NOTES: Brown v. Kendall

Note 2. Tort law as industrial subsidy?

          Setting aside the problem of characterizing the holding of Brown v. Kendall, it seems clear that Shaw meant to articulate a principle for distinguishing between the plaintiff and the defendant in accident cases.  The principle Shaw identified was the negligence principle.  He moved the liability standard as administered by judges toward something like a negligence test, holding defendants liable only when they fail to exercise ordinary or reasonable care—that is, when they act negligently.  This negligence standard generally offers a more favorable approach for defendants than a test that holds them liable even if they exercise reasonable care, but fail to take the extraordinary care on which earlier cases sometimes seemed to insist.  Why would Shaw have wanted to do this?

          Given the historical influence of Shaw’s opinion, a substantial literature has tried to explain Shaw’s motivations.  Harvard professor Morton Horwitz controversially claimed that Shaw adopted the negligence standard to subsidize industrialization and economic growth at the expense of poor constituencies.  In contrast to the stricter liability standard that preceded it, Horwitz argues, negligence immunized emerging industries from legal liability absent fault, placing more of the burden of economic growth on the weakest groups in American society: groups like farmers and workers.  Morton Horwitz, The Transformation of American Law, 1780-1860 97, 99-101 (1977).

          Subsequent scholars have criticized Horwitz’s thesis.  Some dispute Horwitz’s characterization of mid- and late-nineteenth-century tort law as having been especially friendly to defendants.  For example, Peter Karsten has argued that nineteenth-century negligence plaintiffs faced no “new ‘roadblocks and hurdles’” in collecting damages.  See Peter Karsten, Heart Versus Head: Judge-Made Law in Nineteenth-Century America 80 (1997).  Gary Schwartz similarly rejected Horwitz’s claim that nineteenth-century courts favored major industries.  See Gary T. Schwartz, The Character of Early American Tort Law, 36 U.C.L.A. L. Rev. 641, 717 (1988); Gary T. Schwartz, Tort Law and the Economy in Nineteenth Century America: A Reinterpretation, 90 Yale L.J. 1717, 1720 (1981).

          The more perceptive critique of the Horwitz view begins with the observation that before the era of Brown v. Kendall, there were remarkably few tort actions for personal injuries of any kind.  For them, Brown v. Kendall is thus not a decision narrowing an earlier era of relatively liberal liability, but precisely the opposite.  It is the beginning of the modern liability regime, representing the end of an era of pervasive status-based immunities from suit, and also the halting beginning of a new era of tort-based responsibility for harms.  For this account, see especially Robert Rabin, The Historical Development of the Fault Principle: A Reinterpretation, 15 Ga. L. Rev. 925, 961 (1981), and also Richard A. Epstein, The Historical Origins and Economic Structure of Workers’ Compensation Law, 16 Ga. L. Rev. 75 (1982), and John Fabian Witt, From Loss of Services to Loss of Support, 25 L. & Social Inquiry 717 (2000).

          Scholars have also objected to one of Horwitz’s underlying premises: that private law doctrine can redistribute wealth among social groups.  For example, Richard Epstein has claimed that courts and common law doctrines typically lack the institutional capacity to redistribute wealth, since (after all) all parties—including industrialists—are simultaneously prospective defendants and prospective plaintiffs.  In theory, they may stand to lose as much as they gain from new common law rules favoring one side or the other.  See Richard A. Epstein, The Social Consequences of Common Law Rules, 95 Harv. L. Rev. 1717, 1718 (1982).  Today’s lawyer-economists thus usually argue that common law rules are highly inferior to the tax system as mechanisms for redistributing wealth.  See Louis Kaplow & Steven Shavell, Why the Legal System is Less Efficient Than the Income Tax in Redistributing Income, 23 J. L. Stud. 667 (1994).

          Is there any reason to think that in the real world firms or industries with deep pockets are more likely to be defendants than plaintiffs in tort litigation?  It is a sociological fact that some actors are essentially not worth suing in tort: they are “judgment proof,” as the saying goes, because they lack the assets against which any tort judgment against them could be collected.  Firms or industries with assets, by contrast, are judgment-worthy.  They are worth suing.  Note that assisting industries through the targeted manipulation of tort rules is something that policy-makers continue to do to this day.  To take one recent example, several state legislatures have recently passed legislation to immunize the private space flight industry from liability.  See, e.g., Colo. Rev. Stat. §§ 41-6-101(1) to (2)(a) (2014).  These state immunity statutes protect and subsidize the “small but growing” private space flight industry.  See Justin Silver, Note, Houston, We Have a (Liability) Problem, 112 Mich. L. Rev. 833, 838 (2014).  At the federal level, to take two further examples, Congress has immunized firearm manufacturers from suits by the victims of criminal shootings, see Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901 (2012), and vaccine manufacturers from tort actions for bad reactions to childhood vaccines, see National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-11 (2012).  These targeted, scalpel-like immunizations are considerably more precise than the blunderbuss of the general negligence standard.  But they suggest that tort rules can accomplish some kinds of distributive goals, worthy or otherwise—or, at least, that lobbyists and legislatures think so.  For a recent argument that the choice between private law rules or the tax system as the best vehicle for redistribution is a contextual and empirical question, see Zachary Liscow, Note, Reducing Inequality on the Cheap: When Legal Rule Design Should Include Equity as Well as Efficiency, 123 Yale L.J. 2134 (2014).

Note 3. Negligence and wrongfulness.

          Are there other grounds that might have made the negligence principle appealing to Shaw?  One view argues that the ordinary care standard advances the social interest, not merely the private interests of particular industries.  This argument, to which we will return in Chapter 4, contends that the standard of ordinary care demands of actors only that they not engage in conduct that is, on balance, socially harmful and therefore wrongful.  Another view comes from jurists who defend tort law as an institution primarily for correcting injustice or for expressing moral judgments about wrongfulness.  For corrective justice theorists, tort law embodies the obligation to repair wrongful losses.  For theorists who emphasize tort law’s expressive function, tort law is a crucial mechanism for signaling whose interests the community deems worthy of respect and when those interests have been wrongfully impinged upon.  The negligence standard might be said to be consistent with this emphasis on wrongfulness because to act negligently is to behave wrongfully, even if not intentionally so.  See Jules L. Coleman, Risks and Wrongs (1992).

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Reprinted from John Fabian Witt & Karen M. Tani, Torts: Cases, Principles, and Institutions, Fifth Edition, Published by CALI eLangdell Press.  Available under a Creative Commons BY-NC-SA 4.0 License.