Functions of Tort Law
To involve yourself in the coercive transfer of money, you should have to ask “why me?”
Why do I have to transfer funds? Talk about fairness….explains the good Samaritan rule.
A. Corrective Justice
a. May help restore moral balance.
i. The wrongdoer should provide the wronged with compensation,
even though it will never be as good as the real thing.
ii. Seeks to shift loss from innocent to blameworthy, or from more
innocent to more blameworthy.
iii. Problems arise when insurer, not the one who wronged pays for the
correction.
iv. We generally want the ∆ to cause the ∏s harm if ∏ is going to
collect because tort law can correct wrongful harms one inflicts on
another.
v. If there are multiple tortfeasors, the second one did not harm the ∏
if their negligence did not cause the accident.
B. Distributive Justice
a. Has to do with unjust enrichment.
b. If an excessive amount of risk is imposed upon another and the person
who imposes the risk benefits from it, then that person should have to
benefit from it.
C. Optimal Deterrence
a. Helps prevent future tortious actions by threatening potential wrongdoer
with liability of they cause actionable harm.
b. Tort System identifies the appropriate levels of safety and encourages
actors to reach those standards.
c. All actions have risks, but that only some losses are worth avoiding. Some
losses are not worth avoiding though.
D. Loss Distribution
i. Promotes the broad distribution of losses. This rational has no
stopping point. It also is relatively expensive correct loss
distribution through courts, as opposed to simple insurance.
ii. Better for many to pay large costs, than for one person to pay large
costs.(Strict products liability, insurance)
E. Compensation
a. Promote the compensation of those who have suffered injury. It may be a
“function” but should it be a goal, because it promotes more risky
behavior.
b. Compensation should not be provided simply because someone
experienced something bad, it should be when under certain
circumstances that tort liability should be imposed.
F. Redress of Social Grievances
a. Makes tort law into a populist mechanism. By itself this goal may not be
that good, but combined with some of the other goals may be very
arguable.
G. Serve “Instrumental” Goals
i. Identify Optimal Level Safety
ii. Provide Financial Incentives to be at OLS in the future.
(Deterrence Argument)
iii. Provide Financial Incentives to be at Optimal Level of Activity
iv. Spread Loss to Minimize Total Social Loss
H. Deep Pocket Arguments
a. Examination of traditional deep pocket arguments (products liability
abnormally dangerous activity) make us think that they are really not
about deep pockets, but about aimed at affecting activity levels by
assigning costs to those who benefit from them
b. When the tort law imposes liability in “no fault” injuries, it does so to
serve instrumental goals relating to activity levels. Wealth not activity that
should be addressed.
c. Problems: There would be a sliding scale of wealth. Redistribution of
wealth should be done in taxation, tort law to episodic of a system.
Different Tensions:
1. Effective loss allocation (because of insurance or size of business vs. culpability
2. Corrective justice vs instrumental goals (medical malpractice and
Good Samaritan Rule
a. Good Samaritan Rule: You have to save or help
someone (only by statute, Vermont)
i. Positive
1. Ames: Should be accepted because it is
morally unacceptable otherwise.
2. Bender: We are all connected and there is
more at stake than liberty.
3. Posner: Consideration for G. Samaratin
because of same situation in opposite
circumstance.
ii. Negative
1. Epstein: Threatens individual autonomy.
Difficult to tell where liberty ends and
obligation begins. In cases of multiple
defendants where the Π chooses one
person who could have rescued him, a
“why me” problem exists. What about war
victims?
iii. Bice
1. law creates duty w/ $ (taxes go to starving
children) & w/ forced service (draft
includes soldiers, drs.). Difference = leg.
v. tort (it’s legislature’s job to decide to
impose a duty, not individual s).
2.
Judge and Jury
 Homes wants to make a bright line test for unreasonableness.
o Consistent with instrumental view of tort law.
o Goes against CJ because there will be exceptions to the bright line view in
extenuating circumstances.
 Ex-Post Biaso Courts fear the ex-post bias. Inferring negligence from the harm that
occurred.
o Juries sympathetic to hurt ∏, and infer negligence from the fact that harm
was caused. (Pamela B Case)
 Stacking Problem
o USC liable for 2 mill in damages when the criminal actually committed
the crime. (Nola M)
Specifics:
Dram Shop Statutes:
 Statutes changed dram shop liability because courts got it wrong,
Landlord Problems
1. Saelzler-Used causation as a method to prevent landlords from being liable,
missed the legal theory that should have dealt with duty, and not causation.
a. Ruled that as a matter of law landlord actions are not the cause of injury.
Social Functions of Tort Law Revisited
a.
b.
Recovery for injury
i. Tort law: approximately 8% of injuries
ii. Other mechanisms:
1. Social insurance
2. Workers’ compensation
3. Private insurance
4. Etc.
Pierce
i. Implications for goals of tort law:
1. Instrumental: financial incentives for parties act safely in the future
a. Points out bias in how life is valued: value of income stream
determines value of damages
b. Damage rules don’t fully capture values that jury has in mind – tort
law thus underperforms in its function to provide incentive to be at
OLS going forward
c. Jury is thinking about social wrongs, but damages don’t capture
these (ex. child’s death) – D comes to do his C-B analysis based on
the damages (which don’t fully capture)
2. Externalization:
a.
b.
c.
c.
d.
People don’t always file claims, and when they do, they often
settle, for much less than the true value was
Costs not put on the person who was making the decision
Might even get into a situation where a D, going forward, feels that
there is no risk at all
Baker: “blood money”
i. Litigation seems to be less concerned with deterrence – in ordinary course of
litigation, insurance companies pay
1. People don’t go after individual Ds for anymore than their insurance will
pay; don’t go after “blood money”, less incentive to be at OLS in the future,
Structure of liability insurance
ii. Effect on C/J:
1. D doesn’t feel effect
2. Especially undercut in situations where Ds insurance doesn’t cover P’s total
loss
iii. Argument that there might be some deterrence:
1. How much do insurance companies actually come back at people who have
been found liable and jack up their premiums to provide incentive to be at
OLS in the future? *Loss spreading is being served under this analysis
Abel: functions of tort law
i. Moral judgment:
1. If someone drives quite negligently and causes only a little harm and
another drives slightly negligently and causes a lot of harm, tort law won’t
judge them based on relative wrongfulness of their conduct – skewed
2. Rebuttal (Bice): but, it’s about shifting losses, not making moral judgments
per se – this isn’t as a great a concern when it is only confined to tort law as
opposed to whole legal system
ii. Respond to victim’s need for compensation
1. If a D causes harm but it not at fault, tort law doesn’t provide compensation,
and yet the need for it is there
2. Rebuttal (Bice): who ever though that the tort system was going to provide
full compensation? It’s shifting for particular reasons – fact that P was
injured and needs money is not sufficient reason for shifting loss onto a
particular D; it would be an arbitrary shift if you don’t have a reason