In discussing tort theory, Professor Gregory Keating sometimes refers to a “third way.” By this, I take him to mean an approach to tort theory different than, and drawing from, the two major ways of explaining and/or justifying tort law. For decades, those dominant approaches were law and economics efficiency and corrective justice,1 though I suspect civil recourse theory has now supplanted corrective justice as the primary “rights-based” theory.
Keating’s own version of a third way emerges in the course of reading his excellent book, which builds on his previous scholarship. While engaging with law and economics (hereafter “L&E”) and corrective justice (hereafter “CJ”)/civil recourse (hereafter “CR”) scholars, Keating constructs a theory of tort law that draws from both sources. Keating is not, however, Solomonic in the sense that he is simply splitting the baby. He embraces a deontological perspective that he believes is inherent in tort law. In sum, “[t]ort is about what we owe to each other in the way of coercively enforceable obligations not to impair or interfere with each other’s urgent interests as we go about our lives in civil society.” (P. 6.)
Five choices by Keating, in which he departs from the consensus of deontological tort scholars, flesh out his third way. First, his insistence that tort is forward-looking, though not in the way L&E scholars describe. According to L&E scholars, tort judgments “shape behavior so that the only injuries inflicted are those that are cheaper to inflict than to avoid.” (P. 21.) CJ scholars reject this interpretation of tort on the grounds that tort litigation is “just what it seems to be, namely, a backward-looking attempt to assign responsibility for redressing harm wrongly done—not a forward-looking exercise in regulation.” (P. 21.) Keating agrees with CJ scholars on this point, but he argues that they go astray by placing tort’s remedial obligation at its center.
Following a number of tort scholars, Keating differentiates tort’s primary and secondary obligations. Tort’s primary obligations are the rules it imposes on us not to interfere with each other’s urgent interests. Tort’s secondary obligation is to repair violations of those primary obligations (past wrongs). Partially because so many of tort’s wrongs cannot really be repaired (wrongful death is the prime example), Keating believes reparation is tort’s second-best solution. Instead, “[t]he ‘overaching aim or purpose’ of the law of torts is not to repair harm wrongly done but to articulate and enforce certain obligations to others—obligations that are grounded in fundamental interests of persons ….” (P. 51.) Because tort adjudication “puts the prospect of reparation to use to enforce primary rights and responsibilities,” it is not just backward-looking, but forward-looking as well. (P. 58.)2
Second, Keating’s understanding of tort as “private law” differs from prominent CJ theorists. In response to L&E scholars arguing that tort is essentially an instrument of public law objectives, CJ scholars assert that tort is private law. Those scholars emphasize the form of tort lawsuits—a plaintiff suing in her own name against a defendant—to remind us that such form does not match the public substance claimed by L&E scholars. (P. 74.) Although Keating agrees with this basic point, he believes that CJ scholars are “both asking and making too much of form.” (P. 70.) They ask too much of form when they try to make sense of private law solely on that basis, without taking interests into account. (P. 70.) Tort does not simply recognize our formal independence from one another, it secures protection for our urgent interests, especially bodily security. (P. 121.) CJ scholars make too much of form “when they present the legal category of tort as its own independent kingdom, walled off from surrounding legal fields.” (P. 70.) Instead, Keating asserts, tort law is “interwoven” with administrative systems, such as workers’ compensation, and statutory regimes, such as zoning and direct risk regulation. (P. 71.)
Third, Keating embraces negligence as balancing. The concept of balancing fits nicely into a L&E version of tort law; in fact, the L&E theory was most famously elaborated from the Hand (balancing) test.3 CJ and CR scholars have offered alternative explanations of negligence that typically avoid the need to balance factors. Keating concedes that a categorical approach has both positive features and some support in case law. However, it “risks legitimating unacceptably large risk impositions that happen to be common, and it is out of step with the dominant contemporary understanding of negligence in the United States….” (P. 129.)
Keating insists that negligence is a balancing of freedom and security, and it can be done in a way that avoids the objectionable aspects of L&E. That account improperly equates reasonable care with rational care: “the care that society would take, imagining society to be a single actor who bears all the costs and all the benefits of risk impositions and who seeks to make itself as well off as possible.” (P. 125.) Thus, acting rationally is to “pursue our self-interest in an instrumentally intelligent way.” (Pp. 125-26.)
Keating rejects the economic interpretation of the Hand test.4 As opposed to acting rationally, acting reasonably is to “take the rights and interests of those others that our actions affect into account, and act in ways that are justifiable to them.” (P. 126.) Moreover, safety “has special importance because it is an essential condition of effective agency.” (P. 157.) Instead of economics’ deference to subjective preferences, negligence law “is firmly committed to the objective valuation of the urgency of claims and the importance of interests.” (P. 139.) Thus, for Keating, negligence law balances freedom and security, but gives greater weight to the latter.
Fourth, Keating accepts strict liability as a legitimate part of tort law. For Keating, there are two distinct kinds of strict liability: sovereignty-based and harm-based. Sovereignty torts “involve crossing normative boundaries that define domains subject to the control of those who hold relevant autonomy rights.” (P. 234.) Examples include trespass, conversion, and some instances of battery, in spite of the fact they are labelled as intentional torts.
The controversy is over harm-based strict liability torts, which are accepted by L&E scholars, but not by many CJ and CR scholars. Harm-based strict liability “identifies a kind of tort liability which imposes responsibility for repairing harm on a party responsible for the infliction of that harm, even though that party cannot be faulted for failing to prevent the harm.” (P. 231.) Examples include abnormally dangerous activities, instances of nuisance liability, vicarious liability, and some forms of product defect liability. Many CJ and CR scholars argue this form of strict liability does not involve a wrong, and therefore is not a legitimate part of tort law. But Keating defends harm-based strict liability as involving a wrong: “the wrong committed in these liabilities is the conditional wrong of harming-without-repairing.” (P. 248.) Keating asserts, “[h]arm-based strict liabilities are corrective insofar as they undo wrongs whose essence lies in benefiting through harming a particular person and thereby benefiting at that person’s expense.” (P. 263.)
Fifth, Keating acknowledges the concept of collective responsibility. For Keating, following Holmes, the world is divided into acts and activities. “Premodern tort law was a law of nominate, mostly intentional, wrongs, whereas modern tort law is mostly a law of accidents that are recurring byproducts of basic activities in industrial and technological society.” (P. 107.) Because modern tort law is “characteristically associated with activities, responsibility for those accidents may be lodged either with individuals or with activities.” (P. 107.)
Keating contends that tort sometimes requires collective responsibility in the form of enterprise liability, which is “liability for the harms distinctive to a firm, to an institution, or to an activity.” (P. 266.) It is generally associated with L&E-like instrumentalism, specifically compensation (loss-spreading) and deterrence. Keating, however, argues that this understanding overlooks, and thus badly misunderstands, enterprise liability’s moral foundation, a principle of fairness: “[t]he costs of [accidents characteristic of an enterprise] should … be distributed among those who benefit from the imposition of the enterprise’s risks.” (P. 272.) Keating sees enterprise liability in some parts of tort law, particularly vicarious liability and aspects of products liability, and in compensation systems that are tort adjacent, such as workers’ compensation and no-fault automobile insurance. CJ and CR scholars do not recognize the legitimacy of collective responsibility because it does not correspond to wrongs as they understand them.
Of all Keating’s fascinating topics, the last is the most comforting and challenging to me. It is comforting because it helps me reconcile my increasingly wrongs-oriented approach to tort law with my attraction to compensation systems.5 I have long believed there was a fairness principle in those systems overlooked in the literature.
But acknowledging collective responsibility as operating within tort law is destabilizing in that it creates significant line-drawing issues. Keating is correct that enterprise liability, properly understood, will not swallow up all individual responsibility. But the boundary between acts and activities will not always be clear. Moreover, even if it is clear that something is an activity and not an act, Keating claims that responsibility may be lodged either with individuals or with activities. In any given case, how are we to choose? Keating is aware of these issues and, in the context of administrative systems, states it is a topic for another day. (P. 296.) Surely with as much as he tackled in this book, we can be patient for more. But these crucial issues will become urgent as we wrestle with how to treat injuries from autonomous vehicles and other artificial intelligence-based products and technologies.
Keating skillfully brings his philosophical training to bear on tort law while remaining grounded in doctrine and cases. His book is a must-read for anyone interested in tort theory.
- Gary T. Schwartz, Mixed Theories of Tort Law: Affirming Both Deterrence and Corrective Justice, 75 Tex. L. Rev. 1801 (1997) (“Currently there are two major camps of tort scholars.”).
- Emphasis in original, in this and other quotations.
- Richard A. Posner, A Theory of Negligence, 1 J. Legal Stud. 29 (1972).
- In fact, Keating points out that Hand himself saw the formula as conceptual, isolating the elements of due care and the relationships among them. (P. 133.)
- Christopher J. Robinette, Harmonizing Wrongs and Compensation, 80 Md. L. Rev. 343 (2021); Jeffrey O’Connell & Christopher J. Robinette, “Choice Auto Insurance”: Do Theories of Justice Require Linkage Between Injurers and the Injured?. 1997 U. Ill. L. Rev. 1109.
