Academic

Calnan on Duty in Tort Law

By Lawrence Solum

Alan Calnan (Southwestern Law School) has posted Duty and Integrity in Tort Law on SSRN.  Here is the abstract:

The tort concept of duty lacks integrity in virtually every popular sense of that term. It is at once incomplete, unharmonious and unbeholden to any ethical principle or moral standard. Although these problems are interrelated, each corrupts tort jurisprudence in its own unique way.

The incompleteness problem is particularly acute in theories of intentional tort and strict liability, where it is either selectively invoked or completely ignored. While duty holds a more prominent place in negligence, it has been fragmented into myriad specialized obligations which remain mostly in disarray.

Such disunity, in turn, has fostered an even greater problem of disharmony, Tort scholars disagree about what duty is and what it is supposed to do. At one extreme, deontologists see duty as a strict moral obligation that judges must adopt and implement in accordance with natural law. At the other extreme, realists view duty merely as a terminological fażade for a judge's unfettered policy decision that liability should or should not exist. Between these opposed camps lie the pragmatists, who conceive of duties as useful guiding principles, but readily recognize a judge's authority to create new rules whenever social circumstances so require.

Beneath even this collective dissonance lurks the third integrity issue: the moral problem of principle. Besides the deontological view, which grounds duty in exceedingly strong moral principles, each of the remaining camps fail to give principle its due. Because the realists and pragmatists refuse to commit to any specific set of principles - most especially, liberal-moral principles rooted in American history, law, culture and values - their approaches necessarily lack a unifying standard, and so seem doomed to unpredictability, inconsistency and incoherence.

These problems, however, are not intractable. In fact, significant guidance can be found in the work of Ronald Dworkin, whose theory of "law as integrity" provides a methodology for judicial lawmaking and interpretation. Under this theory, judges deciding hard cases must seek to promote liberal values of equality, liberty and due process by interpreting the law in a way that not only squares with past precedent, but also reconciles and strengthens the law's core principles and integrates them into a larger, cohesive framework.

Because tort law is largely judge-made, and the "law" part of torts consists primarily of its scheme of duties, Dworkin's approach seems naturally fitted to the law's current duty conundrum. Still, that fit may not be perfect. While Dworkin views history as mostly irrelevant to modern legal interpretation, the history of tort law may well tell us something quite profound about the law's core principles, their connection to the law's present value system and their role in shaping that system's cultural identity.

For these reasons, I shall offer a modified Dworkinian theory of tort duty that not only fits and justifies the law's present values, doctrines and structures, but also respects and promotes its historical tradition. Part I begins by briefly examining the role of duty in a liberal state. It then explores common law duties in particular, revealing their developmental patterns and exposing their integrity problems. Part II reviews Dworkin's approach to these problems, explaining his theory of "law as integrity" and highlighting some of the problems in his approach. In Part III, the focus shifts to the concept of duty in tort law. After tracing the historical development of duty in torts, it examines the duty concepts in tort's three modern theories of liability. It finds great integrity in intentional torts, a lost integrity in strict liability and the promise of integrity in negligence.

The remainder of the article seeks to fulfill this promise. In Part IV, I examine the history or vertical integrity of negligence's duty concept, exposing several flaws in the modern view. Then, picking up on Dworkin's approach, I explore the horizontal integrity of this concept, identifying in Part V duty's substantive bases and conceptual limits, proposing in Part VI a structured, interpretive analysis, and illustrating in Part VII the application of that analysis in a difficult duty case. Part VIII culminates the discussion by offering a general methodology for handling all negligence duty issues. To put this new metatheory in perspective, the Conclusion highlights its significant features and addresses some of its likely criticisms.

Full post as published by Legal Theory Blog on July 04, 2008 (boomark / email).