Timothy S. Kaye (Stetson University College of Law) has posted Torts in Three Dimensions: Lessons from Birth on SSRN. Here is the abstract:
This article moves beyond the sterile debate about whether torts is really concerned with promoting efficiency or corrective justice, and instead establishes a wholly new, three-dimensional paradigm. It explains how the growth of industrialization during the nineteenth century exposed as chaotic the individuation of cases under the original law of trespass. Capitalism required instead a more rational legal structure so as to enable entrepreneurs to gauge their own potential exposure to liability for the injuries that their activities caused. Perhaps counter-intuitively, the article also shows how the new law of torts to which capitalism thus gave birth actually expanded the range of liability to which businesses could be exposed. So we have an apparent paradox: the law of torts which had been created by capitalism seems to have worked against the interests of capital.
This paradox may be resolved, however, once we appreciate that the law is not composed only of a certain substantive doctrinal content, but also of a particular form or structure. The problem with the currently dominant theories of torts is that they address the former to the almost total exclusion of the latter. A three-dimensional account – which considers both content and form over a given time – enables us to see that the development of capitalism brought forth tort law’s specific form, which is actually so pervasive as to be found not just in the United States but also in other common law – and even most civil law – jurisdictions. On the other hand, the content of the law – which is, by contrast, different from jurisdiction to jurisdiction – is fashioned through the volatile interaction of a multiplicity of forces, including public morality, religion, politics, and everyday social practices. Yet, as the analysis of this period makes clear, the form of law circumscribes the possible substantive content of tort law doctrine, so that the expansion of liability for industrial accidents as capitalism took hold was always confined within limits that the new economic system could tolerate.
The new taxonomy of torts set out by Holmes in 1870 was underpinned by an understanding that entrepreneurship requires that the law set out a number of a priori, systemic rules so that individuals can calculate for themselves the benefits and risks inherent in any given activity. In particular, no business can meaningfully assess ex ante its exposure to potential liability if the law does not provide a rule to determine who, among its potential victims, could seek redress. That task was performed within the law of contracts by the doctrine of privity. It was vital that the new law of non-intentional torts developed an analogous doctrine. So the doctrine of duty of care came to the fore. Contrary to the views of the Chicago School, this article concludes by demonstrating that it is not the doctrine of breach that provides the fulcrum of the relationship between tort law and the economy, but the doctrine of duty.