Vanderbilt university law school Public law legal Theory Norking Paper Number 04-14 aw economics Working Paper Number 04-20 TORT LAW FOR FEDERALISTS(AND THE REST OF US): PRIVATE LAW IN DISGUISE JOHN C P. GOLDBERG A revised version of this paper is forthcoming Harvard Journal of Law Public Policy (2004) aper can be downloaded without charge from the ocial Science Research Network Electronic Paper Collectic http://ssrn.com/abstract=565129
Vanderbilt University Law School Public Law & Legal Theory Working Paper Number 04-14 Law & Economics Working Paper Number 04-20 TORT LAW FOR FEDERALISTS (AND THE REST OF US): PRIVATE LAW IN DISGUISE JOHN C. P. GOLDBERG A revised version of this paper is forthcoming Harvard Journal of Law & Public Policy (2004) This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract=565129
Tort Law for Federalists(and the Rest of Us) Private law in disguise John C P Gold Vanderbilt law school (Forthcoming, 28 Harv. J. L& Pub. Policy_(2004)) Abstract This essay argues in favor of understanding tort law as a law of private redress, rather than public regulatory law. Part I uses the U. S. Supreme Court's 2003 decision on punitive damages in State Farm Mut. Ins CO. l: Campbell to demonstrate some of the with formalist reasoning, an elevation of common law over statute, or political conservatism Key words: torts, private law, common law, redress, public law, damages, punitive damages, formalism, Federalists, Supreme Court, pragmatic conceptualism
2 Tort Law for Federalists (and the Rest of Us): Private Law in Disguise John C. P. Goldberg Vanderbilt Law School (Forthcoming, 28 Harv. J. L. & Pub. Policy __ (2004)) Abstract This essay argues in favor of understanding tort law as a law of private redress, rather than public regulatory law. Part I uses the U.S. Supreme Court’s 2003 decision on punitive damages in State Farm Mut. Ins. Co. v. Campbell to demonstrate some of the weaknesses of public law conceptions of tort, and some of the strengths of a private law conception. Part II maintains that a private law model need not be associated with formalist reasoning, an elevation of common law over statute, or political conservatism. Key words: torts, private law, common law, redress, public law, damages, punitive damages, formalism, Federalists, Supreme Court, pragmatic conceptualism
Tort Law for Federalists(and the Rest of Us): Private Law in disguise John C P. Goldberg Forthcoming, 28 Harv. J. L.& Pub. Policy__(2004) The question posed for this panel reads as follows: "Should Tort Law be a form of Public Regulatory Law?" My answer is"No. What I mean by that will become clearer in a moment, but let me offer an immediate set of qualifications. I do not mean to dispute that there are certain respects in which tort law is "public. For one thing it is law, provided by government--no service, no sheriff, no tort law. For another, its operation can have widespread effects -a tort suit can change how cars are designed and how health care is delivered, for example. Finally, through its day to-day operation, tort law undoubtedly promotes public objectives including deterrence of risky or otherwise undesirable conduct, maintenance of social cohesion vindication of individual rights, affirmation of the equality of persons under law, and reinforcement of the ideal of limited government. I But now consider the following question: What, in the first instance, does tort law promise to do that warrants retaining it as a distinctive facet of our law?"'(Or: Professor, Vanderbilt Law School. Thanks to Mark Brandon, Rebecca Brown, Don Herzog, Richard Nagareda, Bob Rasmussen, Tony Sebok, and Ben Zipursky for their helpful comments. Remaining errors are my own i See John C. P. Goldberg Benjamin C. Zipursky, Acidents of The Great Society,_ Md. L. Rev.-(2004 (forthcoming)(identifying various political values served by tort law). To say that tort law serves certain values is not to say that each tort case is an occasion for judge and jury to fashion a result that will best serve those values, as opposed to following the rules and principles contained within tort law. Nor is it to say that tort law to promote these values, or that it consistently serves these values better than any onceivable alternative arrangements. Finally, it does not entail denying that tort law can generate socially undesirable consequences, such as litigiousness and waste
3 Tort Law for Federalists (and the Rest of Us): Private Law in Disguise John C. P. Goldberg* Forthcoming, 28 Harv. J. L. & Pub. Policy __ (2004). The question posed for this panel reads as follows: “Should Tort Law be a form of Public Regulatory Law?” My answer is “No.” What I mean by that will become clearer in a moment, but let me offer an immediate set of qualifications. I do not mean to dispute that there are certain respects in which tort law is “public.” For one thing it is law, provided by government -- no service, no sheriff, no tort law. For another, its operation can have widespread effects -- a tort suit can change how cars are designed and how health care is delivered, for example. Finally, through its dayto-day operation, tort law undoubtedly promotes public objectives including deterrence of risky or otherwise undesirable conduct, maintenance of social cohesion, vindication of individual rights, affirmation of the equality of persons under law, and reinforcement of the ideal of limited government.1 But now consider the following question: What, in the first instance, does tort law promise to do that warrants retaining it as a distinctive facet of our law?” (Or: * Professor, Vanderbilt Law School. Thanks to Mark Brandon, Rebecca Brown, Don Herzog, Richard Nagareda, Bob Rasmussen, Tony Sebok, and Ben Zipursky for their helpful comments. Remaining errors are my own. 1 See John C. P. Goldberg & Benjamin C. Zipursky, Accidents of The Great Society, __ Md. L. Rev. __ (2004) (forthcoming) (identifying various political values served by tort law). To say that tort law serves certain values is not to say that each tort case is an occasion for judge and jury to fashion a result that will best serve those values, as opposed to following the rules and principles contained within tort law. Nor is it to say that tort law always operates so as to promote these values, or that it consistently serves these values better than any conceivable alternative arrangements. Finally, it does not entail denying that tort law can generate sociallyundesirable consequences, such as litigiousness and waste
What is it about tort law that renders it capable of delivering public goods such as the ones just described?) Because of tort laws unique features- plaintiff-initiated complaints, the right to jury trial, litigation and adjudication turning on rules and concepts designed to help determine whether a person can be held responsible for having injured another, etc --its best justification is that, unlike all the other political and legal institutions we have for dealing with anti-social conduct and injuries (administrative regulation, criminal law, public welfare law, private insurance, bankruptcy, contract, etc. ) it provides a means by which those who have been wronged can seek redress against those who have wronged them. By contrast, the tort system is not well designed to function as a form of disaster relief for injury victims because of its high transaction costs and its tendency to produce feast-or- famine compensation. It is also not well-equipped to provide public safety regulation because of, among other things, judges' and jurors' lack of agenda control, their limited access to information, and their relative lack of expertise and accountability In this sense, I maintain, tort law is not defensible as public regulatory law In providing a negative answer to the panel question, I have already declared myself to be outside the mainstream among torts professors. Indeed, most would profess puzzlement at its having been asked in the first place. To inquire whether tort law "should be''public regulatory law supposes that it could be something else should' implies "can And very few of them believe that it can. Instead, they would say that the real issue is whether, ginen that tort law is of course regulatory law,it should be celebrated or condemned. On this question, my co-panelists split
4 What is it about tort law that renders it capable of delivering public goods such as the ones just described?) Because of tort law’s unique features -- plaintiff-initiated complaints, the right to jury trial, litigation and adjudication turning on rules and concepts designed to help determine whether a person can be held responsible for having injured another, etc. -- its best justification is that, unlike all the other political and legal institutions we have for dealing with anti-social conduct and injuries (administrative regulation, criminal law, public welfare law, private insurance, bankruptcy, contract, etc.), it provides a means by which those who have been wronged can seek redress against those who have wronged them. By contrast, the tort system is not well designed to function as a form of disaster relief for injury victims because of its high transaction costs and its tendency to produce feast-orfamine compensation. It is also not well-equipped to provide public safety regulation because of, among other things, judges’ and jurors’ lack of agenda control, their limited access to information, and their relative lack of expertise and accountability. In this sense, I maintain, tort law is not defensible as public regulatory law. In providing a negative answer to the panel question, I have already declared myself to be outside the mainstream among torts professors. Indeed, most would profess puzzlement at its having been asked in the first place. To inquire whether tort law “should be” public regulatory law supposes that it could be something else -- “should” implies “can.” And very few of them believe that it can. Instead, they would say that the real issue is whether, given that tort law is of course regulatory law, it should be celebrated or condemned. On this question, my co-panelists split
Professor Bogus comes to praise tort law, while Professor Priest aims to bury it. I will argue that tort law has been poorly served - and poorly serves us- by academic attempts to describe and defend it as public regulatory law Let me illustrate my point by discussing a famous tort suit that raised issues ultimately decided by the u.s. Supreme Court in 2003 --tate Farm t: Campbell. State Farm issued auto insurance to the Campbells. After Mr. Campbells careless driving caused a car accident, he was sued in negligence by the person he injured. State Farm took over the defense of the suit and did a very bad job of it. In particular,it declined an offer to settle the case at the rather modest limits of the Campbells policy. State Farms"bad faith breach'of the duty to defend resulted in a judgment against the Campbells that exceeded their coverage by $135,000, and put them in danger of losing their home. A Utah jury hearing the Campbells' claim against State Farm awarded them $2.5 million in compensatory damages(mostly for emotional distress). In addition based on evidence of questionable practices employed by State Farm in handling State Farm Mut. Auto Ins Co. v. Campbell, 538 U.S. 408(2003). My thinking on the subject of punitive damages has been heavily influenced by the work of Ben Zipursky and Tony Sebok. See Anthony J Sebok, Introduction: w hat Does it Mean to Say that A Remedy Punishes, 78 Chi. Kent L. Rev. 3(2003); Anthony J. Sebok, W hat Did Punitive Damages Do?: W ly Misunderstanding the History of punitive Damages Matters Today, 78 Chi. Kent L. Rev. 16.3(2003); Benjamin C. Zipursky, BMW r: Gore: A New Chestnut(unpublished manuscript on file with the author). See also Thomas B. Colby, Beyond the Multiple Punishment Problem: Punitive Damages as Punishment for Indiidual Prinate W rongs, 87 Minn. L. Rev. 583(2003). Martin Redish and Andrew Mathews have recently argued that, given modern instrumental justifications of punitive damages, their award necessarily amounts to an impermissible delegation of public regulatory authority to private actors. See Martin H. Redish Andrew L. Mathews, W by Punitive Damages are Unconstitutional 53 Emory L J. 1(2004 ). I would say instead that a given punitive damage award may be unconstitutional if it is the case that the onb justification for the award magnitude is that it serves public goals such as deterrence, as opposed to providing redress to the victim of a particularly egregious form of mistreatment committed by the tortfeasor upon the victim
5 Professor Bogus comes to praise tort law, while Professor Priest aims to bury it. I will argue that tort law has been poorly served -- and poorly serves us – by academic attempts to describe and defend it as public regulatory law. I Let me illustrate my point by discussing a famous tort suit that raised issues ultimately decided by the U.S. Supreme Court in 2003 -- State Farm v. Campbell. 2 State Farm issued auto insurance to the Campbells. After Mr. Campbell’s careless driving caused a car accident, he was sued in negligence by the person he injured. State Farm took over the defense of the suit and did a very bad job of it. In particular, it declined an offer to settle the case at the rather modest limits of the Campbells’ policy. State Farm’s “bad faith breach” of the duty to defend resulted in a judgment against the Campbells that exceeded their coverage by $135,000, and put them in danger of losing their home. A Utah jury hearing the Campbells’ claim against State Farm awarded them $2.5 million in compensatory damages (mostly for emotional distress). In addition, based on evidence of questionable practices employed by State Farm in handling 2 State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408 (2003). My thinking on the subject of punitive damages has been heavily influenced by the work of Ben Zipursky and Tony Sebok. See Anthony J. Sebok, Introduction: What Does it Mean to Say that A Remedy Punishes, 78 Chi.-Kent L. Rev. 3 (2003); Anthony J. Sebok, What Did Punitive Damages Do?: Why Misunderstanding the History of Punitive Damages Matters Today, 78 Chi.-Kent L. Rev. 163 (2003); Benjamin C. Zipursky, BMW v. Gore: A New Chestnut (unpublished manuscript on file with the author). See also Thomas B. Colby, Beyond the Multiple Punishment Problem: Punitive Damages as Punishment for Individual, Private Wrongs, 87 Minn. L. Rev. 583 (2003). Martin Redish and Andrew Mathews have recently argued that, given modern instrumental justifications of punitive damages, their award necessarily amounts to an impermissible delegation of public regulatory authority to private actors. See Martin H. Redish & Andrew L. Mathews, Why Punitive Damages are Unconstitutional, 53 Emory L.J. 1 (2004). I would say instead that a given punitive damage award may be unconstitutional if it is the case that the only justification for the award or its magnitude is that it serves public goals such as deterrence, as opposed to providing redress to the victim of a particularly egregious form of mistreatment committed by the tortfeasor upon the victim