Twentieth-century tort theory

Georgetown Law Journal, Mar 2003 by Goldberg, John C P

3. Criticisms of Libertarian Theory

Libertarian tort theory has been subjected to a variety of criticisms. Its initial premise of exclusive ownership is a strong one, and controversial as a matter of political theory. Likewise, its attempt to describe all rights as variants on the paradigmatic right of private property ownership is problematic. For example, the assertion that person P owns his good name, taken literally, would suggest that P owns the thoughts of others: After all, it is their thoughts about, or dispositions toward, P that determine his reputation.244 The libertarian theorist might retort that this criticism takes the concept of ownership too literally. This response, however, comes at considerable cost. Shifting from actual to metaphoric ownership is like switching from actual to hypothetical consent-it diminishes the strength of, and significantly alters the grounds for, the argument.245 The claim is no longer that one who defames P has actually damaged or converted P's property but that P has suffered an injury to an interest of P's that, in some respects, resembles his interest in undisturbed ownership and enjoyment of his tangible property. Implicit in the latter formulation of the argument is the concession that, in other respects, the interest in reputation does not resemble the interest in owning real property and hence might appropriately be protected by different rules.

Invoking the Coase-Calabresi observation about the inherent reciprocity of causation, Stephen Perry has further argued that libertarians' reliance on causation as the ground for assigning liability is necessarily indeterminate. A tort cannot occur except by the acts of two actors: As a matter of physics, the plaintiff's broken nose is caused both by the defendant's blow and by the plaintiff's having brought himself in proximity to the defendant. Hence, ownership of the loss associated with the actor cannot be assigned on the basis of causation.246 Rather, one must invoke normative criteria beyond causation (for example, that the person who threw the punch acted wrongfully). Even if it were possible to isolate who among a pair of actors caused a given loss, the libertarian faces another dilemma. Genuine cause-based liability promises an enormous scope for tort liability (at least in those areas not governable by contract), yet the bare notions of act and ownership do not seem capable of setting principled or plausible limits to that liability. Thus, the libertarian is forced to slip into his account limits supposedly drawn from ordinary language or efficiency concerns.247

B. RECIPROCITY THEORY

As the political theorist John Rawls was at the forefront of the post-World War II revival of anti-utilitarian moral and political theory,248 it is not surprising to find that his work figures in some of the more prominent justice-based accounts of tort. A leading application of Rawlsian political theory to tort is found in the work of George Fletcher, later reworked by Gregory Keating.