Introduction
W
hat is a tort, and what is tort law for? On one leading scholarly account, torts are legal liability rules that seek to promote the welfare of society at large by disincentivizing socially suboptimal behavior and distributing the costs of accidents to those who can best bear them.1 Over the twentieth century, this instrumentalist view of tort law won powerful support in elite American legal culture.2 But it has never gained much traction in other common law jurisdictions, where judges and legal scholars standardly suggest that private law domains such as tort are “inextricably interwoven” with interpersonal morality.3 After all, the law of torts deals in concepts — negligence, deceit, assault — that are familiar from ordinary moral life. On the classical, moralist understanding of tort law, this moralized conceptual architecture reflects tort law’s basic normative substance. At its core, the common law of torts is an institutionalized application of “common morality and common sense”4 — a corpus of legal doctrine formed by courts “articulating inchoate lay ideas of right and wrong.”5
Over the last several decades, this classical moralist view of tort law has enjoyed a revival of interest in the American legal academy,6 helping to revive interest in moralist approaches to the private law more generally. In the rest of the common law world, in both tort and other private law domains, moralism has long been academic and judicial orthodoxy.7 The intellectual lodestar of contemporary private law moralism, especially in tort, is the most famous opinion in the common law canon: Chief Judge Cardozo’s opinion in Palsgraf v. Long Island Railroad Co.8
By now the facts of the case are familiar to us. A man attempted to jump onto a train as it was departing from a Long Island Railroad station.9 In the course of this attempt, the man was negligently jostled by a train attendant employed by the Long Island Railroad Company, causing the man to drop a package he was carrying underneath his arm.10 Quite improbably, the package contained some powerful explosives; the resulting explosion caused heavy scales at the other end of the train station to drop onto the head of Helen Palsgraf.11 Writing for the majority of a divided New York Court of Appeals, Cardozo refused to allow Mrs. Palsgraf to recover.12
The lasting significance of Cardozo’s opinion rests less on its conclusion, however, than on its claims about the nature of the negligence tort and the law of torts more generally — claims that have proved highly influential in common law courts as well as in the legal academy.13 In virtually all legal systems, including civil law jurisdictions such as Germany and Italy, courts refuse to impose negligence liability for utterly unforeseeable injuries, such as the improbable injury suffered by Mrs. Palsgraf.14 But Cardozo’s opinion vigorously asserted an even more basic obstacle to her recovery than the unforeseeability of her injury. If a plaintiff is unforeseeable to a defendant, the opinion maintains, then the defendant cannot treat her wrongfully — the defendant cannot breach any duty owed to her, cannot commit a wrong against her as opposed to other people (or society at large).15 In tort law, Cardozo insisted, a plaintiff can only sue “for a wrong personal to her, and not as the vicarious beneficiary of a breach of duty to another.”16
For tort scholars who join Cardozo in taking up the “Palsgraf perspective,”17 this basic doctrinal proposition — the “Palsgraf principle,”18 as it is sometimes called — reflects and reveals the moral heart of tort law. Tort law is about recognizing and redressing relational wrongs: breaches of duties owed by one private person to another.19 So unless a defendant has breached a duty to the plaintiff — unless she has been mistreated by his behavior — she cannot recover from him in tort.20
That is because tort law, unlike the criminal law or administrative regulation, is not a set of legal liability rules that protect the public interest or incentivize socially desirable behavior.21 Instead, tort law is “irreducibly relational.”22 The law lays down relational norms of conduct — legal duties that we owe to other people.23 A tort such as negligence or battery is a sort of relational legal wrong, which consists in the breach of one such relational duty: “do not injure another person by treating her negligently” (the tort of negligence), “do not harmfully or offensively contact another person” (the tort of battery), “do not make a false and injurious communication about another person” (the tort of defamation), and so on.24 By laying down relational legal duties and wrongs that recognize relational moral duties and wrongs — duties and wrongs that we acknowledge in everyday moral life — tort law allows us to obtain redress from those who have treated us wrongfully.25 According to the Palsgraf perspective, that is tort law’s core aspiration and purpose: to recognize and redress relational wrongs.
This Article argues that the Palsgraf perspective is mistaken and proposes a different moral picture of tort law’s normative substance and doctrinal structure. Tort law may be centrally concerned with “common morality,” rather than promoting the welfare of society at large.26 But torts are not relational legal wrongs, and their purpose is not to recognize or redress relational moral wrongs. Torts are remedial pigeonholes: legal liability rules that identify the complex conditions under which a defendant is morally liable to provide a plaintiff with compensation or other forms of remedial relief. Rather than recognizing a species of relational moral wrongdoing or interpersonal mistreatment, a tort such as negligence is a coarse doctrinal device that identifies instances of “moral wrongdoing for which the offender must pay,”27 whether or not he has treated the plaintiff wrongfully. Other torts identify forms of behavior that render a defendant liable to pay compensation for resulting injuries although he has not behaved wrongfully at all. In both negligence and the other torts, a defendant may be liable to compensate a plaintiff even if he has not wronged or mistreated her. Contra the Palsgraf perspective, relational moral wrongdoing is not the basis of remedial liability, either in ordinary morality or the law of torts.
What is? Like the ordinary morality that it reflects, the common law contemplates many answers.28 Many of these answers, however, have a common core: the defendant’s moral responsibility for causing unjust damage to the plaintiff, in the sense of infringing some right against injury that the plaintiff holds. The idea of responsibility for unjust damage does not receive clean expression anywhere in the common law. It receives somewhat more transparent expression in many civil law jurisdictions, where the private law (including tort law) is largely codified in statute. So, for example, the most important tort law clause in the Italian Codice Civile, CC 2043, lays down that “[a]ny intentional or negligent act that causes unjust damage [danno ingiusto] to another person obliges the person who has committed the act to pay damages.”29 It is standardly supposed in Italian legal thought that a loss suffered by a plaintiff is compensable — that it counts as “damage” rather than mere “loss” — only if it infringes a right, or injures a protected interest, that she holds.30 There are similar clauses in other civil law codes.31 Thus, for example, section 823(1) of the Bürgerliches Gesetzbuch (BGB), the German Civil Code, lays down that “[a] person who, intentionally or negligently, unlawfully injures the life, limb, health, freedom, property or some other right of another person is liable to provide compensation to the other party for the damage arising therefrom.”32
The civil law codes identify when a defendant is morally responsible for causing unjust damage, such that she is morally liable to compensate her victim, through generally worded legal liability rules such as CC 2043. The common law performs the same function in a more opaque and fragmentary fashion, through its “‘pigeonhole’ system of nominate torts,”33 a motley array of more specific liability rules such as battery, defamation, and negligence. Many of these causes of action (such as battery and defamation) take their names from species of relational moral wrongdoing, just like the pigeonhole causes of action found in the classical Roman law34 from which modern civil law codes largely derive.35 But it is a mistake to infer the character of the law’s moral substance from its outer doctrinal form — to insist, as defenders of the Palsgraf perspective often do, on “taking [tort law’s] structures and doctrines at face value.”36 Tort law’s formal structure should certainly be taken seriously. But that requires taking seriously the complex and unruly relationship between the law’s moral substance and its doctrinal form.37 Like the formulary actions in classical Roman law and the writs of action in medieval English common law, today’s common law torts do not wear their moral commitments on their sleeves.38
Distinguishing between relational wrongdoing and moral responsibility for causing unjust damage (that is, infringing rights against injury) requires fixing some terms. In ordinary moral discourse, terms such as “duty,” “right,” and “wrong” are polysemous. The term “duty,” as it is most commonly used, refers to a sort of norm of conduct, or standard of behavior, which tells us to refrain from acting in a certain way. A moral duty, so understood, is largely or exclusively an evidence-relative phenomenon: It reflects those reasons that are accessible to an agent from her epistemic and deliberative position.39 To violate a duty owed to another person is thus to wrong or mistreat her by giving insufficient weight in one’s moral deliberation to moral reasons that reflect her status as a “self-originating source[] of claims.”40 Sometimes the term “right” is used as a synonym or conceptual flipside of “duty” (and thus the correlative of “wrong”): To violate a duty owed to another person just is to violate her right and to wrong her. This is the usage that Cardozo himself seems to have had in mind when he spoke of duties, rights, and wrongs in Palsgraf, and defenders of the Palsgraf perspective largely follow him in this regard.41
There is, however, a different and equally important sense of “right,” one that is perhaps more familiar to moral philosophers and scholars in the civil law tradition than to common law tort scholars. A moral right, in this sense, is a reason for action — a reason that is grounded in facts about the person whose interests and standing the right protects, whether or not those facts are epistemically accessible to an agent.42 So, for example, it is possible for an agent to infringe another person’s property right innocently and unforeseeably, as by walking across land that does in fact belong to the plaintiff although the defendant could not reasonably have known it. Similarly, to borrow an example from Professor Judith Thomson, an agent might infringe another person’s moral right against bodily injury by flipping a light switch in her home that unforeseeably generates a freak current and electrocutes him.43
Moral rights, in this sense, are fact-relative: Whether an agent infringes a fact-relative right, or right against injury, depends on what the agent actually does, not on what she reasonably believes she might do.44 Thus an agent who infringes another person’s right against injury does not breach any duty to him, or wrong him, except (perhaps) in the extremely thin sense that her action has in fact injured him.45 Put another way, an agent can infringe another person’s right against injury without in any way mistreating that person or behaving culpably or disrespectfully toward him.
Only in the property torts, such as trespass and conversion, does tort law directly encode and enforce moral rights against injury, and that is largely for contingent historical reasons involving the common law’s use of property torts to perform noncompensatory functions such as settling disputes about title.46 Most of the time, tort law — like the common sense morality that it reflects — holds a defendant liable to compensate a plaintiff only if the defendant’s infringement of the plaintiff’s right is attributable to and reflective of some morally significant feature of the defendant’s responsible agency (such as, paradigmatically, a culpable and wrongful choice). A great deal of tort doctrine consists in the law’s attempt to articulate, elaborate, and enforce “informed common sense” about “how far the responsibility of the defendant ought fairly to extend”47 for causing unjust damage to other people, that is, infringing their fact-relative rights against injury.
This Article argues that moral responsibility for causing unjust damage (that is, infringing fact-relative rights against injury) lies at the moral core of tort law — not relational wrongdoing (that is, the breach of relational duties). The following cases may help to provide an initial sense of how the two diverge.
Consider, first, a case in which a defendant is liable for negligently injuring an unforeseeable plaintiff. Suppose the defendant is conducting construction work near a building that appears to be owned solely by Alma, a local celebrity who is famously averse to litigation. To limit his legal risk, the defendant undertakes a laborious investigation of title — so laborious an investigation that it is fantastically improbable, once the investigation concludes, that anyone other than Alma owns the building. If against the odds there does exist another owner of the building, Bessie, and if the defendant foreseeably destroys the building through conducting his construction work carelessly, it seems clear that he is liable to compensate Bessie no less than Alma. That is true although Bessie is not a foreseeable victim, and the defendant has not (therefore) breached any duty to be careful toward her. Instead, the defendant’s liability to compensate Bessie rests on the fact that he has negligently and foreseeably risked causing a certain sort of unjust damage (that is, infringing a certain sort of right), this risk has materialized, and Bessie does in fact hold one of the rights thereby infringed.
The defender of the Palsgraf perspective might respond that Bessie is foreseeable under a suitably generic description (say, “an owner of that building, whomever he or she may be”).48 But this sense of victim foreseeability seems strained and artificial — and this response makes a hash, therefore, of other explanatory roles that victim foreseeability plays in legal and moral thought. Imagine, for example, that a construction mogul wishes to build a shopping center. To do so, she must engage in some blasting that will likely destroy a nearby (currently uninhabited) residence that reasonably appears to be owned solely by Abelard. Absent exigent circumstances, it is justifiable and nonculpable for the construction mogul to proceed if and only if she is reasonably certain that she has obtained the consent of Abelard. That is because Abelard is the only foreseeable owner of the building. Even if there exists some other, hidden, owner of the building (call him Baldwin), that fact is plainly irrelevant to whether it is justifiable and nonculpable for the construction mogul to risk destroying the residence. It is irrelevant precisely because Baldwin is not, in any natural or independently plausible sense of the term, a foreseeable victim (supposing his existence cannot be ascertained with reasonable diligence).
It is certainly possible to define an unorthodox sense of victim foreseeability under which hidden victims such as Bessie and Baldwin do count as foreseeable. That such a stipulative artifice is required to capture the intuitive moral phenomena, however, suggests that these phenomena are in truth explained by moral principles that do not hinge on victim foreseeability at all. In any event, even if the Palsgraf principle helps itself to this artificial sense of victim foreseeability, the principle cannot ultimately be saved. For the Palsgraf principle is not, at bottom, about victim foreseeability (or plaintiff foreseeability) at all. Rather, the principle maintains that a plaintiff must be wronged — must be treated carelessly or otherwise wrongfully by the defendant — in order to recover. Plaintiff unforeseeability is simply one sort of factor that precludes a defendant from treating the plaintiff carelessly, from breaching a duty to be careful toward her.
The Palsgraf principle is equally impugned, therefore, by negligence cases in which a defendant is liable to compensate a foreseeable plaintiff whom he has not treated carelessly. Imagine, for example, that a defendant runs a business that engages in a lucrative activity that spews toxic chemicals into the surrounding air — creating a significant risk of killing some nearby residents and damaging a neighboring piece of land, Blackacre.49 It is negligent for the defendant to direct his factory to engage in this activity, for the commercial advantages that he and his business’s shareholders will thereby gain do not justify imposing these risks of personal injury and property damage. Suppose the defendant has excellent reason to believe that the owner of Blackacre (whoever he or she may be) is a large shareholder in his factory — and that he or she has enthusiastically consented to the defendant’s continuation of his chemical-generating activity, notwithstanding the associated risk of damage to Blackacre, because he or she stands to reap a large financial gain (on balance) if this activity continues. It turns out, however, that the defendant’s evidence is misleading; in fact, the owner of Blackacre is not a shareholder in the defendant’s business and has not consented to the defendant’s pollution-generating activity.
If the defendant’s wrongful activity foreseeably damages Blackacre, he is surely liable to compensate its owner. But the defendant has not breached any duty to be careful toward her — has not treated her carelessly as opposed to other people. That is true whether she is identified under a specific description (such as her name) or under some abstract and generic description (such as “the owner of Blackacre” or “the owner of that parcel of land” or “the owner of the parcel of land that my action might foreseeably damage”).50 After all, the defendant had excellent reason to believe that the plaintiff, even if described in some such generic fashion, consented to his activity.51 No duty to be careful toward the plaintiff has been breached, and yet the plaintiff may plainly recover. That is because relational wrongdoing toward the plaintiff is not the true ground of recovery. Rather, the defendant is liable because he is morally responsible for infringing the plaintiff’s right against property damage.
In continental Europe, the non-relational normative principles operative beneath the relationally worded Romanist causes of action were distilled over many centuries by doctrinal scholars and moral philosophers, a process that culminated in the enactment of continental codes such as the Italian Civil Code and the German BGB.52 In England and America, with a few exceptions, such sweeping attempts at normative distillation and doctrinal reconfiguration have rarely occurred.53 Despite the formal doctrinal divergence between common law tort and civil law tort, this Article argues that the two categories’ moral substance is much the same. Like the general clauses of the civil law, the pigeonhole causes of action in the common law are centrally concerned with identifying and enforcing remedial moral liabilities that arise from a defendant’s moral responsibility for infringing a plaintiff’s rights against injury.
Call this the pigeonhole perspective. This Article argues for the pigeonhole perspective by examining a range of common law tort doctrines that utilize the language of relational wrongs to identify and enforce, often quite opaquely, remedial moral liabilities that are not grounded in relational wrongdoing.
Take the venerable doctrine of transferred intent in battery.54 Suppose that a defendant shoots at one person in an attempt to murder him. He thereby kills a different person who is unforeseeably on the scene. If this unforeseeable plaintiff’s estate brings suit, the defendant will be held liable to the plaintiff by means of the fiction that the defendant “intended” to harm her — although, in truth, the defendant did not intend harm to this plaintiff, or otherwise behave wrongfully toward her, any more than the train operator behaved wrongfully toward the unforeseeable Mrs. Palsgraf.55 For this reason, as Cardozo himself obliquely recognized in Palsgraf (but quickly brushed aside), transferred intent doctrine cannot be reconciled with the Palsgraf principle,56 which insists relational wrongdoing is the moral gravamen and sine qua non of tort liability.57
Rather, transferred intent doctrine indirectly recognizes a moral phenomenon that tort law elsewhere recognizes more explicitly: While the scope of a defendant’s moral responsibility is presumptively limited to the reasonably foreseeable outcomes of his action, sufficient culpability can expand the scope of a defendant’s moral responsibility (and the remedial moral liability it grounds) to outcomes that lie beyond the boundaries of reasonable foreseeability. The black letter of battery doctrine is relational — it demands a wrongful intention toward the plaintiff. Transferred intent doctrine remodels this relational formal architecture through an “arrant, bare-faced fiction of the kind dear to the heart of the medieval pleader,”58 in order to enforce a compensatory moral liability that does not arise from relational moral wrongdoing.
Taking tort law’s formal surface at moral face value distorts the nature of tort law’s underlying moral commitments, thus inhibiting the philosophical project of delineating their contours and assessing whether they can withstand reflective scrutiny. If torts are not relational moral wrongs, and relational wrongdoing is not required to hold a defendant liable to a plaintiff in tort, then the moral logic of central aspects of tort doctrine (such as the proximate cause element in negligence) cannot be understood along the lines that defenders of the Palsgraf perspective and other philosophically oriented tort theorists often suppose. Judges, of course, are not philosophers; their task is to faithfully elaborate legal principles in light of the received doctrine and its underlying normative commitments, not to overturn those commitments in the name of philosophical reflection. But the loss of analytical clarity incurred by the Palsgraf perspective distorts the judicial function as well. For there are cases, we will see, in which tort law’s underlying moral commitments imply that a plaintiff should recover more often than the relational formal structure of its causes of action allows. That is precisely why the law has been compelled to resort to doctrinal fictions such as transferred intent. Once we see how the law’s formal structure fails to fully implement its substantive commitments, we can formulate and entertain new possibilities for giving those commitments doctrinal and institutional expression. So, for example, we might devise new remedial structures, such as new derivative causes of action, that “piggyback” on the relational structure of existing torts in order to achieve non-relational remedial ends.59 To identify the divergence between the law’s formal structure and its moral substance is to liberate our imagination about the space of doctrinal possibilities — to appreciate that we can reconfigure the existing forms in service of the moral principles they are supposed to serve.
The Article proceeds as follows. Part I outlines the Palsgraf perspective and compares it to the pigeonhole perspective. It explains how, on the latter, the common law of torts is implementing a set of moral principles about a defendant’s responsibility for unjust damage (infringing the plaintiff’s rights against injury) and the resulting remedial moral liability, which are more directly implemented by the tort liability rules we find in civil law. Part II compares the Palsgraf perspective and the pigeonhole perspective across a wide range of issues in tort doctrine and theory, in each case arguing that the pigeonhole perspective yields a more plausible account of the law’s operation and its underlying normative commitments. The Article’s Conclusion briefly explores some methodological implications regarding the role of legal fiction and doctrinal opacity in interpretive private law theory, and some deeper philosophical questions about whether tort law’s underlying moral commitments can ultimately survive reflective philosophical scrutiny.
Before proceeding, a word about methodology may be warranted. In line with a venerable tradition of common law torts scholarship, including early scholarship on Palsgraf, this Article makes extensive use of hypothetical cases.60 Such cases can help to elicit the structure of the common moral sensibilities and convictions embedded in tort doctrine, and thereby to illuminate the law’s underlying moral commitments. The history of Palsgraf itself supplies a vivid demonstration of this point. Two days after Palsgraf was argued in the Appellate Division of the New York Supreme Court, a distinguished group of torts scholars and judges, convened by the American Law Institute (ALI), met to discuss a hypothetical case strikingly similar to the facts of Palsgraf.61 The case was offered for discussion (independently, it seems) by Professor Francis Bohlen, the reporter for the First Restatement of Torts.62 Among the luminaries present at this discussion was Cardozo.63 In the meeting’s transcript, we find Cardozo’s skeletal articulation of the moral account of tort liability that he would later defend in Palsgraf.64 We also find the equally distinguished jurist Learned Hand offering a skeletal articulation of something like the competing moral account of tort liability that I defend here.65 It is plausible to surmise that this discussion influenced how Palsgraf was decided, and thereby had a considerable effect on the course of the common law. But in that ALI meeting, it was Hand, not Cardozo, who better understood the moral character and doctrinal structure of tort law. That, at least, is what this Article immodestly attempts to show.