In Mistakes, Misunderstandings and Misalignments, Jules Coleman joins the debate precipitated by Ariel Porat’s Misalignments in Tort Law and carried on by Mark Geistfeld in The Principle of Misalignment: Duty, Damages and the Nature of Tort Liability, and by Israel Gilead and Michael D. Green in Maligned Misalignments. Coleman’s contribution to the debate is important both in its own right and because the larger debate in which it figures represents the state of play with respect to important issues in tort theory. That debate throws into relief the issues that now divide wrongs-oriented and efficiency-oriented theories of tort. The debate also flushes out the lurking significance of “harm” as perhaps the most understudied concept in tort law.
Professor Porat’s originating contribution identifies five misalignments in negligence law—circumstances where the risks accounted for in setting the standard of care differ from the risks for which liability is imposed and damages are awarded at the conclusion of a successful negligence suit. Alignment requires that the same risks be taken into account and the same valuations used by courts in setting the standard of care and in imposing liability and damages. Misalignments are a sign that the law may be structured in a way which leads potential injurers to make inappropriate investments in accident prevention. Professor Porat’s fine paper prompted three diverse rejoinders. Professors Gilead and Green rejoined that the misalignments may be ways in which the law of torts takes approximate account of negative externalities.
Professor Geistfeld rejoined that misalignment is a necessary and proper feature of negligence law because the duty of care is properly predicated on a valuation of prospective harm which will often exceed the proper measure of damages. This occurs because negligence law frequently involves “irreparable injuries,” that is, injuries for which money damages are an inadequate remedy. Ex post compensation cannot restore victims to the conditions they were in before they were harmed. Death is the paradigmatic case. When negligence law confronts harms that cannot be repaired it increases the stringency of the obligation to avoid harm in the first instance.
Professor Coleman has now responded that Porat’s account of misalignment is unpersuasive because negligence law is not misaligned. It is aligned but in terms of its own intrinsic logic not in terms of efficiency. The sequence of elements in a negligence claim determines whether a putative wrongdoer in fact conducted themselves with sufficient regard for the interests of the party claiming wrongful harm at their hands. The elements are coherent on their own terms and that is all the coherence they need.
This is a rich, sophisticated debate which will repay close study by anyone interested in the nature of tort liability and the future of tort theory. Let me highlight two themes:
Instrumentalism and anti-instrumentalism. This debate is often understood as a contest between moral theories—consequentialist and non-consequentialist. The debate between Porat and Coleman shows another, perhaps more important dimension. Porat’s view is instrumental in the following way: he takes the Hand Formula to be the master formulation of the idea of negligence; takes the formula’s content to be economic (CBA); and evaluates other negligence doctrines by investigating how effectively they realize the end of efficiency. For Porat doctrines appear to be rules of thumb which serve as proxies for achieving the independently valuable objective of efficiency. Tort doctrines have no independent normative authority. Coleman’s anti-instrumental rejoinder is not that Porat’s economic theory is wrong and that the correct theory is deontological but that Porat’s conception of negligence is wrong. In saying this Coleman is rejecting the view of legal doctrine and concepts as rule of thumb proxies for independently valuable objectives. He is claiming, instead, that negligence is an institution constituted by a set of related rules and concepts—by the elements of a negligence claim (duty, breach, harm and causation) and by overarching concepts such as “harm,” “wrong” and “relationality.” Those concepts are necessary to understanding the institution on its own terms.
This disagreement is important, all too often overlooked, and of special importance to legal scholars as opposed to economists and philosophers. The special expertise of lawyers is law and the special expertise of legal academics is the legal subjects that they teach and about which they write. Lately, economically inclined property scholars (Merrill and Smith) have begun to insist on the institutional character of property, that is, on the way that its norms and concepts cohere to constitute an institution. One consequence of this for their work has been to alter the explanatory and justificatory role of instrumental (economic) precepts and concepts. Merrill and Smith are indirect instrumentalists. In their work property doctrines and concepts have independent significance and their application governs cases; the goal of efficiency figures in as an explanation and justification of the institution. For example, systemic informational efficiencies may justify and explain the simplicity and apparently inefficient inexactness of basic property norms. If the parallel claims that Coleman and other contemporary justice theorists of tort law are making are correct instrumental theories of tort may also need to be reformulated as indirect accounts. This question, in any case, deserves to be at the forefront of the instrumental/anti-instrumental debate.
Harm. Coleman argues that “harm” is a fundamental “concept” in tort whereas “cost” is not. Geistfeld’s concept of “irreparable injury” hints at a similar idea. Lurking here is the least examined issue in contemporary tort theory. From the First Restatement to the Third actions which place plaintiffs in “impaired conditions” have been necessary predicates of most tort claims. Just what counts as an “impaired condition” and why impaired conditions have such normative significance is a matter about which much more needs to be said.