Gregory Keating’s absorbing and insightful new article, “Irreparable Injury and the Limits of the Law of Torts,” surveys familiar territory from a distinctive vantage. As he does in his recent book, Reasonableness and Risk, Keating invites us to reconsider the fundamentals of what tort law is for and what reasonable care looks like. In this paper, he presents these questions through a central motivating problem: reparation is one of the central goals of tort (some would say its only goal), but in many cases, “tort reparation is not fully up to its assigned task.” (P. 1.) In particular, serious physical injury and death are two harms that tortious wrongdoing may inflict but the tort system cannot repair.
Keating argues that this problem finds its clearest expression in cases of premature death. (P. 3.) He observes that common-law tort failed to address the death of plaintiffs at all, and to the extent that tort suits address it today, they do so through statutory survival and wrongful death actions. (Pp. 4-5.) Even then, generally speaking, neither action compensates for the specific harm that occupies Keating: the harm of no longer being alive. Survival and wrongful death actions may account for financial resources lost on account of tortious premature death, and loved ones may receive recompense for their own emotional harms, but hedonic damages—damages for pain and suffering or loss of enjoyment of life—are generally available only for the period in which an injured plaintiff was alive. They are not typically awarded to the dead. (P. 5.)
Keating’s broad point here—that tort law cannot fully repair certain types of harms—is familiar from the literature on incommensurability and corrective justice. But here Keating builds upon his prior work on irreparable injury to pursue the issue in a specific direction. By homing in on tortious killings, Keating suggests that the problem is not just that tort law’s remedies do not succeed in redressing harms that are incommensurable with money, but that for some types of harm, arguably the worst types, tort does not even attempt to offer redress. Seemingly by design, the tort system “is intrinsically incomplete.” (P. 3.)
Some might leverage this acknowledgment as a critique of corrective justice theories. Some might further use it to argue that any plausible tort theory must incorporate deterrence: after all, if tort cannot adequately repair certain types of devastating harm, perhaps it ought to try to prevent them in the first place. Keating takes a different tack. He does note that irreparable injury is a problem for corrective justice accounts. At the same time, however, he views it as a major problem for deterrence, at least as that value manifests in standard economic conceptions of tort. (P. 3.) Citing Richard Posner, Keating observes that deterrence is only achieved if damage awards fully reflect the costs of accidents. (P. 3.) They clearly do not do so, Keating argues, in cases of tortious death or serious physical harm. Tort is thus “a flawed price system,” the deterrent power of which diminishes precisely where potential victims need it most. (P. 4.)
Keating thus maintains that the incompleteness problem poses grave difficulties both for corrective justice theories and efficient deterrence theories. More affirmatively, he argues that the problem of irreparable injury should cause us to turn our attention to one specific element of negligence claims: the standard of care.
The failure of tort to address irreparable injury, Keating argues, indeed signals the need for deterrence—for preventing irreparable injury in the first place. Keating thus maintains that deterrence is an important component of the law’s approach to serious injury: a law of reparation alone is not enough. (P. 6.) Notably, however, he embraces deterrence for deontological rather than economic reasons. He argues that physical safety “is a kind of Rawlsian primary good,” because harm to it “impair[s] our basic powers of agency.” (P. 6.) Because physical safety is a primary good, harms to it are different in kind from other harms, such as financial loss. Given the importance of physical safety, avoidance of physical harm is of higher priority than deterrence of other harms.
Higher priority for avoidance of physical harm leads Keating to argue that the traditional economic conceptualization of deterrence as efficiency is incorrect. Defining the appropriate standard of care in cost-benefit terms does not recognize the priority of physical safety. When the question is whether to spend a bit more or impose risk of severe physical harm on others, Keating argues, the cost-efficient decision is often the wrong one as a moral matter. (Pp. 8-9.)
To provide alternatives to the Posnerian conception of negligence, Keating draws on two standards found in regulatory law: the “safe-level” standard and the “feasibility” standard. Both, he says, are alternative standards of care that better reflect the priority of avoiding physical harm.
The safe-level standard requires risk to be reduced to the point where no “significant risk” of devastating injury exists. (P. 12.) As an example, Keating points to the Food Quality Protection Act of 1996, which requires pesticide residue to be reduced to a “safe” level, i.e., where “there is a reasonable certainty that no harm will result from aggregate exposure” to pesticide residue (P. 12.) The feasibility standard, meanwhile, requires that risk be reduced as much as possible consistent with the long-run continuation of an activity. Keating draws from the Occupational Health and Safety Act and the Clean Air Act to offer examples of standards that essentially require risk reduction to the maximum feasible degree. (P. 13.) Looking outside the law, Keating sees something like a feasibility standard in social attitudes toward rescue: “Money seems no object when miners are trapped in a mine, or when children are trapped in a burning building,” even though “[f]rom an economic perspective this seems foolish and extravagant.” (P. 16.)
Keating argues that both safe-level and feasibility standards stand in stark contrast to the dominant economic approach to deterrence, which equates cost-efficient care with legally adequate care. He believes cost-benefit analysis may provide the correct standard in some cases—for example, those involving exclusively financial and property-based harms, which can appropriately trade off against each other—but should not define care across the board. Avoidance of certain severe and irreparable harms deserves priority and thus requires a higher standard of care.
Irreparable Injury and the Limits of Tort revisits familiar problems from within tort theory with Keating’s own distinctive approach. On a theoretical level, he sets forth a deontological theory that insists upon deterrence as a core value but rejects typical economic conceptions of deterrence as morally inapposite. He offers a deontological approach that encompasses both reparation and deterrence, while acknowledging tort’s inadequacies on both counts. He sees the inadequacy of reparation as inescapable—which makes it all the more important to reconceptualize deterrence to protect better against irreparable injury.
The piece also places Keating’s theoretical argument within the context of existing law, where he finds fewer resonances within tort than within regulation. Keating’s choice to bring regulatory standards into conversation with tort theory has striking implications. One is that tort theory perhaps does not have a monopoly on how to conceptualize its core values—that, as the article’s title suggests, tort has limits.
The piece also suggests an implication for regulatory law: that increasing allegiance to cost-benefit analysis within administrative agencies is moving in exactly the wrong direction. Higher regulatory standards of care should supplant tort’s commitment to deterrence as efficiency, not vice versa. (Pp. 7-8.) Keating contends that “acting efficiently is not rationality incarnate,” and “[e]fficiency is one value among many.” (P. 8.) He argues that philosophical and political liberalism’s commitment to value pluralism makes physical safety a better candidate for priority than efficiency—at the least, it casts grave doubt on assertions that efficiency is a “master value for all law and public policy” and cost-benefit analysis “the only game in town.” (P. 10.)
Keating recognizes work on irreparable injury from different specialties and methodologies, including my colleague Doug Laycock’s writing on the concept within remedies jurisprudence and Mark Geistfeld’s economic analysis of it within tort law. Geistfeld is especially apt, and Keating is in conversation with him in the notes of this piece: working from an economic perspective, Geistfeld argues that the inadequacy of tort remedies compels us to reevaluate the substantive standards imposed by tort duties. (Geistfeld, too, takes issue with dominant economic and corrective accounts on this basis.) It would be enlightening to see more direct conversation with other approaches in the main text. It is striking that consideration of the problem of irreparable injury can generate relatively convergent insights from radically different methodological starting points, and I am interested in what further reflection would yield.
I am also curious about how Keating would approach irreparable injury that does not involve the physical integrity of persons—for example, irrevocable alterations to or losses of real or personal property. Some other accounts of irreparable injury address such harms, but the special priority Keating gives to avoidance of physical injury and death leaves them in an uncertain position within his account. Elaboration would be especially welcome given Keating’s analogies to administrative regulation, where rules might protect not only human physical health and safety but also special features of the natural environment, or the continued existence of other species, or other goods that are difficult to quantify and impossible to restore once they are lost.
In debates about deontological and consequentialist theories of tort, the clash between single-value theories—between repair and deterrence—can sometimes ring the loudest. Keating’s body of work makes an important and cohesive case for both repair and deterrence under one umbrella. In this article, Keating elaborates on his deontological account of why deterrence matters, an account that warrants consideration by theorists of all stripes. And just as his theory offers food for thought for everyone, his approach provides a suggestion for us all: that we should sometimes look up and out, toward the law beyond tort’s limits.
