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Two Models of Tort (and Takings)

Since the publication of The Cost of Accidents, the model of costs has been the dominant approach to tort theory. On the model of costs, tort law promotes efficiency by requiring agents to internalize the costs they impose on others when it is efficient to do so. Despite its success, the model of costs is deeply puzzling. Positive externalities are as inefficient as negative externalities. Therefore, if the model of costs provides a good explanation of tort law, one would expect that we would also have a legal regime oriented towards the recapture of the benefits we confer on others. In some instances, restitution allows the recapture of positive externalities, but compared to tort it is a trifling part of the law.

The asymmetry between the legal consequences of harms and benefits is a fundamental, structural feature of our law. Any successful explanation of our legal institutions must account for it. Part One of this Essay explores attempts to explain law’s harm-benefit asymmetry from the perspective of the model of costs. I argue that the economic explanations offered to date are, in a variety of respects, unsatisfying. In Part Two, I develop an alternative to the model of costs, which I call the model of harms. On this model, tort responds to the harms that we inflict on one another, rather than the costs that we impose on one another. I show how harms are different from costs, and I explain how conceiving of tort law as an institution concerned with harms rather than costs make better sense of both tort doctrine and law’s harm-benefit asymmetry. 

Part Three explores Takings jurisprudence, which exhibits its own harm-benefit asymmetry. The Constitution requires the government to pay just compensation when it takes property. Abraham Bell and Gideon Parchomovsky have argued that we ought to have a givings jurisprudence, which would require the government to impose a fair charge when it gives away property. I argue that Bell and Parchomovsky’s suggestion makes sense only from the perspective of the model of costs, and that the model of harms better explains the Takings jurisprudence we actually have. I show that, like tort law, constitutional takings jurisprudence responds to the harm that government inflicts when it takes property, rather than the costs it imposes.

Emergencies and Democratic Failure

Critics of emergency measures such as the U.S. government’s response to 9/11 invoke the Carolene Products framework, which directs courts to apply strict scrutiny to laws and executive actions that target political or ethnic minorities. The critics suggest that such laws and actions are usually the product of democratic failure, and are especially likely to be so during emergencies. However, the application of the Carolene Productsframework to emergencies is questionable. Democratic failure is no more likely during emergencies than during normal times, and courts are in a worse position to correct democratic failures during emergencies than during normal times. The related arguments that during emergencies courts should protect aliens, and should be more skeptical of unilateral executive actions than of actions that are authorized by statutes, are also of doubtful validity.

The Unrealized Promise of Section 1983 Method-of-Execution Challenges

Prior to Hill v. McDonough, federal courts largely viewed method-of-execution challenges as being cognizable only through a petition for habeas corpus. Because federal habeas doctrine involves significant restrictions, such challenges were often difficult, if not impossible, to bring. This was particularly true, for instance, where an inmate had already litigated his first habeas petition and attempted to bring a later habeas corpus execution-protocol challenge: the rules against successive petitions nearly always prevented it, regardless of any newly-revealed factual or legal predicates for the challenge.

But Hill (and a predecessor case, Nelson v. Campbell) changed this framework: inmates could now challenge their method of execution through § 1983. By freeing inmates from many of habeas corpus’s restrictions, this ought to have made a significant difference for litigants.

As is often the case, though, theory and practice can diverge. This Note will show that lower courts seeking procedurally to limit the litigation resulting from Hill often fall back on habeas doctrine, importing aspects of it into these § 1983 suits. Given the very different policies and rules that underlie each of these doctrines, this importation frustrates the promise of Hill’s § 1983 vehicle for method-of-execution challenges. And even where courts do not engage in such importation, they frustrate Hill’s promise in other ways not required by applicable § 1983 doctrine, such as by formulating unduly harsh timing rules or overlooking the applicable standard of review. Thus, to date Hill’s § 1983 vehicle has done little to loosen the method-of-execution challenge vise.

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