Instrumentalism and the Disintegration of American Tort Law
By David Littel
On February 20, 2003, the manager of the rock band Great White decided that the occasion of the band’s concert at a small Rhode Island nightclub called for something special. Lacking authorization from the club to do so, he lit a series of pyrotechnics on the stage while the band played. Tragically, the ensuing conflagration killed one hundred people and seriously burned or injured almost two hundred others.
In June 2003, a lawsuit was filed naming the band manager as a defendant. It also named as defendants the owners of the nightclub, who had installed on the interior of the building’s walls highly flammable soundproofing material that allegedly caused the fire to spread more quickly than it might have otherwise; Anheuser-Busch, for selling beer at the club and possibly promoting the event; the town of Warwick, Rhode Island, for its alleged role in the tragedy; several town officials, for theirs; and many others—twenty-seven defendants in total.
That was not all. In August 2004, the suit was amended to include an additional twenty-six defendants, bringing the total to fifty-three. Among the new defendants were nearby retail establishments that had sold tickets to the event, the band’s record company, the manufacturer of the pyrotechnics and its parent company, nearby radio stations that had mentioned the concert on the air, a cameraman who was present at the event as well as his television station and its parent company, and the company that owned the bus the band had used to get to the event. The amended lawsuit posited theories of why each defendant was responsible for the death and destruction caused by the fire.
Nor was that all. Other plaintiffs filed additional lawsuits blaming the fire on still others. The largest was filed on behalf of the families of eighty of the deceased and more than one hundred injured plaintiffs. According to the New York Times, that lawsuit—which includes all the defendants named in all the lawsuits to date—names ninety-three defendants.1
It would be an error to dismiss this as an “extreme” case that is not indicative of the reality of litigation in America today. Although the high number of defendants is indeed out of the ordinary, this is simply a function of the extent of damages. Had just one person been killed in the blaze, perhaps just one or two “theories” of liability would have been fabricated in connection with just one or two defendants in addition to the band manager. One hundred deaths produced a predictable torrent of creative legal theorizing, resulting in ninety-three defendants. In today’s litigious environment, this is business as usual.
No suggestion has been made in press accounts of the case that the lawyers involved will be sanctioned for filing suit against so many defendants who would appear to have nothing to do with what happened. As one of the defense attorneys stated in an interview: “We understand what is happening here. The plaintiffs’ lawyers are trying to create as deep of a pool as they can to compensate these people.”2 Indeed, one would search in vain for serious criticism of these tactics from the presiding judges, or in bar publications or law journals. Those experienced in litigation matters barely raised an eyebrow. Everyone understands.
The law that is the basis of these claims of liability against these ninety-three defendants is called “tort law,” and, as this case indicates, tort law in America has become a sprawling accretion of purported responsibility, exposing nearly anyone to liability for nearly anything.
How did American law descend to this level of non-objectivity? To answer this question, we must identify the origin of tort law, observe the kind of justice it was originally intended to serve, and trace its disintegration from there. As we will see, the modern law of torts was born in the “classical” period of American law, an era of respect for individualism and reason; it was killed at the close of that era by lethal ideas that entered American law in the early decades of the 20th century.
The story begins in the latter half of the 19th century.
Classical Tort Law and Corrective Justice
What is now a huge percentage of American law was, as recently as 1850, a mere fraction of it. What is today called tort law was then a tiny leftover category of cases that lawyers could not neatly fit into the traditional classifications handed down to them from common law, the body of rules and principles that evolved over centuries in England. Common law classifications revolved almost entirely around concepts of property, contract, and status relationships (e.g., “master and servant” or “landlord and tenant”). American law casebooks published in the mid-19th century labeled the leftover cases “stranger cases”—“stranger” referring to the fact that the parties had no preexisting agreement or property arrangement governing their relations. Such cases involved harms caused one person by another where no contract existed and where it was thought that the law should provide some recourse. If Smith’s wagon veered off the road and injured Jones, Jones could seek a legal remedy by bringing his case before a court of law. In the mid-19th century, such cases were relatively rare, and certainly not the source of a career in law.
Common law offered little guidance regarding these cases. The rights and obligations among private parties under common law were determined largely by status relationships, which covered little ground. No coherent body of principles applied equally to all interactions between strangers. Such principles simply had not been a central concern of the law in England or in America. But important developments in the 19th century changed this.
First, industrialization was creating physical circumstances that would greatly multiply the occurrence of unexpected injury. Trains, elevators, airplanes, and the like presented risks of serious physical trauma that had never before existed. The production and use of such machines had “devised myriad new and unfamiliar mechanisms for inflicting harm on the human body.”3
Second, determined legal scholars in the 19th century sought to systematize the law. These scholars are described by legal historians today as “conceptualistic.”4 They endeavored to develop abstract and comprehensive legal theories, to organize the conceptual clutter of centuries, to classify and clarify the law. Some of their most important work involved integrations in the law of contracts. Instead of seeing disparate areas of law regarding sales of goods, credit transactions, shipping agreements, and so forth, they looked for essentials and saw principles of contract, general truths pertaining to all human agreements. In the words of legal historian Lawrence Friedman:
The “pure” law of contract is an area of what we call abstract relationships. “Pure” contract doctrine is blind to details of subject matter and person. It does not ask who buys and who sells, and what is bought and sold. . . . Contract law is an abstraction—what is left in the law relating to agreements when all particularities of person and subject matter are removed.5
Because it was a system of principles—of general truths that applied to any number of specific circumstances—this new science of contracts made the law more understandable to lawyers and nonlawyers alike. The principles and the clarity they afforded were major boons to economic activity; they introduced a previously unknown degree of certainty to transactions, which enabled those on the economic stage to think and act more confidently, and to plan further into the future than ever before. They also enabled people to order their affairs more logically and efficiently. People could now use contracts to establish and protect business relationships, financial interests, properties, and various obligations. Manufacturers and shippers, for instance, could use contracts to agree on where goods would be picked up, who would load and unload them, and who would bear the cost of a mishap at any point along the way. This enabled both parties to proceed more efficiently, and if any disputes arose as to who was responsible for what, the contract was there to clarify the matter. The principles of contract law fostered economic enterprise, and they enabled people to be more productive and more secure.
Against the backdrop of the development of contract law, lawyers and scholars sought to formulate a similar set of abstract principles that would apply to the other kinds of disputes that arise between individuals: cases in which one person causes harm to another with no contract speaking to the issue. In this effort, the leftover category of “stranger cases” became the field of torts (“tort” means “injury,” from the Latin “tortus” meaning “twisted”). Classifying and systematizing this assortment of scenarios proved to be a more difficult task.
Scholars were attempting to unify a wide range of cases including such things as battery, assault, false imprisonment, slander, libel, and fraud. As the contrasting framework of contract law became clear, such cases, despite their differences, were viewed as somehow belonging together. In one sense, they clearly do belong together; each involves an injury and none involves a contract. But the negative characteristic that these cases do not involve contracts says little about what they are, and the positive characteristic of involving an injury gives rise to the difficult question: What, beyond the fact that no contract is involved, unifies these cases?
No one was able to formulate a concise definition. Professor Arthur Underhill provides a typical account of the problem in his torts casebook, Principles of the Law of Torts, or, Wrongs Independent of Contract (1881):
Definition of Tort—A tort is described . . . as “a wrong independent of contract”; but, although this is no doubt a very correct and all-embracing definition for the purpose of judicially determining what is and what is not a tort, it does not, I think, convey any very clear idea of the nature of it.6
Although many legal thinkers of the time regarded the negative nature of this definition to be the problem, it was not the problem.
A definition consists of a genus and a differentia; the genus specifies the general class to which the things in question belong, and the differentia specifies what differentiates them from all other things in that general class. Although a definition should be wholly positive whenever possible, negative definitions are necessary in certain contexts. “Orphan,” for instance, has to be defined via a negative differentia: An orphan is a child without parents. But as long as one understands what a child is (and what parents are), this definition does not pose any problems to our understanding of what an orphan is. On the contrary, it makes the matter perfectly clear.
Likewise, defining “tort” as “a wrong [or injury] independent of contract” is not a problem—unless one is unclear as to what constitutes a wrong or an injury in this context. Thus, the problem here for the 19th-century legal thinkers was not the negative differentia in the definition of tort; it was their lack of clarity regarding the positive genus.
Another early torts casebook, by Sir Frederick Pollock, speaks more to the essence of the problem. The law of torts, Pollock wrote,
may have elements of coherence within itself, or it may not. If it has, the law of torts is a body of law capable of being expressed in a systematic form and under appropriate general principles, whether any particular attempt so to express it be successful or not. If not, then there is no such thing as the law of torts in the sense in which there is a law of contracts, of real property, or of trusts. . . .7
Scholars in the conceptualistic or classical tradition, such as Thomas Cooley, Nicholas Green, and Francis Hilliard, struggled to identify principles or features common to all torts. They understood that all torts somehow involve the interference of the rights of one person by another, but they were ultimately unable to specify what in principle constitutes such interference; thus, they were unable to integrate the field with a coherent, objective definition of tort.
This problem is not merely academic. Legal remedies that result from tort actions are enforced by the state. If the courts are free to define “wrong” or “injury” in whatever way they choose, then there is no principled limitation on the exercise of governmental force in this area.
Nineteenth-century scholars and judges attempted to reconcile their thinking on this issue with the earlier common law doctrine of trespass. “Trespass” was a centuries-old concept that referred to the application of force to the person or property of another. (This older doctrine was broader than the concept of “trespass” used today, which is confined to interference with property rights.) The wagon collision between Smith and Jones would have been deemed a case of trespass because of the application of force by Smith’s wagon.
Closely related to trespass was the common law doctrine of case, which referred essentially to the application of indirect force against the person or property of another. A merchant who sells a rifle with hidden damage—of which he is aware—while assuring his customer of its soundness, might be sued on a theory of “case” were the gun to explode as a result of the hidden damage.
The concepts of “trespass” and “case” referred to force and indirect force, respectively, as broad means of interfering with a person’s rights. But they were entangled with status relationships and disparate rules (e.g., the responsibilities of carriage operators or innkeepers), which muddled their meaning in the law. The concepts were further obscured by their connection to an elaborate system of “writs” that classified cases by kinds of harm rather than by means of harm. Because of these entanglements and associations, 19th-century scholars came to regard the concepts of “trespass” and “case” as inadequate to deal with the new varieties of tort cases that were emerging, and they abandoned the concepts.8
Still in need of a guiding principle to deal with harms not involving contracts, legal thinkers turned to the concept of negligence, which proved fruitful, at least with respect to the portion of tort law dealing with accidents.
“Negligence” is defined in law as “the failure to exercise care toward others that a reasonable person would exercise given the circumstances.” To be negligent is to be “unreasonable.” The standard of negligence holds that the law should judge the conduct of parties involved in accidents by reference to what a reasonable person would have done in light of the circumstance existing at the time of the accident. If Jones claimed that Smith’s wagon caused him injury, he would file his case against Smith as a “claim of negligence.” The court would hear evidence relevant to how the accident had occurred to determine whether Smith had acted unreasonably.
Whereas under the old trespass-based theory the essential element of concern in the wagon incident would be the application of force by Smith to Jones’s person or property, under the new negligence-based theory the essential element of concern would be the reasonableness of Smith’s action. In other words, under the standard of negligence, the concern would be Smith’s state of mind at the time of the accident.
An advantage of the negligence standard is that it required a finding of fault as a precondition of assigning liability for accidents; thus it served to limit the expansion of liability. In the eyes of 19th-century legal thinkers, this was a good thing, for they embraced a premise that is uncommon today: the idea that human action is important. Economic activity, at every level, involves going out into the world and doing things—things that can have “ripple effects”—effects that might somehow be remotely connected to the cause of harm to others. Building a dam entails the possibility that someone might fall off of it. Building a wall entails the possibility that someone might run into it. Selling a car entails the possibility that someone might get hit by it. Does this mean that we should trace every accident back to each and every human action that made the accident possible and assign liability on that basis? The 19th-century answer was “no.” The legal thinkers of the day recognized that to do so would result in assigning liability for every accident to those who produced the values that made the accident possible; thus, it would make productivity a liability. The effect, in the words of one legal commentator, would be “to impose so great a restraint upon freedom of action as materially to check human enterprise.”9
The concept of negligence thus served an important purpose in constraining the scope of liability. In this writer’s view, however, the conceptual shift from trespass to negligence was a fundamental error. The shift of the focus of tort cases from determining whether force had been applied to evaluating the state of mind of the defendant gives rise to several serious problems. There are circumstances in which a person sustaining harm should be able to recover, even absent negligence (i.e., unreasonableness) on the part of the defendant. Consider a case decided by the supreme court of Texas in which a worker in his own field was struck by a railroad spike launched by a wheel of a passing train. He was in fact harmed by the actions of the railroad company, yet he was denied recovery on the ground that “The railroad company was not guilty of negligence and is not liable for the injuries which it caused.”10 The standard of negligence leads to this and similar problems in the law of torts.
Moreover, in basing liability on an evaluation of reasonableness, negligence as a theory of tort liability is open to varying contentions about what reasonableness entails. Indeed, as the negligence theory has evolved, the accepted definition of “reasonableness” has evolved from the rational consideration of particular circumstances at the time of an accident to invalid considerations such as “the public good”—considerations that have nothing to do with the rights of the parties involved.11
By contrast, the concepts of “trespass” and “case”—of “force” and “indirect force”—are identifiable, factual determinations. They are concepts that identify particular means by which rights are violated. Had the 19th-century theorists liberated trespass and case from their entanglements with the old writs and other common law confusions, had they viewed these concepts as open-ended and thus capable of being redefined in light of the new knowledge and integrations of 19th-century law, they might have solved the puzzle of the theory of torts. They might have seen that force and indirect force are common threads running through all legitimate tort claims; and if they had come to realize this, they may have been able to formulate a proper definition of tort on that basis. A theory of this kind would restrict tort liability to rights violations by specific, identified means, and would not be subject to the kind of manipulation to which the negligence conception is vulnerable.
Unfortunately, the 19th-century conceptualist scholars had little time to work through this issue. As they were beginning their efforts to systematize the field of torts, the philosophical ground of classical liberalism, with its rights-based conception of law, was, as we shall see, slipping out from under them.
Later generations of scholars dropped the rights-based approach altogether, and largely abandoned the project of trying to achieve a unified theory of torts. Aside from the part of the field viewed in terms of negligence, the general conception of tort law remains to this day a collection of “stranger cases”—albeit a vastly larger and more incomprehensible collection—because there is still no precise understanding of what constitutes injury or proper legal responsibility.
The development of classical tort law took place within the larger context of an implicit recognition that the fundamental purpose of tort actions is to achieve corrective justice. The basic principle of corrective justice is that a person causing harm to another should repay that person for the harm caused. In the case of the Smith-Jones wagon collision, it would mean that Smith repairs the damage he caused Jones—or, put another way, that Jones recover from Smith the cost of the damage caused him by Smith.
Nineteenth-century American law drew increasingly clear distinctions between civil actions and criminal actions, and thus between the civil and criminal functions of the law. If Smith’s wagon inadvertently hits Jones, then Jones has grounds for civil recourse against Smith to recover damages. Jones (or a lawyer on his behalf) could go to the courthouse and file an action against Smith—but the government would not require him to do so, nor would the government take any action on his behalf if he did not file the action. If, on the other hand, Smith intentionally runs his wagon into Jones, then not only would Jones have grounds for private action to recover any harm done to him; the incident would also be the basis for a criminal proceeding: The police could charge Smith with the crime of battery, and the government could pursue a criminal conviction.
The civil (or “private”) action taken by Jones (or his lawyer) against Smith is a matter of corrective justice; its purpose is to repair the damage done. The government (or “public”) action taken against Smith is a matter of criminal justice; its purpose is to punish him for committing a crime.
Although explicit recognition of the need to distinguish between corrective and punitive justice dates to classical Greece (it is most often traced to Aristotle’s Ethics), the actual distinction between the two in Western legal systems for centuries thereafter had been halting and incomplete. The trend for several hundred years leading up to the 19th century, however, had been a gradual increase—not only in recognition of the need for this separation—but also in its implementation in the law.12
Nineteenth-century legislatures did pass laws to regulate commerce, promote public safety, improve public morals, and so on. But these were deemed matters of criminal law, not tort law. The legal thinkers of the day were committed to perfecting the separation of civil and criminal law, and the remnants in tort law of purposes other than the achievement of corrective justice were under assault from lawyers, commentators, and judges. As a New Hampshire Supreme Court opinion on punitive damages in 1872 stated:
The true rule, simple and just, is to keep the civil and the criminal process and practice distinct and separate. Let the criminal law deal with the criminal, and administer punishment for the legitimate purpose and end of punishment. . . . Let the individual, whose rights are infringed and who has suffered injury, go to the civil courts and there obtain full and ample reparation and compensation; but let him not thus obtain the “fruits” to which he is not entitled, and which belong to others.13
In addition to their concern with establishing and maintaining a strict separation of civil and criminal law, 19th-century legal thinkers recognized, as the above passage indicates, that the proper remedy in a tort action amounts simply to: “Make it up to him.” The recoverable compensation might include intangible elements (such as pain or disfigurement), but whatever their actual nature, the damages awarded in a tort lawsuit were to be “given as a compensation, recompense, or satisfaction to the plaintiff, for an injury actually received by him from the defendant. They should be precisely commensurate with the injury; neither more, nor less; and this, whether it be to his person or estate.”14 This limitation on what can be recovered reflects the 19th-century view that tort proceedings be bound to their only proper purpose: corrective justice.
Corrective justice, in turn, is based on the fundamental premise that the proper purpose of legal action, including tort action, is to protect individual rights. Corrective justice protects a plaintiff’s rights by repairing damages done to him by a defendant; it protects a defendant’s rights by limiting his responsibility to the plaintiff to harm actually done; and it further protects the rights of both parties by eliminating the possibility that punishment or other illegitimate purposes will hold sway over or color the proceedings. To the extent that tort lawsuits remain fixed to the singular purpose of achieving corrective justice, they serve to protect rights; to the extent that they veer from this purpose, they violate rights.
In sum, classical tort law attempted to bring conceptual order to the law as it pertained to accidents and other harms caused among private parties. It respected both the right to be free from harm caused by others, and the right to freedom of action. And it was grounded in the proper purpose of law: the protection of individual rights. Classical tort law was far from perfect, but its architects had begun to construct a new and better edifice on the archaic footings with which they began.
Contemporary legal scholars occasionally refer to classical tort law derisively as “capitalist tort law.” With this they pay it an unintended compliment. Just as capitalism is a social system based on individual rights, so classical tort law was a conceptual tool aimed at protecting those rights.
Instrumentalist Tort “Reform”
In the late 19th and early 20th centuries, America’s unprecedented industrial development gave rise to a litigation explosion. The increase in personal injury lawsuits filed in New York City between 1870 and 1910 is estimated to have been greater than 4,500 percent, and similar increases are estimated in regard to other large American cities.15 Although the overall effect of industrialization was to vastly improve the standard of living, the new forms of industry occasionally involved workplace mishaps and other accidents more devastating than had been seen before. An increase in injuries was a corollary of increased industry. Much of what was confronting the courts, however, was not.
The limited history that we have on the subject tells us that a new kind of underworld was being created in the developing urban centers.16 Lawyers began to specialize in personal injury, for which there was now a substantial and legitimate market. But not all personal injury claims were legitimate. Thousands of “accident fakers” were appearing across the country, slipping on banana peels, falling from trains, and choking in restaurants.
Railroads were a prime target of these claims and had to hire personnel solely for the purpose of managing, investigating, and litigating injury claims. Dr. Willis B. King, a surgeon hired by the Missouri Pacific Railway in the 1870s, initially held the popular prejudice against the railroads, but he eventually wrote a three-hundred-page book about his experience: Perjury for Pay: An Exposé of the Methods and Criminal Cunning of the Modern Malingerer. He concluded that of the more than two hundred injury cases in which he was asked to testify, perhaps six or seven legitimately called for compensation.17 Personal injury frauds, King wrote in 1906, were “sweeping the country.”18
The question of how to respond to the crushing volume of injuries and litigation became a vital issue in the early decades of the 20th century for both politicians and the legal academy. One prominent legal historian argues that the subject of accidents became so significant at this time that it actually replaced reconstruction issues as the preeminent concern of legal academics and commentators.19 Between 1870 and 1915, eighteen states convened constitutional conventions in which a central issue was the proposed expansion of tort rights by progressive reformers.20 Factions were forming within the legal profession itself. Corporate lawyers sided with political forces that sought protection for civil defendants from the new wave of litigation. Plaintiffs’ attorneys sided with the progressives who sought expanded avenues for establishing legal liability. This ferment precipitated a reexamination of the purpose of tort law and the court’s proper role in implementing that purpose.
Before examining the sweeping transformation in American law that was the ultimate result of this debate, it is worth briefly reflecting on what was not done in response to these challenges. As early as the mid-19th century, it was known that phony “experts” were wreaking havoc in jury trials by presenting spurious theories and otherwise manipulating jurors. They were doing this for money, and the effects were clearly thwarting the objectivity of trials. Had the legal theorists been focused on such concerns, they might have seriously considered improving the procedure by which trial experts were selected and permitted to give testimony.
They might also have seriously examined “the American rule,” which prohibited successful litigants from recovering attorneys’ fees and costs. Had they done so, they would have seen that American law had seriously veered off course on this point, and that awards of attorneys’ fees to prevailing parties are necessary, at least in certain circumstances, as a protection against abuses by both plaintiffs and defendants. Had they done so, they would have found that “the American rule” of prohibiting such awards was devastating in its encouragement of just such abuses, and they would have sought to reform it.
They might further have undertaken to protect the growing private solution to the accident problem, which was the rapidly expanding industry of insurance. The growth of life and disability insurance in many forms had been nothing short of spectacular in the latter half of the 19th century. Traditional commercial life insurance lines expanded thirteenfold in New York City just between 1860 and 1870. New forms of local insurance plans known as “cooperative insurance” appeared in factories and other workplaces across the country, providing life and disability benefits to injured laborers. These arrangements were innovative and dynamic. The cooperatives conceived ways of combating the chronic “moral hazard” problems of these types of insurance by such measures as investigating the character of applicants, fostering loyalty among members, and requiring daily visits by fellow members to those claiming disability. This phenomenon appeared virtually overnight in post–Civil War America and grew so rapidly that, by the mid-1890s, experts estimated that this “immense” industry had grown to more than twice the size of the traditional insurance industry—which had itself experienced exponential growth for decades. In other words, individuals were solving the problem of accidents by voluntary, cooperative means. All they asked of the law was that it enforce their agreements as written.
But one will find little in the law journals of the early 1900s regarding the development of voluntary insurance arrangements or exploring ways to protect them, or about how to improve civil litigation by reforming the American rule on attorneys’ fees, or about addressing the proliferation of fraudulent experts in jury trials. Legal scholars had little interest in any of this because their focus was not on achieving corrective justice. An entirely new set of philosophical ideas was ruling the day in the ivory towers of America’s law schools, ideas that prescribed remaking the law in a new image. Ideas such as utilitarianism, socialism, and pragmatism had swept through the universities. Pragmatism, especially, held a grip on the highest echelons of the legal academy, in part because of its promise to provide solutions to the kind of “real world” problems with which the law was always confronted.
Pragmatism is not a philosophy for identifying facts toward the achievement of “practical” results; it is the denial of the existence of facts. Pragmatism is the notion that truth is not correspondence to reality but whatever “works” to achieve one’s goals. In practice, pragmatism consists in dispensing with principles and theories in order to be “expedient” and “realistic”; thus, it has nothing to say about what goals we should choose or pursue (that would be theory). Rather, it calls for the arbitrary selection of goals and for the pursuit of those ends by whatever means “works” at the moment.
Law is, of course, a means to an end. But it is properly the means to a specific, objectively moral end: the protection of individual rights. This is not the end to which pragmatism aspires.
Although pragmatism explicitly dispenses with facts, principles, and theories, the fact remains that people cannot function without recourse to these things. And when it comes to selecting goals or ends, people necessarily employ principles and theories of good and bad, right and wrong in the process. Having defaulted on the responsibility of consciously, deliberately, and explicitly choosing their moral principles, pragmatists implicitly adopt the prevalent morality of the day: altruism, the notion that people have a duty to self-sacrificially serve others or “the greater good of society.” Pragmatists are, by default, altruists, and their political goals follow from this fact.
The political goals of the early legal pragmatists were, as we shall see, thoroughly collectivist. In the ivory towers of the early 20th century, the Lockean ideal of individual rights had faded from view, and even the alleged defenders of capitalism were expounding “social welfare” and expediency as the basis of their arguments.21 The term for the infusion of pragmatism into the law is “instrumentalism.”
Instrumentalism (often referred to as “pragmatic instrumentalism”) has been defined as the conception of “law as a means to certain social goals.”22 As prescribed by pragmatism, instrumentalism posits various social purposes as “ends,” and is unconstrained by any principles from using the law as an “instrument” to achieve those ends. Principles as such are viewed as outmoded at best and destructive at worst. In the worldview of the legal instrumentalist, the principled efforts of 19th-century conceptualists are no different from the dogmatic assertions of centuries past—and are equally groundless. All of this is lumped together and scornfully labeled “formalist.” The law, in the instrumentalist view, needs to drop its posturing and adopt an ad-hoc, “functional” approach.
Although the law of torts had undergone certain positive developments in the 19th century, it had little in the way of a coherent theory to guide it and protect it from the incursion of instrumentalism. In essence, in the early 20th century, instrumentalism accomplished a shift in the purpose of tort law from justice to “compensation.” Instead of providing a forum for deciding whether one individual had interfered with the rights of another, tort law was to become a means of seeing to it that people involved in accidents would be taken care of one way or another. This, the instrumentalists insisted, was the real purpose of tort law, and it was time to get serious about implementing that purpose. On this basis, American law embarked on its project of transforming tort law into a massive social welfare program for dealing with accidents.
The leaders of this movement were prominent figures in legal academia such as Roscoe Pound, Karl N. Llewellyn, John Dewey, and Oliver Wendell Holmes. Steeped in the ideas of the day, these figures injected pragmatism via instrumentalism directly into the bloodstream of American law.
In his 1982 book, Instrumentalism and American Legal Theory, legal historian Robert Samuel Summers traces the ascent of instrumentalism in American legal thought to Oliver Wendell Holmes’s influential essay, “The Path of the Law.”23 Published in the Harvard Law Review in 1897, this is perhaps the most influential essay ever in an American law journal. In a brief passage toward the conclusion of the essay, Holmes directly addresses the evolving role of the law of torts in dealing with accidents. He notes that the defendants in accident cases are typically businesses in certain industries, that the costs of accidents are actually reflected in the cost of business, and that these costs are ultimately borne by the public. This is fine, in Holmes’s view, but he is troubled by the possibility that defendant-businesses in certain cases might not be found liable to a plaintiff. The question of whether a defendant-business should ever escape liability, he says,
is really the question of how far it is desirable that the public should insure the safety of those whose work it uses. It might be said that in such cases the chance of a jury finding for the defendant is merely a chance, once in a while rather arbitrarily interrupting the regular course of recovery, most likely in the case of an unusually conscientious plaintiff, and therefore better done away with.24
It is difficult on first reading to grasp the enormity of Holmes’s assertions in this passage. The first assertion is purely collectivistic, that the public at large is responsible for the employees of a company simply because it buys goods from the company. This assertion alone is a renunciation of corrective justice between individuals. But Holmes goes much further: He asserts that finding a defendant not liable for something claimed against it is an arbitrary interruption of the regular course of recovery. This is a two-sentence annihilation of civil justice.
Imagine that a justice of the Supreme Court, in the context of criminal law, said: “Since there is only a chance of a jury finding an accused defendant innocent, such a finding is really an interruption of the usual course of obtaining convictions, and it might be said that this possibility should be done away with.” As inconceivable as it may sound, this is precisely what Holmes is saying with respect to the fate of defendants in tort lawsuits.
In light of this passage from Holmes, we can see the full meaning of the shift from corrective justice to “compensation.” If the purpose of law is to provide compensation to those claiming some harm, then law and trials and defendants are simply “instruments” of compensation. Anything within the law, including all its rules, principles, and procedures, that increases the flow of compensation is therefore superior to rules, principles, and procedures that do not equally increase the flow of compensation. Taken to its logical conclusion, this premise would dictate that civil justice is actually pointless and should be done away with. This is precisely what Holmes has suggested in this founding document of instrumentalism.
It is this “doing away” with justice that became the centerpiece of the instrumentalist movement and its assault on the law of torts. Over the next century, the instrumentalists would fight their war on both legislative and judicial fronts. On the legislative front, they would seek to install sweeping measures to replace litigation with administrative compensation schemes. Addressing the problem of workplace accidents, they sought to model American policy after that of the modern Prussian state. Bismarck had led other European nations in enacting new social welfare programs on the grounds that “It is the duty of the state to see that the social organism is preserved in a healthy condition.”25 The instrumentalists played a key role in pressing to enact across the country workers’ compensation statutes that were based on Bismarck’s program.
Completely discarding the negligence standard, the statutes essentially provided that employers would be liable to employees for any injury incurred on the job, whether or not the employer was at fault, and whether or not the employee was at fault. These statutes were compulsory, nullifying any other contract or arrangement: Any employee could make a claim for compensation and would be awarded such after a summary administrative proceeding that recognized few of the employer’s procedural rights. The apt phrase “no-fault” was applied to these programs because the issue of fault was basically removed from the question of compensation.
There is certainly nothing wrong with a “no-fault” insurance plan; that is exactly what the cooperative insurance plans were, and what modern (private) health and disability insurance is. People purchase these kinds of insurance voluntarily (or negotiate them as part of employment arrangements) so that they can be protected from accidents regardless of who, if anyone, is at fault. The workers’ compensation statutes, however, applied the “no-fault” principle in a manner that shifted the costs universally to employers and forced all insurance plans to conform to state-mandated terms in every way. Overnight, the nascent cooperative insurance movement—with its innovative methods of ensuring honesty and loyalty in the claims process—was virtually wiped out.
And the instrumentalist theorists were not content to stop there. There was a growing sense that the principles of the workers’ compensation statutes and the principles of classical tort law were in irreconcilable conflict. In 1914, in perhaps the most prescient remark of the era, Professor Jeremiah Smith noted that the coexistence of these two fundamentally different approaches “will not be permitted to continue permanently without protest.”26
The next generations of American legal scholars would pour their energy into the task of applying the new instrumentalist approach to every facet of American tort law. And there were no illusions about its goal. L. W. Feezer, an advocate of expanding the instrumentalist approach to workers’ compensation legislation to other fields stated forthrightly in 1930: “This whole approach to the problem is quite the antithesis of the individualism which characterized the law in the Eighteenth and Nineteenth Centuries. . . . This would indeed be a socialized, as contrasted with individualized, justice.”27
Perhaps no other figure was as influential in this effort as was the scholar and law professor Fleming James. The purpose of tort law, James wrote, is “to assure accident victims of compensation, and to distribute the losses involved over society as a whole or some very large segment of it.” In a recent law review article, Professor Donald Gifford summarized James’s view as follows:
In the best of all possible worlds, James favored a broad-based social insurance system to deal with the losses caused by accidents. If this was not possible, he advocated compensation plans similar to workers’ compensation that would allocate the costs of accidents to the enterprise that caused the accidents. Finally, if it were not feasible to adopt even such targeted accident compensation plans, he argued for expansion of liability within the common law.28
The efforts of James and other activist scholars succeeded to an extent to which even they probably had not dreamed.
By the mid-1960s, according to one thorough account of the period, the activist scholars had achieved virtual unanimity in the legal academy on the need for fundamental instrumentalist reform across the field of torts.29 The most conspicuous of these developments was the adoption of “strict liability” for products, which was accomplished in every state within a mere two years, between 1962 and 1964. This was a major coup: Almost every accident occurs during the use of, or in the vicinity of, a product of some kind. Strict liability creates a de facto presumption that a product is either the cause of any accident involving its use, or that the product could have been designed to prevent such accidents. If, for instance, an inebriated taxi driver swerves off the road and injures a passenger when his cab rolls over, that passenger can seek compensation from the taxi manufacturer on the grounds that the vehicle could have been designed to better prevent rollovers. In this way strict liability opened incalculable new avenues for establishing legal liability for most accidents.
Another form of liability added to the lexicon was “joint liability.” Under the influence of instrumentalist thought, courts in the early 20th century began deciding that in cases where two defendants are found to have had some role in causing an accident, either can be forced to pay the entire judgment. Returning to the taxi example: If a judgment is entered against both the driver and, thanks to strict liability, the taxi manufacturer, the passenger can collect the entire judgment from the taxi manufacturer—even in jurisdictions where the jury can assign a percentage of fault to each defendant. If the assignment of fault was 98 percent to the driver and 2 percent to the taxi manufacturer, the manufacturer must still pay 100 percent of the judgment upon demand by the plaintiff.30 Joint liability multiplied avenues for establishing legal liability already created by strict liability: Anywhere a plaintiff can find some colorable basis to claim that a product (or products) had some tenuous relation to an accident, the plaintiff can potentially hold the product manufacturer fully liable even when the accident was clearly caused by someone else.
The doctrine of “vicarious liability” refers to making one person or company liable for the actions of another. This doctrine is valid under certain circumstances, such as when a manager directs a subordinate to take action that the manager knows to be fraudulent. In such a case, the manager should be held vicariously liable for the fraud committed when his subordinate follows his directions. But, over the course of the 20th century, this doctrine was dramatically expanded to the point that it is now common to hold employers liable for criminal acts of their employees. If a truck driver commits an assault while on the job, the driver’s employer may be held liable in a subsequent lawsuit. This expansion of vicarious liability has proven to be yet another victory for those seeking to open new avenues for establishing legal liability and “recovery.”
It is beyond the scope of this article to detail all the ways in which these and other developments have transformed the law. But we have seen enough to recognize that a significant transformation has occurred—a transformation that is celebrated by instrumentalists.
In a 1969 commentary on developments in American tort law, the influential instrumentalist scholar Robert Keeton triumphantly announced: “The most striking impression that results from reading the weekly outpouring of tort opinions handed down by appellate courts across the nation for the decade commencing in 1958 is one of candid, openly acknowledged, abrupt change.”31
William Prosser’s widely used torts casebook, published in 1964, includes the following in its introductory remarks under the heading of “Social Engineering”:
When the interest of the public is thrown into the scale and allowed to swing the balance for or against the plaintiff, the result is a form of “social engineering” that deliberately seeks to use the law as an instrument to promote “the greatest happiness of the greatest number,” which by common consent is the object of society. This process of “balancing interests” is by no means peculiar to the law of torts, but it has been carried to its greatest lengths and has received its most general conscious recognition in this field.32
This means to social engineering is described with obvious approval by the author. And observe that not only is it regarded as uncontroversial: Prosser openly states the widely accepted moral principle on which it is based—“the greatest happiness of the greatest number”—which he acknowledges is “by common consent . . . the object of society.” The book then lists several “factors affecting tort liability” including “historical development,” “convenience of administration,” “prevention of accidents,” “punishment,” and “capacity to bear loss.”33 Never mentioned as a “factor” affecting the determination of liability: justice.
Classical tort law grounded in corrective justice became—under the influence of pragmatism and instrumentalism—an open-ended tool of the state to promote “the greatest happiness of the greatest number.” It is on this basis that the law of torts descended from the principle of corrective justice and disintegrated to the point that it is possible for the plaintiffs in the Rhode Island night club case to sue ninety-three defendants—virtually none of whom were actually responsible for the tragedy. Indeed, creating “as deep a pool as they can to compensate these people”—regardless of whether that compensation can be justly demanded of the defendants—is what the instrumentalist campaign has been struggling to achieve for the past century.
“A Weapon of Injustice”
Just as the architects of the welfare state are not likely to be found in government housing projects and other places where their ideas have been enacted, where they would have to observe the desolation and human destruction they have wrought, so the architects of instrumentalist tort reform are not likely to be found in actual courtrooms. Were they to step out of their ivory towers and spend some time in court, they would see that, under the influence of instrumentalism, American law is becoming, to borrow the timeless words of Frederic Bastiat, “a weapon of injustice.”
Instrumentalist tort reform has devastated the American civil justice system, greatly reducing the likelihood of genuine justice being served by tort law. And the nature of the instrumentalist reforms is such that this devastation will likely worsen in the foreseeable future. Toward reversing this vicious trend, it is crucial to realize that the forays of instrumentalism into the law do not take place in a vacuum. Many of the plaintiffs’ attorneys who profit immensely from the vastly expanded domain of liability are also politically active. Their organizations are legendary for their financial resources and pull in the state legislatures. Moreover, a staggering number of the members of state legislatures are these same plaintiffs’ attorneys. The result is a “push” and a “pull” in American law that serves to create more and more avenues for ersatz liability. The intellectual forces of instrumentalism “push” their ideas, while politically powerful, financially interested lawyers eagerly “pull” these ideas, enacting them into law. These two applications of pragmatism guide the evolution of tort law in a single direction—toward greater and greater expansion of liability.
And so a product manufacturer, for example, will find not only that it is now “strictly” liable for obvious misuses of its products, but also that—when it gets to court—the game has been rigged against it in myriad ways. The manufacturer will find that the plaintiff can settle with codefendants in a case and then proceed to trial against the manufacturer under the pretense that it is the only defendant. The manufacturer will find that any self-questioning note or memo from one of its engineers will be brandished before a jury as proof that the manufacturer “knew” its product was defective. It will face an array of “expert witnesses” who make the charlatans of the 19th century look honest. The manufacturer will find that if the medical expenses claimed against it have already been paid once or even twice by insurance sources, it is forbidden to communicate this fact to the jury. And it will find that gross exaggeration of injuries is the rule rather than the exception, and that the law will never hold a plaintiff accountable for this even when it is proved.
These kinds of rules would never have evolved in a system devoted to achieving corrective justice. They reflect the fact that the legal environment is colored by the instrumentalist premise at every level, from the day-to-day rulings of judges to the passing of new legislation. Aside from occasional horror stories appearing in the popular press, no one has paid any attention to the rights of defendants in tort cases since about the time that instrumentalism took over one hundred years ago. During the same decades that American lawyers and judges were dramatically expanding the procedural rights of criminal defendants, the few once-recognized rights of civil defendants were legislated (or judicially parsed) into oblivion, with barely a word of protest from the legal academy.
Modern tort law has been criticized from many perspectives as promoting irresponsibility, as being grotesquely inefficient, and as being comical in its irrationality. But beneath all of these things, at the root of the instrumentalist idea is a moral crime. Without regard to any colorable wrongdoing, it engages in the self-conscious sham of targeting random corporations and individuals under “theories” of liability—and then subjects them to proceedings, in courtrooms with all of the trappings of justice, in which they will be accused of wrongdoing. It does more than make defendants pay plaintiffs when they should not; it hauls them into courtrooms, places them before juries, and subjects them to condemnation in order that they be found liable. Instrumentalism is a moral disgrace and a philosophical sham, the purpose of which is to turn the justice system into a system for unjustly redistributing wealth. If justice is to be the goal of the law, then we must reject instrumentalism—root and branch.
Although this article has focused solely on exposing the fundamental problem of modern tort law, it implies the solution. The key to eliminating America’s liability debacle is to recognize once again the proper basis of tort law in the achievement of corrective justice.
Tort lawsuits should do one thing and one thing only: They should strive to impartially correct harms caused between private parties. They should do so by permitting legal action to move forward only when there is evidence that the defendant has caused identifiable harm. They should be structured to uncover and evaluate facts that establish the faulty conduct and its causal connection to the alleged harm. They should attempt to uncover and evaluate the nature and extent of the harm alleged, and they should permit recovery only to repay the plaintiff for harm established by the evidence. They should strive to do all of this with the greatest accuracy, reliability, and objectivity possible. This should be the goal of tort reform.
To accomplish this we must maintain a clear and morally certain vision of the real purpose of the law of torts, of corrective justice, and of their foundation in the principle individual rights.