This Article has three parts. Part I begins by delineating the protocol one should use to determine whether a society is an immoral society, an amoral society, a goal-based society of moral integrity, or a rights-based society of moral integrity (i.e., a society that engages in a bifurcated prescriptive-moral practice that strongly distinguishes moral-rights claims (about the just) from moral-ought claims (about the good), that is committed to the lexical priority of the just over the good, and that fulfills its commitments to some hard-to-specify, requisite extent). Part I then proceeds to outline the protocol one should use to determine the moral norm that any particular rights-based society is committed to using to derive moral-rights conclusions. It next provides an account of the liberal moral norm that I think our rights-based society is committed to instantiating. It argues that this norm commits us to treating all creatures that have the neurological prerequisites to lead a life of moral integrity (to take their moral obligations seriously and to take seriously as well the dialectical task of choosing a conception of the good and leading a life that is consonant with that conception) with appropriate, equal respect and to showing appropriate, equal concern for such creatures, in part for their welfare as economists understand that concept but primarily for their having a meaningful opportunity to lead a life of moral integrity. Part I concludes by examining the implications of our society's liberal commitments for (1) the tort-related moral duties and rights of its members and participants and (2) the general tort-related duties of its governments and the more specific duties of our society's courts when adjudicating common-law tort cases. This account proceeds from a premise uncongenial to economics that, from the perspective of liberalism, not all effects are commensurable - viz., that any tendency of a choice to deprive moral-rights holders on balance of a meaningful opportunity to lead a life of moral integrity by killing them, depriving them of the neurological prerequisites for leading a life of moral integrity, subjecting them to life-dominating pain, or (perhaps) treating them in ways that substantially undercut their perception that they are the authors of their own lives cannot be offset by any tendency the choice has to increase "mere utility" or "welfare" as economists understand that term. Part I argues inter alia that (1) its claim that ours is a liberal, rights-based society and (2) its account of the implications of that fact for the obligations of our society's members, participants, and common-law judges provide a normative grounding both for something like the Hand formula for negligence and for the common law's treatment of ultrahazardous activities. More specifically, Part 1 argues that liberalism implies that (1) something like the Hand formula for negligence is the appropriate standard for determining tort liability for possibly-tortious choices made by individuals who knew or should have known that their choices should be expected to impose net equivalent-dollar losses on others that reflect "mere-utility losses" the relevant victims sustained, and (2) individuals who made possibly-tortious choices they knew or should have known should be expected to disserve the interests of some others in having a meaningful opportunity to lead a life of moral integrity are liable in tort unless their choices served the on-balance interests of the society's members and participants in having an opportunity to lead such a life. Part 2 then examines whether a common law of torts that seeks solely to secure liberal corrective-justice rights will be economically efficient. More specifically, Part 2 delineates and explores twelve reasons why the correct resolution of a liberal corrective-justice claim may not be economically efficient. Finally, Part 3 identifies and analyzes the moral status (inter alia, the moral legitimacy) and likely generic desirability (moral-rights considerations aside) of the various possible non-common-law components of the positive tort law of a liberal, rights-based State - i.e., of its relevant constitutional law, statutory law, administrative regulations, and truly-judge-made law.
Richard S. Markovits,
Liberalism and Tort Law: On the Content and Economic Efficiency of a Liberal Common Law of Torts,
U of Texas Law and Economics Research Paper No. 41
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1356