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Reasonableness and Risk: Right and Responsibility in the Law of Torts

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The law of torts is concerned with what we owe to one another in the way of obligations not to interfere with, or impair, each other’s urgent interests as we go about our lives in civil society. Gregory Keating argues that tort law’s primary obligations address a domain of basic justice and that its rhetoric of reasonableness implies a distinctive morality of mutual right and responsibility.

Image courtesy of interviewee. August 27, 2024

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This video is a transcription of a discussion with Gregory, an academic discussing his book on tort law, particularly focusing on rights and responsibilities. The conversation begins with Gregory explaining his motivations for writing the book, emphasizing his unique perspective on tort law that differs from traditional views. He critiques the economic analysis of torts, advocating that harm has a special moral significance and that tort law should prioritize human agency over mere economic efficiency.

Gregory elaborates on the historical development of tort law, citing its evolution in response to the industrial revolution and how negligence became a central concept. He argues that tort law is fundamentally about the obligations people owe to one another and should be concerned with preventing harm rather than merely providing for reparations or damages after the fact.

The discussion also touches on the concept of reasonableness in tort law, asserting that reasonable behavior should be justifiable to others affected by one's actions. Gregory believes tort law is essential for enabling individuals to live decent lives free from preventable injuries, portraying it as a crucial institution in society rather than just an outdated remnant of legal history.

Finally, Gregory expresses hope that readers will understand the importance of tort law and suggests future research could explore the inadequacies of tort law in addressing the complex risks posed by modern technological and industrial processes. He emphasizes the need for alternatives to cost-benefit analysis that would honor the moral obligations individuals have towards one another.

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I think it was that I thought I have a view

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and it's a distinct view from,

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other people's views, and it was book length.

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So, I often believe

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that in academia people only read articles.

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So why do you write books? But then,

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I have book length views,

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so I might as well put them out there.

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It's my view that it is

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because modern tort law really takes shape.

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And this is, I think especially true in the United States

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because, we just don't have the same length

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of history in our law

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as England does in the late 19th century.

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And it takes shape, sort of

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re constitutes itself fundamentally in response

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to the industrial revolution.

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And so there's a famous, aphorism of Oliver,

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Oliver Wendell Holmes written in, I think in one

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of his papers, the Path of the Law.

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And it's in the late 1880s, maybe the 1890s.

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Um, but it says, our law of torts comes from the world

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of isolated un generalized wrongs,

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libel, slanders, and the like.

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And, it now has to address the emerging world

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of activities

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and the world of activities is the world of railroads

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and other, industrial activities that in

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that systematically inflict injury.

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And so there's a profound change in the, law

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of torts and perhaps the central thing that I,

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I don't emphasize this,

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so I think I touched on it in the book

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that illustrates this change is

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negligence was a state of mind

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with which you could commit certain kinds of what we think

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of as intentional torts.

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Like misrepresentation.

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You could be careless and make a misrepresentation.

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We still have that idea. It's still part of our law,

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broadly speaking, fraud.

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But, negligence becomes, in general, a failure

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to act as a reasonable person would

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act a standard of conduct.

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And it applies primarily,

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but not exclusively to risky behavior.

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Uh, and that's just a, novel

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construct and it becomes the center of the law of torts.

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Uh, and although we've in various ways moved

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in a technological society,

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we have various harms we worry about, there aren't physical,

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physical harms are still the center of the subject, I think.

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And the other thing I should add is that,

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and here John Stewart Mill is the patron saint

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of the argument Harm is special.

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Um, it isn't just another cost.

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And this, this is part of my disagreement

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with the economic analysis of torts,

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which thinks everything should be traded, at the margin

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to maximize value.

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Whereas I think harm has special moral significance

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because it impairs basic powers of human agency

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that people need in order to, govern their own lives.

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So it's a kind of thing like a primary good and raw sense,

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or a basic capability in, in sense sense.

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Um, and that

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that gives it a special negative moral significance.

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I've been sort of writing on various topics

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inside the law of torts,

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And at some point you think, well,

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you have a unified view,

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and then you think systematically, what views do I need

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to engage in order to present my own view?

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And so, there was a part of me

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that thought I'd write this book like 20 years before I did.

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And I, I suppose it's in some sense a research question

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where I thought, I'm primarily preoccupied with,

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the economic analysis of torts,

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but there's an enormous body of law

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that goes under corrective justice

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and now under civil recourse.

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Um, and I have to grapple with that.

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And I have to figure out how

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to position my view vis-a-vis that.

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So to some extent I began, in a sort

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of theory sense writing in into that zone.

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And when I finally thought I had developed views of, of law

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and economics and of corrective justice,

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and where I, where I would situate myself, then I thought,

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well, I have a book and I have a book that has views

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and all sorts of substantive questions about tort law.

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So, to the extent, that's the research pro,

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that's the trajectory anyway.

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Whether it's really a research trajectory

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or an intellectual development

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trajectory, it's the trajectory.

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The analysis of private law has been dominated by law

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and economics was an English economist who went

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to the United States, Ronald Coast, who founded

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that in a Nobel laureate winning paper.

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The problem of social cost,

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and the, law of Torts was the original domain

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that economic analysis was a, was applied to.

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And it became kind of,

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overwhelmingly dominant in the eight seventies, eighties

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and, maybe didn't really get to start eroding till

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after the till, the aughts or so.

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And, economic analysis is also an extension of

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a traditional instrumentalism, which imagines that,

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the role of any institution is to serve some,

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objective.

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And the objective that torts has imagined

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to a serve is really to, minimize the combined costs

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of accidents in their prevention in order

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to maximize the wealth we extract from productive activities

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that do happen to, injure people

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and to extract maximum wealth so that we can then,

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deploy the wealth in ways that ex that pursue

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or achieve, the greatest amount of welfare, sort

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of bentonite slogan of the

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greatest good for the greatest number.

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And it just seemed like an in the way

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that maximizing views do.

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It just seemed irresistibly obvious

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that that's what you should do.

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Um, that's the only rational way to proceed, is to proceed

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to maximize value and the value is welfare.

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And maybe it gets its complete statement in a book that,

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to a Harvard law decon scholars wrote called Fairness

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versus Welfare, which is around 2000, 2001.

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Um, but it is there in the view from the early

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sixties on and

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Well, you know, I don't think that that's right.

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It's an illusion that there's a single value to maximize,

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there's pluralism of values.

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And the second piece of it is that tor is really about

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what people owe to one another.

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It's a different framework.

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Um, it's not a framework about maximizing value.

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And then, I don't wanna go on too long an answer

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to this question, but, if you think of the other view,

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really, law economics was taken on initially

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by corrective justice.

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And what corrective justice theorists did was, in a sense,

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to break the spell of the value maximizing position

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by saying, well, if you look at ordinary tort adjudication,

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it's not a forward, forward-looking exercise

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and finding the cheapest cost avoider

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and tagging them with a cost so

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that they have the correct incentives to avoid,

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inefficient harm going forward.

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It's about responsibility for harm done.

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Um, and that gave the view a very backwards looking quality.

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And I wanted to say they're right about that.

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They're correct about adjudication.

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But, there's a forward-looking side of tort law,

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which is really about what people owe to one another

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with respect to obligations, not to interfere with

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or impair each other in certain ways.

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And that's got a different moral basis.

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So the point of responsibility of,

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priority responsibility of repair is what the mistake

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that in my view,

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and it's a mistake of emphasis that corrective justice

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and just perhaps to a lesser extent civil recourse views

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make is saying the center of the law of torts is

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actually the claim, for redress

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or repair that the plaintiff,

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makes from the defendant who's wronged them.

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And one, there are two reasons

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to think this is very prominent.

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One is to distinguish tort from criminal law.

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'cause they often overlap and intentional wrongs

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and criminal law punishes in its core,

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whereas tort law demands repair

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or redress, from the person who did the wrong

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to the person who was wronged.

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Um, and the other reason to think that it's central is

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because it's the,

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the institution in action.

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Um, 'cause it comes into action after the fact of injury,

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and it isn't, well explained

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by forward-looking instrumentalist views.

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So it's an excellent point of attack.

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But, but the priority I wanna say is you only have an

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obligation to repair if there's some kind

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of antecedent wrong.

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And so it's the obligations that the Law of Torts

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articulates not to interfere with

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or impair others in various ways that are the logical

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pri center or the starting point of the law of torts.

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And they're also significant.

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It's a little tricky distinguishing the logical from the

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normative, but I wanna say nively, they're central too,

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because, what you owe in the way of repair

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is in the shadow at the, at the center.

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It's in the shadow of what was it that you did

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that you weren't supposed to do?

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Like what kind of, wrong did you commit?

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It's different to invade privacy from, from

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breaking someone's leg and so on.

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And, you know, if you get to cases of death,

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then there's an entirely different set of questions

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that come up about repair.

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So I'm gonna say that in a sense

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the economists are right about this.

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They, they are preoccupied, they think of it as prices,

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but with, what, what they would call deterring,

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inefficient accidents.

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And I don't want to buy into the moral normative framework

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there, but I agree with them that the first thing the Law

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of Torts does is prescribe obligations

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that you shouldn't interfere

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and impair people in various ways.

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The reasonable person is all over tort law.

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It's a trope and it's,

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an English version is the man on the Clapham omnibus.

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I have a vague idea of what that is,

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but you have a probably a much more precise idea what

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that trope invokes.

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Um, and the question is what do we make

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of reasonableness and the general view,

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an Oxford scholar, died young, unfortunately,

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John Gardner puts this powerfully just means justified.

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That is, you have to act in ways that are justifiable.

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And I wanna say yes, that's true,

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but, I wanna say reasonableness is a word

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with a particular significance.

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This is partly because it's central to the philosophy

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of John Rawles and to Tim Scanlan,

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who picked it up out of ordinary language.

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And it's concerned with being able to justify your conduct

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to those who are affected by it,

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and to act on a basis that could be accepted by,

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it's in, in a very loose sense,

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it's a golden rule kind of idea.

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If you switch positions with the other person,

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you could accept the, ground on which the person

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who in endangers you or injures you acts.

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And that that idea is central to tort law, reasonableness.

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It isn't just accidental that the reasonable person

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and reasonable precaution

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and so on are so central, in tort.

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It's because tort is not about maximizing some single value

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like wealth or welfare, but it's about what we owe

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to other people in the way of being able

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to justify our conduct to them when we put them at risk

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of harm or, or interfere

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with their interests in various ways,

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which are inevitable parts of,

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say life in a crowded world.

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So, now good 50 years ago

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or so, which was kind of the last great burst

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of regulatory reform in the United States in, kind

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of the end of the New Deal period.

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And just before the Reagan period,

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you get both the Environmental Protection Agency created

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under Nixon, a Republican president,

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and, around the same time the Occupational Safety

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and Health Administration, osha,

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which takes over workplace safety.

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And, one of the things that Reagan is famous

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for was when he comes in in the early eighties, he puts,

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takes a, what was then a small

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office in the federal government called the Office

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of Management and Budget, and gives them this kind

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of supervisory power to control red tape.

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And they immediately adopt cost benefit analysis

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as the master test of everything.

11:59.145 --> 12:01.845
And the basic idea is it's always irrational

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to take more than efficient precaution against risks of harm

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because efficiency defines the point at which you,

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get maximum value.

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If you take more than efficient precaution, you're spending,

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more than you should

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and making yourself worse off, not better off.

12:21.105 --> 12:23.325
Um, and so they were deeply critical

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and have been ever since deeply critical of the safety

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and feasibility norms.

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There were, those were two norms that were identified.

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Safety was identified with the EPA.

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And it doesn't mean perfect safety.

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It means a level of risk remote enough

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that a reasonable person wouldn't worry about it.

12:40.325 --> 12:41.765
Like with that risk of cancer

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or something else is far more likely to kill me than, than

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that, you know, you, it's a level that you think

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of an inner radical level

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of risk in a technological society.

12:50.665 --> 12:53.125
Um, and you're prepared just to accept it

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'cause you couldn't have activity

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if you didn't have that risk.

12:56.525 --> 12:59.165
Feasible precaution is a risk that you would like

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to reduce if you could,

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but you can't reduce it, as far as you can to the,

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as you'd like to, to the safe level,

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without shutting down the activity.

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So, so one example of this actually comes out

13:12.725 --> 13:14.885
of a major American nuisance case called Boomer.

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The Atlantic Cement, where the cement plant was spewing dust

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on, cement dust

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and particulate matter onto the plaintiff's property.

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And it was clear was interfering with their use

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and enjoyment of their land under the tort of nuisance.

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But it's also clear that there was no way to stop

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that interference except for shutting down the plant.

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And so the court insisted on precaution that was,

13:38.595 --> 13:41.685
best available technology, which is more than

13:42.105 --> 13:44.845
as it conceived an efficient precaution,

13:44.905 --> 13:47.005
and then added a damage remedy.

13:47.585 --> 13:49.725
But, but it didn't shut the plant down.

13:49.985 --> 13:51.885
So it didn't eliminate the interference,

13:52.625 --> 13:56.005
nor did it demand just marginal precaution,

13:56.005 --> 13:58.245
against the harm being inflicted marginally

13:58.845 --> 13:59.925
efficient precaution at the margin.

14:00.545 --> 14:03.555
And those norms, in my view,

14:04.375 --> 14:05.795
are eminently defensible.

14:05.865 --> 14:08.435
That is, you can understand them once you understand

14:08.435 --> 14:12.395
that harms avoidance has a special kind of priority.

14:12.975 --> 14:16.035
Uh, it's more important to avoid harm in general than it is

14:16.415 --> 14:18.635
to confer benefits on people that harms

14:18.635 --> 14:21.115
and benefits are not symmetrical.

14:21.275 --> 14:22.395
They're asymmetrical.

14:22.535 --> 14:24.995
An ideal reader would think,

14:25.105 --> 14:28.115
tort law is this fundamental institution in society.

14:28.215 --> 14:30.675
Now you also have to think of related fields of regulation.

14:31.135 --> 14:33.595
Um, you know, and you think of OSHA

14:33.595 --> 14:34.715
and environmental protection

14:34.875 --> 14:36.875
'cause these are places that occupy the same

14:36.965 --> 14:37.995
space in my view.

14:38.345 --> 14:39.635
They're in many ways very different,

14:39.635 --> 14:40.995
but they occupy the same space.

14:41.015 --> 14:43.875
And part of what they respond to is that there are limits to

14:43.875 --> 14:45.395
what a private law institution can do.

14:45.575 --> 14:48.435
Um, it can't deal in certain systemic ways.

14:48.535 --> 14:50.595
It gets thwarted by problems of causation

14:51.275 --> 14:53.645
That prevent tracing individual injuries

14:53.645 --> 14:55.165
to individual injuries and so on.

14:55.585 --> 14:58.165
Um, but that this is absolutely essential

14:58.165 --> 15:01.125
to establish a framework within which people are able

15:01.125 --> 15:02.725
to lead decent lives

15:02.865 --> 15:05.325
and, over the course of normal lives, lifespans,

15:05.455 --> 15:07.405
unimpaired by injury and disabilities.

15:07.425 --> 15:10.925
So Tory isn't some just little law of personal wrongs

15:10.925 --> 15:13.845
that's we have leftover because the Romans had it and

15:13.855 --> 15:15.685
after the Romans had it, the English had it.

15:15.685 --> 15:17.805
In the United States, we think the English have everything

15:17.805 --> 15:21.525
ancient and, the, and we just got it,

15:21.705 --> 15:22.925
but it's not terribly important.

15:23.065 --> 15:25.565
It actually is. And Moori is fundamentally

15:25.565 --> 15:26.645
important institution.

15:27.265 --> 15:30.085
And although I don't go all the way in saying this,

15:31.425 --> 15:35.445
I'd argue it was reasons that tort law really, was

15:35.445 --> 15:37.525
so central until the Reagan revolution.

15:37.985 --> 15:39.405
Uh, it was probably the central part

15:39.405 --> 15:40.445
of American private law.

15:40.555 --> 15:43.525
It's still robust, but there was huge tort reform movement

15:43.525 --> 15:45.085
that tried to reign it in.

15:45.465 --> 15:49.325
And it's because in an industrial technological society,

15:49.875 --> 15:51.965
it's very important that we have a body of law

15:51.965 --> 15:54.565
that establish these kinds of obligations and protections.

15:54.865 --> 15:57.685
In my view, there's been a kind of tendency

15:57.685 --> 16:01.685
to protect tort law as if it were, a kind

16:01.685 --> 16:03.485
of game preserve where you have

16:03.485 --> 16:06.765
to keep an endangered species from being exterminated.

16:07.225 --> 16:08.285
And, and that's partly

16:08.285 --> 16:11.085
because the people who are on my side of the street in terms

16:11.105 --> 16:14.085
of their, belief that the is questions

16:14.085 --> 16:15.605
of value are not just questions

16:15.605 --> 16:19.685
of maximizing one single value across all domains,

16:20.075 --> 16:22.525
have been concerned that the instrumentalists want to,

16:22.525 --> 16:24.565
just obliterate tort law.

16:24.565 --> 16:26.725
There's no distinctive body of tort law,

16:26.725 --> 16:28.445
there's no distinctive body of any kinda law.

16:28.445 --> 16:30.485
There's just this one maximizing question.

16:30.905 --> 16:33.925
So they've been very concerned to protect tort law, but,

16:33.945 --> 16:36.965
but I think we live in a world in which tort law cannot

16:37.315 --> 16:40.795
discharge all the responsibilities that we try

16:40.795 --> 16:41.915
to impose upon it

16:42.275 --> 16:45.195
because of the nature of the risks

16:45.255 --> 16:46.515
to which we are now exposed.

16:46.575 --> 16:48.035
You know, the kinds of technological

16:48.535 --> 16:52.395
and, industrial processes that are normal for us.

16:52.615 --> 16:55.275
Uh, they do require various kinds of

16:55.875 --> 16:57.635
regulatory interventions and displacing

16:57.635 --> 16:58.755
and supplementing tort.

16:59.135 --> 17:03.315
And what I'd love to see is to, for those to be, areas

17:03.385 --> 17:05.475
that people who care about the values

17:05.505 --> 17:10.355
that they think animate tort law, take an interest in

17:10.735 --> 17:14.595
and, work on and develop alternatives.

17:14.595 --> 17:16.355
Because those areas, even more than tort law,

17:16.505 --> 17:18.715
have been dominated by instrumentalist thinking

17:18.715 --> 17:20.155
and by cost benefit thinking.

17:20.335 --> 17:23.515
And, at some deep level, this kind

17:23.515 --> 17:25.395
of cost benefit thinking is dehumanizing.

17:25.795 --> 17:28.635
People's lives are just another resource to be used

17:28.695 --> 17:30.635
and the pursuit of maximal value,

17:30.745 --> 17:32.995
they're not intrinsic ends in themselves.

17:33.095 --> 17:37.515
In some sense, the view of it tort law as what people owe

17:37.515 --> 17:40.235
to one another is a view founded on the sort of commenting

17:40.235 --> 17:41.955
and tradition that the ultimate source

17:41.955 --> 17:43.475
of value in the world is persons.

17:43.475 --> 17:45.395
And the ultimate questions of morality

17:45.415 --> 17:47.235
or what do we owe to each other, what does respect

17:47.235 --> 17:48.315
for persons require?

17:48.935 --> 17:51.795
And ultimately in an instrumentalist view like cost benefit

17:52.195 --> 17:55.955
analysis persons claims to, becomes just another input

17:55.975 --> 17:58.475
to maximizing welfare.

17:58.935 --> 18:01.075
And I, it becomes dehumanizing. I think.

00:00 - I think it was that I thought I have a view and it's a distinct view from, other people's views, and it was book length. So, I often believe that in academia people only read articles. So why do you write books? But then,

00:12 - I have book length views, so I might as well put them out there. It's my view that it is because modern tort law really takes shape. And this is, I think especially true in the United States because, we just don't have the same length of history in our law as England does in the late 19th century. And it takes shape, sort of re constitutes itself fundamentally in response

00:34 - to the industrial revolution. And so there's a famous, aphorism of Oliver, Oliver Wendell Holmes written in, I think in one of his papers, the Path of the Law. And it's in the late 1880s, maybe the 1890s. but it says, our law of torts comes from the world of isolated un generalized wrongs, libel, slanders, and the like. And, it now has to address the emerging world of activities

01:02 - and the world of activities is the world of railroads and other, industrial activities that in that systematically inflict injury. And so there's a profound change in the, law of torts and perhaps the central thing that I, I don't emphasize this, so I think I touched on it in the book that illustrates this change is negligence was a state of mind with which you could commit certain kinds of what we think

01:29 - of as intentional torts. Like misrepresentation. You could be careless and make a misrepresentation. We still have that idea. It's still part of our law, broadly speaking, fraud. But, negligence becomes, in general, a failure to act as a reasonable person would act a standard of conduct. And it applies primarily, but not exclusively to risky behavior.

01:52 - and that's just a, novel construct and it becomes the center of the law of torts. and although we've in various ways moved in a technological society, we have various harms we worry about, there aren't physical, physical harms are still the center of the subject, I think. And the other thing I should add is that, and here John Stewart Mill is the patron saint of the argument Harm is special. it isn't just another cost.

02:24 - And this, this is part of my disagreement with the economic analysis of torts, which thinks everything should be traded, at the margin to maximize value. Whereas I think harm has special moral significance because it impairs basic powers of human agency that people need in order to, govern their own lives. So it's a kind of thing like a primary good and raw sense, or a basic capability in, in sense sense. and that

02:51 - that gives it a special negative moral significance. I've been sort of writing on various topics inside the law of torts, And at some point you think, well, you have a unified view, and then you think systematically, what views do I need to engage in order to present my own view? And so, there was a part of me that thought I'd write this book like 20 years before I did. And I, I suppose it's in some sense a research question

03:16 - where I thought, I'm primarily preoccupied with, the economic analysis of torts, but there's an enormous body of law that goes under corrective justice and now under civil recourse. and I have to grapple with that. And I have to figure out how to position my view vis-a-vis that. So to some extent I began, in a sort of theory sense writing in into that zone.

03:39 - And when I finally thought I had developed views of, of law and economics and of corrective justice, and where I, where I would situate myself, then I thought, well, I have a book and I have a book that has views and all sorts of substantive questions about tort law. So, to the extent, that's the research pro, that's the trajectory anyway. Whether it's really a research trajectory or an intellectual development trajectory, it's the trajectory.

04:06 - The analysis of private law has been dominated by law and economics was an English economist who went to the United States, Ronald Coast, who founded that in a Nobel laureate winning paper. The problem of social cost, and the, law of Torts was the original domain that economic analysis was a, was applied to. And it became kind of, overwhelmingly dominant in the eight seventies, eighties and, maybe didn't really get to start eroding till

04:38 - after the till, the aughts or so. And, economic analysis is also an extension of a traditional instrumentalism, which imagines that, the role of any institution is to serve some, objective. And the objective that torts has imagined to a serve is really to, minimize the combined costs of accidents in their prevention in order to maximize the wealth we extract from productive activities that do happen to, injure people

05:10 - and to extract maximum wealth so that we can then, deploy the wealth in ways that ex that pursue or achieve, the greatest amount of welfare, sort of bentonite slogan of the greatest good for the greatest number. And it just seemed like an in the way that maximizing views do. It just seemed irresistibly obvious that that's what you should do. that's the only rational way to proceed, is to proceed

05:36 - to maximize value and the value is welfare. And maybe it gets its complete statement in a book that, to a Harvard law decon scholars wrote called Fairness versus Welfare, which is around 2000, 2001. but it is there in the view from the early sixties on and Well, you know, I don't think that that's right. It's an illusion that there's a single value to maximize, there's pluralism of values. And the second piece of it is that tor is really about

06:08 - what people owe to one another. It's a different framework. it's not a framework about maximizing value. And then, I don't wanna go on too long an answer to this question, but, if you think of the other view, really, law economics was taken on initially by corrective justice. And what corrective justice theorists did was, in a sense, to break the spell of the value maximizing position by saying, well, if you look at ordinary tort adjudication,

06:32 - it's not a forward, forward-looking exercise and finding the cheapest cost avoider and tagging them with a cost so that they have the correct incentives to avoid, inefficient harm going forward. It's about responsibility for harm done. and that gave the view a very backwards looking quality. And I wanted to say they're right about that. They're correct about adjudication. But, there's a forward-looking side of tort law,

06:59 - which is really about what people owe to one another with respect to obligations, not to interfere with or impair each other in certain ways. And that's got a different moral basis. So the point of responsibility of, priority responsibility of repair is what the mistake that in my view, and it's a mistake of emphasis that corrective justice and just perhaps to a lesser extent civil recourse views make is saying the center of the law of torts is

07:28 - actually the claim, for redress or repair that the plaintiff, makes from the defendant who's wronged them. And one, there are two reasons to think this is very prominent. One is to distinguish tort from criminal law. 'cause they often overlap and intentional wrongs and criminal law punishes in its core, whereas tort law demands repair or redress, from the person who did the wrong

07:52 - to the person who was wronged. and the other reason to think that it's central is because it's the, the institution in action. 'cause it comes into action after the fact of injury, and it isn't, well explained by forward-looking instrumentalist views. So it's an excellent point of attack. But, but the priority I wanna say is you only have an obligation to repair if there's some kind

08:21 - of antecedent wrong. And so it's the obligations that the Law of Torts articulates not to interfere with or impair others in various ways that are the logical pri center or the starting point of the law of torts. And they're also significant. It's a little tricky distinguishing the logical from the normative, but I wanna say nively, they're central too, because, what you owe in the way of repair is in the shadow at the, at the center.

08:51 - It's in the shadow of what was it that you did that you weren't supposed to do? Like what kind of, wrong did you commit? It's different to invade privacy from, from breaking someone's leg and so on. And, you know, if you get to cases of death, then there's an entirely different set of questions that come up about repair. So I'm gonna say that in a sense the economists are right about this.

09:13 - They, they are preoccupied, they think of it as prices, but with, what, what they would call deterring, inefficient accidents. And I don't want to buy into the moral normative framework there, but I agree with them that the first thing the Law of Torts does is prescribe obligations that you shouldn't interfere and impair people in various ways. The reasonable person is all over tort law. It's a trope and it's,

09:37 - an English version is the man on the Clapham omnibus. I have a vague idea of what that is, but you have a probably a much more precise idea what that trope invokes. and the question is what do we make of reasonableness and the general view, an Oxford scholar, died young, unfortunately, John Gardner puts this powerfully just means justified. That is, you have to act in ways that are justifiable. And I wanna say yes, that's true,

10:03 - but, I wanna say reasonableness is a word with a particular significance. This is partly because it's central to the philosophy of John Rawles and to Tim Scanlan, who picked it up out of ordinary language. And it's concerned with being able to justify your conduct to those who are affected by it, and to act on a basis that could be accepted by, it's in, in a very loose sense, it's a golden rule kind of idea.

10:30 - If you switch positions with the other person, you could accept the, ground on which the person who in endangers you or injures you acts. And that that idea is central to tort law, reasonableness. It isn't just accidental that the reasonable person and reasonable precaution and so on are so central, in tort. It's because tort is not about maximizing some single value like wealth or welfare, but it's about what we owe to other people in the way of being able

10:59 - to justify our conduct to them when we put them at risk of harm or, or interfere with their interests in various ways, which are inevitable parts of, say life in a crowded world. So, now good 50 years ago or so, which was kind of the last great burst of regulatory reform in the United States in, kind of the end of the New Deal period. And just before the Reagan period,

11:25 - you get both the Environmental Protection Agency created under Nixon, a Republican president, and, around the same time the Occupational Safety and Health Administration, osha, which takes over workplace safety. And, one of the things that Reagan is famous for was when he comes in in the early eighties, he puts, takes a, what was then a small office in the federal government called the Office of Management and Budget, and gives them this kind

11:50 - of supervisory power to control red tape. And they immediately adopt cost benefit analysis as the master test of everything. And the basic idea is it's always irrational to take more than efficient precaution against risks of harm because efficiency defines the point at which you, get maximum value. If you take more than efficient precaution, you're spending, more than you should and making yourself worse off, not better off.

12:21 - and so they were deeply critical and have been ever since deeply critical of the safety and feasibility norms. There were, those were two norms that were identified. Safety was identified with the EPA. And it doesn't mean perfect safety. It means a level of risk remote enough that a reasonable person wouldn't worry about it. Like with that risk of cancer or something else is far more likely to kill me than, than

12:44 - that, you know, you, it's a level that you think of an inner radical level of risk in a technological society. and you're prepared just to accept it 'cause you couldn't have activity if you didn't have that risk. Feasible precaution is a risk that you would like to reduce if you could, but you can't reduce it, as far as you can to the, as you'd like to, to the safe level,

13:08 - without shutting down the activity. So, so one example of this actually comes out of a major American nuisance case called Boomer. The Atlantic Cement, where the cement plant was spewing dust on, cement dust and particulate matter onto the plaintiff's property. And it was clear was interfering with their use and enjoyment of their land under the tort of nuisance. But it's also clear that there was no way to stop that interference except for shutting down the plant.

13:34 - And so the court insisted on precaution that was, best available technology, which is more than as it conceived an efficient precaution, and then added a damage remedy. But, but it didn't shut the plant down. So it didn't eliminate the interference, nor did it demand just marginal precaution, against the harm being inflicted marginally efficient precaution at the margin. And those norms, in my view,

14:04 - are eminently defensible. That is, you can understand them once you understand that harms avoidance has a special kind of priority. it's more important to avoid harm in general than it is to confer benefits on people that harms and benefits are not symmetrical. They're asymmetrical. An ideal reader would think, tort law is this fundamental institution in society. Now you also have to think of related fields of regulation.

14:31 - you know, and you think of OSHA and environmental protection 'cause these are places that occupy the same space in my view. They're in many ways very different, but they occupy the same space. And part of what they respond to is that there are limits to what a private law institution can do. it can't deal in certain systemic ways. It gets thwarted by problems of causation

14:51 - That prevent tracing individual injuries to individual injuries and so on. but that this is absolutely essential to establish a framework within which people are able to lead decent lives and, over the course of normal lives, lifespans, unimpaired by injury and disabilities. So Tory isn't some just little law of personal wrongs that's we have leftover because the Romans had it and after the Romans had it, the English had it.

15:15 - In the United States, we think the English have everything ancient and, the, and we just got it, but it's not terribly important. It actually is. And Moori is fundamentally important institution. And although I don't go all the way in saying this, I'd argue it was reasons that tort law really, was so central until the Reagan revolution. it was probably the central part of American private law.

15:40 - It's still robust, but there was huge tort reform movement that tried to reign it in. And it's because in an industrial technological society, it's very important that we have a body of law that establish these kinds of obligations and protections. In my view, there's been a kind of tendency to protect tort law as if it were, a kind of game preserve where you have to keep an endangered species from being exterminated. And, and that's partly

16:08 - because the people who are on my side of the street in terms of their, belief that the is questions of value are not just questions of maximizing one single value across all domains, have been concerned that the instrumentalists want to, just obliterate tort law. There's no distinctive body of tort law, there's no distinctive body of any kinda law. There's just this one maximizing question. So they've been very concerned to protect tort law, but,

16:33 - but I think we live in a world in which tort law cannot discharge all the responsibilities that we try to impose upon it because of the nature of the risks to which we are now exposed. You know, the kinds of technological and, industrial processes that are normal for us. they do require various kinds of regulatory interventions and displacing and supplementing tort.

16:59 - And what I'd love to see is to, for those to be, areas that people who care about the values that they think animate tort law, take an interest in and, work on and develop alternatives. Because those areas, even more than tort law, have been dominated by instrumentalist thinking and by cost benefit thinking. And, at some deep level, this kind of cost benefit thinking is dehumanizing. People's lives are just another resource to be used

17:28 - and the pursuit of maximal value, they're not intrinsic ends in themselves. In some sense, the view of it tort law as what people owe to one another is a view founded on the sort of commenting and tradition that the ultimate source of value in the world is persons. And the ultimate questions of morality or what do we owe to each other, what does respect for persons require? And ultimately in an instrumentalist view like cost benefit

17:52 - analysis persons claims to, becomes just another input to maximizing welfare. And I, it becomes dehumanizing. I think.

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