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The Public Life of Private Law: Tort Law as a Risk Regulation Mechanism

Published online by Cambridge University Press:  22 March 2018

Douglas A KYSAR
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Abstract

Against the backdrop of contemporary climate change lawsuits, this article presents preliminary research findings regarding a remarkable and underappreciated moment in the common law pre-history of modern environmental, health, and safety regulation. The findings complicate the conventional academic story about the limited capabilities of tort law and its inevitable displacement by more institutionally robust and sophisticated forms of regulation. Section I offers a brief introduction, followed in Section II by a review of existing academic literature on the pros and cons of utilising tort law as a regulatory device. As will be seen, the consensus view seems to be that tort law is a clumsy and imperfect mechanism for addressing most environmental, health, and safety risks. Section III argues that the debate over tort law’s potential as a risk regulation mechanism ignores the distinctively private law history and character of that body of law, essentially asking tort to serve a purpose for which it was neither intended nor designed. Section IV then presents a case study of nuisance litigation in which the tort system achieves a remarkable and underappreciated risk regulation effect precisely by focusing narrowly on the traditional task of adjudicating alleged wrongs between private parties. Section V concludes.

Type
Special Issue on Judge-Made Risk Regulation and Tort Law
Information
European Journal of Risk Regulation , Volume 9 , Special Issue 1: Special Issue on Judge-Made Risk Regulation and Tort Law , March 2018 , pp. 48 - 65
Copyright
© Cambridge University Press 

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Footnotes

*

Joseph M Field, ‘55 Professor of Law, Yale University. For invaluable research assistance, the author thanks YuChen Xue, Yale Law School Class of 2019. For helpful comments and feedback, the author thanks Bruce Ackerman, Lynn Baker, Jens Dammann, Elbert De Jong, Michael Faure, Ivo Giesen, Peter Mascini, David Schleicher, and participants of faculty workshops at the University of Texas at Austin School of Law and Yale Law School, and of the Judge Made Risk Regulation Conference held in Utrecht on 9–10 February 2017. Section IV of this article offers an abbreviated version of research being undertaken by the author with Conor Dwight Reynolds and Joshua Galperin. That research has been generously supported by The Oscar M Ruebhausen Fund at Yale Law School.

References

1 Intergovernmental Panel on Climate Change, “Climate Change 2014: Synthesis Report” (2014) <www.ipcc.ch/report/ar5/> accessed 4 January 2018.

2 See RH Weaver and DA Kysar, “Courting Disaster: Climate Change and the Adjudication of Catastrophe” Notre Dame L Rev (forthcoming 2017).

3 Although this article focuses on the Anglo-American tort law tradition, its lessons regarding the catalytic potential of civil litigation in relation to other departments of government need not be limited to the common law context. Indeed, civil law jurisdictions might offer even greater catalytic potential inasmuch as they sometimes afford litigants wide latitude to assert claims on behalf of the public interest and subject government to broad-sweeping affirmative duties of care. See, eg, Urgenda Foundation v The State of the Netherlands (Ministry of Infrastructure and the Environment) District Court of The Hague, The Netherlands Case No C/09/456689 (2015) (appeal pending) [hereinafter Urgenda].

4 For a seminal contribution, see Shavell, S, “Liability for Harm versus Regulation of Safety” (1984) 13 The Journal of Legal Studies 357 CrossRefGoogle Scholar.

The viewpoint need not be limited to scholars of a law-and-economics bent. See, eg, van Boom, WH, “Efficacious Enforcement in Contract and Tort” (Inaugural Lecture at Erasmus University, Rotterdam, 21 April 2006) 14 Google Scholar (stating that the efficacious enforcement of duties is the primary object of tort law and that, as such, “tort law must either aspire to help preventing wrongs or surrender this task to other instruments of behaviour modification”).

5 Cane, P, “Using Tort Law to Enforce Environmental Regulation?” (2002) 41 Washburn Law Journal 427, 466 Google Scholar.

6 See Ewing, B and Kysar, DA, “Prods and Pleas: Limited Government in an Era of Unlimited Harm” (2011) 121 Yale Law Journal 350 Google Scholar.

7 Goldberg, JCP and Zipursky, BC, “Torts as Wrongs” (2010) 88 Texas Law Review 917, 919 Google Scholar.

8 Abraham, KS, The Liability Century: Insurance and Tort Law from the Progressive Era to 9/11 (Harvard University Press 2008) 149 Google Scholar.

9 See Kysar, DA, “What Climate Change Can Do About Tort Law” (2010) 41(1) Environmental Law 1 Google Scholar (describing and analysing cases).

10 See Urgenda, supra, note 3; Ashgar Leghari v Federation of Pakistan, Lahore High Court Green Bench, Pakistan Case No. 25501 (2015).

11 See DA Kysar, “Climate Change and the International Court of Justice” (2013) Yale Law School Public Law Research Paper No 315 <papers.ssrn.com/sol3/papers.cfm?abstract_id=2309943> accessed 4 January 2018.

12 Boomer v Atlantic Cement Co 257 NE 2d 870, 871 (NY 1970).

13 See also Abraham, KS, “The Relation Between Civil Liability and Environmental Regulation: An Analytical Overview” (2002) 41 Washburn Law Journal 379 Google Scholar; Hylton, KN, “When Should We Prefer Tort Law to Environmental Regulation?” (2002) 41 Washburn Law Journal 515 Google Scholar; Schroeder, CH, “Lost in the Translation: What Environmental Regulation Does that Tort Cannot Duplicate” (2002) 41 Washburn Law Journal 583 Google Scholar; McGarity, TO, “Regulation and Litigation: Complementary Tools for Environmental Protection” (2005) 30 Columbia Journal of Environmental Law 371, 373 Google Scholar; Abelkop, ADK, “Tort Law as an Environmental Policy Instrument” (2014) 92 Oregon Law Review 381 Google Scholar.

14 For an important exception, see Faure, MG, “The Complementary Roles of Liability, Regulation and Insurance in Safety Management: Theory and Practice” (2014) 17 Journal of Risk Research 689 CrossRefGoogle Scholar.

15 Cane, supra, note 5, 443.

16 Cf Palsgraf v Long Island Railroad Co 248 NY 339, 162 NE 99 (NY 1928) (fixing the scope of defendant’s duty of reasonable care to what the “eye of ordinary vigilance” would perceive as a foreseeable risk from defendant’s conduct).

17 See infra text accompanying note 28.

18 Note, however, that this potential advantage only exists with regard to those harms that avoid the difficulties of “fit” with tort law’s paradigm described above.

19 RL Rabin, “Reassessing Regulatory Compliance” (2000) 88 Georgetown Law Journal 2049.

20 See generally “Minnesota Litigation and Settlement” (Public Health Law Center at Mitchell Hamline School of Law, Minnesota Litigation and Settlement) <publichealthlawcenter.org/topics/tobacco-control/tobacco-control-litigation/minnesota-litigation-and-settlement> accessed 4 January 2018.

21 See Goldberg and Zipursky, supra note 7, 921–925.

22 See Epstein, RA, “A Theory of Strict Liability” (1973) 2 Journal of Legal Studies 151 CrossRefGoogle Scholar; Coleman, JL, “The Structure of Tort Law” (1988) 97 Yale Law Journal 1233 (book review)Google Scholar; Weinrib, EJ, “Understanding Tort Law” (1989) 23 Valparaiso University Law Review 485 Google Scholar.

23 See, eg, Coleman, J, “Doing Away with Tort Law” (2008) 41 Loyola of Los Angeles Law Review 1149 Google Scholar; Weinrib, EJ, The Idea of Private Law (Oxford University Press 1995)Google Scholar.

24 See Sinram v Pa RR Co 61 F 2d 767, 769-71 (2d Cir 1932) (Hand, J).

25 See, eg, Zipursky, BC, “Rights, Wrongs, and Recourse in the Law of Torts” (1998) 51 Vanderbilt Law Review 1 Google Scholar; Zipursky, BC, “Civil Recourse, Not Corrective Justice” (2003) 91 Georgetown Law Journal 695 Google Scholar; Goldberg, JCP and Zipursky, BC, “Torts as Wrongs” (2010) 88 Texas Law Review 917 Google Scholar.

26 See Goldberg, JCP, “The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs” (2005) 115 Yale Law Journal 524 Google Scholar.

27 5 US (1 Cranch) 137, 163 (1803).

28 See, eg, Schuman, D, “The Right to a Remedy” (1992) 65 Temple Law Review 1197 Google Scholar; Hoffman, JM, “By the Course of the Law: The Origins of the Open Courts Clause of State Constitutions” (1995) 74 Oregon Law Review 1279 Google Scholar.

29 See, eg, Wall v Marouk 302 P3d 775 (Okla 2013).

30 Goldberg, JCP and Zipursky, BC, “Accidents of the Great Society” (2005) 64 Maryland Law Review 364, 369 Google Scholar.

31 ibid 406 (“Although the existence of a private right of action relies upon the state’s willingness to play its role, the state is not in the driver’s seat”).

32 Solomon, JM, “Equal Accountability Through Tort Law” (2009) 103 Northwestern University Law Review 1765, 1771 Google Scholar.

33 See Fletcher, GP, “Fairness and Utility in Tort Theory” (1972) 85 Harvard Law Review 537 CrossRefGoogle Scholar (criticising efforts “to convert the [tort system] into a makeshift medium of accident insurance or into a mechanism for maximizing social utility”).

34 See Keating, GC, “Is the Role of Tort to Repair Wrongful Losses?” in D Nolan and A Robertson (eds), Rights and Private Law (Hart Publishing 2012)Google Scholar.

35 See Weinrib, supra, note 23; Perry, SR, “The Moral Foundations of Tort Law” (1992) 77 Iowa Law Review 449 Google Scholar; Coleman, Jules L, Risks and Wrongs (Oxford University Press 2002)Google Scholar.

36 See Ripstein, A, Equality, Responsibility, and the Law (Cambridge University Press 2001)Google Scholar.

37 See Hershovitz, S, “Harry Potter and the Trouble with Tort Theory” (2010) 63 Stanford Law Review 67 Google Scholar.

38 Zipursky, BC, “Civil Recourse, Not Corrective Justice” (2003) 91 Georgetown Law Journal 695 Google Scholar.

39 See supra text accompanying note 8.

40 See “Benefits and Costs of Clean Air Act”, EPA (4 January 2017) <www.epa.gov/clean-air-act-overview/benefits-and-costs-clean-air-act> accessed 4 January 2018.

41 For the most significant published opinion from the litigation, see Renken v Harvey Aluminum Inc 226 F Supp 169 (D Or 1963). For further details, see Stein, H, “The Law, Legal Practice, and Lamar Tooze, Jr” (2010) 23 Western L History 155 Google Scholar; Interview with Arden E Shenker, Partner, Shenker & Bonaparte LLP (New Haven, Connecticut, USA, 16 November 2016).

42 See, eg, Rodgers, WH Jr, Corporate Country: A State Shaped to Suit Technology (Rodale Press 1973)Google Scholar; Morag-Levine, N, Chasing the Wind: Regulating Air Pollution in the Common Law State (Princeton University Press 2005)Google Scholar.

43 Renken, 226 F Supp at 172.

44 See supra text accompanying note 12.

45 Renken, 226 F Supp at 176.

46 Indeed, one wonders whether the same result would have obtained in the suit absent the defendant’s wrongful conduct within the litigation itself. Still, every tort dispute arises in a social context and every social context entails relations of power. The common law judge’s ability to be sensitive to such situational details is a significant and distinctive feature of her role.

47 LH Tribe, JD Branson and TL Duncan, “Too Hot for Courts to Handle: Fuel Temperatures, Global Warming, and the Political Question Doctrine” (2010) Washington Legal Found Critical Legal Issues Series No 169, 21 <www.wlf.org/Upload/legalstudies/workingpaper/012910Tribe_WP.pdf> accessed 4 January 2018.

48 ibid 2.