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Date: Mon, 29 Sep 2003 12:38:20 -0500 From: Richard Wright Subject: Articles on the meaning of negligence and the extent of legal responsibility
(Sorry for any overlap with the tort professors list at tortprof@chicagokent.kentlaw.edu, to which I sent this message yesterday. If you are a teacher of tort law who is not a member of that list but would like to be, send a "subscribe tortprof your- name" message to listproc@chicagokent.kentlaw.edu. For good or ill, it is a not very active list.) Several of my recent articles, which are available at http://papers.ssrn.com/authorid=146352, may be of interest to the members of the list, especially those currently teaching the basic torts course.
The Meaning of Negligence Three of the articles - "Justice and Reasonable Care in Negligence Law" ("Justice"), "Negligence in the Courts: Introduction and Commentary" ("Courts"), and "Hand, Posner, and the Myth of the 'Hand Formula'" ("Myth") - discuss the divergence between the utilitarian-efficiency conception of negligence or reasonableness that is pervasive in the secondary literature and the rights-based conception that is employed by ordinary people and the courts. The secondary literature generally assumes that negligence is defined by an aggregate-risk-utility ("Hand formula") test, which is a transparent implementation of the impartiality and aggregation principles of utilitarianism and the usual (Kaldor-Hicks) interpretation of economic efficiency. Although it has sometimes been argued otherwise, this test is fundamentally inconsistent with the equal freedom norm that underlies the principles of justice, as all the leading justice theorists now insist. (See "Justice.") The various editions of the Restatement of Torts have all supported the aggregate-risk-utility test. However, unlike the draft Restatement Third's explicit, reductionist, cost-benefit test, the first and second Restatements emphasize legally recognized, socially valuable benefits rather than purely private benefits and employ illustrations that treat the creation of significant risks to others as reasonable only if they are non-serious, inherent risks of activities that cannot be further reduced without the loss of much greater benefits to everyone in society. (See "Justice.") Recent studies all conclude that the aggregate-risk-utility test had almost no support in the cases prior to its adoption in the first Restatement and for several decades thereafter. Richard Posner's claims to the contrary are composed of speculative and implausible assumptions, overbroad generalizations, and superficial descriptions of and quotations from cases that misstate or ignore facts, language, rationales, and holdings that are inconsistent with his argument. None of the cases discussed by Posner support his thesis. Instead, the reasoning and results in these cases employ varying standards of care, depending on the rights and relationships among the parties, that are inconsistent with the aggregate-risk-utility test but consistent with the principles of justice. (See "Myth.") The aggregate-risk-utility test does not appear in standard jury instructions. The courts infrequently mention it, rarely attempt to actually employ it, and almost never are able to use it to reach the proper result. This is true even for those jurisdictions, such as Louisiana and Illinois, that most frequently mention the test. (See "Courts.") It is also true for those judges who are most strongly identified with the test. During the five decades (1909-1961) that Learned Hand served as a federal judge, he mentioned the test in only eleven opinions, between 1938 and 1949. In none of these opinions did he actually apply the test to resolve the negligence issue, and in his last reference to the test he essentially abandoned it. None of his fellow Second Circuit judges ever attempted to apply the test. Similarly, neither Posner nor his like-minded colleague, Frank Easterbrook, has been able to employ the Hand formula to resolve the negligence issue in any case, and none of their fellow Seventh Circuit judges has attempted to do so. (See "Myth.") Rather than the aggregate-risk-utility test, American and British courts apply varying standards of reasonable care, including varying objective and subjective perspectives, that take into account the rights and relationships among the parties. (See "Courts" and "Myth.")
The Extent of Legal Responsibility for Tortiously Caused Consequences ("Proximate causation," "legal causation," "remoteness," etc.) In a forthcoming article, "The Grounds and Extent of Legal Responsibility," I describe and discuss the three principal limitations on the extent of legal responsibility for tortiously caused harm. These limitations prevent liability when (1) the harm almost certainly would have occurred anyway in the absence of any tortious conduct or condition (the "no worse off" limitation), (2) there was a superseding cause of the harm (an actual cause of the harm that (i) intervened between the defendant's tortious conduct and the plaintiff's injury, (ii) was a necessary ("but for") cause of the plaintiff's injury, and (iii) was highly unexpected), or (3) the harm did not occur as part of the realization and playing out of one of the foreseeable risks that made the person's conduct tortious, before the hazards created by the realization of that risk had dissipated (the "risk-playout" limitation). None of these three limitations match the usual academic prescription for limiting the extent of legal responsibility for tortiously caused harm, which would rely solely on a harm-matches-the-risk ("harm-risked") limitation that is often confused with, but which differs significantly from, the risk-playout limitation. The results reached by the courts are consistent with the three stated limitations rather than the harm-risked limitation, despite the various Restatements' efforts to install the harm-risked limitation as the sole, comprehensive limitation on the extent of legal responsibility for tortiously caused harm. ******************* I welcome comments and criticisms, posted to the list or sent to me individually. Richard W. Wright Recent papers: http://ssrn.com/author=146352
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