abstract. Law, and particularly tort law, serves definable human goals. Often these goals are multidimensional, and too often, those who view tort law in a goal-oriented way move quickly to a single, simple goal – whether it be economic efficiency, furthering loss spreading or anything else – and, having examined tort doctrines and cases on that basis, are properly attacked for being reductionists. The thesis of this chapter is that the pursuit of one-dimensional goals in tort law is fraught with such risks.

Generally speaking, courts are unlikely to be reductionist. Judges derive law from many sources. The problem arises from the ever-increasing incursions by federal courts into the tort process, and is worsened when the incursion is by the Supreme Court. This chapter concentrates on punitive damages. Its thesis is that punitive damages in tort law can perform at least five very different functions, and that each is a sufficient reason for a state to seek to impose exemplary awards. These objectives may reveal or include a desire to: (1) enforce societal norms, through the use of private attorney's general; (2) employ “the multiplier,” in the sense that the proper size of the deterrent assessed on those one would deter is not the harm to any one victim but rather that harm multiplied by all those victims whose harms are not likely to be charged to the injurer; (3) the “Tragic Choice” Function, such as in the Pinto case; (4) permit Recovery of Generally Nonrecoverable Compensatory Damages; and (5) permit Righting of Private Wrongs.

abstract. This chapter offers some thoughts on prospective developments in injury reparation through the prism of what are, in my view, the principal landmarks of twentieth-century American tort and compensation law. I discuss, in roughly chronological order, the four developments that seem to me most critical in restructuring the very foundations of tort law in the twentieth century: First, Judge Benjamin Cardozo's opinion in the landmark case of MacPherson v. Buick Motor Co.; second, the Progressive Era adoption of workmen's compensation legislation; third, the concurring opinion of Justice Roger Traynor in Escola v. Coca Cola Bottling Co.; and fourth, the primarily legislative movement from contributory to comparative fault.

The chapter then turns to a fifth landmark, United States v. Carroll Towing Co., which attained its status by serving as a catalyst for intellectual ferment, rather than through its direct impact on the tort system. In this last instance, I depart from chronological presentation because the noteworthiness of Carroll Towing came not in its immediate aftermath, but some twenty-five years later when Judge Learned Hand's opinion came to be recognized as a cornerstone of the law and economics movement. My focal point will be the themes that emerge from each of these developments, for it is the rich thematic influence in every instance that forced reexamination of the basic goals, as well as the appropriate domain, of tort law. Similarly, that rich thematic material creates continuing resonance for my corresponding discussion of future developments in the torts area.

abstract. This chapter begins by surveying and quantifying the magnitude of the different sources of compensation for personal injury, illness, and death. The survey places tort law in perspective, both by locating it within our larger “system” of compensation and by comparing its functioning and scope with the other methods of loss distribution that are employed by the system. The examination reveals the extent to which there is in fact a vast system of loss distribution, of which tort is only a small part. By contrast, that system is by no means comprehensive; it contains important gaps.

The central issue is whether these gaps should be filled by tort law or by the other sources, and how that might be accomplished. To begin to address this issue the chapter then turns to the relationship between tort and the rest of the loss-distribution system. It analyzes the different possible relationships by identifying and exploring the loss-distributional and other impacts of four possible variants of the collateral source rule. Finally, the chapter looks at the rarely-considered, distinct treatment accorded to life insurance and savings under existing rules, and then recommends an alternative approach to tort law's treatment of all collateral sources, including life insurance, that would help to fill the compensation gap. This approach would afford first-party insurance policyholders the option of transferring all their tort rights of recovery to their insurers, in return for lower premiums or more generous first-party insurance coverage.

abstract. In order to regulate risk-taking efficiently, tort liability rules governing organizations' liability for torts by their agents must ensure that organizations both want their agents to take cost-effective precautions and benefit from using all cost-effective mechanisms to regulate agents. This chapter shows that vicarious liability, the current the rule governing organizations' liability for their agents' torts, does not satisfy these objectives. By holding organizations liable for torts committed by employees, but not by independent contractors, vicarious liability discourages organizations from asserting direct control over agents, even when control is the efficient way to induce optimal care. Organizations governed by vicarious liability also do not employ all cost-efficient tools available to them to induce efficient care-taking by independent contractors because organizations do not maximize profits by inducing efficient care. Indeed, vicarious liability encourages organizations to undermine the effect of individual tort liability by hiring judgment-proof independent contractors.

INTRODUCTION

Tort liability is essential to the effective functioning of a free market economy because it encourages people who impose risks on others to take cost-justified precautions to reduce the expected costs of their activities. In order for tort liability to fulfill its promise, it must provide efficient incentives to organizations, as well as individuals. Torts often are caused by individuals working for, and under the influence of, organizations (generally corporations). These organizations are not passive bystanders, but instead ultimately determine whether agents strive to take cost-effective precautions against harm.

A foolish consistency …

I have previously been pleased to quote, roughly in context, the saying of Ralph Waldo Emerson:

Regrettably, it has to be said, there are judges and lawyers who deserve the implied rebuke. They are seemingly obsessed with precedent. With a dedication born of faith, they turn to precedent to reveal the law. The past, it is somehow thought, has predicted the future. Keeping faith with that past is the accepted wisdom. Do not such judges and lawyers portray a ‘littleness’ of mind? Surely, the notion that it is better to be consistent with a past decision and, at the same time, to be foolish in preferring that consistency, is indefensible?

Those judges and lawyers, and not a few academics, who still think of the common law as a body of immutable law, a legacy from the past to be cherished, nurtured and preserved as far as humanly possible in its inherited state, dent the administration of the law. The thinking of some past era, perhaps appropriate to its time and place, is forever being introduced to deal with the problems of today. The law's ability to cope with the fast-moving changes of the modern world is forever shackled by a ‘wisdom’ that belongs to the past. Of course, the experience of history has its value, but it should not be exaggerated beyond what it is – the experience and thinking of the past.

‘The law’ is essentially a process

The fact that there is no impersonal law does not denude the phrase, ‘the law’, of all meaning. Usage alone requires that it be given a meaning. But this is not to say that the question; ‘What is the law?’ is anything other than congenitally ambiguous. What lawyers will mean by the word ‘law’ in the concept, the ‘rule of law’ will be one thing, what they mean by the word ‘law’ in the judicial oath requiring the judge to do right ‘according to law’ will be another. Laypersons will use the words ‘the law’ to signify those statutes and rules that must be obeyed or that will attract a penalty if not complied with. The fact the meaning of some statutes and rules may be a trifle vague so that it is not known exactly what it is to be obeyed or complied with does not detract from this meaning. Legal theorists may need to adopt different meanings depending on what particular theory they are seeking to propound. As William Twining has pointed out, a common error in contemporary jurisprudence arises from the tendency to treat all ‘legal theories’ as if they were attempts to answer the same question or set of questions. Jurisprudence is not a single-question subject. A meaning can be taken down from the jurisprudential shelf and dusted off for any particular theory.

Depending on the purpose and topic, a great number of things may be included in ‘the law’.

The significance of judicial constraints

Democratic imperatives require the power of the three arms of government to be constrained. Indeed, the constraints are the essence of the constitutional framework of a democracy and the rule of law. In broad terms, the legislative branch is constrained by elections and such structures as Parliament puts in place to permit it to monitor the legislative process. The executive branch is not elected, but is constrained by the terms and purpose of its empowering statutes, parliamentary supervision, internal control mechanisms and judicial review in the courts. Judges are neither elected nor supervised, judicial independence being a fundamental tenet of the constitution. But to conclude from this apparent freedom that the judiciary is unconstrained is misleading. Judges are subject to a wide range of effective constraints. The depiction of the errant or aberrant judge kicking over the traces and subverting the democratic process or the rule of law is indicative of an obsessional fear of judicial discretion or judicial autonomy.

Critics of judicial autonomy, of course, seek to do more than curb the errant or aberrant judge. They seek to eliminate judicial initiative and creativity and thus confine the judge's law-making power to the barest minimum. The constraints do not achieve this objective. Nor should they. There must be room in the law for the bold and the timorous, the progressive and the cautious, the liberal and the conservative, and a host in-between.

A conversation in chambers

(The scene is the Judge's chambers. His two judge's clerks enter. Warm morning greetings are exchanged. The first judge's clerk waxes enthusiastically about a film that he saw the night before. The second judge's clerk is more interested in reviewing a book that she is finding fascinating. The judge interrupts …)

1. Judge

2. Well, I am finding the appeal we are to hear on Monday fascinating. It is conceded that the solicitor's advice to the husband relating to a property investment was hopelessly negligent. But the husband didn't act on it; he made the solicitor's report available to his wife and she made the investment – to her cost. Everyman J at first instance has held that she cannot recover against the solicitor.

3. 1st judge's clerk

4. It's relevant, Judge, that the solicitor had previously given both the husband and wife investment advice and knew that they invested in properties both jointly and separately. But he hadn't seen the wife for about two years and was undoubtedly acting for the husband on this occasion.

5. Judge

6. Yes, but let's sort out the law first before we look at the facts in more detail

7. 2nd judge's clerk

8. That's not like you Judge. What did you have for breakfast?

9. Judge

10. (Ignoring the sally) I am aware that in negligent misstatement cases the courts have attempted to create a degree of certainty in the ambit of the duty and to counter the danger of indeterminate liability – so, I expect the worse!

11. […]

Practical reasoning

The theory of practical reasoning

A commendable analysis of judicial reasoning has emerged passing under the name of ‘practical reasoning’. In general terms, practical reasoning is normally contrasted with deductive reasoning. It involves the ability to recognise suitable abstractions from particular instances. In a sense, it is a reverse of the traditionally perceived task of applying the general to the particular in that argument proceeds from particular instances of facts to general conclusions. It has been described as that capacity to choose between rules or to decide that no rule works well. Practical reason indicates that the instance connects with all the other instances of the rule, which its fits better than it connects with the instances of any other rule, or indicates that there are no such connections. In the latter case practical reason allows the court to develop a new rule.

The emergence or re-emergence of this line of thinking owes much to Professors McIntyre and Wellman. Professor McIntyre takes the view that the capacity of practical reasoning is not simply the capacity to follow rules but, rather, the capacity to act ‘with virtue’ when rules do not precisely define the right decision. In his thinking, as in mine, the virtue primarily represented in the decisions is ‘justice’. Professor Wellman examines the question of the dynamics of such a process: what leads to the development of a new rule? He considers that the answer lies in the perception of an ‘unsatisfactory’ result.

Hard realism

A new realism

In arguing that judges should adopt a hard realistic approach to judging, I am not advocating a return to the realism of the American Legal Realist movement. But I make that disclaimer without wishing to derogate from the constitutive impact of that movement on jurisprudential theory. A burst of realism was necessary then, just as another injection of more refined realism is necessary now. American legal realism was, in short, very much an insurrection against formalism; the pedantry and artificiality of legal reasoning; the myth of certainty in the law; and the dominance of rules in the legal process. It represented a shift of emphasis from what law is to what law does. In that respect, its success cannot be denied, but the success was partial and erosive. A further revolt in the nature of an insurrection may be more than what is required now, but open and organised judicial protest at formalism's lingering influence is very much in order.

The problem with American legal realism is that it sought to achieve too much. It was believed that it was not enough to expose the excesses and fancies of formalistic thinking. Both realists and their critics looked for a theory to replace that which had been systematically destroyed. Realists responded with a predictive science of law owing much to the experimental methods of the social sciences. Social scientific methods and insights could be employed to understand social change.

Practical muddling along

As a description of the incremental, intuitive decision-making of judges in general, the title to this chapter is not unduly harsh. It is taken from Charles Lindlom's article, ‘The Science of Muddling Through’. Harsh or not, it is apt. To decide cases that usually make law and often formulate policy on the basis of an intuitive conception of the judicial role that, at best, only begrudgingly acknowledges the reality of judicial autonomy, and to act as if discredited and out-of-date theories still prevailed, is to muddle along. The trend to a better judicial order is there, but it is incomplete.

At the turn of the twentieth century a basic form of positivism dominated legal thinking. The law was perceived as a closed and cloistered edifice, an independent and autonomous discipline, and a sovereign, self-contained system of internally rational and predictable rules to which the judge, having no or little discretion, would mechanically apply deductive reasoning. Such dogmatic formalism embraced the declaratory theory of law and fostered the belief that the law could be determined with quasi-mathematical precision. Idolatry of certainty and predictability in the law displaced the search for justice and relevance. Justice, if justice was to be done, would be systemic – the product of adhering to rules and form. Fastidious adherence to the doctrine of precedent overwhelmed the emphasis that the judges of old accorded underlying principles and reinforced the technical and linguistic purity of the formalism that prevailed.

Practical skills and legal theory

Judges undoubtedly bring immense practical skills to the practise of their craft. Practical skills are encouraged and developed in the service of clients by the practising lawyer in the law firm or the barrister at the bar, and finally elevated to an art form by those who ascend the bench and are required to make a final determination. That final determination must be reached in disputes where, as often as not, the evidence is conflicting, the issue or issues elusive, and the law to apply uncertain or vague. The judge's practical skills are utilised to resolve and stabilise the facts of the case, to analyse and identify the question in issue, to arrive at a decision on that issue and, then, to justify with reasons the decision that has been reached.

But practical skills alone are not enough. Those skills must be anchored in a conception of the judicial role. Legal theory is fundamental to that conception. Without a clearly thought out conception of the judicial role, a judge is in no better position than a mariner at sea without a compass or, perhaps, a mariner at sea with a defective compass. The practical skills are exercised with either an apparent indifference to any considered purpose for their exercise, or blindly or intuitively as if the purpose were self-evident or innate to those skills and need not be comprehended. Judges risk the charge that they are simply ‘muddling along’.

Timur, the barbarian

In the story that follows the reader may find the line between that which is fact and that which is fiction to be somewhat indistinct. There can be absolutely no doubt that the truth does fade into the apocryphal.

Timur, otherwise known as Tamerlane (a corruption of ‘Timur-i-lenk’, the Persian for ‘Timur the Lame’, because he limped from a battle wound), was one of the most brutal and aggressive conquerors in all history – at least up to the twentieth and present centuries. He rose from obscurity in a Turko-Mongolian tribe in the fourteenth century to establish an empire stretching from Anatolia to Delhi. His wars of conquest were marked by unbelievable brutality, butchery, carnage and wanton destruction. Timur falsely claimed to be a descendant of Genghis Khan, and openly modelled himself on that infamous conqueror. But Timur outdid his personal afflatus in all aspects of barbaric cruelty.

Timur besieged the City of Sivas – or ancient Sebasteia. For a time the inhabitants resisted. Then the soldiers agreed to surrender to Timur if he would shed no blood. Timur quickly agreed. The soldiers surrendered, and Timur shed no blood. He simply buried them alive!

What is the message: that black letter literalism is barbaric? Perhaps, but I must admit that this is not quite the message which I had in mind.

Alexander M. Bickel said:

Although unaware of this aphorism at the time, it is nevertheless an exhortation I sought to follow as a judge. Regrettably, the training of a judge is essentially practical, the insulation is imperfect and the leisure is effectively non-existent. As an overworked judge at first instance for five years and a frantically overworked judge of an appellate court for just over six years, my aspirations at scholarship fell short of the ‘ways of the scholar’. But in that estate I am in splendid company.

In 1992, after I had been a Judge at first instance for two years, I presumed to write a Monograph with the long title: A Return to Principle in Judicial Reasoning and an Acclamation of Judicial Autonomy. But the work did not emanate from my two short years on the Bench. It reflected the thinking of a practitioner, only lately a Judge, who had spent some thirty-four years in the practice of the law in and around the courts. An irresistible propensity to observe and analyse the legal process in which I was a participant, and an equally irresistible bent to perceive the reality of that process, dictated the conclusions that I expressed in that Monograph.

Lewis v Attorney-General of Jamaica

In Lewis v Attorney-General of Jamaica, the Privy Council overruled five of its previous decisions in respect of three different issues. All but one of these decisions had been decided in the previous five years. Lewis v Attorney-General of Jamaica is, therefore, a suitable decision to discuss in the light of the points made, and the thesis advanced, in the previous chapter.

Consolidated appeals were brought before the Privy Council on behalf of six death row prisoners in Jamaica. Five other death row prisoners in Belize, and the Attorney-General of Trinidad and the Bahamas, were given leave to intervene.

The first of the three issues was whether the Jamaican Privy Council, which is obliged by section 91 of the Constitution to advise the Governor-General on the prerogative of mercy, is required to disclose to the prisoner the information it has received pursuant to that section and to hear representations from the prisoner. These questions had been decided in the negative in Reckley v Minister of Public Safety and Immigration (No. 2), when the Board followed and applied its previous decision in de Freitas v Benny. The second issue was whether it would be lawful to execute a sentence of death while a petition that the prisoner was lawfully permitted to make to the Inter-American Commission on Human Rights (IACHR) of the Organization of American States and the United Nations Human Rights Committee (UNHRC) remained under consideration.

Our Lady of Justice … why the sword?

In her traditional posture, our Lady of Justice stands serenely blindfolded holding a pair of scales in the one hand and a sword in the other. The blindfold denotes that justice is blind to prejudice or pressure. Fearing, no doubt, that justice should not be thought to be also blind to the truth, the blindfold is often discarded in more recent portrayals. The scales are invariably held in an outstretched hand enabling them to perform their balancing faculty. The sword is more mobile. It is sometimes brandished aloft and at other times sheathed within the folds of the good Lady's ample skirt.

We all know why justice is blind. Justice is objective and impartial, administered without fear or favour. She bears no ill will to any litigant, and all are equal before the law. Thus, justice is even-handed. The scales, we also know, symbolize the process by which one value or interest must be balanced against another value or interest to ensure that justice is done. A fair weighting is an irredeemable element in achieving justice.

But, why the sword? A weapon? It seems incongruous that our Lady of Justice should bear arms.

Strangely enough, no one seems to know why the Lady of Justice carries a sword. It could be suggested, I suppose, that the sword confirms that justice is fearless; a warrior in the cause of justice.

So, will there be a difference?

The point in seeking to bridge the gap between legal theory and legal practice and evolve a comprehensive perception of the judicial role is that it would make a difference in practice. Changes in the judicial process and judicial methodology should eventuate. But is this wishful thinking? Would acceptance of the conception of the judicial role and approach I have advanced do much more, if anything, than make overt in judicial conduct and reasoning that which is already being done covertly? Will the desired changes in attitude and practice occur in any event? What would the main differences be if more and more judges adopted the judicial methodology I have put forward? These questions can be briefly addressed in this penultimate chapter.

Making overt that which is covert

Certainly, acceptance of the recommended methodology would make overt much that is presently been done by judges covertly. I do not doubt for one moment that those judges who are coerced, condemned or otherwise persuaded to read this book will frequently have said to themselves; ‘Well, I already do that’, or ‘That [criticism] may be so of other judges, but it is not true of me.’ Judges do not admit to be lacking in realism, pragmatism, creativity, common sense, a sense of justice or any of the other attributes I have extolled.