Issue 6

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.

A Litigation Association Model to Aggregate Mass Tort Claims for Adjudication

The judicial system does not adequately accommodate mass tort claims. Even the Rule 23 class action, which is otherwise a powerful aggregation tool, often fails to facilitate trying these claims. This Note argues that a combination of associational standing and statistical sampling produces a new and more effective means to aggregate mass tort claims for adjudication. Claimants can organize an unincorporated association; the association can file a suit seeking redress for its members’ injuries; and evidence can be presented in aggregated form. The proposal is a significant departure from the traditional method of representative litigation—the class action. Yet its predicates are, separately, well established. Moreover, this Note argues that aggregation through association may be preferable to aggregation through class action for several reasons: for example, it may reduce the cost of litigation and perhaps more significantly, it overcomes the choice of law problems that often prevent certification of a mass tort class action under Rule 23.

The relationship between associational standing and sampling is significant and has thus far gone unrecognized: Sampling allows aggregated evidence to take the place of individualized evidence and thereby overcomes the most significant limitation on the use of associational standing in damages actions. The proposal does not require satisfaction of the various prerequisites to class certification contained in Rule 23. The Note examines the history of representative group litigation and concludes, however, that those prerequisites are unnecessary where representation is based on consent (as it is in this Note’s proposal) as opposed to a common interest (what underlies Rule 23).

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