Учебный год 22-23 / Deacademification of tort law

(Cite as: 48 U. Kan. L. Rev. 59)

University of Kansas Law Review

November, 1999

Article

*59 THE DEACADEMIFICATION OF TORT THEORY

Virginia E. Nolan [FNa1]

Edmund Ursin [FNaa1]

Copyright © 1999 Kansas Law Review, Inc.; Virginia E. Nolan

I. Introduction

As we approach the twenty-first century, leading torts scholars are looking back with a sense of accomplishment on a generation "marked by a variety of highly ambitious scholarly developments," namely the increasingly sophisticated economic and corrective justice theories that comprise modern tort theory. [FN1] In this Article, in contrast, we argue that this sense of accomplishment is unwarranted-that these scholarly developments are better seen as a manifestation of what Judge Richard Posner has called the "academification" of legal scholarship. [FN2] Like their constitutional counterparts, torts scholars have turned away from a reality-based approach to law in favor of theoretical analyses that are "barren of any engagement with reality." [FN3] They see themselves as "members of an academic community engaged in dialogue with the other members of the community" [FN4] and "judges, practitioners, and government officials be damned." [FN5] As a consequence, that dialogue has little to offer those *60 concerned with the real world problem of accidental injury and "improving the legal system." [FN6]

A conspicuous example of this disengagement from reality is seen in the fact that the tort theory responsible for the two most striking developments in the tort law of recent decades-the strict products liability revolution and the movement for no-fault compensation plans [FN7]-is entirely absent in accounts of modern tort theory. [FN8] As one step in an effort to bring reality to bear on tort analyses, we explain how this theory, which its proponents have called the theory of enterprise liability, came to be eclipsed by the economic and corrective justice approaches, whose appeal was a product of, and dependent on, a lack of concern with the real world of accidental injury.

This academification of torts scholarship has also obscured the enduring appeal of the enterprise liability theory, whose proponents-from Leon Green [FN9] and Fleming James [FN10] to Jeffrey O'Connell [FN11]-have urged that negligence law be displaced by compensation plans in a wide variety of accident settings, ranging from automobile to product and medical accidents. We argue, however, that the process of "deacademification" has begun, and in this Article we seek to accelerate that process.

As torts scholars return to a reality-based approach to accidental injury law, the appeal of the academified [FN12] economic and corrective justice *61 approaches is fading, and practical, broadly acceptable solutions to the problem of accidental injury are increasingly becoming apparent. These solutions are provided by the enterprise liability theory whose goal of assuring adequate, but not undue, compensation for accident victims [FN13] is echoed by contemporary scholars who praise compensation plan approaches that provide a "promising blend of efficient compensation, economical administration, and effective [accident] prevention." [FN14]

In Part II of this Article, we set out the standard account provided by contemporary scholars of the origins and contours of modern tort theory. In Part III, we reexamine the torts scholarship of the "premodern" era, introducing the enterprise liability theory, which is entirely absent in the standard account. With the strict products liab-

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 48 U. Kan. L. Rev. 59)

ility revolution proceeding apace and legislatures about to adopt no-fault automobile compensation plans, the enterprise liability theory "stood at the top of the agenda of tort scholarship" in the late 1960s and early 1970s. [FN15] In Part IV, we examine the "creation" of modern tort theory, explaining how the enterprise liability theory fell into obscurity in the 1970s when the corrective justice and economic approaches were introduced and gained prominence.

In Part V, we provide a reality-based reassessment of these approaches. We argue that the corrective justice approach is so out of touch with the real world of accidents, organizational liability, and insurance that it has no relevance to modern accident law and that this fact is apparent to a broad range of torts scholars. [FN16] We also demonstrate that the perceived dominance of the economic approach to tort theory is a product of the *62 academification of tort scholarship-and an artificial and misleading definition of tort theory, which has obscured the broad appeal of the compensation plan version of the enterprise liability theory, even among economics oriented scholars. [FN17] After demonstrating this broad appeal, we offer suggestions for how the enterprise liability theory might be practically implemented to create a tort law suitable for the twenty-first century.

II. The Standard Account of the Origins and Contours of Modern Tort Theory

The standard account of the origins of the economic and corrective justice theories begins with a description of the tort law and scholarship of the "premodern" era. According to that account, premodern (pre-1970) tort law had generally been a quiet subject matter marked largely by traditional scholarship. [FN18] "For more than a century . . . fault [had] been the principal theme of tort law," [FN19] and the main focus of scholarship had been the "coherence and the clarification of tort doctrine." [FN20] Torts scholars of this era "could rest comfortably on the mastery of Prosser and the latest case law developments." [FN21] "Liability rules were justified most frequently in terms of fairness, [with] the concept of fairness . . . typically treated in an intuitive and common-sense way." [FN22] As modern torts scholars look back on this premodern literature, they find that "most of the discussion . . . of the purposes underlying the law of torts was either empty or banal." [FN23]

The origins of modern tort theory, in turn, can be traced to the 1961 publication of Guido Calabresi's first tort article, [FN24] which appeared almost simultaneously with Ronald Coase's famous article The Problem of Social Cost. [FN25] It was not until the 1970s, however, that economic analysis emerged as a genre of torts scholarship and as one of the two competing schools that would define modern tort theory. [FN26] The rise to prominence of the economic analysis of tort law can, in large part, be attributed to Richard Posner, who in the early 1970s became the first scholar "to explain and *63 commend the common law of personal injury torts in terms of economic analysis." [FN27] Posner was "followed by waves of scholars," [FN28] and by the late 1970s it was widely believed that economic analysis, focusing on "liability incentives for the prevention of future injuries," was the "generally prevailing scholarly theory about the appropriate role of tort law." [FN29]

Economic analysis was the prevailing theory, perhaps, but it was not undisputed. Indeed, opposition to the economic analysis of tort law can also be traced to the early 1970s and the emergence of corrective justice as an alternative theory of tort law. For corrective justice scholars, the "instantly celebrated economic analysis" was "not merely incomplete but fundamentally misguided" because it "tended to ignore or disdain justice concerns." [FN30] These scholars, led by George Fletcher [FN31] and Richard Epstein, [FN32] offered a competing vision of tort law, and the early 1970s "witnessed a surge of interest in theories interpreting tort law as an expression of what Aristotle called corrective justice." [FN33] In subsequent years, corrective justice scholarship gained ad- herents-and sophistication-as writers "delved deeply into Aristotle and likewise . . . offered extensive interpretations of moral philosophers such as Kant and Hegel." [FN34]

Modern tort theory thus consists of the two competing camps of economists and corrective justice scholars. [FN35] Tort theory is defined by "the arguments among the economists, among the ethicists, and between the economists and the ethicists." [FN36] Theoretical treatments of tort law, as well as substantive analyses and proposals, thus properly confine themselves to the economic and corrective justice perspectives, [FN37] each of which stands in stark contrast to the unsophisticated scholarship of the premodern era. [FN38]

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 48 U. Kan. L. Rev. 59)

*64 III. "Premodern" Tort Theory Reexamined

A. The Missing (Enterprise Liability) Theory

Absent from the standard account of modern tort theory is the perspective that produced the two most striking developments in the tort law of the past half century: the strict products liability "revolution" and the movement for no-fault compensation plans. This perspective, which its proponents called the theory of enterprise liability, sought to apply the social philosophy represented by workers' compensation plans to the problem of compensation for accidental injuries generally. [FN39] To achieve the goals of victim compensation and loss spreading, proponents of the enterprise liability theory urged the adoption of compensation plans by legislatures and strict liability rules by courts. [FN40] The goal of these proposals was to "shift [tort law] in the direction of emphasizing social as against individual morality." [FN41] Their adoption, in the view of proponents, might also serve (better than the fault system) the goal of "accident prevention" [FN42] because business enterprises "are in a strategic position to reduce accidents." [FN43]

Compensation plans, as an alternative to tort (negligence) law, formed the centerpiece of early enterprise liability scholarship. For example, Leon Green, a seminal enterprise liability scholar, wrote in the late 1920s that employee accident law provided "a pattern by which to indicate other developments either mature or now under way." [FN44] In 1929, Green proposed compensation plans for automobile accidents, for accidents at railroad crossings, and for accidents involving children injured while trespassing on *65 industrial properties such as railway yards. [FN45] Green's proposals were followed by the landmark 1932 Columbia Study, which concurred that tort law should be displaced in automobile accident cases and marshalled empirical data in support of that conclusion. [FN46]

Although Green recognized that courts might adopt strict liability rules, he and enterprise liability colleagues, such as Fleming James, were optimistic in the wake of the enactment of workers' compensation plans about the prospect for legislative no-fault enactments. Thus, they did not focus on the possibility that courts might displace negligence law with strict liability rules. [FN47] It was Karl Llewellyn, the leading scholar of the law of sales, who in 1930 suggested extending the line of food warranty cases to create a broad strict products liability based on the policies of enterprise liability. [FN48] Although picked up by Justice Roger Traynor in his prophetic 1944 proposal of strict products liability in Escola v. Coca Cola Bottling Co., [FN49] most torts scholars paid little attention to this idea until the late 1950s. [FN50] By that time their optimism over the prospects for legislation had been dashed, and courts led by Justice Traynor were about to embark on the strict products liability revolution. [FN51]

Given the compensation plan origins of the enterprise liability theory, it should come as no surprise that damages reform was also an important, although today overlooked, aspect of that theory. Indeed, as enterprise liability proponents during the 1950s increasingly turned their focus from compensation plans to the common law, they also questioned the traditional common law damages award. [FN52] The issue of damages reform was first raised in 1951 by Albert Ehrenzweig in the book in which he coined the term "enterprise liability." [FN53] Shortly thereafter, in 1953, Louis Jaffe spelled out in detail the damages implications of the movement toward liability *66 based "on insurability rather than notions of fault." [FN54] Jaffe questioned both the collateral source rule and the award of damages for pain and suffering. [FN55] He also hinted at a provocative role for courts in damages reform, suggesting that "the award for pain and suffering might be measured and justified in terms of a contribution to the real costs of the litigation [that is, attorneys' fees]." [FN56] Jaffe's damages reform thesis quickly gained acceptance among enterprise liability scholars, including Green, [FN57] Traynor, [FN58] and James, [FN59] as well as other scholars, [FN60] thus firmly establishing by the early 1960s that damages reform is a central aspect of the enterprise liability theory [FN61] and that reform might be accomplished "within the framework of common-law development." [FN62]

It should be apparent at this point that the standard account of premodern tort theory is seriously flawed. With the revival in recent years of interest in compensation plan alternatives to tort (and new versions of auto no-

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 48 U. Kan. L. Rev. 59)

fault), [FN63] one familiar with enterprise liability scholarship would hardly characterize it as "empty or banal" [FN64] or concerned with doctrinal *67 coherence and clarity. [FN65] Ironically, those pejorative descriptions do fit the body of scholarship that stood in opposition to the enterprise liability scholarship. And that irony is compounded by the fact that the opposing scholarship interpreted tort law as an expression of corrective justice. Thus, today's corrective justice scholars were preceded by an earlier incarnation, which as we will see shared a common, though flawed, conceptual framework.

B. Corrective Justice: The Early Incarnation

In fact, the earlier generation of corrective justice scholars dominated torts scholarship from the late nineteenth century to the 1950s. Like the current generation of corrective justice scholars, the earlier generation, which we will refer to as traditional tort theorists, "look[ed] at the law of torts as a study in corrective justice, as an effort to develop a coherent set of principles to decide whether this plaintiff was entitled to compensation from this defendant as a matter of fairness between the parties." [FN66] For traditional theorists, this meant that liability should be based on fault, which in their view had "been the principal theme of tort law for more than a century." [FN67]

Traditional theorists were uninterested in, and often hostile toward, proposals to supplant tort by compensation plans. [FN68] When the initial apprehension created by the enactment of workers' compensation legislation subsided, [FN69] this legislation was seen as irrelevant to tort analysis because it "create[d] an insurers' rather than a tort liability." [FN70] It followed, of course, that proposals for automobile compensation plans could be entirely omitted in analyses whose goal was to explicate the "principles of torts." [FN71]

Traditional theorists similarly dismissed suggestions that strict liability and the policies of victim compensation and spreading accident losses should play a significant role in tort analysis. They reported, for example, *68 that the English case of Rylands v. Fletcher, [FN72] "with its tendency towards the creation of liability irrespective of negligence, had gained little headway in the United States." [FN73] Decisions imposing strict (warranty) liability in food products cases were not even perceived as tort law. Because they were "predicated upon a failure to perform [a] contractual duty," they were irrelevant to tort analysis. [FN74] The loss spreading policy, in turn, had "never consciously or . . . unconsciously influenced the decision of any court" [FN75] and was considered "sentimental," as opposed to "legal," justice. [FN76]

This substantive opposition to the enterprise liability theory was buttressed by the dominant jurisprudential view of the time. Influenced by the perceived abuses of the Lochner [FN77] era's constitutional judicial activism, leading scholars sought to restrict judicial lawmaking in order to avoid future "Lochners." The most influential articulation of this perspective is found in the classic 1958 materials by Henry M. Hart, Jr. and Albert M. Sacks. [FN78] In order to reconcile the reality of judicial lawmaking with the tenet of democratic theory that lawmakers should be accountable to the electorate, "legal process" scholars insisted that judicial lawmaking be confined to "reasoned elaboration [from] existing arrangements," [FN79] that it strive to be "neutral" [FN80] or "nonpolitical." [FN81] In its application to tort law, legal process scholarship stood in opposition to "the specter of runaway social engineering with ill-considered emphasis on risk-spreading capacity." [FN82]

C. The Enterprise Liability Critique and Triumph

From the enterprise liability perspective, traditional tort theory was flawed at a deep conceptual level. By the late nineteenth century it had *69 become apparent that, as Holmes noted in his brilliant 1897 essay, The Path of the Law, tort law involves "mainly . . . injuries to persons or property by railroads, factories, and the like" in which the liability "sooner or later goes into the price paid by the public." [FN83] Thus, contrary to traditional theory, which viewed tort law as merely shifting a loss between individual parties, the enterprise liability theory recognized that losses that were initially shifted to a business enterprise would then be spread among the public. Accordingly, as Holmes recognized, the "question of liability, if pressed far enough, is really the question how far it is desirable that the public should insure the safety" of accident victims. [FN84] With the increasing importance of suits against insured drivers of motor vehicles in this century, it became even more evident that "tort

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 48 U. Kan. L. Rev. 59)

liability no longer merely shifts a loss from one individual to another but it tends to distribute the loss according to the principles of insurance." [FN85] Indeed, "the person nominally liable is often only a conduit through whom this process of distribution starts to flow." [FN86] In ignoring this reality, traditional theorists who "talk[ed] and reason[ed] . . . as though the judgment were to come out of the defendant's pocket . . . [were] thinking in terms of complete unreality." [FN87]

The legal process objections of traditionalists were countered, in turn, by a competing jurisprudential vision articulated by Justice Traynor in a series of articles in the 1950s and 1960s. [FN88] In this view, "courts have a *70 creative job to do when they find that a rule has lost its touch with reality and should be abandoned or reformulated to meet new conditions and new moral values." [FN89] Indeed, "[t]he real concern [was] not the remote possibility of too many creative opinions but their continuing scarcity." [FN90] Moreover, attempts by legal process scholars to invent "magic words" [FN91] to restrict judicial creativity overlooked the reality of "legislative indifference or legislative sensitivity to political considerations." [FN92] It was simply "unrealistic to expect that legislators [would] close their heterogeneous ranks for the single-minded purpose of making repairs and renewals in the common law." [FN93] Thus, in the Traynor view, courts have "the major responsibility for lawmaking in the basic common law subjects," [FN94] for "the recurring formulation of new rules . . . to replace the old," and for the "choice of one policy over another." [FN95]

By the late 1960s and early 1970s, the enterprise liability theory appeared to have vanquished traditional tort theory. On the compensation plan front, a new wave of advocacy for automobile compensation plans occurred in the 1950s, led by books written by Leon Green [FN96] and by Albert Ehrenzweig. [FN97] This scholarship in turn created the framework for the 1965 proposal by Robert Keeton and Jeffrey O'Connell for the establishment of *71 no-fault automobile insurance. [FN98] Not surprisingly, the older generation of enterprise liability scholars welcomed the "form of enterprise liability . . . [[[[proposed for motor vehicle accidents] by Keeton and O'Connell," [FN99] which led to legislative successes in the early 1970s. [FN100] Following these no-fault enactments, O'Connell proposed a variety of extensions of no-fault insurance beyond auto insurance by statute and contract. [FN101] He recognized that these extensions were a "form of tort liability called 'enterprise liability."' [FN102]

If the enactment of no-fault auto-compensation plans signified the victory of enterprise liability on the legislative front, the devastation of traditional tort theory occurred on the common law front. As might be expected, traditional theorists were appalled by the "runaway social engineering" they associated with the enterprise liability theory. [FN103] Indeed, the "risk-spreading" approach was "denounced . . . as a piece of 'authoritarian law,' and a major step in the direction of socialism." [FN104] For these scholars, products liability was the battleground, and the enterprise liability proposal that courts extend strict liability from food to all products was, as William Prosser wrote in 1960, "too radical and disruptive." [FN105] In Prosser's view, "our courts, our legislators, and public sentiment in general" were not yet ready to accept a view that might "very possibly be the law of fifty years ahead." [FN106]

With the New Jersey and California Supreme Courts' landmark strict products liability decisions of the 1960s, [FN107] it appeared that the enterprise liability theory had prevailed. As Harry Kalven wrote in 1972, these developments severed products liability from its warranty tradition. The key term for the liability, he wrote, was "no longer product, but enterprise." [FN108] Kalven concluded that, "if we are serious about enterprise *72 liability, a good part of contemporary tort law will need to be revised accordingly, and very little of its once spacious domain is likely to be left to the negligence principle." [FN109]

IV. The "Creation" of Modern Tort Theory

A. Puzzling Questions

From the late 1950s to the mid-1970s, the theory of enterprise liability enjoyed a golden age. By the late 1960s, the product liability revolution was proceeding apace, and the auto-compensation-plan form of enterprise liability held "the center . . . stage" of tort scholarship. [FN110] Between 1970 and 1975, twenty-four states adopted

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 48 U. Kan. L. Rev. 59)

versions of no-fault auto plans, [FN111] and during the 1970s Jeffrey O'Connell offered innovative proposals to extend the no-fault "form of . . . 'enterprise liability"' beyond auto accidents to other settings, including product and medical accidents. [FN112] In the early 1970s, the enterprise liability theory thus stood at the forefront of torts scholarship. Indeed, the view that tort law was a mechanism of corrective justice shifting losses between individuals seemed archaic in an age of insured motorists, no-fault auto plans, and manufacturers and other enterprises that spread losses through insurance and the price of goods and services. Traditional tort theory, with its focus on doctrinal analysis and fault, [FN113] appeared tired, passe, obsolete, [FN114] or, as O'Connell wrote at the time, "intellectually inert." [FN115]

From a 1999 vantage point, this brief history of enterprise liability raises puzzling questions. Since the late 1970s, and continuing today, modern tort theory has consisted of the economic and corrective approaches. [FN116] Thus, the corrective justice view, which seemed to have been discredited by the early 1970s, is today one of the two contemporary theories of tort law. How did this occur? And how did it come to pass that *73 the enterprise liability theory-which in the early 1970s appeared to have vanquished the corrective justice theories-is not even one of the competitors? How the economic and corrective justice approaches, which today dominate tort theory, supplanted the enterprise liability theory is a tale with two story lines, the first of which involves the evolution of the enterprise liability theory in the 1970s.

B. Moving No-Fault Off the Stage of Tort Theory

The rapid legislative successes of no-fault auto insurance during the early 1970s produced a wave of optimism (much like the mood following the enactment of workers' compensation legislation) about the prospects for legislative reform and an examination of new areas in which tort law might be displaced by compensation plans. As the 1970s unfolded, Jeffrey O'Connell proclaimed: "No-fault auto insurance seems to have come of age. If so, no army of trial attorneys or timid insurance executives will be able to halt its progress." [FN117] Accordingly, he urged that it was time to turn "to more ambitious legislation . . . time we turned away from the tortuous 'interstitial legislation' of the common law tort system." [FN118]

Scholars who favored the enterprise liability goal of victim compensation did shift their focus from the "interstitial legislation" of the common law to proposals for more sweeping legislative change in the form of no-fault compensation plans. This shift in focus away from the common law to the compensation plan version of the enterprise liability theory during the 1970s had an important consequence. The enterprise liability theory first became fragmented and then, ultimately, lost its identity as a tort theory among torts scholars. [FN119] In his 1973 proposal for expanding no-fault compensation beyond automobile insurance, O'Connell forthrightly recognized that he was "creating a new form of tort liability called 'enterprise liability"' [FN120] and that his substantive agenda might be achieved through judicial lawmaking. [FN121] But the authors of later compensation plan proposals discarded the enterprise liability label. No-fault took on a life of its own and was no longer recognized as one aspect of the broader enterprise liability theory. In his 1979 book, The Lawsuit Lottery, for example, O'Connell proposed a system of elective, first-party, no-fault *74 insurance but no longer linked no-fault to enterprise liability. [FN122] Indeed, the term "enterprise liability" is not mentioned in the book. [FN123]

The delinking of the compensation plan idea from the broader enterprise liability theory eventually had the important consequence of removing compensation plans from the realm of tort theory. [FN124] No-fault came to be seen as an alternative to tort, not as a theory about the proper configuration of tort (personal injury) law. [FN125] These no-fault successes had another important, but unexpected, consequence. As no-fault spread across the nation (and the possibility of a nationwide no-fault emerged), [FN126] plaintiffs' lawyers transformed their trade association, the Association of Trial Lawyers of America (ATLA), into a potent political force. [FN127] Prior to the 1970s, the ATLA was a quiet organization, content to disseminate practical information, without any presence in Washington, D.C. [FN128] By the late 1970s, the ATLA had become one of the most powerful lobbying forces in the nation [FN129] and effective as well: the no-fault movement was stopped dead in its tracks. [FN130] By that time, the term "enterprise liability" had fallen into disuse, and the original enterprise liability theory (and its common law version) had become so obscured that it had ceased to exist in the

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 48 U. Kan. L. Rev. 59)

minds of torts scholars. [FN131]

*75 C. The Appeal and Ascendancy of the Economic Analysis of Tort Law

While this enterprise liability story line explains how the economic and corrective justice approaches could stand alone at the center stage of tort theory in the late 1970s, it does not explain the initial appeal of these theories, which emerged in the early 1970s before the events discussed above could have been anticipated. The second story line thus focuses on why these approaches-and especially the economic approach which came firstwere initially attractive to legal scholars.

Why scholars were attracted to the economic approach to tort law is a complex matter, but an important insight is provided by Richard Posner's observation that, when a "genre has been perfected (which is not to say completed)," it is "no longer easy for academic lawyers who want to be considered on the cutting edge of legal thought to imagine writing in the same vein." [FN132] The most imaginative scholars "want to be innovators, rather than imitators, and this desire drives them to strike out in new directions." [FN133] With enterprise liability theory having been elaborated upon over the decades by scholars, such as Green, James, and, later on, O'Connell (and traditional fault theory having been depleted), perhaps it was inevitable that innovative scholars would strike out in new directions, such as the approaches of economics and corrective justice.

Posner's observation certainly captures the flavor of Guido Calabresi's pioneering law and economics scholarship. [FN134] In articles published in the *76 1960s [FN135] and 1970s, [FN136] as well as in his 1970 book The Costs of Accidents, Calabresi wrote in support of the compensation plan and strict liability agenda developed by the previous generation's enterprise liability scholars. [FN137] True to Posner's suggestion, however, Calabresi was an innovator, not an imitator.

Calabresi opened his first tort article by agreeing with the statement in the recently published Gregory and Kalven casebook that "the central policy issue in tort law is whether the principal criterion of liability is to be based on individual fault or on a wide distribution of risk and loss." [FN138] Following that preface, Calabresi introduced his innovative form of tort scholarship. [FN139] Calabresi's innovation was not the substantive agenda, specifically the enterpriseliability agenda, which he supported. Rather, Calabresi's innovation was to offer a "modified enterprise liability" [FN140] that expressly turned away from the "radical" [FN141] loss spreading premise of the enterprise liability theory, substituting in its place the new, and seemingly more sophisticated, goal of economic efficiency. [FN142] In an era dominated by the demand of legal process scholars for neutral principles and reasoned elaboration, the efficiency premise was appealing because, in contrast to the radical loss spreading policy, it could be presented as neutral, nonpolitical, and even scientific, thus avoiding legal process objections. [FN143]

*77 Calabresi's 1960s articles were greeted with enthusiasm by scholars, such as Fleming James, [FN144] Jeffrey O'Connell, [FN145] and Marc Franklin, [FN146] who shared his preference, though not necessarily his efficiency justification, for no-fault compensation plans, or strict liability, as an alternative to negligence law. These scholars were few in number, however, and did not become "Calabresian economists." Rather, they viewed Calabresi as providing an additional argument for the enterprise liability agenda that they already supported. [FN147]

Enterprise liability proponents who viewed Calabresi as an ally failed to recognize the deeper significance of Calabresi's scholarship: Calabresi sought to reorient the debate over the proper contours of tort law. For the prior generation, the struggle had been between traditional proponents of individual fault as the criterion of liability and the enterprise liability scholars who sought a wide distribution of losses. Calabresi, in effect, challenged both views and moved the debate to the "higher" theoretical plane of economic efficiency. It was not until the early 1970s that torts scholars would join Calabresi on that higher plane, and economic analysis would emerge as a genre of torts scholarship that would be embraced by a generation of torts scholars. As we will discuss in Part IV.E, the leading figure of that period was Richard Posner. Before turning to Posner, however, we pause to examine the emergence of the corrective justice approach with which we are familiar today.

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 48 U. Kan. L. Rev. 59)

D. The Appeal and Ascendancy of the "New" Corrective Justice

The corrective justice genre with which we are familiar today was launched by the publication of the famous articles by George Fletcher [FN148] and Richard Epstein [FN149] in 1972 and 1973 respectively. By this time, the enterprise liability view, with its emphasis on "a wide distribution of risk and loss," [FN150] had seemingly prevailed over traditional tort theory, [FN151] which *78 had been discredited for "thinking in terms of complete unreality" [FN152] and for being "intellectually inert." [FN153] In the view of Calabresi and others, the fault system was "so unpalatable on compensation grounds that it would soon be replaced." [FN154] At just this moment, however, the enterprise liability theory in its compensation plan form was evolving into an alternative to tort and thus outside the realm of tort theory.

Thus "academic lawyers who want[ed] to be considered on the cutting edge of legal thought"-"to be innovators, rather than imitators"-could join Calabresi on the higher plane of economic analysis or "strike out in new directions" of their own. [FN155] Fletcher and Epstein took the latter course, offering a seemingly innovative approach that would be an alternative to the emerging economic analysis of tort law. [FN156] Part of the attraction of the Fletcher and Epstein approaches grew out of the fact that economic analysis, which was beginning to receive "enormous attention," "tended to ignore or disdain justice concerns." [FN157] Like Calabresi, Fletcher and Epstein placed their scholarship on a high theoretical plane with intellectual links to no less than Aristotle, [FN158] and they offered substantive theories in tune with the time by advocating at least some strict liability rules. [FN159]

Both Fletcher and Epstein viewed tort law as a mechanism for shifting losses from one individual to another and urged that tort law should serve as a system of corrective justice, [FN160] that fairness, not economic efficiency *79 or any other utilitarian goal, should be the hallmark of tort doctrine. [FN161] Fletcher urged an approach that relied upon notions of reciprocal and nonreciprocal risk creation. [FN162] In this view, "a victim has a right to recover for injuries caused by a risk greater in degree and different in order from those created by the victim and imposed on the defendant-in short, for injuries resulting from nonreciprocal risks." [FN163] Fletcher provided an example: "[A] pilot or an airplane owner subjects those beneath the path of flight to nonreciprocal risks of harm. Conversely . . . two airplanes flying in the same vicinity subject each other to reciprocal risks of a mid-air collision." [FN164] For his part, Epstein urged that the concept of causation could be employed to create a regime of liability rules. [FN165] He sought to answer questions of "personal responsibility" by reference to "ordinary language" or the "shared impressions of everyday life," which support the view that A should compensate B if "A cause[s] B harm." [FN166]

This focus on ethical issues was received with enthusiasm by torts scholars, and inspired "a major review of the ethical implications of tort doctrine." [FN167] As a consequence, the corrective justice approach rose in prominence in the 1970s and 1980s to become, along with the economic analysis of law, one of the two competing camps that constitute modern tort theory. Indeed, in the 1980s and 1990s, a new wave of corrective justice *80 scholarship emerged with work by Jules Coleman, Ernest Weinrib, and others. [FN168] Just as Fletcher and Epstein differed in their approaches, proponents of the new corrective justice offered an array of approaches, often with great attention to Aristotle and moral philosophers such as Kant. [FN169] In casebooks and elsewhere, however, Fletcher and Epstein are still regarded as exemplars of the corrective justice approach. [FN170]

Overlooked by those who greeted the newly minted corrective justice theories with enthusiasm was the fact that these theories were a reworking of the conceptual framework of traditional tort theory-the approach that the enterprise liability scholars had attacked early in the century and had discredited by the late 1950s. Traditional tort theory, as discussed above, also envisioned tort law as a mechanism of corrective justice, shifting losses from one individual to another according to principles of fairness, which traditional theorists equated with fault. [FN171] Thus, both the past and present generation of corrective justice theorists, whose common model assumes that losses are shifted between individuals, are "thinking in terms of complete unreality." [FN172] If the enterprise liability theory had continued to hold a prominent place in tort theory, this critique would have been a powerful one. By the time the new corrective justice scholarship came to prominence, however, the enterprise

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 48 U. Kan. L. Rev. 59)

liability theory had been obscured, and torts scholars were well on the road toward the academification of torts scholarship. [FN173]

Of course, the corrective justice scholars were not alone in turning away from reality. Scholars who would join Calabresi on the high plane of economic analysis also shunned reality. Thus we return to our account of the ascendancy of the economic analysis of tort law, which occurred in the very years that the corrective justice approach grew in prominence.

E. The Ascendancy and Dominance of the Economic Analysis of Tort Law

In 1972, the same year that Fletcher published his corrective justice alternative to economic analysis, Richard Posner accepted Calabresi's invitation to move the debate over the proper contours of tort law to the *81 higher plane of economic efficiency. [FN174] In contrast to Calabresi, who had written at a high level of generality in favor of compensation plans and strict liability rules, [FN175] Posner focused closely on the doctrines comprising the negligence system and found them to be "broadly designed to bring about the efficient . . . level of . .

. safety." [FN176] The "enormous power in Posner's 'the logic of the [common] law . . .' maxim[]" created genuine "excitement" [FN177] among torts scholars and had profound effects on tort scholarship. Perhaps the most important effect was to establish the economic analysis of tort law as a genre of torts scholarship. The sophisticated approach of this "instantly celebrated economic analysis" [FN178] attracted young scholars anxious to be on the cutting edge of torts scholarship, and Posner was "followed by waves of scholars" who often wrote in newly created journals dedicated to economic analysis of law, including The Journal of Legal Studies, which Posner founded in 1972. [FN179] As Posner himself has written, "economic scholarship on torts erupted in a sustained flow that continues to this day." [FN180] By the late 1970s, economic analysis, focusing on "liability incentives for the prevention of future injuries," had become "the generally prevailing scholarly theory about the appropriate role of tort law." [FN181]

A second effect of Posner's scholarship was to derail the Calabresian efficiency argument for compensation plans and strict liability rules. For more than a decade following Calabresi's first tort article, it had been widely assumed that economic analysis pointed unambiguously to those alternatives to negligence law because, for example, a business enterprise "forced to bear all accident costs . . . will have an incentive to find the optimal accident level for [its] product." [FN182] Posner, however, demonstrated that "[e]conomic theory provides no basis, in general, for preferring strict liability to negligence, or negligence to strict liability." [FN183] Thus, contrary *82 to a decade of thinking, economic analysis failed to establish any reason to move toward a regime of strict liability rules.

Posner's scholarship could also have had a third effect. Calabresi had responded to Posner by arguing that in practice, as opposed to theory, strict liability would optimize accident costs. [FN184] Posner's retort was that Calabresi had established only that the "question [of] whether a general substitution of strict [liability] for negligence . . . would improve efficiency [is] at this stage hopelessly conjectural; the question is at bottom empirical and the empirical work has not been done." [FN185] The third effect of Posner's work could thus have been to direct torts scholars to an exploration of real-world facts, as opposed to engaging in elaborate theoretical debates. Scholars at the cutting edge of tort scholarship did not, however, take this route.

V. The Deacademification of Tort Theory

A. Posner Revisited

A quarter century after Posner's seminal critique of Calabresi, we find the least noticed of Posner's points the most powerful-and in resonance with his recent lament regarding the academification of legal scholarship. Following his demonstration that economic theory provided no basis for preferring strict liability or negligence, [FN186] Posner wrote that any attempts at that date to establish the superiority of either rule were "hopelessly conjectural." [FN187] For Posner, the question was "empirical and the empirical work [[had] not been done." [FN188] The message that we derive from Posner is *83 that torts scholars should be intensely concerned with

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 48 U. Kan. L. Rev. 59)

real-world facts-or, as Posner has recently put it, with a reality-based approach to legal questions. [FN189] The problem with the past generation of torts scholars is that they ignored this message as they pursued ever more sophisticated tort theories. The consequence is a generation of theoretical scholarship that "circulates within a vacuum-sealed medium of academic discussion, publication, and debate with little or no spillover into the world of action." [FN190]

We believe, however, that the academification of tort theory may have run its course. Indeed, to borrow again from Posner, it may be that the economic and corrective justice genres "have been perfected (which is not to say completed)" (or perfectable or completable) and that "academic lawyers who want to be on the cutting edge of legal thought" will want "to strike out in new directions." [FN191] In fact, we believe this is occurring and that we are in the early stages of the "deacademification" of tort theory-that increasing numbers of torts scholars have begun to embrace a reality-based approach to accidental injury law.

This shift to a reality-based approach can be explained in part as a response to the tort "crises" of the 1980s. [FN192] During that period, various proposals for reform made tort law the center of political controversy. As Robert Rabin has written, "[p]olitical activists, marching under the banner of tort reform, began to propose every manner of change through legislative action." [FN193] And, if one could find "any common message for the academic torts contingent in all this clamor, it was to the effect: 'Get beyond your excessive preoccupation with doctrine."' [FN194]- and, Rabin might have added, theory.

In fact, an increasing number of torts scholars did just that, suddenly becoming concerned with the real world of accidents and practical issues *84 of tort reform. [FN195] One consequence of this shift was that scholars looked realistically, and thus skeptically, at tort theories. Another consequence is that the enterprise liability perspective is regaining the position of prominence it held in the late 1960s. In the concluding sections of this Article, we seek to demonstrate and to contribute to this phenomenon. We start with a reality-based reexamination of the corrective justice genre.

B. Corrective Justice Revisited: Prominence Reconsidered

Today the empty or banal scholarship of the premodern era is contrasted with sophisticated modern corrective justice theories "interpreting tort law as an expression of what Aristotle called corrective justice." [FN196] In- creasingly, however, scholars concerned with the real world of accidental injury are raising questions about the corrective justice genre.

Attention to the real world, for example, raises a real question concerning the claim to prominence of the corrective justice genre. Jules Coleman, one of the leading contributors to the corrective justice genre, remarked to an audience of torts professors that there are only "'five [scholars] who believe in corrective justice and eighteen different analyses of what corrective justice is; and I am responsible for about ten of them, because I've changed my mind so many times."' [FN197] After quoting Coleman, Gary Schwartz recently commented that "even conceding Coleman's exaggeration for comic effect," he (Schwartz) agrees with "the basic accuracy of [Coleman's] underlying assessment." [FN198] Moreover, corrective justice may have become philosophically more sophisticated, [FN199] but it has at the same time "become highly abstruse and abstract in ways that render it all but inaccessible to readers lacking a formal training in philosophy." [FN200] This obscurity and lack of agreement regarding a common framework among its few practitioners "permits the non-philosopher to believe" that corrective justice scholarship consists of "intramural disputes he can properly ignore." [FN201]

*85 More fundamentally, the corrective justice approach does not fare well when not ignored. Once again Judge Posner asks us to consider reality-this time the reality of Aristotle's view of corrective justice. Posner observes that Aristotle's "notion of corrective justice . . . is narrow and formal," requiring only that "(1) people injured by wrongful conduct should have the right to activate a corrective [justice] machinery administered by judges who

(2) give no weight to the character or social status of the victim and the injurer." [FN202] According to Posner, scholars such as Epstein and Fletcher fail to recognize that "the exclusion of distributive considerations [in Aristotle's concept of corrective justice] is a procedural rather than an ethical principle." [FN203] Thus, it "does not

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.