## 1. The Range of Torts



In common law legal systems, as well as in what are often described as
"mixed" common law/civil law systems such as those of
Israel and South Africa, most of tort doctrine developed through
decisions made by judges addressing private disputes. In the past
century and a half, the diversity of common law jurisdictions and the
introduction of statutes and competing regulatory regimes have
introduced considerable diversity into the common law, in some cases
entirely displacing parts of it. Despite such variation, the broad
doctrinal structure of the law of torts is fairly clear. It addresses
two fundamental questions of human social interaction.



First, tort law lays out the minimal forms of conduct that people are
legally entitled to demand of each other, prior to any arrangements
that they have made with each other. It does so by identifying and
articulating a range of wrongs for which one person can claim against
another before a court and, if successful, be awarded a remedy. The
most prominent of these wrongs, both in the business of courts and in
scholarly (particularly philosophical) discussions, is the tort of
negligence, which involves careless injury of one person by another.
Other wrongs include defamation, deceit, trespasses to land and
chattel, intentional torts against persons (such as battery, false
imprisonment and private nuisance) and liability for dangerous or
defective products, as well as a range of more specialized torts, such
as public nuisance, misfeasance in public office, the tort of
statutory breach, and constitutional torts (cases in which a private
citizen sues an official for a violation of the citizen's
constitutional rights).



Second, tort law addresses a question about whose problem it is when
things go wrong by generating and enforcing a remedial structure
within which those who have been wronged can claim a remedy from the
person who has wronged them. In order to establish the remedial claim,
the complaining party (the "plaintiff") must establish
that the act of the alleged wrongdoer (the "defendant")
satisfies each of the elements of the tort of which they complain.



Tort law protects each person's bodily integrity against both
intentional and negligent interference; it protects each person
against deceit by others; it protects each person's mental
health against intentional infliction of emotional distress and
negligent infliction of psychiatric injury; it protects each
person's reputation against misstatements by others; it protects
privacy and freedom of movement against certain interferences; and it
protects property against various forms of interference, including
unauthorized use, willful or careless damage and, in the special case
of land, against unauthorized entry and loss of usefulness. No less
significantly, the common law of torts declines to protect other
interests that might be thought equally pressing, such as the interest
in adequate resources or a favorable context in which to pursue
one's purposes, the interest in assistance in times of urgent
need, and the interest in the continued availability of objects and
people on which one relies. Different explanations of the principle on
which tort law decides which interests to protect will be considered
below. It protects the interests that it does by articulating basic
norms of conduct, most of which are continuous with familiar moral
ideas. For example, the basic norm of negligence requires that people
exercise appropriate care around the bodies and property of others, a
moral and social norm that figures in warnings given to children at
playgrounds. So, too, the basic norm of battery--which in English
law is characterized as "unauthorized touching" and in
American law as "harmful or offensive
touching"--reflects the admonition given to children to
keep their hands to themselves. In each case, tort law specifies and
systematizes these familiar ideas and makes them legal rather than
merely social or moral norms.


## 2. The Remedial Structure of Tort Law



The remedial structure of tort law reflects its nature as a part of
private law. Unlike a criminal prosecution (but like an action for
breach of contract) a tort action is initiated by the aggrieved party
rather than the state. Unlike a criminal prosecution, the remedy
sought in a tort action does not involve incarceration or the payment
of a fine to the state, but rather either the payment of damages to
the aggrieved party or, in a limited range of cases, an injunction
requiring the defendant to cease their wrongful activity. Courts also
give a range of more particular damage awards, including nominal
damages (to recognize the existence of a wrong), "general
damages" for the tort of defamation (awarded for the fact of
injury in addition to "special damages" for clearly
quantifiable losses), and aggravated damages for particularly
egregious instances of wrongdoing. In some instances, a court will
award punitive damages, over and above those damages that are tied to
the magnitude of the wrong. As their name suggests, such damages have
a punitive dimension, but they differ in important ways from
punishment for violation of the criminal law, both in the standard of
proof that is applied to them and in the fact that they are awarded to
the injured party. The relation between punitive damages and the
broader structure and nature of tort law remains a matter of
controversy, both in legal doctrine (punitive damages are very rare
outside the United States) and in philosophical accounts.



As an area of private law, tort law also differs procedurally from
other areas of law. Unlike a criminal case in which the standard of
proof is "beyond a reasonable doubt", the plaintiff in a
tort action must only establish that it is more probable than not that
the defendant satisfied each of the elements of the tort. In the
United States, tort cases are heard before civil juries. In the rest
of the common law world, civil juries in tort actions for anything
other than defamation are unusual; in these jurisdictions cases are
decided before a judge. In virtually all jurisdictions the vast
majority of tort litigation is settled before coming to trial.


## 3. Tort Law in the History of Philosophy



Tort law has been an object of philosophical reflection at least since
Aristotle's *Nicomachean Ethics*. It also figured in
medieval discussions by Thomas Aquinas and Francisco Suarez
(Gordley 2006), as well as in early modern discussions of the law of
obligations by writers such as Hugo Grotius and Samuel Pufendorf.
Aristotle distinguished between the role of a court in providing a
remedy in a private dispute from the role of other public officials in
seeing to it that some good or burden was allocated in accordance with
a specified criterion. Justinian's *Digest* (533), a
compilation of Roman law from the sixth century, included extended
discussions of tort cases and principles. Civil law jurisdictions also
drew heavily on the writings of legal scholars. Historically, the
common law did not begin with any attempt at theoretical
systematization, but rather developed through the decisions of judges
who considered it important to limit their reasoning to the particular
case and pleading before them. Until the nineteenth century, English
law had highly specialized "forms of action" determining
the ways in which the plaintiff could plead a case. The forms of
action did not classify various specific wrongs as falling under a
general category of tort. Academic writing tended to stay close to the
doctrine, with only occasional general pronouncements and with little
by way of systematic elaboration (Seavey 1942). Some writers continue
to express doubts about whether tort law can be systematized (Weir
2006; Murphy 2019; Stapleton 2021; for further discussion, see Thomas
2019).



Philosophical writing about the common law of torts developed in the
twentieth century, largely but not exclusively in response to a series
of seminal arguments by the legal scholar and jurist Oliver Wendell
Holmes Jr. in his 1881 book *The Common Law*. Holmes set the
stage for much of contemporary philosophy of torts by asking how we
should understand tort law's apparent use of straightforward
moral terminology--duties, rights, wrongs, injustice, malice,
intent. Holmes himself was concerned with responding to what he saw as
the excessive formalism of legal scholarship and education, as
exemplified in the writings and introduction of methods of study by
Christopher Columbus Langdell, Dean of Harvard Law School. A central
theme of Holmes's book is captured by his famous claim that
"the life of the law has not been logic; it has been
experience" (1881: 1). Throughout his discussion of the common
law, Holmes aimed to bring the resources of social science to bear on
understanding law in terms of the facts available to decision-makers
and the likely consequences of legal rules. He believed that this
approach would make the study of law more practical and useful,
enabling lawyers to better advise their clients about the likely
consequences of various courses of action.



Tort law has a central place in this Holmesian shift of focus, not
only because a lawyer would want assistance in advising clients on
whether to settle tort claims, but also for a systematic philosophical
reason. Holmes recognized the clear parallels between the law of torts
and familiar parts of commonsense morality, and wanted to emphasize
the differences. He therefore begins his discussion of tort law by
noting that 



> 
> 
> The law of torts abounds in moral phraseology. It has much to say of
> wrongs, of malice, fraud, intent and negligence. Hence it may
> naturally be supposed that the risk of a man's conduct is thrown
> upon him as a result of some moral short-coming. (1881: 79) 
> 
> 
> 



Holmes suggests that the appearance is misleading, and that the law is
much more concerned with practical problem solving than with how a
wrongdoer would be judged "in the courts of heaven" (1881:
108). Much of the philosophical discussion of tort law over the past
half century has been focused on understanding the role and
significance of the moral vocabulary that pervades tort law.



Together with the English legal scholar Sir Frederick Pollock, with
whom he corresponded for many decades, Holmes also set a pair of
questions for tort theory. The first is whether there is a general
principle of liability underlying all of tort law or simply a
miscellany of different causes of action. The Holmes/Pollock answer
was affirmative: they each argued in their own way that the basis of
liability was causing harm without justification or excuse. As Pollock
put it: 



> 
> 
> All members of a civilised commonwealth are under a general duty
> towards their neighbors to do them no hurt without lawful cause or
> excuse. The precise extent of the duty, as well as the nature and
> extent of the recognised exceptions, varies according to the nature of
> the case. (1897: 1) 
> 
> 
> 



The Holmesian formulation of this idea is still a commonplace of legal
education in North America; Holmes's analysis draws attention to
multiple factors that might serve to justify otherwise objectionable
harms, most of which focused on the economic and social benefits of
permitting people to harm each other in particular situations
(1894).



Holmes and Pollock raised their second question by introducing a
classification of bases for liability, with a distinction between
wrongs for which liability was strict, wrongs for which liability was
predicated on negligence, and wrongs for which intention was required
(Stevens 2019). These classifications had an important role in shaping
subsequent debates, raising questions of both conceptual analysis and
normative justification.



Holmes's main focus was the tort of negligence. It is the tort
that generates the most litigation in contemporary legal systems. It
is also the tort that has been most frequently supplanted by
alternative systems, such as no-fault automobile insurance and
workplace safety regulation and compensation schemes and, in the case
of New Zealand, a general public insurance scheme which replaced
actions in negligence in cases of personal injury (Woodhouse Report
1967; Price Waterhouse Cooper Report 2008). Policy debates about doing
away with the tort of negligence give philosophical debates about its
structure and purpose a special urgency. If, as most scholars are
prepared to concede, a legal system acts within its proper authority
in introducing these alternative responses to accidental injury, is
anything of moral significance lost when they are?



Holmes's discussion of the tort of negligence drew attention to
another set of philosophical questions about tort law. One of the
elements of the tort of negligence requires that the plaintiff
establish that the defendant failed to exercise reasonable care. The
standard of care is said to be "objective" in the sense
that the inquiry is not about whether the defendant exercised the most
care of which they were capable but rather whether the defendant
exercised the degree of care that a reasonable person would exercise
in the circumstances. The leading case involved a farmer who was
warned that his hayrick was at risk of spontaneous combustion; his
well-meaning attempt to reduce the risk increased it, and the
resulting fire spread to some cottages owned by his neighbor. Although
the court accepted his claim that he had acted to the best of his
abilities, he was held liable anyway. Holmes marks the contrast in
terms of the question before the court: 



> 
> 
> Suppose that a defendant were allowed to testify that, before acting,
> he considered carefully what would be the conduct of a prudent man
> under the circumstances, and, having formed the best judgment he
> could, acted accordingly. If the story was believed, it would be
> conclusive against the defendant's negligence judged by a moral
> standard which would take his personal characteristics into account.
> But supposing any such evidence to have got before the jury, it is
> very clear that the court would say, Gentlemen, the question is not
> whether the defendant thought his conduct was that of a prudent man,
> but whether you think it was. (1881: 107) 
> 
> 
> 



Holmes points to the objectivity of the standard as evidence of the
non-moral character of the law's seemingly moral vocabulary,
writing 



> 
> 
> If, for instance, a man is born hasty and awkward, is always having
> accidents and hurting himself or his neighbors, no doubt his
> congenital defects will be allowed for in the courts of heaven, but
> his slips are no less troublesome to his neighbors than if they sprang
> from guilty neglect. (1881: 108)
> 
> 
> 



The character of the reasonable person is at once completely familiar
and perplexing. English cases historically referred to the reasonable
person as the "man in[on] the Clapham Omnibus" (McQuire v
Western Morning News 1903), and American cases have described him as
"the man who takes the magazines at home and in the evening
pushes the lawn mower in his shirt sleeves" (Hall v Brooklands
Auto Racing Club 1933), using these familiar stereotypes with all of
their cultural baggage as exemplars. The philosophically interesting
question is why these stereotypes are held out as the standard for
people who differ from them: given differences in attention, strength,
and ability, why is there a uniform standard for everyone?



Yet another central question in contemporary debates in tort theory
concerns the point of the entire practice of tort liability. In his
classic discussion, Holmes suggested that the point of tort liability
could not be compensation, because a tort action is an extremely
inefficient mechanism for delivering compensation. Compared to such
things as the workplace safety compensation schemes that were being
introduced in Holmes's time, the tort system is extremely
expensive in its delivery of compensation to injured parties, because
it spends so much time and money litigating disputes, and only
delivers compensation to those who are injured by others who have been
found to be wrongdoers and who can afford to pay. Holmes's own
proposal, echoed by some in more recent decades, is to require each
person to carry their own insurance against injury or property damage
(Atiyah 1997). A system of first-party private or social insurance
would compensate injured parties based on the seriousness of the
injury they suffered, rather than based on a distinction, which is
arbitrary from the point of view of compensation, between injuries
suffered as a result of the careless acts of others and all other
injuries.



Considered as a system of compensation, Holmes concluded, tort
liability is an abject failure. In its place, Holmes proposed that the
point of tort liability was two-fold: to hold people responsible for
damage that they cause and to deter others from creating dangers. Each
of these ideas has been important to subsequent analyses of tort law.
The idea of responsibility figures in Holmes's threefold account
of degrees of culpability. It sharpens the issue of the basis of the
objective standard in negligence, which holds people to a standard
they may be unable to meet. Various developments of this emphasis on
responsibility figure prominently in some contemporary accounts of
tort liability, particularly those of Tony Honore and those
influenced by him (Honore 1999; Perry 2001; Gardner 2001;
2018). Holmes's emphasis on deterrence, in turn, is the source
of much writing seeking to show that the law of tort is a method of
regulating safety by providing incentives for people to take
precautions against the risk of injury. In the second half of the last
century, this aspect of Holmes's approach shaped the development
of the economic analysis of law, which has become a dominant force in
legal scholarship and education in the United States.



Holmes is not always explicit about whether he is proposing to explain
the law as he finds it or to revise it; he suggests that the
traditional law may be inadequate to its tasks of providing for safety
in an industrialized world: 



> 
> 
> [o]ur law of torts comes from the old days of isolated, ungeneralized
> wrongs, assaults, slanders, and the like, 
> 
> 
> 



whereas 



> 
> 
> the torts with which our courts are kept busy today are mainly the
> incidents of certain well known businesses ... railroads,
> factories, and the like... The public really pays the damages,
> and the question of liability, if pressed far enough, is really the
> question how far it is desirable that the public should insure the
> safety of those whose work it uses. (1897: 467)
> 
> 
> 



As a judge on the US Supreme Court, Holmes decided cases in ways that
some have argued are at odds with his theoretical pronouncements about
the law of negligence, focusing on the rights of the parties rather
than questions of insurance. One important case concerned the question
of whether the defendant could be liable for causing economic losses
in the absence of damage to the plaintiff's property. Holmes
held that there was no liability because no right had been violated.
The absence of liability in such cases is largely settled, but this
rationale for disallowing pure economic losses continues to be
contested.



Holmes's efforts to treat tort law as a unified subject and to
analyze that unity in terms of its social and economic effects shaped
doctrinal scholarship in the United States of America in the middle
part of the twentieth century. Skeptical of the ways in which legal
doctrine presents itself, scholars sought to analyze tort law in terms
of how it functions to brings about certain social and economic
effects. The rise of functionalism in tort theory interacted with the
rise of legal realism with its more general skepticism about the
ability of legal rules to generate determinate results and its related
emphasis on the ways in which judges sought to achieve particular
political and economic purposes through legal decisions. This approach
was captured in the title of a prominent article, "Tort Law:
Public Law in Disguise" (Green 1959). Some realist-inspired
writers suggested that the function of tort law was to achieve both
deterrence and compensation; others emphasized one or the other of
these goals (Prosser 1941).


## 4. Contemporary Philosophical Approaches to Tort Law


### 4.1 Economic Analysis



The
 economic analysis of law
 treats tort law as a mechanism for regulating safety in the context
of a broader focus on the efficient allocation of social resources.
This approach follows Holmes in rejecting the law's moral
vocabulary as misleading. Legal economists frequently point out that
we, as a society, have made a collective "Decision for
Accidents" as Guido Calabresi put it in a widely discussed
article (1965). We allow people to travel by car and truck even though
we know statistically that this will lead to a certain number of
deaths per year. We allow major infrastructure projects that will
improve safety and convenience even though we know that people will be
injured or killed in the course of constructing them. Similar
decisions are made, implicitly or explicitly, in determining whether
to permit a wide range of other activities with potential side effects
on participants or non-participants. Some level of risk is unavoidable
and justified, but, when activities are carried out on a large scale,
some level of injury becomes inevitable; the economic problem is
finding the correct level. Rather than analyzing negligence liability
in terms of what the defendant did to the plaintiff, legal economists
propose to understand it in terms of a more general social decision to
determine the appropriate amount of safety for which we, as a society,
are prepared to pay. Life could be made much safer by prohibiting a
wide range of risk-imposing conduct; economic rationality demands that
societies face the question of whether safety becomes too expensive at
a certain point. For example, traffic accidents could be reduced
dramatically by imposing speed limits of 5 mph; the cost in other
goods, however, including not only convenience but such things as food
spoilage and emergency services, would be too high. Economic analysis
proposes to treat tort law as the solution to an optimization problem
of setting the level of safety that is worth the cost of the steps
taken to achieve it, and of allocating the costs of achieving such
safety.



Analyzed in economic terms, the amount of risk that is acceptable in
society should ideally be determined in the same way that every
question about the creation of a cost or benefit should ideally be
determined, that is, through efficient market transactions. In a
perfectly competitive market, with complete information and no
transaction costs, parties could be expected to negotiate, and
determine the terms on which they exposed each other to risks (Posner
1983). As Ronald Coase puts it in one of the foundational texts of the
economic analysis of law (1960), in conditions of perfect competition,
parties concerned to advance their interests would always bargain
around legal rules to reach an efficient result. A rational enterprise
will be indifferent between engaging in a profitable activity and
receiving equivalent payment to refrain from engaging in it. Without
transaction costs, legal rules would make no difference to the
allocation of resources; the only effect of the legal rule would be to
determine the direction of payments. Coase acknowledges that we live
in a world in which transaction costs make bargaining infeasible. The
case of accidental injury illustrates this particularly starkly.
Nobody is in a position to negotiate with everyone who might be
injured through the side effects of their driving, cycling, or other
activities, or through products they produce; conversely, nobody could
be in a position to negotiate with everyone who potentially exposes
them to such risks. Thus, there is a problem which economists identify
as market failure: the parties are unable to reach a mutually
beneficial arrangement. Economic analysis recommends the adoption of
legal rules that will provide people with incentives to approximate
the outcome that would have been achieved by market transactions with
full information and no transaction costs.



Economic analysts of law disagree amongst themselves about the
appropriate structure of rules to reach the market-ideal level of
risk. Some advocate a rule of strict liability, according to which the
person carrying out an activity is made to "internalize"
all of its costs. A rational economic actor engaged is such activities
who was forced to internalize is costs would be indifferent between
paying the costs of avoiding the accident or paying the costs of the
accident. They will therefore invest resources in avoidance costs up
to the point at which doing so will reduce expected accident costs.
Strict liability therefore will yield an optimal investment in safety.
It would give potential injurers an incentive to find innovative ways
to make their activities safer, particularly in a world in which most
injuries are caused not by isolated acts but by ongoing activities
such as the manufacture of consumer products or the operation of motor
vehicles (Calabresi 1965).



A second economic account, introduced by Richard Posner, analyzes the
efficiency problem of safety differently. On this view, the negligence
standard is the appropriate tool to ensure that people neither
overinvest nor underinvest in safety (Posner 1972). Economically
rational agents will not overinvest in safety because they will not
assume expenses from which they expect no return. Underinvestment in
safety is a potential problem, and so the key to an efficient level of
investment in safety is to provide those imposing risks with the right
incentive to reduce them. The appropriate level is set by making
injurers bear the cost of *excessive* risks that they impose. A
specific risk counts as excessive if the cost of reducing it is less
than the expected cost--the seriousness of the injury discounted
by its likelihood--of allowing it to occur. If the burden of
precaution costs is greater than the discounted cost of the injury,
then it is economically rational for the law to permit the defendant
to impose the risk. If someone is injured because it was not efficient
to take a precaution, the injurer should not be held liable; provided
that the level of precaution taken was economically efficient,
transferring funds from the injurer to the injured party is merely
redistributive, and does not improve the overall social allocation of
resources. Posner contends that the only point of tort liability is to
provide incentives for optimal investment in safety; the fact that the
defendant pays the plaintiff in particular is incidental to the
account. Instead, Posner suggests that the plaintiff receives payment
exclusively as an incentive to bring the lawsuit; in effect the
plaintiff serves as a kind of private attorney general. The role of
the plaintiff in Posner's analysis tracks the role of the
plaintiff in the standard economic analysis of US antitrust law, in
which damages are awarded to plaintiffs to incentivize them to bring
suits without those plaintiffs having been specially affected by the
pervasive negative consequences of anticompetitive behavior.



Some of the ideas that inform economic accounts of tort law have been
accepted by theorists who do not otherwise endorse such accounts. For
example, as part of his broader scheme of distributive justice, Ronald
Dworkin adopts one of its central claims, arguing that voluntary
contracting is the ideal solution to problems of social coordination,
and that other areas of law need to be understood as attempts to
approximate contractual results in cases of market failure. Dworkin
develops this view in detail in his discussion of tort law as a
"principle of correction" in (1986: 295), although he is
critical of the broader ambitions of economic analysis (Dworkin
1980).



Economic analysis has a straightforward explanation of the objective
standard in the law of negligence: because tort liability is
exclusively a matter of providing incentives for future conduct, the
fact that the defendant was not in a position to avoid a particular
injury is irrelevant. Economic analysis views injuries in the past as
"sunk costs" which can never be recovered. Making an
injurer pay for an injury that efficient precautions would have
avoided will provide the same incentive even if the specific injurer did
not realize precautions were required.



Economic analysis also proposes an explanation of why there is no
liability for negligently causing economic loss in the absence of
property damage. Posner illustrates his account with a case involving
businesses on an island that customers are unable to reach because the
defendant negligently damaged the only bridge leading to it. Posner
suggests that those losses are not recoverable because the customers
will simply take their business elsewhere, and so there will be no net
loss to the economy. It is not clear whether this account can be
reconciled with the fact that the law would grant consequential losses
to the businesses if they had owned the bridge that was damaged. In
that case, too, presumably the customers would have taken their
business elsewhere resulting in no net loss to the economy. (For a
different economic rationale for the law's treatment of pure
economic loss, see Sharkey 2018.)


### 4.2 Corrective Justice



Beginning in the 1980s, a number of scholars argued that the economic
account of negligence fails to capture the most basic and familiar
feature of a tort action of any kind, the fact that it is a private
action that one person brings against another. The core argument is
that instrumental accounts are unable to explain the
characteristically private and transactional nature of tortious
wrongdoing and so unable to explain the nature of the remedy
appropriate in response to it. In a negligence action, the plaintiff
comes before the court complaining of a wrong that the defendant has
done to that plaintiff in particular. Unlike the pervasive harms of
anticompetitive behavior that are regulated in US antitrust law, the
plaintiff has a particular complaint against the defendant, namely,
that the defendant's carelessness was a violation of that very
plaintiff's right to security of person and property. As Ernest
Weinrib formulates the point, economic analysis proposes separate
explanations of why the defendant pays someone and why the plaintiff
receives payment from someone, without explaining why the defendant
owes compensation to the plaintiff in particular; each party faces
separate incentives that make no reference to the other (1995). Jules
Coleman develops the same general line of argument in slightly
different terms: the familiar structural features of tort
law--the fact that a particular plaintiff recovers from a
particular defendant for a wrong that that defendant committed against
that very plaintiff--cannot be adequately explained by economic
analysis, because it leaves out the law's central focus on the
fact that the defendant has wronged the plaintiff in particular,
focusing instead on incidental factors such as "search,
administrative, and transaction costs" (2001: 23).



Instead of understanding the structure of the tort action in terms of
incentives, Weinrib proposes to understand it in terms of
Aristotle's category of corrective justice. Aristotle notes that
corrective justice rests on the transactional nature of wrongdoing and
so imposes that transactional nature on the remedy. Corrective justice
thus differs from what Aristotle calls distributive justice, which is
concerned with the distribution of benefits or burdens in accordance
with some external criteria, such as the distribution of food on the
basis of need or of Olympic medals on the basis of athletic
performance. Corrective justice is not comparative in this way. As
Aristotle implies, the wrongdoer's wrongful deed and the injured
person's suffering are a single act. If I wrongfully injure you,
my wrongful act and your injury are the same thing: the wrong consists
in what I did to you, and your injury consists in what you suffered by
me. On Weinrib's argument, the difficulty with economic analysis
is that it undoes this unity of the wrong. Weinrib points to the ways
in which the unity of the wrong structures the entire determination of
liability: for each of the "elements" of a negligence
action, the court only considers factors that relate the defendant to
the plaintiff with respect to the particular transaction. Rather than
asking whether the defendant was negligent, or imposed a higher than
normal risk, the court instead asks whether the defendant was
negligent-towards-the-plaintiff, that is, whether the
defendant's carelessness was careless towards the safety of the
plaintiff in particular; so, too, the court asks whether the kind of
thing that happened to plaintiff was the reason that the defendant was
supposed to be more careful. So too, the court does not ask merely
whether the defendant caused the plaintiff's injury, but rather
whether the aspect of the defendant's act that made it negligent
caused the plaintiff's injury. The inquiry looks only at what
transpired between the defendant and the plaintiff: was the defendant
being careful enough in relation to the risk to the plaintiff? Did the
defendant owe this specific plaintiff a duty to be careful? Did the
injury of which the plaintiff complains fall within the scope of the
duty that the defendant owed? Did the defendant's carelessness
cause the very injury of which the plaintiff complains?
Weinrib's argument, then, is that the factors that figure in a
court's analysis of a negligence action always relate the
parties to each other, while the factors to which economic analysis
points all focus exclusively on one of the parties without reference
to the other (1995). For economic analysis the plaintiff's
injury by the defendant serves as the occasion for regulation and so
for liability but not as its basis. The missing element in economic
accounts is the transaction; it alone explains why a particular
plaintiff is entitled to recover from a particular defendant. The same
rationale explains why there is no duty to rescue in tort law: there
is no transaction between the parties. The failure of economic
analysis to attend to the transaction means that it has no principled
explanation of why liability is imposed only for injury but not also
for failure to assist where the cost of assisting another would be
lower than the cost of that person's anticipated loss. A focus
on providing incentives to reduce risks has no principled basis for
limiting its purview to incentives provided to those who have created
the risks themselves; the net loss in economic terms is the same
whether the risk is of natural or human origin. In either case, in a
perfectly competitive market without transaction costs, people would
pay others to protect them, yet the law of negligence does not suppose
that there is therefore a duty (Ripstein 2016).



This emphasis on the transactional nature of the unity of the wrong
provides an alternative to the economic and Holmesian explanations of
the objective standard in a negligence action. Anything relevant to
any of the elements of negligence must concern the relation between
the plaintiff and defendant; as such, no factor that is specific to
only one of them could be relevant to the determination of wrongdoing
and so of liability. On this analysis, a subjective standard--the
one that Holmes contends would be relevant to the "courts of
heaven"--focuses exclusively on the plaintiff rather than
on how things stand as between the defendant and the plaintiff. As
such, it is unilateral in a way that is foreign to the structure of a
tort action. The corrective justice account offers a parallel
explanation of the "ultrasensitive plaintiff rule"
according to which an injured person does not recover for the
defendant's negligent or even knowing exposure of them to things
for which they have unusual sensitivities, in either nuisance or
negligence, even though a person of normal fortitude would recover for
the full extent of their injuries (Ripstein 2016). Once again, an
unusual sensitivity is a factor that is exclusive to one of the
parties, and so insufficient to address how things stand between the
defendant and the plaintiff. The corrective justice account, then,
explains the role of "moral phraseology" in law by drawing
attention to the interpersonal and relational nature of the relevant
morality. That relational structure proposes a systematic response to
the Holmesian insistence that concepts of justice must be concerned
exclusively with good faith efforts. Instead, the corrective justice
account focuses on the ordinary demands that ordinary people are
entitled to make each other. The moral phraseology to which Holmes
drew attention is a familiar feature of the way in which people are
entitled to demand that others be careful around them.



Economic analysts have responded to the corrective justice critique by
suggesting that courts engage in binary adjudication for a variety of
pragmatic reasons, including historical accidents and the beneficial
incentive effects of putting litigation in the hands of people with
financial stakes in its outcome. In addition, they point to the fact
that binary adjudication is a familiar feature of other legal areas
where no private dispute is at issue, most notably US antitrust
law.



This response arguably misunderstands the corrective justice critique:
the claim is not that economic analysis cannot give a functional or
instrumental explanation of binary adjudication. The suggestion that
the plaintiff receives damages in order to provide an incentive to
call out unsafe practices is just such a functional explanation. The
corrective justice critique can be put in two different ways. First,
the court's analysis in a tort dispute is all grounded in the
single transaction; it is exclusively backward looking rather than
forward-looking. It is not just that the decision between the
plaintiff and the defendant is binary, but rather that it is based
only on the specific transaction between them--the remedy is
explicable only in terms of the bipolar transactional nature of the
wrong. Second, the economic analyst's response represents the
corrective justice theory differently than its proponents do, reading
it as the claim that binary adjudication is effective for achieving
corrective justice but for no other purpose. The corrective justice
account is not an attempt to explain remedies and court processes by
asking what goals they best promote. It argues that tort adjudication
is binary because the wrongs to which it responds are binary: they are
a matter of what the defendant has done to the plaintiff. The
transactional nature of wronging underlies the transactional nature of
tort litigation, and so explains why the particular plaintiff recovers
from the particular defendant. The plaintiff's entitlement to
recover is not an attempt to achieve any other purpose.



Some transaction-focused accounts of corrective justice deploy the
Kantian distinction between duties of right and duties of virtue to
develop a positive account of the specific norms enforced by tort law
(Kant 1797). On this view, the moral vocabulary to which Holmes draws
attention is not the general moral vocabulary of virtue or the courts
of heaven. The relational ideas of what one person does to another
apply to separate persons, each with the purposes of their own. They
thereby reconcile the ability of separate persons to pursue those
purposes with the means that they have, centrally their body and their
property. Kantian accounts conceive of rights relationally, rather
than focusing on one side of the relation, such as the choices or
interests of the rightholder. The violation of rights to person and
property does not extinguish the plaintiff's entitlement to be
independent of the defendant's choice. Instead, the
plaintiff's right to constrain the defendant's conduct
survives in the form of a claim to a remedy from the defendant in
particular (Weinrib 1995; Ripstein 2016). The person who wrongfully
injures another or damages the other person's property can be
compelled to return things to their prior condition, that is, to pay
the costs of repairing or replacing the property or of enabling the
injured party to get on with their life in light of the injuries. In
addition, people who wrongfully *use* another person's
body (the tort of battery) or property (the torts of trespass and
conversion) are required to repair any damage that they do because
once again there is a wrongful transaction. This Kantian account also
has a direct and straightforward explanation of the rules regarding
economic loss: if the defendant damages something on which the
plaintiff depends but does not own, the wrongful transaction is
between the defendant and the owner of the damaged thing; if the
plaintiff does not have a right to the damaged object, then although
the plaintiff has suffered a loss, no right has been violated. As
such, the plaintiff is not a party to the wrongful transaction, so
there is no wrong between the person who damaged the object and the
plaintiff to be corrected. In the example of the damaged bridge,
whether the plaintiff's right has been violated depends on
whether the plaintiff owns the bridge. The economic loss rule is thus
treated as an instance of a more general focus on rights to person and
property; those who benefit from property lack the relevant form of
right in it, and the law of negligence does require a person to
protect others from natural perils or the acts of third parties
(Ripstein 2016).



The corrective justice account does not deny that tort liability has
the effect of deterring careless people and compensating injured
people. The point is rather that these effects are insufficient to
explain the law's unwavering focus on the connection between the
plaintiff and defendant: why this plaintiff is entitled to recover
from this defendant and no one else, and why this defendant is liable
to this plaintiff and no one else. Seen from the point of view of
either deterrence or compensation, such a pairing of the defendant and
the plaintiff is arbitrary, as is the law's exclusive focus on
the relation between them. From the standpoint of corrective justice,
the transaction between the parties is the locus of the wrong and the
court's exclusive concern is in addressing that wrong.


### 4.3 Other Versions of Corrective Justice Theory



In the past three decades, multiple versions of corrective justice
theory have been proposed. On Weinrib's formulation, corrective
justice is a principle that is limited to transactional wrongs, which
includes both breaches of contract and violations of individual rights
to person and property. On this view, the apparatus of corrective
justice is brought to bear on only a certain class of
transactions.



A more expansive conception of corrective justice was proposed by
Jules Coleman (2001). Coleman compares the principle of corrective
justice to that of retributive justice. He argues that, just as the
principle of retribution does not contain a complete catalogue of the
crimes worthy of punishment, but rather simply says that serious
crimes merit retributive punishment, so, too, the theory of corrective
justice is on its own silent on the question of the types of
interpersonal wrongs that are its appropriate subject matter. For
Coleman, then, the principle of corrective justice is a general
principle of responsive conduct, which awaits an independent theory of
tortious wrongdoing to which it is to be applied. Coleman offered
several different accounts of the principle of corrective justice: on
one version its purpose was to "annul" wrongful gains and
losses; a different, later version emphasized the reversal of the
effects of wrongful acts by the particular person responsible for
them. On both of these accounts, the concepts of wrongdoing and
responsibility are placeholders, consistent with a wide variety of
views about which acts are wrongful and about the conditions under
which someone can be responsible for an outcome.



A still more expansive account of corrective justice was proposed by
John Gardner (2011). For Gardner, the principle of corrective justice
is a general principle about inappropriate conduct, according to which
the failure to do what one has reason to do does not mean those
reasons come to an end; the normal response to such failure is to do
the next best thing. Gardner illustrates this with the example of
keeping a promise: having promised someone to meet them for lunch at
noon, the promisor who is behind schedule must still show up at 12:15.
The promised act of meeting at noon can no longer be done, and so, on
Gardner's analysis, there can be no duty to arrive at noon, and
no right that the promisor arrive by noon. Instead, there is a new
duty, the duty to do the next best thing. Gardner applies this
analysis to tort liability. If I had a duty to avoid injuring you
because I had sufficient reason not to injure you, and I injure you
anyway, my duty to avoid injuring you can no longer be satisfied. But
all of the reasons that supported the duty will normally still be in
operation; as such, those reasons put me under a new duty, this time
to repair the wrong that I have done. Gardner describes his view as an
account of corrective justice because it regulates "the reversal
of wrongful transactions on the ground of their wrongfulness"
(2011: 22). Correction is thus the correction of a failure to conform
to reasons that apply to you: 



> 
> 
> the reasons why one must pay for the losses that one occasions are the
> very same reasons why one must not occasion those losses in the first
> place, when it is true that one must not occasion them. (2011: 34)
> 
> 
> 
> 



Gardner's account differs significantly from Weinrib's
because of its exclusive focus on the relation between wrongdoers and
the reasons that apply to them, rather than the relation between the
parties. The fact that those reasons make reference to the wronged
party is not essential to the operation of Gardner's conception
of corrective justice. (For comparisons of different versions of
corrective justice, see Steel 2020).


### 4.4 Civil Recourse



Over the past two decades, a new account of tort liability has emerged
with the rise of "Civil Recourse Theory". Initially
introduced by Benjamin Zipursky (2003), and then developed further in
jointly authored work by John Goldberg and Zipursky (2020), as well as
by others, civil recourse theory accepts the corrective justice
account of wrongdoing, but rejects its account of remedies. Civil
recourse writers also accept the corrective justice critique of
economic and other instrumental theories, arguing that tort law must
be understood as in the first instance as law concerned with
wrongdoing, rather than as law governing safety incentives or as an
account of a privatized form of regulation. Instead, a tort is a civil
wrong, a wrong that one person commits against another. Civil recourse
theory shares with corrective justice theory the idea that the wrongs
addressed by tort law are relational, that is, it shares the view that
the plaintiff and defendant must be connected in the right way at
every stage of the analysis of wrongdoing. Civil recourse accounts
therefore reject instrumentalist accounts of wrongdoing, including
what Goldberg and Zipursky characterize as "dual
instrumentalism", the idea that the point of tort liability is
to advance both deterrence and compensation. Civil recourse theory
also reject the economic analysis of tort law that focuses exclusively
on providing incentives to potential defendants, pointing to the
one-sidedness problem to which corrective justice writers also draw
attention.



Civil recourse writers have also emphasized the plurality of torts,
arguing that tort law provides a unified system, because it brings
together the full range of relational wrongs, including not only
negligence of the sort that has occupied so much legal scholarship
over the past century, but also defamation, battery, intentional
infliction of emotional distress and many other wrongs. Civil recourse
theory emphasizes these wrongs, not because they are the main business
of modern legal systems, but because a focus on their relational
structure clarifies the ways in which torts are relational wrongs. An
excessive focus on negligence makes non-relational accounts, whether
focused on deterrence or compensation, appear at least superficially
viable. If, however, tort law really is a unified doctrinal area, then
focus on other torts clarifies that the basic form of tortious
wrongdoing can only be understood relationally. The tort of fraud
provides a particularly clear illustration: it requires that the
defendant intentionally represented the subject matter of the deceit
to the deceived plaintiff. If someone purchases a forged artwork based
on a lie that the seller told to someone else, the purchaser has no
action in fraud against the seller. So, too, in defamation, only the
person who was defamed has a cause of action, even if that
person's family members or business associates will suffer as
much or more from the defamation.



The fundamental disagreement between civil recourse writers and
corrective justice writers turns on the remedial aspect of tort law.
As a common-law subject, tort law develops largely (though not
exclusively) through the litigation of concrete disputes; in the
context of those disputes, the plaintiff is always seeking a remedy
from the defendant. For corrective justice writers, the point of the
remedy is to address the wrong; the relation between the defendant and
the plaintiff that makes the defendant's act towards the
plaintiff wrongful is also the basis for the remedy. For civil
recourse theorists, by contrast, the aim of a tort remedy is not to
repair the wrong, but rather to empower plaintiffs to confront and
make a demand on the persons who wronged them. The difference is
subtle but important: although damages addressed to repairing the
wrong provide one form of recourse, the idea of recourse is more
general. Although remedies are occasioned by wrongdoing, their purpose
is not simply to repair wrongs. Drawing on John Locke's idea of
the social contract, Goldberg and Zipursky suggest that, having
prohibited self-help remedies, the state owes an obligation to persons
who have been wronged to provide them with a civil avenue of recourse
through which they can proceed against those who have wronged them; a
tort remedy is something that the plaintiff is empowered to seek from
the defendant rather than something that the plaintiff is entitled to
receive from the defendant. Until the plaintiff initiates an action
and prevails in it, the defendant is not under a duty to pay damages
(Smith 2012; 2019). Rather than contending that a remedy repairs a
wrong, civil recourse writers read the eighteenth-century Latin maxim
*ubi jus, ibi remedium*--where there is a right there must
be a legal remedy for its violation--as providing those who have
been wronged with the opportunity to do something to those who have
wronged them. Civil recourse writers point to advantages of
understanding the nature of tort remedies in this way, notably in
cases in which tort remedies are insufficient to repair wrongs.
Monetary damages may allow the plaintiff to purchase a replacement for
property that has been damaged or destroyed, but in many other cases
they will not allow the plaintiff to continue life as if the wrong had
not occurred. No amount of money can make up for the loss of a limb,
or a child, or for the humiliation of a breach of privacy or the
willful infliction of emotional distress (Hershovitz 2017). Civil
recourse writers focus on such cases in order to argue that the point
of damages is to enable the person who has been wronged to exact an
appropriate remedy from the wrongdoer, even when that remedy would be
inadequate by any compensatory measure. Even in the case of injuries
that can be readily repaired, or of lost earnings that can be made up
with their estimated monetary equivalent, civil recourse writers
contend that the purpose of the remedy is better explained in terms of
the recourse that it provides rather than the loss that it
compensates. They argue that this provides a more unified account of
tort law, rather than the one that is limited to a narrow class of
interferences with agency and remedies that seek to restore agency
(Sage 2021).


### 4.5 Assessing Civil Recourse Theory



One prominent objection to civil recourse theory, made both by
defenders of corrective justice accounts and defenders of economic
analysis, is that the principle of civil recourse is true but trivial.
The founders of the economic analysis of tort law, Richard Posner and
Guido Calabresi, both of whom were at the time federal appellate
judges in the United States, have argued that the principle of civil
recourse is empty, and could provide no possible guidance to any judge
attempting to decide a case. Instead, other factors, including
instrumental ones, must be introduced in order to explain the
resolution of the case and the measure of damages; that it all takes
place before a court at the initiative of the plaintiff is
institutionally true but analytically insignificant for Posner (2013)
and Calabresi (2013). More generally, the entitlement of someone to
claim a remedy from the person who has wronged them is a generic
feature of private legal relationships, and so fails to shed any
distinctive light on tort law. Instead, just as contract law provides
plaintiffs with remedies because they have been wronged, however
imperfectly those remedies might repair those wrongs, so too does the
law of tort. That legal structure does not, however, lead to the
conclusion that contract remedies have some point other than to
enforce the contractual right that was violated, however imperfect
that remedy may be as a substitute. So, too, in the case of tort law,
any obligation that the state has to provide a forum and avenue of
recourse does not show that the principle of recourse is anything
other than the enforcement of the right that was violated. The claim
that there is no legal duty to pay damages unless the plaintiff brings
suit has also been disputed (Steel & Stevens 2020).



A second objection to civil recourse theory charges that it is nothing
more than a notational variant on corrective justice theory, sharing
its focus on wrongdoing, as well as its accounts of the objective
standard in negligence and its explanation of the lack of recovery for
pure economic loss (Benson 1995; Zipursky 2003). One of the
difficulties in assessing this objection is that, as we saw above,
there are different formulations of corrective justice theory.
Discussions of corrective justice in the civil recourse literature
often associate it with the idea that the plaintiff must be made
whole, that is, with a purely compensatory idea, which some civil
recourse writers describe as moving from a less just state of affairs
to a more just one. The idea that tort liability always leads to a net
improvement in justice is difficult to fit to the world in which tort
law actually operates (Goldberg & Zipursky 2020). Yet prominent
writers about corrective justice, including Weinrib and Ripstein, do
not claim that the point of corrective justice is to increase justice
globally; instead, they characterize remedies in terms of the specific
transaction. Aristotle explicitly rejects the suggestion the point of
corrective justice is to produce greater justice along any further
dimension when he states that duties of corrective justice apply even
in cases in which a "decent" person is required pay
damages to a "base" one (*Nicomachean Ethics*, Book
V, Ch. 4). For Aristotle, the basis of liability is the past
transaction between them, rather than the comparative magnitude of
their holdings along any other dimension. Since civil recourse theory
also begins with a focus on the wrongful transaction, corrective
justice writers suggest that it adds nothing to corrective justice
analysis and does not contrast with it.



Civil recourse theory does, however, differ in at least one important
way from corrective justice theory. It contends that the purpose of a
tort remedy is not to enforce the plaintiff's right against the
defendant, but to permit the plaintiff to exercise a power to proceed
against the defendant; the state owes a duty to the plaintiff to
provide a forum in which that power can be exercised. For corrective
justice theory, the remedy enforces the right that was violated; for
civil recourse theory, the remedy addresses the fact that some right
was violated, rather than enforcing the specific right that was
violated. On this view, damages seeking to repair the specific rights
violated and the magnitude of the loss are only one form of recourse.
The disparate remedies provided by tort law are unified by the fact
that they are forms of recourse rather than by their aim of repairing
rights violations.



This focus on the plaintiff's right against the state
distinguishes civil recourse theory from corrective justice but raises
a further puzzle about the status of that right. As a doctrinal and
interpretive matter, private rights of action in tort have been
abolished in particular cases, as most prominently New Zealand has
done for all personal injuries but, more pervasively, as virtually
every common law country has done for a broad range of workplace
accidents that take place in the course of employment. This raises two
possibilities, each of which faces difficulties. One possibility is
that abolishing the private cause of action abolishes the
victim's right against the state to be empowered to seek
redress, in which case the principle that there is no right without a
remedy is dramatically narrowed in scope. Rather than seeing a right
to recourse as something the state must grant because self-help has
been abolished, on this first alternative, the right of recourse
appears to apply only to cases in which the state has granted both the
right and the cause of action, since the state can abolish both
self-help and the cause of action. While this first alternative
describes a familiar structure of positive law, it detaches civil
recourse theory from its roots in Lockean political philosophy and so
deprives it of its broader explanatory ambitions. Alternatively,
prohibiting self-help in cases of automobile accidents or workplace
accidents while also failing to provide a private right of action
could be characterized as a violation of the rights of those who have
been denied both self-help and recourse, in which case the theory
would require that the state must provide a remedy for that violation.
Such an account fails to fit familiar features of legal doctrine,
which does not require states limiting the rights of action to provide
an alternative remedy to those who would otherwise be able to exercise
them. Other critics have criticized the ways in which civil recourse
theory characterizes legal powers (Herstein 2015), or suggested that
it only applies in circumstances in which corrective justice cannot be
realized (Stone 2022).



Some critics of civil recourse theory have charged it with focusing on
revenge in a way that is morally suspect and at odds with the ideas of
legality. Some defenders have suggested that a focus on revenge
provides a more satisfying interpretation of tort law (Oman 2011;
Hershovitz 2014; Gold 2020). On this interpretation, the Lockean idea
of a social contract is framed in terms of a default moral position in
which self-help motivated by resentment or outrage is the appropriate
response to having been wronged. For understandable reasons, states do
not permit self-help, particularly self-help carried out in anger, and
so must provide a substitute for the conduct they have prohibited. On
this understanding, civil recourse is plainly distinct from corrective
justice, because the point of the remedy is not merely to grant power
to the plaintiff but to enable the plaintiff to act out of anger in a
controlled setting. Such an interpretation faces both analytical and
normative challenges. The analytical challenge is in explaining how
the entire account does not presuppose a prior and more fundamental
principle of corrective justice: if recourse is a substitute for
legitimate revenge, the most obvious interpretation of the imagined
social contract would represent the right of recourse as the
compensation due to those who have been improperly deprived of a
natural right to exact revenge. The normative difficulty comes from
the assumption that there is a right to take revenge, so that the
state owes compensation for depriving people of it. However pervasive
the desire for revenge might be in human psychology, prohibiting it
does not seem to be the kind of wrongful act that requires
compensation (Ripstein 2011; Steel 2021). A different interpretation
of the revenge rationale understands the granting of a right of
recourse not as something that is owed as a matter of justice but
rather as a political compromise in order to maintain peace by giving
certain moral emotions an output. As a piece of political sociology,
this account would need to explain how that outlet is properly
preserved in a system in which most cases are settled, and why it is
required in cases of injury for which the law provides a remedy even
though outrage would seem both inappropriate and idiosyncratic, such
as mistaken but harmless trespasses to land and cases in which the
defendant's best efforts fell below the standard imposed by
law.


### 4.6 Fairness Theories



Other writers have proposed different justice-based accounts of the
common law of torts. George Fletcher proposed to understand tort
liability as a violation of reciprocity; those who impose
non-reciprocal risks on others must compensate for the harm that they
do (1972). Other writers, drawing on John Rawls's theory of
justice have proposed to understand tort law in broadly contractarian
terms. For example, Gregory Keating has argued that corrective justice
is a subordinate principle in tort law, the purpose of which is to
uphold entitlements--not only to property but also to personal
security--that are themselves the product of a contractualist
procedure (1996; 1997). Keating argues that corrective justice's
emphasis on the form of a tort action attends to remedies without
adequately accounting for the way in which those remedies are
secondary to the rights that they enforce. In order to identify the
relevant rights, Keating suggests a contractualist procedure similar
to those developed by Rawls and T.M. Scanlon. The proposed
contractualist account would weigh the substantive interests of people
in liberty and security, and would attach priority to bodily security
in particular. It would therefore require two things. First, it would
require that business enterprises that characteristically create risks
to life and limb spend more on precautions than would be justified
through an economic analysis of their expected costs and benefits.
Second, it would require that those who suffer injuries, even if those
injuries are unavoidable--as is likely in a world in which, as
Holmes puts it, enterprises engaged in ongoing
"activities" rather than isolated "acts" on a
large scale will inevitably produce injuries no matter how careful
they are--receive compensation even though nothing short of
prohibiting those worthwhile and beneficial activities could have been
done to prevent those injuries. Keating puts this point in terms of an
idea of enterprise liability under which an enterprise that imposes
costs on others should properly be made to bear those costs.
Enterprise liability, in which manufacturers were required to insure
against all injuries caused by their products, even those that could
not be prevented through further care figured prominently in a number
of decisions, particularly in California, in the second half of the
twentieth century. A leading case involved a cola bottle that
exploded, injuring the plaintiff, although there was no evidence of
negligent manufacture. In recent decades, the prominence of enterprise
liability has largely faded.



Like some versions of economic analysis, Keating's social
contract account is avowedly normative, proposing significant changes
to tort doctrine. Like economic analysis, it sees tort law as one of
many tools available to the state in dealing with safety (2021). It
differs from economic analysis in the greater weight that it proposes
to give to personal safety rather than convenience. Ultimately,
however, it engages in the same type of balancing, and appears to be
vulnerable to the interpretive objections that are frequently raised
against economic analysis, in particular, that it leaves no place for
some of tort law's most familiar doctrinal structures, such as
the relational structure of wrongdoing and the distinction between
wronging someone and failing to confer a benefit on that person. For
example, the priority attached to safety over convenience or
profit-making applies not only to the taking of precautions but to
assisting others who are endangered by natural perils; the same
weighted cost/benefit analysis would seem to apply to the person who
could make an easy rescue or, more generally, provide benefits to
others. However morally meritorious such acts might be, and whatever
might be said in favor of other forms of regulation mandating them,
they are incongruous with the way in which tort law frames issues of
interpersonal interaction.


### 4.7 Other Issues: Causation



Causation, which is a further element of the tort of negligence, has
figured prominently in recent debates. Some of these debates are
normative. They concern whether causation is relevant to liability,
because the causal upshots of careless behavior are beyond the control
of the person who is careless. This, too, is a debate prefigured in
Holmes, who wrote 



> 
> 
> When a man commits an assault and battery with a pistol, his only act
> is to contract the muscles of his arm and forefinger in a certain way,
> but it is the delight of elementary writers to point out what a vast
> series of physical changes must take place before the harm is done.
> (1881: 91) 
> 
> 
> 



A number of writers have sought to explain the consistency of
whichever moral ideas they suppose properly shape tort law with the
role of luck in negligence liability, and with the fact that tort law
has no analog of the criminal law's category of attempt
liability (Alexander 1987; Ripstein 1998; 2007; Ripstein &
Zipursky 2001; Waldron 1997; Goldberg & Zipursky 2007).



Causation also raises conceptual issues. The basic legal rule for
factual causation in a negligence action is that a defendant who has
breached a duty of care to a plaintiff is not liable for an injury to
that plaintiff unless the injury was caused by the defendant's
breach of the duty of care. The law understands the cause of an event
as a necessary condition for its occurrence, typically cast in the
vocabulary of "but-for" causation: but for the
defendant's negligence, would the plaintiff have been injured?
If the plaintiff's injury would have happened even had the
defendant not been negligent, the plaintiff will not recover. This
requirement raises puzzling cases involving overdetermination, as when
a ship collides with two others in separate events, requiring it to be
out of commission while each of its two sides is repaired, or when two
defendants pass the plaintiff's horse on opposite sides at the
same time, startling it simultaneously, or when multiple fires merge.
The but-for test is of no assistance in these cases, since it leads to
the counterintuitive conclusion that neither defendant caused the
plaintiff's injury. Courts have developed various tools for
dealing with these problems, and philosophers have offered
interpretations of the problems.



A second causal issues arise in cases in which the ordinary burden of
proof--the plaintiff must ordinarily establish each of the
elements of a tort on the balance of probabilities--cannot be met
because of factual uncertainty. In some cases, the factual uncertainty
is itself the result of the negligence of multiple defendants, as when
two hunters fire their guns negligently in the direction of a third,
causing a piece of buckshot to lodge in the third hunter's eye.
Had the two defendants not been negligent, the plaintiff would not
have been injured, but the presence of more than one defendant
confounds the plaintiff's hope of proving that either one caused
the injury. The approach that most common-law courts (outside the UK)
have adopted for dealing with these cases strike most commentators as
both sensible and fair: both hunters are liable if they cannot
causally exculpate themselves. There are, however, deep questions
about whether the sensible rule about the burden of proof amounts to a
limited rejection of the causation requirement, or whether instead it
is a distinctive interpretation of causation. In cases involving large
numbers of both plaintiffs and defendants, particularly in litigation
involving mass torts, these questions are multiplied. Philosophers
have tried to offer interpretations of the results in these cases,
with some arguing that such cases require a different way of thinking
about the place of causation in tort law (Thomson 1984; Ripstein &
Zipursky 2001; Steel 2015a; 2015b).



A third causal issue arises in cases in which more than one precaution
is available to a defendant that would render the defendant's
conduct safe enough (however that is to be determined). Some of those
precautions might have prevented the specific injury suffered by the
plaintiff and others not (although all would reduce the risk to an
acceptable level). For example, two forms of medical precaution might
make a procedure sufficiently safe but do so by reducing different
aspects of its characteristic risks. If the defendant physician takes
one of the precautions, but the other precaution would have prevented
the injury suffered by the plaintiff, the injury was the realization
of the risk, yet the defendant was not negligent. As both a legal and
as a philosophical matter, the question "if the defendant had
not been negligent, would the plaintiff have suffered the same
injury?" seems to admit of no single answer, but rather to
depend on which of the untaken precautions forms the relevant contrast
case (Gilboa 2019).