Legal Theory – special number on Tort Theory

THE LIMITS OF A NONCONSEQUENTIALIST APPROACH TO TORTS by Barbara H. Fried
Abstract: The nonconsequentialist revival in tort theory has focused almost exclusively on one issue: showing that the rules governing compensation for “wrongful” acts reflect corrective justice rather than welfarist norms. The literature either is silent on what makes an act wrongful in the first place or suggests criteria that seem indistinguishable from some version of cost/benefit analysis. As a result, cost/benefit analysis is currently the only game in town for determining appropriate standards of conduct for socially useful but risky acts. This is no small omission, and the failure of nonconsequentialists to acknowledge it or cure it can be traced to a number of recurring problems in the nonconsequentialist tort literature. Chief among them is the tendency to conflate prohibition and compensation, and to treat imposition of risk and imposition of harm as if they were distinct forms of conduct rather than the same conduct viewed from different temporal perspectives.

CONTRACTUALISM’S (NOT SO) SLIPPERY SLOPE by Aaron James
Familiar questions about whether or how far to impose risks of harm for social benefit present a fundamental dilemma for contractualist moral theories. If contractualism allows “ex post” objections by considering actual outcomes, it becomes difficult to justify the risks created by most public policy, leaving contractualism at odds with moral commonsense in much the way utilitarianism is. But if contractualism instead takes a fully “ex ante” form by considering only expected outcomes, it becomes unclear how it recommends something other than aggregative cost-benefit decision-making. Focusing on T.M. Scanlon’s version, this paper develops this basic choice of interpretation and recommends the ex ante version. The paper explains how contractualism is inconsistent with John Harsanyi–style utilitarianism and how contractualism supplies a principled framework for walking a careful line between the “bad aggregation” characteristic of utilitarianism and the “good aggregation” that is both unavoidable and fully appropriate in public life.

THE PRIORITY OF RESPECT OVER REPAIR by Gregory C. Keating
Abstract: Contemporary tort theory is dominated by a debate between legal economists and corrective-justice theorists. Legal economists suppose that tortfeasors and tortious wrongs are false targets for cheapest cost-avoiders and avoidable future losses. Corrective-justice theorists argue powerfully that the economic account of tort as search for cheapest cost-avoiders with respect to future accidents does not capture the most fundamental fact about tort adjudication, namely, that the reason we hold defendants liable in tort is that they have wronged their victims and should therefore repair the harm they have done. Deterring cheapest cost-avoiders from committing future harms no more justifies imposing liability in tort than deterring future crime justifies hanging the innocent. This is a powerful critique of the economic theory of tort, but it overshoots the mark. As an account of tort law, corrective justice puts the cart before the horse Tort is a law of wrongs, not just a law of redress for wrongs. Repairing harm wrongly done is the next best way of complying with an obligation not to do harm wrongly in the first place. Rights and remedies form a unity in which rights have priority. Corrective justice is thus an essential but subordinate aspect of tort. This paper develops this line of criticism of corrective-justice theory and offers an alternative account of tort that places primary norms of harm avoidance and respect for rights at its center. On this conception, tort is—as the corrective-justice theorists rightly insist—a law of wrongs, but its distinctiveness lies in the content and character of the wrongs with which it is concerned. At its core, tort is concerned with protecting essential conditions of individual agency.

THE MORAL SIGNIFICANCE OF RISKING by John Oberdiek
Abstract: What makes careless conduct careless is easily one of the deepest and most contested questions in negligence law, tort theory, and moral theory. Answering it involves determining the conditions that make the imposition of risk unjustifiable, wrong, or impermissible. Yet there is a still deeper as well as overlooked and undertheorized question: Why does subjecting others to risk of harm call for justification in the first place? That risk can be impermissibly imposed upon others—that is, the very possibility of negligence—presupposes that imposing risk is the kind of thing that can be impermissible. Unless imposing risk can be impermissible after all, unjustified risking is literally impossible. In this discussion, I explore what I call the moral significance of risking, arguing that the moral significance of risking resides in a certain kind of nonmaterial autonomy interest that is implicated whenever one imposes risk of harm on another.

HARM AND ITS MORAL SIGNIFICANCE by Seana Valentine Shiffrin
Abstract: Standard, familiar models portray harms and benefits as symmetrical. Usually, harm is portrayed as involving a worsening of one’s situation, and benefits as involving an improvement. Yet morally, the aversion, prevention, and relief of harms seem, at least presumptively, to matter more than the provision, protection, and maintenance of comparable and often greater benefits. Standard models of harms and benefits have difficulty acknowledging this priority, much less explaining it. They also fail to identify harm accurately and reliably. In this paper, I develop these problems, argue that we should reconsider our commitment to the standard models, and then merely gesture at the direction in which we might locate a superior approach, one that better accounts for the moral significance of harm and its relation to autonomy rights.

Legal Theory, Volume 18, Issue 03, September 2012.

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