ have updated their civil recourse theory to a theory of “wrongs and redress.” And that is good. But Sharkey maintains that there is still something missing from GZ’s theory: a convincing explanation of what constitutes a civil wrong. Sharkey casts the “cheapest cost avoider” theory as “protagonist,” arguing that it and other instrumentalist theories of tort law are “paramount,” at least when it comes to modern torts, such as products liability.
We think both “sides”—if you want to call them that—miss something. At one level, tort law is about wrongs and redress. That is the private side of torts. And it is what courts do much of the time. At another level, tort law is about preventing harms or, if you like, about the regulatory needs of society. That is the public side of torts. And it is what courts do on occasion, and what legislatures and administrative agencies do very often. If you fixate only on one side or the other, you fail to appreciate the whole of tort law.
The exchange between GZ and Sharkey is full of dualisms: ubi jus ibi remedium, “wrongs and redress,” “‘private’ tort and ‘public’ regulation,” Prosser’s “dual instrumentalism,” GZ’s “dual constructivism,” et cetera. At the risk of piling on, we would like to add two of our own: First, tort law operates at dual levels. There is the level of the case. And there is the level of structure. Once you see tort law in this way, GZ’s and Sharkey’s theories fit together. Second, tort law operates in dual directions. What constitutes a civil wrong most often derives from the regulatory needs of society, and hence often from a desire to place liability on the “cheapest cost avoider.” But what is “cheap” and what is “costly” itself derives from the tastes and values of society, which can be influenced by the current set of civil wrongs. This reverse link, which is sometimes missed, may well represent the future of tort law. And this is so precisely because tort law does need to respond to society’s regulatory needs.
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