IS IT WRONG TO DO RIGHT WHEN OTHERS DO WRONG?

Abstract

In recent years, American tort law has been the beneficiary of a growing effort by sophisticated legal theorists to advance a theory that both descriptively and normatively accounts for its doctrines on non-utilitarian grounds.See, e.g., the rich set of essays recently compiled by David Owen upon which I shall draw extensively in this piece. PHILOSOPHICAL FOUNDATIONSOF TORT LAW (David G. Owen ed., Clarendon Press, 1995) (hereinafter PHILOSOPHICAL FOUNDATIONS). Yet despite the formidable challenges that this literature has posed for the economic analyses that have dominated tort law theorizing in recent decades, central tort doctrines persist in defying efforts to describe and defend them as vehicles for redressing rights violations. In saying this, I do not mean to refer to such obvious things as the fact that the Hand Formula“[I]f the probability [of a foreseeable plaintiff’s injury] be called P; the injury, L; and the burden [of precautions necessary to avert L], B; liability depends upon whether B is less than L multiplied by P: i.e., whether B [is less than ] PL.” United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947). appears to allow rights violations in the name of utility or wealth maximization (although corrective justice theorists must admit that the fact that the Hand Formula dominates contemporary characterizations of negligence is a painful theoretical thorn in their sidesFor a denial of the prominence of economic analysis in doctrinal explanation, see Richard W. Wright, The Standards of Care in Negligence Law,in PHILOSOPHICAL FOUNDATIONS, 249–75, 250. For a deontological account of tort law’s use of the Hand Formula, see Heidi M. Hurd, The Deontology of Negligence, 76 B. U. L. REV. 249–72 (1996).). Rather, I have in mind the more subtle but more significant fact that myriad tort doctrines reflect the fundamental thesis that persons have obligations to (re-)structure their conduct so as to mitigate the harms caused by others’ foreseeable wrongdoing—obligations which, when violated, properly serve as a basis for declaring such persons negligent.