Article
Form and Function in Tort Theory
Forthcoming in Journal of Tort Law
(2022)
Abstract
Contemporary tort theory is a contest between instrumentalism and formalism. The
prominence of instrumentalism is no surprise. American tort theory was born in the work of Oliver
Wendell Holmes and his views were resolutely, if elusively, instrumentalist. Until very recently,
economic views have dominated contemporary discussions of tort law in the American Legal
Academy, and the economic analysis of torts is uncompromisingly instrumentalist. The rise of
formalism, by contrast, is surprising. Legal realism swept over American legal thought long ago.
Ever since, formalism has been treated more as epithet than as credible position by American legal
scholars. In contemporary tort theory, though, formalism has roared back to life and struck some
powerful blows against instrumentalism. Tort, these neo-formalists argue, is not an instrument for
the pursuit of independently valuable ends. It is an institution whose norms are constitutive of just
relations among persons. The bipolar, backward-looking form of the ordinary tort lawsuit has been
the fulcrum that critics of economic analysis have used to pivot tort theory away from economic
instrumentalism. That form, prominent tort theorists have persuasively argued, instantiates a
backward-looking morality of responsibility, not a forward-looking morality of regulation. But the
formalist enterprise has its own weaknesses. For one thing, formalist tort theory has tended to
reshape tort law in ways that beg the questions that the theory purports to answer. For another, just
relations among persons are a matter of substance as well as form. In the case of tort law, just
relations require that tort law identify and safeguard those interests urgent enough to justify
imposing reciprocal responsibilities of care and repair. We cannot, therefore, pull the rabbit of a
convincing conception of tort law out of the hat of the field’s formal structure. What tort theory
needs is two-pronged theory—theory that can both make sense of form and—by attending to tort
law’s role in safeguarding our urgent interests from impairment and interference at each other’s
hands—also illuminate tort law’s independently significant substance.
Keywords
- instrumentalism,
- formalism,
- tort theory,
- legal realism
Disciplines
Publication Date
2022
Citation Information
Gregory C. Keating. "Form and Function in Tort Theory" Forthcoming in Journal of Tort Law (2022) Available at: http://works.bepress.com/gregorykeating/44/