The standard One-L curriculum remains heavy on Torts, Contracts, and Property, presumably on the theory that these subjects will help students learn “to think like lawyers.” Ironically, however, these are the subjects in which leading scholars are most attracted to the opposite approach: they want to think like economists, philosophers, political scientists, and historians, not like lawyers. And so it is that a basic common law subject like Torts has turned into a battleground for “law-and-” scholars, with scholars of law and economics pushing efficiency theories on one side and legal philosophers pushing corrective justice theory on the other.
New Private Law theory is founded on the idea that legal scholars must do both: although we must avail ourselves of the sophistication of cognate fields of study, we must, in the end, think and theorize like lawyers. New Private Law theorists recognize the value of a pragmatism that is sensitive to which functions the law serves, critical as to how well it is serving those functions, and open-minded about how it might better serve them. We insist, however, that understanding private law goes far beyond an appreciation of its salutary functions and its limits. The task requires understanding the concepts and principles entrenched in the law and the structures, institutions, and languages that implement these concepts through the practices of courts, legislators, and lawyers. I have dubbed this view “pragmatic conceptualism” and, along with Professor John Goldberg, have applied it to a wide array of problems in tort law over the past fourteen years.
This Article utilizes a pragmatic conceptualist methodology to solve three problems in tort law: one on Palsgraf, one on punitive damages, and one on federal preemption. In each case, pragmatic conceptualism allows us to cut through distracting features of the problem, to avoid the embarrassment of judicial paralysis, and to move forward with a coherent approach that identifies which decisions will need to be made by judges and what practical concerns those decisions will turn on. Indeed, in each of the sections that follow, I begin by showing that courts and commentators have been so badly confused by the problem before them that they have been incoherent, silent, or deadlocked. The confusion has been generated by a failure to recognize that – despite the many aspects of tort law that render it importantly public – there is something distinctively private about the common law of torts. Utilizing civil recourse theory, this Article alleviates the confusion and articulates solutions to all three problems.
Part I begins with the canonical case of first-year Torts, Palsgraf v. Long Island Railroad Co. The central point of Chief Judge Cardozo’s Palsgraf opinion is that a defendant’s failure to use due care must have been a breach of the duty of due care owed to the plaintiff; the breach and duty elements of the negligence claim must fit together in the right way. The opinion infers this requirement from the broader principle that a plaintiff may not sue in tort for a wrong to another, which itself flows from the idea that a tort claim is fundamentally a private right of action to redress a wrong to oneself. Chief Judge Cardozo utterly rejected the sort of private attorney general conception of tort law that has become prevalent in contemporary tort thinking. So long as scholars and students reading his Palsgraf opinion resist his private-law mindset, they are doomed to misunderstand what the opinion actually says.
Part II turns from the past to the present, from Palsgraf to the constitutional status of punitive damages. Over the past two decades, the United States Supreme Court has wrestled with the question of when, if ever, a state’s punitive damages law fails to live up to the standards of the Fourteenth Amendment’s Due Process Clause. The Court’s difficulties were dramatically revealed in Philip Morris USA v. Williams, in which the Court granted certiorari three separate times, only to concede defeat to a unanimous Supreme Court of Oregon in a per curiam dismissal. Civil recourse theory and the private/public distinction seen in Palsgraf point toward a clearer picture of the intersection of punitive damages and due process. At common law, a private plaintiff – even if he was seeking punitive damages – was not playing a private attorney general role; he was redressing a wrong to himself or herself. For reasons explained below, the Due Process Clause applies in a more relaxed manner to such claims. To the extent that Oregon and other states now wish to do something demonstrably different with their punitive damages law than permitting plaintiffs to redress wrongs to themselves, the process they provide to defendants must be more robust than that provided by the common law of torts.