combination with a number of other intellectual and political forces, it would appear that the principled defense of causation has seriously stalled the efforts of enterprise liability revisionists To summarize: legal scholars and courts seem to be near consensus on the view that to assign responsibility for a defendant without deeming its conduct to be either a prima facie wrong or an extraordinary taking of a risk runs against the grain of the principles embedded in the tort law, and therefore disfavored unless there are particularly forceful reasons of policy or equity for doing so Hence, there is strict liability for ultrahazardous activities--those involving extraordinary risks-and there is strict liability in worker's compensation as a policy-motivated legislative choice during the inception of the last century, and there is strict liability on a restitutionary basis in a narrow range of therwise there is not and to the extent that fo liability has move toward strict liability, scholars have favored a return to the negligence-based idea, unless particularly strong policy-based justifications can be demonstrated At a broader level, the richness of philosophical theories of tort law over the past few decades should not seem either mundane or rarified Questions about the basis of our tort liability push lawyers and citizens to think philosophically. Inquiry into the basic concept of responsibility and what role fault plays within it cuts deeply into both moral and political theory, and is hardly banal; exploration and modification of the contours of liability on the border of negligence and strict liability raise the bar on the importance of crafting intelligent answers to such questions, an activity that is hardly inert or esoterIc B Concepts within tort doctrine Commentators on tort theory --even those who recognize an important link between theory and ope questions in legal doctrine -typically assume that philosophy of tort law is largely exhausted by grand philosophical theories of the domain of tort law. It would be odd if this were true in torts, for it is not true in those areas of law where philosophical work has been most prominent -constitutional law and criminal law. In those areas, while grand theories such as fundamental rights theory or retributivism have been prominent, philosophers and philosophically oriented legal scholars have probed a variety of scope of judicial review the role of framers' intent in constitutional interpretation. Similarly, iions narrower questions In constitutional law, for example, important scholarship has focused on que such as(simply to name a few )the nature and scope of free speech, the right to privacy, the prop criminal law, scholarship has focused not only on the justification of punishment, but on(for example) the nature of criminal intent, the distinction between justification and excuse, and defenses such as insanity and self-defense. See ]sc[criminal law theory. ]p[We should not expect, therefore, that theories over whether fault or strict liability is the basic principle of tort would take up the space in philosophy of tort law. And that is just what we find Philosophers and philosophically oriented scholars of tort law have provided serious and interesting work on a variety of broad but defined legal issues. Thus, for example, philosophers have investigated the nature of the cause- in-fact and the proximate cause requirements for tort liability; the meaning of the"prudent person"standard or the"reasonable care"standard in negligence law (Feldman 2000; Keating 1996), the relation between intent and knowledge in intentional torts(Finnis 1995: Sebok 2001); the concept of foreseeability(Perry 2001: 88-101); and the nature of duty in negligence law(Goldberg Zipursky 1998; Weinrib 1995), just to take a few examples. The areas are ar too numerous even to survey here, but it may be useful to explore an example of this phenomenon Like the broader debate between fault and strict liability, the theoretical issues that revolve around more defined doctrines have tended to arise out of ongoing practical debates within actual types of legal disputes that courts are trying to resolve in a coherent, just, and beneficial manner
5 combination with a number of other intellectual and political forces, it would appear that the principled defense of causation has seriously stalled the efforts of enterprise liability revisionists. To summarize: legal scholars and courts seem to be near consensus on the view that to assign responsibility for a defendant without deeming its conduct to be either a prima facie wrong or an extraordinary taking of a risk runs against the grain of the principles embedded in the tort law, and is therefore disfavored unless there are particularly forceful reasons of policy or equity for doing so. Hence, there is strict liability for ultrahazardous activities -- those involving extraordinary risks -- and there is strict liability in worker’s compensation as a policy-motivated legislative choice during the inception of the last century, and there is strict liability on a restitutionary basis in a narrow range of cases. But otherwise there is not. And to the extent that, for example, product liability has moved toward strict liability, scholars have favored a return to the negligence-based idea, unless particularly strong policy-based justifications can be demonstrated. At a broader level, the richness of philosophical theories of tort law over the past few decades should not seem either mundane or rarified. Questions about the basis of our tort liability push lawyers and citizens to think philosophically. Inquiry into the basic concept of responsibility and what role fault plays within it cuts deeply into both moral and political theory, and is hardly banal; exploration and modification of the contours of liability on the border of negligence and strict liability raise the bar on the importance of crafting intelligent answers to such questions, an activity that is hardly inert or esoteric. B. Concepts within tort doctrine Commentators on tort theory -- even those who recognize an important link between theory and open questions in legal doctrine -- typically assume that philosophy of tort law is largely exhausted by grand philosophical theories of the domain of tort law. It would be odd if this were true in torts, for it is not true in those areas of law where philosophical work has been most prominent -- constitutional law and criminal law. In those areas, while grand theories such as fundamental rights theory or retributivism have been prominent, philosophers and philosophically oriented legal scholars have probed a variety of narrower questions. In constitutional law, for example, important scholarship has focused on questions such as (simply to name a few) the nature and scope of free speech, the right to privacy, the proper scope of judicial review, the role of framers’ intent in constitutional interpretation. Similarly, in criminal law, scholarship has focused not only on the justification of punishment, but on (for example) the nature of criminal intent, the distinction between justification and excuse, and defenses such as insanity and self-defense. See ]sc[criminal law theory. ]p[We should not expect, therefore, that theories over whether fault or strict liability is the basic principle of tort would take up the space in philosophy of tort law. And that is just what we find. Philosophers and philosophically oriented scholars of tort law have provided serious and interesting work on a variety of broad but defined legal issues. Thus, for example, philosophers have investigated the nature of the cause-in-fact and the proximate cause requirements for tort liability; the meaning of the “prudent person” standard or the “reasonable care” standard in negligence law (Feldman 2000; Keating 1996); the relation between intent and knowledge in intentional torts (Finnis 1995; Sebok 2001); the concept of foreseeability (Perry 2001: 88-101); and the nature of duty in negligence law (Goldberg & Zipursky 1998; Weinrib 1995), just to take a few examples. The areas are far too numerous even to survey here, but it may be useful to explore an example of this phenomenon. Like the broader debate between fault and strict liability, the theoretical issues that revolve around more defined doctrines have tended to arise out of ongoing practical debates within actual types of legal disputes that courts are trying to resolve in a coherent, just, and beneficial manner
Let us take the example of duty"in negligence law. The meaning and nature of the"dut element in negligence law is equally inviting to the skeptic and the moralist. This is immediately evident in Holmes's famous anticipation of legal realism in" The Path of the Law(1897), where he states that: "a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court; -and so of a legal right holmes the scholar was above all a tort theorist and so it is fair to take this largely jurisprudential statement as a commentary on duty in torts as well. Legal realism in torts in particular was advanced by Leon green in the early part of the twentieth century in work that expressly asserted that duty" in negligence law was largely a procedural device for shifting classes of cases to the court from the jury (Green 1928). See ]sclamerican legal realism. ]p[These theoretical statements then made their way into hornbook statements of law, and from there, they entered into the lexicon of the California Supreme Court of the 1960s and 1970s, as if they were black letter law. Essentially, Holmes's blend of realism moral skepticism, and reductive instrumentalism as attached to the pivotally important duty" in was quite real as well: large bodies of well-settled law, such as landowner liability, professional result negligence law had prevailed within the legal academy and within certain avant garde courts. The liability to third parties, emotional harm doctrine, and economic harm doctrine, as well as limitations on the duty to rescue, became targets of sustained critique purporting to display the rules as arbitrary limitations based on philosophically naive interpretations of the concept of duty In the context of a near landslide of support for a philosophical(and reductive)analysis of a central element of the main tort, negligence, it is not surprising that a philosophical opposition began to emerge. Weinrib's articles and those of several of his students began to take a harder look at the question of what role the duty element plays in negligence law. Weinrib's Kantian and Hegelian account of the correlativity of right and duty within negligence law is fundamental to his account of torts. And it is critical, on Weinrib's view, that the term"duty" refers to a relation of moral significance between two parties. Weinrib's moralization -- or remoralization--of torts anticipated a broader philosophical investigation of the meaning of"duty"within negligence law.(Weinrib 1983; Weinrib 1989; Weinrib 1995) In a series of articles, my coauthor John Goldberg and I have depicted the debate over duty as, in part, a philosophical debate over the structure of the concept of duty within certain kinds of normative systems(Goldberg Zipursky 1998; Goldberg Zipursky 2001; Goldberg Zipursky 2002). Quite apart from the interpretive question of what concept the law of negligence is best understood as displaying, there is an analytical question of whether a nonreductive conception of duty in negligence law can be articulated in such a way that it is not equivalent to the question of whether reasonable or ordinary care was used by the defendant. According to what is now the academically dominant account, to say that there was unreasonable conduct by the defendant but that there was no duty to use such care running to the plaintiff is simply to say that notwithstanding breach of duty causing injury, there shall be no right of action available to this particular plaintiff. That is because according to this conception, the only genuine obligation of conduct within negligence law is an exists as the standard of reasonable conduct, full stop. And hence, once one has concluded tha wust obligation to use due care, and this obligation does not run to any person or class of persons; it just reasonable conduct was not used, one has decided that the only genuinely duty-like aspect of the situation--the obligation to use reasonable care-- existed and was breached. If the court then turns around and says that the plaintiff must lose because there was no duty to him or her, the court can only be interpreted to mean that there is a class of cases involving a plaintiff situated a particular way and a defendant situated a particular way, which for some reason should not be actionable even where there is unreasonable conduct causing injury, and that this case belongs to that clas
6 Let us take the example of “duty” in negligence law. The meaning and nature of the “duty” element in negligence law is equally inviting to the skeptic and the moralist. This is immediately evident in Holmes’s famous anticipation of legal realism in “The Path of the Law” (1897), where he states that: “a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court; -- and so of a legal right.” Holmes the scholar was above all a tort theorist and so it is fair to take this largely jurisprudential statement as a commentary on duty in torts as well. Legal realism in torts in particular was advanced by Leon Green in the early part of the twentieth century in work that expressly asserted that “duty” in negligence law was largely a procedural device for shifting classes of cases to the court from the jury (Green 1928). See ]sc[american legal realism. ]p[These theoretical statements then made their way into hornbook statements of law, and from there, they entered into the lexicon of the California Supreme Court of the 1960s and 1970s, as if they were black letter law. Essentially, Holmes’s blend of realism, moral skepticism, and reductive instrumentalism as attached to the pivotally important “duty” in negligence law had prevailed within the legal academy and within certain avant garde courts. The result was quite real as well: large bodies of well-settled law, such as landowner liability, professional liability to third parties, emotional harm doctrine, and economic harm doctrine, as well as limitations on the duty to rescue, became targets of sustained critique purporting to display the rules as arbitrary limitations based on philosophically naïve interpretations of the concept of duty. In the context of a near landslide of support for a philosophical (and reductive) analysis of a central element of the main tort, negligence, it is not surprising that a philosophical opposition began to emerge. Weinrib’s articles and those of several of his students began to take a harder look at the question of what role the duty element plays in negligence law. Weinrib’s Kantian and Hegelian account of the correlativity of right and duty within negligence law is fundamental to his account of torts. And it is critical, on Weinrib’s view, that the term “duty” refers to a relation of moral significance between two parties. Weinrib’s moralization -- or remoralization -- of torts anticipated a broader philosophical investigation of the meaning of “duty” within negligence law. (Weinrib 1983; Weinrib 1989; Weinrib 1995) In a series of articles, my coauthor John Goldberg and I have depicted the debate over duty as, in part, a philosophical debate over the structure of the concept of duty within certain kinds of normative systems (Goldberg & Zipursky 1998; Goldberg & Zipursky 2001; Goldberg & Zipursky 2002). Quite apart from the interpretive question of what concept the law of negligence is best understood as displaying, there is an analytical question of whether a nonreductive conception of duty in negligence law can be articulated in such a way that it is not equivalent to the question of whether reasonable or ordinary care was used by the defendant. According to what is now the academically dominant account, to say that there was unreasonable conduct by the defendant but that there was no duty to use such care running to the plaintiff is simply to say that notwithstanding breach of duty causing injury, there shall be no right of action available to this particular plaintiff. That is because, according to this conception, the only genuine obligation of conduct within negligence law is an obligation to use due care, and this obligation does not run to any person or class of persons; it just exists as the standard of reasonable conduct, full stop. And hence, once one has concluded that reasonable conduct was not used, one has decided that the only genuinely duty-like aspect of the situation -- the obligation to use reasonable care -- existed and was breached. If the court then turns around and says that the plaintiff must lose because there was no duty to him or her, the court can only be interpreted to mean that there is a class of cases involving a plaintiff situated a particular way and a defendant situated a particular way, which for some reason should not be actionable even where there is unreasonable conduct causing injury, and that this case belongs to that class