When the U.S. Supreme Court faced a novel tort law issue in 2019 in Air & Liquid Systems Corp. v. DeVries1 — namely, whether the manufacturer of a “bare-metal” product such as a turbine, blower, or pump has a duty to warn of dangers that arise from the later incorporation of asbestos-laden parts into the product2 — the Justices turned to first principles from tort theory. In a 6–3 decision, Justice Brett Kavanaugh, drawing heavily from Judge Guido Calabresi’s “cheapest cost avoider” theory,3 held for the majority that the bare-metal product manufacturer did have a duty to warn, reasoning that “the product manufacturer will often be in a better position than the parts manufacturer to warn of the danger from the integrated product.”4
This type of reasoning on the part of the majority is a main target of Professors John Goldberg and Benjamin Zipursky (hereinafter GZ) in their new book, Recognizing Wrongs. Such bald instrumentalism, they argue, reflects the worst kind of “social engineering” (p. 215)5 on the part of judges.6 This “bad tort theory” (p. 318) is GZ’s call to arms.
GZ might instead endorse the DeVries dissent’s view that “the traditional common law rule still makes the most sense today.”7 But herein lies the rub. Justice Neil Gorsuch, for the dissent, likewise built his analysis around Judge Calabresi’s cheapest-cost-avoider theory, but reasoned that the subsequent part manufacturer “is in the best position to understand and warn users about its risks; in the language of law and economics, those who make products are generally the least-cost avoiders of their risks.”8
Thus, while the majority and dissent disagreed as to which party — the bare-metal product manufacturer or the subsequent parts manufacturer — was in fact the cheapest cost avoider, they were unanimous in using the lens of law-and-economics, incentive-driven tort theory.
The law and economics–inspired view of tort law is ascendant, not only in the legal academy but also in the decisions of influential state and federal courts, including the U.S. Supreme Court.9 So, at the outset, GZ face an uphill battle, given that their “civil recourse theory” self-consciously attempts to recalibrate tort theory as an apt description of how judges reason: “[W]e think recognizing wrongs is what courts do” (p. 257).10 Aspirationally, they proclaim that “[e]xponents of the view that tort law is about wrongs, duties, and rights are not the ones who should be on the defensive” (p. 108). But, notwithstanding their protestation to the contrary, GZ adopt a fairly defensive tone throughout, recognizing (time and again) that their ideas in tort go “against the grain” (pp. 52, 68); alas, perhaps a more apt metaphor would be “against the tide.”
Should they necessarily bemoan the current state of affairs? They lament that “the lawyerly capacity to recognize wrongs has atrophied” (p. 290). But might not modern tort law theory enable judges not only to recognize wrongs, but altogether prevent them? My claim in this Review is that economic deterrence–based “cheapest cost avoider” reasoning permeates judicial decisions, especially in the realm of products liability; moreover, this is cause for celebration given its ability to handle the most urgent modern torts issues concerning the interface between tort and federal regulation and widespread societal harms.
Part I reframes Recognizing Wrongs as, first and foremost, a sustained critique of the law-and-economics, deterrence-focused view of tort law, rather than (as GZ set forth) the affirmative case for the “wrongs and redress” account of tort law. “Cheapest cost avoider” tort theory (as my chosen stand-in for instrumentalist, deterrence-based theories) plays the role of an antagonist, against which GZ construct their theory of wrongs and redress. Part II inverts the role of “cheapest cost avoider” as the protagonist of some of the most significant developments in contemporary tort law, focusing on its central role in the rise of strict products liability in tort and especially its extension to cover bystanders. Part III argues that law-and-economics, deterrence-based theory holds the most promise for judges facing two primary challenges of modern tort law: (1) containing risks at the cutting edge of the regulatory state and (2) addressing widespread harms.
* Crystal Eastman Professor of Law, New York University School of Law. I was honored to take part in a book launch/festschrift for Professors Goldberg and Zipursky at Fordham Law School on February 5, 2020. I celebrated them as generous colleagues and exemplary scholars — and herein offer what I hope is considered an even higher form of praise, namely, my sharpest critique. Thanks also to fellow panelist Professor Jed Shugerman for his comments and perspective and to Stephen Profeta (NYU 2021) for superb research assistance.