Professor James Hackney’s recent review of Judge Jack Weinstein’s work on the bench, Judge Jack Weinstein and the Construction of Tort Law in America: An Intellectual History, is well worth reading. He draws interesting parallels between Weinstein’s approach to resolving mass tort disputes, described in his book Individual Justice in Mass Tort Litigation and reflected in several of his opinions, and Guido Calabresi’s theories of tort law, set out most prominently in The Costs of Accidents. Hackney makes a compelling case that their views are more similar than most scholars recognize.
At first the connection between Calabresi and Weinstein seemed a bit of a stretch to me. I’ve read Calabresi’s The Costs of Accidents many times and it has always struck me to be a primarily normative vision of the tort system, full of considerations that have proved to be enormously influential to tort theorists, but of somewhat limited value to judges. For example, the argument that negligence doctrine should be abolished and replaced by strict liability is a theory that most judges would have difficulty putting into practice. This is also confirmed by Judge Friendly’s reluctance to rely on a normative theory based entirely on Calabresi, and put forward by the plaintiff, as a justification for expanding vicarious liability in Ira S. Bushy & Sons, Inc. v. United States, 398 F.2d 167 (2d Cir. 1968).
But Hackney shows that Calabresi’s ideas, melded with Weinstein’s own ideas, can yield a set of practical guidelines for managing and resolving mass tort litigation. My initial skepticism was swept away when I read Hackney’s description of Weinstein’s views on mass torts.
In discussing what he refers to as “modern innovations” in tort law that deal with the issues related to mass torts, Judge Weinstein argues that deterrence, punishment of wrongdoers, foreseeability, and a search for fault can no longer be touchstones of our tort law system. Instead, judges and juries should concentrate on (1) who should pay for the greater risk associated with an increasingly complicated and technological society; (2) the size of damage awards; (3) who should be compensated; and (4) how compensation should be distributed. It is all about deterrence, compensation, and loss spreading. Judge Weinstein notes that the irrelevance of fault in the mass torts context has its historical antecedent in the move to strict liability in products liability cases. He also attributes the historical shift to strict products liability to the need to reduce the administrative cost of trials. (P. 505.)
This is an approach to mass torts cases that is entirely in line with Calabresi’s vision of the tort system. Hackney’s citations connected to this passage are all to Weinstein’s book, not to Calabresi, yet the passage sounds as if it could have been based entirely on Calabresi.
My initial view that Calabresi’s vision could not be applied to real torts cases was wrong. The case management issues presented to judges by mass torts appear to be quite amenable to Calabresi’s influence. Hackney’s review offers both a theoretical framework for Weinstein and a practical application of Calabresi.
