Steven Schaus, ‘A Simple Model of Torts and Moral Wrongs’

ABSTRACT
According to the ‘standard model’ of torts and moral wrongs – the model implicit in leading moral theories of tort law – tort law imposes genuine duties that are distinct from, and only roughly coincide with, our preexisting moral duties. A ‘tort’, on this model, is a distinctive kind of wrong, the breach of a tort-generated duty. In this Article, I suggest that moral theories of tort law start with a simpler story – one that dispenses with a distinct domain of tort-generated duties. According to what I call the ‘simple model’ of torts and moral wrongs, tort law aims to recognize and respond directly to moral wrongs. Because tort law recognizes only certain moral wrongs, however, and then only in a coarse-grained, institutional way, tort law tends to diverge from other forms of moral assessment and accountability. All the same, a ‘tort’ is simply a moral wrong in which tort law takes a distinctive kind of interest, on this model, not a distinctive kind of wrong. I aim to show that the simple model provides a more natural and illuminating way to think about the relationship between tort law and interpersonal morality. And I suggest that the model can fit and explain the law that we have, contrary to what some have supposed. Along the way, I seek to show that the simple model has important implications for tort theory, and inescapable practical significance too.

Steven Schaus, A Simple Model of Torts and Moral Wrongs, 97 Notre Dame Law Review 1029 (2022).

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