Vanderbilt University Law School Public Law & Legal Theory Working Paper Number 04-14 Law & Economics Working Paper Number 04-20 TORT LAW FOR FEDERALISTS (AND THE REST OF US): PRIVATE LAW IN DISGUISE JOHN C. P. GOLDBERG A revised version of this paper is forthcoming Harvard Journal of Law & Public Policy (2004) This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract=565129 2 Tort Law for Federalists (and the Rest of Us): Private Law in Disguise John C. P. Goldberg Vanderbilt Law School (Forthcoming, 28 Harv. J. L. & Pub. Policy __ (2004)) Abstract This essay argues in favor of understanding tort law as a law of private redress, rather than public regulatory law. Part I uses the U.S. Supreme Court’s 2003 decision on punitive damages in State Farm Mut. Ins. Co. v. Campbell to demonstrate some of the weaknesses of public law conceptions of tort, and some of the strengths of a private law conception. Part II maintains that a private law model need not be associated with formalist reasoning, an elevation of common law over statute, or political conservatism. Key words: torts, private law, common law, redress, public law, damages, punitive damages, formalism, Federalists, Supreme Court, pragmatic conceptualism. 3 Tort Law for Federalists (and the Rest of Us): Private Law in Disguise John C. P. Goldberg * Forthcoming, 28 Harv. J. L. & Pub. Policy __ (2004). The question posed for this panel reads as follows: “Should Tort Law be a form of Public Regulatory Law?” My answer is “No.” What I mean by that will become clearer in a moment, but let me offer an immediate set of qualifications. I do not mean to dispute that there are certain respects in which tort law is “public.” For one thing it is law, provided by government -- no service, no sheriff, no tort law. For another, its operation can have widespread effects -- a tort suit can change how cars are designed and how health care is delivered, for example. Finally, through its day- to-day operation, tort law undoubtedly promotes public objectives including deterrence of risky or otherwise undesirable conduct, maintenance of social cohesion, vindication of individual rights, affirmation of the equality of persons under law, and reinforcement of the ideal of limited government. 1 But now consider the following question: What, in the first instance, does tort law promise to do that warrants retaining it as a distinctive facet of our law?” (Or: * Professor, Vanderbilt Law School. Thanks to Mark Brandon, Rebecca Brown, Don Herzog, Richard Nagareda, Bob Rasmussen, Tony Sebok, and Ben Zipursky for their helpful comments. Remaining errors are my own. 1 See John C. P. Goldberg & Benjamin C. Zipursky, Accidents of The Great Society, __ Md. L. Rev. __ (2004) (forthcoming) (identifying various political values served by tort law). To say that tort law serves certain values is not to say that each tort case is an occasion for judge and jury to fashion a result that will best serve those values, as opposed to following the rules and principles contained within tort law. Nor is it to say that tort law always operates so as to promote these values, or that it consistently serves these values better than any conceivable alternative arrangements. Finally, it does not entail denying that tort law can generate socially- undesirable consequences, such as litigiousness and waste. 4 What is it about tort law that renders it capable of delivering public goods such as the ones just described?) Because of tort law’s unique features -- plaintiff-initiated complaints, the right to jury trial, litigation and adjudication turning on rules and concepts designed to help determine whether a person can be held responsible for having injured another, etc. -- its best justification is that, unlike all the other political and legal institutions we have for dealing with anti-social conduct and injuries (administrative regulation, criminal law, public welfare law, private insurance, bankruptcy, contract, etc.), it provides a means by which those who have been wronged can seek redress against those who have wronged them. By contrast, the tort system is not well designed to function as a form of disaster relief for injury victims because of its high transaction costs and its tendency to produce feast-or- famine compensation. It is also not well-equipped to provide public safety regulation because of, among other things, judges’ and jurors’ lack of agenda control, their limited access to information, and their relative lack of expertise and accountability. In this sense, I maintain, tort law is not defensible as public regulatory law. In providing a negative answer to the panel question, I have already declared myself to be outside the mainstream among torts professors. Indeed, most would profess puzzlement at its having been asked in the first place. To inquire whether tort law “should be” public regulatory law supposes that it could be something else -- “should” implies “can.” And very few of them believe that it can. Instead, they would say that the real issue is whether, given that tort law is of course regulatory law, it should be celebrated or condemned. On this question, my co-panelists split. 5 Professor Bogus comes to praise tort law, while Professor Priest aims to bury it. I will argue that tort law has been poorly served -- and poorly serves us – by academic attempts to describe and defend it as public regulatory law. I Let me illustrate my point by discussing a famous tort suit that raised issues ultimately decided by the U.S. Supreme Court in 2003 -- State Farm v. Campbell. 2 State Farm issued auto insurance to the Campbells. After Mr. Campbell’s careless driving caused a car accident, he was sued in negligence by the person he injured. State Farm took over the defense of the suit and did a very bad job of it. In particular, it declined an offer to settle the case at the rather modest limits of the Campbells’ policy. State Farm’s “bad faith breach” of the duty to defend resulted in a judgment against the Campbells that exceeded their coverage by $135,000, and put them in danger of losing their home. A Utah jury hearing the Campbells’ claim against State Farm awarded them $2.5 million in compensatory damages (mostly for emotional distress). In addition, based on evidence of questionable practices employed by State Farm in handling 2 State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408 (2003). My thinking on the subject of punitive damages has been heavily influenced by the work of Ben Zipursky and Tony Sebok. See Anthony J. Sebok, Introduction: What Does it Mean to Say that A Remedy Punishes, 78 Chi.-Kent L. Rev. 3 (2003); Anthony J. Sebok, What Did Punitive Damages Do?: Why Misunderstanding the History of Punitive Damages Matters Today, 78 Chi.-Kent L. Rev. 163 (2003); Benjamin C. Zipursky, BMW v. Gore: A New Chestnut (unpublished manuscript on file with the author). See also Thomas B. Colby, Beyond the Multiple Punishment Problem: Punitive Damages as Punishment for Individual, Private Wrongs, 87 Minn. L. Rev. 583 (2003). Martin Redish and Andrew Mathews have recently argued that, given modern instrumental justifications of punitive damages, their award necessarily amounts to an impermissible delegation of public regulatory authority to private actors. See Martin H. Redish & Andrew L. Mathews, Why Punitive Damages are Unconstitutional, 53 Emory L.J. 1 (2004). I would say instead that a given punitive damage award may be unconstitutional if it is the case that the only justification for the award or its magnitude is that it serves public goals such as deterrence, as opposed to providing redress to the victim of a particularly egregious form of mistreatment committed by the tortfeasor upon the victim. 6 other claims by other insureds, the jury in addition awarded $145 million in punitive damages. Although the compensatory award was later reduced to $1 million, the punitive award was upheld by the Utah Supreme Court. The U.S. Supreme Court reversed, concluding that the punitive award was so excessive, as measured by the criteria set out in BMW v. Gore, 3 as to violate State Farm’s Due Process rights. Campbell presents a delicate set of issues for Federalist Society members. Perhaps most fundamentally, it raises the question of whether the U.S. Supreme Court has any business invoking the vague guarantees of the Due Process Clause as a basis for second-guessing state common law. 4 However, I wish here to consider a different aspect of the decision. According to Justice Kennedy’s majority opinion, the problem with the Utah Supreme Court’s ruling was not that it permitted some punitive damages to be awarded to the Campbells. Based on the evidence presented at trial, the jury acted reasonably in concluding that State Farm had willfully mistreated the Campbells. Rather the problem was the magnitude of the jury award. Here is the key sentence explaining this point: While we do not suggest there was error in awarding punitive damages based upon State Farm’s conduct toward the Campbells, a more modest punishment for this reprehensible conduct could have satisfied the State’s legitimate objectives, and the Utah courts should have gone no further. 5 3 BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996). 4 Hence Justices Scalia and Thomas have been pretty consistent in their rejection of the Gore line of cases. See, e.g., State Farm, 538 U.S., at 429 (Scalia, J., dissenting); id. at 429-30 (Thomas, J., dissenting); cf. Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 443 (2001) (Thomas, J., concurring) (noting continued objection to Gore’s holding, but concurring that, in light of Gore, appellate review of punitive damage awards for constitutional excessiveness ought to be under a de novo standard); id. at 443-44 (Scalia, J., concurring in the judgment) (same). The Chief Justice, by contrast, seems to have made his peace with this aspect of substantive due process. See State Farm, 538 U.S. at 411 (joining majority opinion). 5 State Farm, 538 U.S. at 419-20 (emphasis added). 7 In this one sentence resides a deep tension, a clue as to what makes modern punitive damages practices so seemingly suspect, and a suggestion for a better approach. The tension resides in the evident shift of focus that takes place between the first two clauses of the sentence. In explaining why some punitive award was appropriate, the Court’s focus is on the claim of the Campbells for what State Farm did to them. Yet, in assessing the size of the award, the majority opinion ceases to be concerned with what was done to the Campbells, and ask instead whether the award they stood to receive is necessary to further the interests of the State of Utah in punishing and deterring bad behavior. What is initially cast as an entitlement of the Campbells, is quickly recast as an interest of the State. What started out as a claim for private redress brought by the victim of a wrong, has become a claim brought on behalf of the public, to vindicate its interest in the maintenance of sound insurance practices. 6 I want to suggest that Campbell provides a clear example of the sort of slippage that legal academics have promoted, and that has led us into a bind in our thinking 6 The Court’s focus on Utah’s interest in enforcing punitive awards is driven in part by the need to paper- over a serious problem that attends the constitutionalization of tort law, namely the problem of state action. See Redish & Mathews, supra note , at 25-27 (noting the issue of state action raised by constitutional review of punitive damage awards). At least since New York Times Co. v. Sullivan, the Court has simply assumed away the state action problem, essentially adopting the unsatisfactory position -- unsatisfactory because it proves too much -- that the judicial system’s oversight of private litigation counts as state action. 376 U.S. 254, 265 (1964) (judicial application of state tort law counts as state action for purposes of constitutional analysis). I think it is the case that some applications of state tort law amount to state action. Sullivan provides a particular striking example of tort law as a form of state action, because there a public official was quite deliberately attempting to use state defamation law to silence his political critics. See John C. P. Goldberg, Judging Reputation: Realism and Common Law in Justice White’s Defamation Jurisprudence, 74 U. Col. L. Rev. 1471, 1477-78 (2003). Likewise, to the extent the result in a particular tort case suggests that the state judiciary is presiding over a system of tort law that is functioning as a regulatory scheme, and no longer functioning as a system of private law, then again the state action requirement may be met. Cf. Zipursky, supra note 2, at __ (suggesting that the three-pronged Due Process test of Gore can be understood as a test for determining when a particular tort judgment crosses over the line between providing private redress and functioning as public regulatory law in disguise). 8 about punitive damages and many other subjects within torts. Many Federalist Society members will be unsympathetic with Professor Bogus’s claim that large punitive awards are desirable from a regulatory perspective. But he is right about one thing, and the Supreme Court agrees with him in this particular instance: corporations and individuals commit egregious wrongs against others that justify a certain kind of punitive response via the legal system. Where he goes astray, in my view, is in thinking about the justification -- as does the Supreme Court -- in terms of the state’s regulatory objectives. What is at stake in Campbell is not the State of Utah’s interests in obtaining retribution on behalf of its citizens, or in deterring sharp business practices, but the Campbells’ interest in vindicating their rights not to be mistreated in the way that they were. Thus, to my mind, the question is not: How much money may be extracted from State Farm in order to vindicate the laws of Utah or to promote better insurance-company behavior in Utah? Instead, the question is: How much money will it take to make things right for the Campbells, not just in the sense of compensating them for their losses, but in the sense of providing them with satisfaction -- a remedy adequate to acknowledge and avenge State Farm’s predatory conduct towards them. 7 7 I realize that this characterization puts a compensatory cast on punitive damages. Still, I do not think it collapses the distinction between compensatory and punitive damages – a charge that has from time to time been leveled against the sort of view articulated here. See, e.g., Fay v. Parker, 53 N.H. 342 (1872) (arguing that punitive damages are just a form of emotional distress damages). All damage payments in a tort context are compensatory in the minimal or thin sense of being payments to which a tort victim has a right by virtue of having been victimized; they are payments that help make things right as between victim and tortfeasor. But they are not all compensatory in the sense of being paid to make up for harm caused to the victim’s body or psyche: they are not, in this sense, part of “make whole” damages. Thus, I would argue that a tort plaintiff can sometimes make out a valid claim for punitive damages even if the evidence shows that she was not physically injured and that she stoically withstood her mistreatment. 9 The reader might be inclined to regard this is a game of semantics, but I don’t think it is. Ask yourself: What sort of award will be sufficient to cause State Farm and other well-heeled insurance companies to take notice that, when in Utah, they had better behave themselves? A very big number might come to mind, perhaps even one in the hundreds of millions. Now ask yourself: How much money are the Campbells entitled to extract from State Farm, on top of damages for any losses they suffered, in recognition of the fact that State Farm consciously shirked its duty to protect their interests so that it might serve its own? Monetizing is a subjective business, but whatever number we might come up with as an answer to the latter question, I can’t believe that it’s going to run into the multi-millions. $10,000, or $100,000, might constitute an appropriate number. But $10 million or $100 million? No way. In short, if we ask a different question about punitive damages – a question prompted by a conception of tort law as a law of private redress, we get a different order of answer than if we ask questions that presume a conception of tort law as public regulatory law. Of course the Court in Campbell reached the conclusion that the $145 million award was excessive. So in that sense the hazards of treating tort law as public law were not realized. But why weren’t they? The answer may be that, despite its disparagement by legal academics, the notion of tort law as private law still has some hold on judges, even Supreme Court Justices. The Court’s principal stated reason for knocking down the punitive award was that the jury heard a lot of evidence about misconduct by other State Farm employees 10 in other states with respect to other kinds of insurance policies and other insureds. The Campbells’ attorneys introduced this evidence to show that State Farm’s treatment of the Campbells was part of a nationwide policy of sharp practices by which the insurer sought to reduced payouts on claims and increase profits. This was error because it permitted the jury to award punitive damages to punish and deter conduct that bore no relation to the Campbells’ harm. A defendant’s dissimilar acts, independent from the acts upon which liability is premised, may not serve as the basis for punitive damages. A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business. Due process does not permit courts, in the calculation of punitive damages, to adjudicate the merits of other parties’ hypothetical claims against a defendant under the guise of … reprehensibility analysis …. Punishment on these bases creates the possibility of multiple punitive damage awards for the same conduct; for in the usual case nonparties are not bound by the judgment some other plaintiff obtains. 8 Although I am inclined to agree with the initial sentiment expressed in the first full sentence of this passage, it seems hard to defend given the Court’s analytic framework. Its basic conclusions are that unrelated misdeeds “may not serve as the basis of for [a given plaintiff’s] punitive damages,” and that, a person may not be punished for being “an unsavory individual ….” The latter assertion is a red herring. A punitive award is always predicated on the showing of a completed tort, so the defendant is not being punished merely for being unsavory. Meanwhile, the former seems hard to justify given the Court’s nominally regulatory approach to punitive damages. If such damages are meant to serve a state’s interest in deterring socially undesirable behavior, 8 538 U.S. at 423 (citations omitted). 11 then why won’t evidence of other bad acts by the tortfeasor help shed light on how great is its propensity to break the law, and help determine how much of an incentive is needed to correct for that propensity? The Court attempts to shore up its position by arguing that the imposition of damages based on evidence of other bad acts also violates notions of procedural due process and excessive punishment -- “hypothetical” claims end up being litigated and defendants run the risk of being punished repeatedly for the same conduct. But these explanations seem wanting too. The defendant has a full and fair opportunity to rebut assertions that it engaged in other forms of wrongful conduct. And other states’ courts can take into account previous punitive awards in deciding how much punishment is necessary to serve those states’ respective interests. Perhaps Campbell’s recitation of reasons seem unsatisfactory because the Court had already backed itself into a corner by framing the issue in the case as whether the Utah Supreme Court could reasonably conclude that a $145 million award was necessary to serve the interests of the State. Because of this initial (mis-)framing of the question, the Court is forced to convey its concerns about the award awkwardly and indirectly, as problems of evidence and procedure. Indeed, I would argue that its expressions of concern over punishment for dissimilar acts points to a deeper and more substantive issue. The problem is not simply that the Campbell jury got to hear some unduly prejudicial evidence. Rather, it is that the punitive phase of the trial was 12 geared to asking the wrong question – the public law question. The question that should have been asked (at trial) was a private law question: How much money may the Campbells fairly extract from State Farm given its deliberate mistreatment of them? In turn, if we assume -- contra Justices Scalia and Thomas -- that the result reached by the lower courts truly generated a constitutional issue, it should have been framed as follows: Whether a tolerably fair process for adjudicating the Campbell’s claim to have been mistreated by State Farm could generate the conclusion that the Campbells were entitled to extract $145 million from State Farm for what it did to them. With the issue so framed, the Court’s conclusion -- that, in this instance, the justice provided by the Utah courts failed to comport with minimum standards of fairness -- becomes quite a bit more comprehensible. II The wrongs-based view of tort law that I have sketched and invoked as a basis for bolstering the U.S. Supreme Court’s decision in Campbell contains various aspects that should appeal to members of this society even apart from the view’s ability to explain why certain perceived ‘excesses’ in the tort system ought to be reined in. 9 To note but one such aspect, its roots can be traced back to the likes of William 9 Even here, one must be prepared to take the bitter with the sweet -- the same approach to punitive damages might also call for a substantial reduction of awards toward which a certain kind of political conservative might be favorably disposed. For example, consider Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154 (Wis. 1997), in which the Wisconsin Supreme Court -- erroneously, in my view -- rejected a Gore challenge to a $100,000 punitive award awarded to a property owner for a willful but harmless trespass across his field. 13 Blackstone and Adam Smith. 10 So, if modern Federalists are seeking a conception of tort law consonant with at least some of the basic tenets of classical liberalism, then a wrongs-based view is for them. Still, the adoption of a view of tort law as private law will not be painless. If what is desired by the members of this group is a conception of tort law that always produces a desired political end-result, such as minimal tort liability for corporate defendants, then the private-law, wrongs-based conception I have sketched here will not get them there. If, by contrast, what is desired is an approach to tort law that connects to liberal traditions and renders tort law more coherent and principled, then a wrongs-based view should be taken very seriously indeed. On the private law model, tort law empowers those who have been wronged to seek redress from those who have done them wrong. The class of wrongs, on this view, might be fairly expansive, and might evolve over time with economic, social and political changes. For example, there is nothing inherent in a wrongs-based view that requires tort law to give way to contract law simply because the tortfeasor and victim turn out to have been in a position to negotiate with one another. The parties in Campbell, it is worth recalling, were in a pre-existing contractual relationship. To endorse the award of any tort damages to the Campbells, and particularly punitive damages, presumes that it is at least sometimes acceptable for courts to impose an 10 See John C. P. Goldberg, Twentieth-Century Tort Theory, 91 Geo. L.J. 513, 516-19 (2003) (outlining a Blackstone-inspired account of tort law); ADAM SMITH, LECTURES ON JURISPRUDENCE 5-14, 103-40 (R. L. Meek, D.D. Raphael & P.G. Stein, eds., Liberty Fund 1978) (1762-63) (positing the preservation of rights as the first end of government, and elaborating the ways in which the law serves that end by identifying and responding to wrongs through punishment and the provision of redress to victims). 14 involuntary obligation onto a relationship whose terms were set by contract. 11 The action for bad-faith breach of an insurer’s duty to defend alleges the breach of an obligation that exists on top of contract -- a duty that has its “source in the law.” 12 Thus, although it is true, as Professor Priest has often insisted, that judges analyzing tort claims must be sensitive to the norms of the neighboring body of private law of contract, it is not the case that they should recognize tort only when the parties cannot contract. Rather, a wrongs-based view will sometimes demand or suggest that judges identify duties and wrongs notwithstanding contract or the potential for contract. 13 Likewise, as Professor Epstein long ago emphasized, a wrongs-based view is compatible with, and may even demand, the imposition of certain arguably onerous forms of liability, including strict liability. 14 In a similar vein, no less a figure that Judge Easterbrook has recognized that torts come in various shapes and sizes, and sometimes impose liability for breaches of duties that do not constitute morally culpable acts. 15 Even fault-based wrongs recognized by tort law can be demanding, 11 It would be outside the scope of these remarks to discuss whether the cause of action for bad faith breach by an insurer of its duty to defend an insured is best understood as a contract or tort action. Likewise, this is not the place to consider whether, all things considered, the action ought to be eliminated so as to leave the insured with ordinary contract remedies, which would presumably preclude the award of punitive damages. But see Curtis Bridgeman, Note: Corrective Justice and Contract Law: Is there a Case for Punitive Damages?, 56 Vand. L. Rev. 237, 260-74 (2003) (arguing that a corrective justice conception of contract law might sometime justify the award of punitive damages for certain contract breaches, including breaches of the sort complained of in ‘bad faith’ claims against insurers). Here I am content to note that the type of misconduct that can support such a claim -- a deliberate and self-serving breach of a duty to protect the insured’s financial interests in a situation in which the insured is likely to be facing a personal crisis -- is sufficiently distinct from other sorts of contract breaches that it may warrant special treatment. 12 MacPherson v. Buick Motor Co., 111 N.E. 1050, 1053 (N.Y. 1916). 13 Cf. Beul v. ASSE Int’l, Inc., 233 F.3d 441, 445 (7 th Cir. 2000) (Posner, J.) (“Negligence in the performance of a contract that foreseeably results in personal injury … is actionable under tort law.”). 14 Richard A. Epstein, A Theory of Strict Liability, 2 J. Legal Stud. 151 (1973). 15 See Burns Philp Food, Inc. v. Cavalea Contl. Freight, Inc., 135 F.3d 526, 529 (7 th Cir. 1998) (Easterbrook, J.) (observing that, under Illinois law, the tort of trespass has a strict liability component, in that a 15 whether because fault is measured ‘objectively,’ because a tortfeasor runs the risk of having to pay damages out of proportion to the nature of his wrongdoing, or because the law of agency often saddles entities -- even entities that are in the relevant respects behaving responsibly -- with liabilities flowing from the wrongful acts of individual employees. 16 Finally, as noted above, there is no reason to treat the category of torts as a static set. Causes of action can sometimes be eliminated, as has been the case in many jurisdictions for torts such as alienation of affections and criminal conversation. 17 New torts are also minted. Of these, some are explicitly generated by statute, as has been the case with statutes generating causes of action for employees who are injured by age, disability, gender, or race discrimination. Others are articulated by judges under the influence of statutes through the doctrines of negligence per se and implied rights of action. 18 Still others emerge out of judicial efforts to rationalize scattered common law precedents, as was the case with courts’ recognition in the first half of the Twentieth Century of claims for invasion of privacy and intentional infliction of emotional distress. person who intends to make contact with a particular piece of land commits a trespass if that land happens to be owned by someone else, even if the trespasser has no reason to know that the land is in fact owned by someone else). 16 See, e.g., Walter v. Wal-Mart Stores, Inc., 748 A.2d 961 (Me. 2000) (upholding entry of judgment as a matter of law and a $550,000 verdict against Wal-Mart for a customer who was injured by an employee’s accidental substitution of one prescription drug for another, which resulted in part from his failure to abide by company protocols for checking prescriptions). 17 See, e.g., Helsel v. Noelisch, 107 S.W.3d 231 (Mo. 2003) (abolishing the tort of alienation of affections). 18 See JOHN C. P. GOLDBERG, ANTHONY J. SEBOK & BENJAMIN C. ZIPURSKY, TORT LAW: RESPONSIBILITIES AND REDRESS 325-40, 356-74, 659-80, 686-702 (2004) (excerpting and discussing cases in which courts recognize rights of action that permit victims to seek redress from actors whose statutory violations cause injuries to them). 16 These brief observations suggest, as noted above, that a conception of tort law as private law should not be mistaken as a godsend for the National Manufacturer’s Association. Adherents of a wrongs-based conception could, I believe, have endorsed mid-Twentieth-Century judges’ recognition of the new cause of action for strict products liability. Likewise, they can and no doubt will identify and endorse new causes of action in years to come. These same observations also raise a set of jurisprudential questions that may be of interest to members of this group. It goes almost without saying that one of the Federalist Society’s overarching ambitions has been to articulate an appropriately ‘constrained’ conception of the judicial role, particularly with respect to the adjudication of constitutional cases. The notion is that judges ought to adopt an interpretive methodology that will tend to reduce the influence of their ‘subjective’ political preferences by tethering their decisions to ‘objective’ criteria, such as the ‘plain words’ of the U.S. Constitution and statutes, as well as ‘facts’ about the intentions or understandings of the Framers and legislatures. Such an approach is sometimes described as “formalist,” in opposition to more free-wheeling approaches. What happens when these sorts of formalist commitments are applied to an area such as tort law? Do they translate into a rejection of the sort of flexibility I have associated with a wrongs-based view, or might they provide a reason to endorse such a view? My view is that a private-law, wrongs-based conception of tort law actually embodies a commitment to a form of judicial ‘restraint,’ yet does not do so by means 17 of a commitment to formalist interpretive methodologies. As was suggested by the discussion of Campbell, a private law vision of tort offers a particular conception of what judges ought to be doing (and what they ought not to be doing) in resolving the legal questions that arise in a tort suit. Their job, it suggests, is not to use the occasion of ordinary tort litigation to issue public safety regulations, or set up ad hoc schemes of disaster relief. Instead, their job is to determine -- usually in conjunction with a jury -- whether a given actor (or set of actors) has committed a legal wrong against a putative victim (or victims) and, if so, to provide an appropriate remedy. The point is not that judges ought to be indifferent to considerations of public welfare in adjudicating the issues of wrong or remedy -- often a good judge will take those sorts of consideration into account in a close case when gauging whether a defendant can be said to have committed a wrong against a victim, or in identifying the sort of remedy that might be appropriately provided. But giving consideration to public policy in the course of assessing whether a wrong has been done, or a remedy is to be ordered, is a far cry from supposing that the “real” question before a court in a tort case is whether, all things considered, it would serve the public interest to have D pay some money to P. Again, the Utah courts might have correctly concluded that the imposition of a $145 million ‘fine’ on State Farm would serve the public interest. But that question was not the question for them to be entertaining. By offering a narrower self-conception for judges presiding over tort cases than do public law conceptions, a private law account of tort carries with it a built-in commitment to a certain kind of judicial restraint. Yet, as suggested above, this sort 18 of restraint is not achieved through the deployment of methodologies such as textualism or originalism. Quite the opposite, the wrongs-based view has long given judges leeway to identify new wrongs or new iterations of old wrongs in light of changes in other areas of law, as well as economic, technological, demographic, and sociological changes. In sum, the restraint associated with the embrace of a private law view of tort will reside in judicial acceptance of a particular understanding of what tort law aims to do, and a corresponding willingness to treat the key concepts of tort doctrine – injury, cause, unreasonableness, duty, et al. -- as instantiations of that aim, rather than mere “empty labels” that provide judges with opportunities to make policy. 19 My hunch is that, were they to consider the matter, modern-day Federalists might find this sort of “pragmatic conceptualism” 20 quite consistent with their commitment to a notion of judicial restraint. Conclusion Suppose that the idea of tort law as private law proves attractive to at least some members of this group. Are there any other obstacles to their endorsing it? Professor Priest offered in his remarks a surprising objection. His view is that it is too late to do so. The horse -- the public law conception of torts -- is out of the barn 19 See John C. P. Goldberg & Benjamin C. Zipursky, The Restatement (Third) and the Place of Duty in Negligence Law, 54 Vand. L. Rev. 639, 723-36 (2001) (discussing the advantages of a non-concept-skeptical approach to negligence and the drawbacks of the dominant skeptical approach). 20 Benjamin C. Zipursky, Pragmatic Conceptualism, 6 Legal Theory 457 (2000). Needless to say, one might object that a ‘mere’ conception cannot constrain decision-making. Yet one might just as readily -- if not more readily -- doubt the ability of printed words or historical data to constrain decision-making. In short, anyone who is attracted to textualism or originalism is estopped from asserting this sort of objection against conceptualism. 19 and now it must be destroyed. 21 But even if he is right about the problem, why is the right response to shoot the poor creature? Why not instead coax it back into the barn? Professor Priest seems to suppose that American law is fated to endorse a full- blown public law view of tort law. Yet as a thoughtful historian of tort law, 22 he knows better than most that there was a time not too long ago when American lawyers took for granted a Blackstonian, wrongs-based conception of tort. It was only in the early-to-mid Twentieth Century that the public-law vision gained dominance through the works of scholars enthralled with the reformist potential of Holmesian skepticism and Legal Realism. 23 Today their views are orthodoxy: it is thanks to them that lawyers are trained to regard tort law as public law. But, as this potted history suggests, orthodoxies come and go. Moreover, as decisions like Campbell suggest, the pull of private law remains strong. Dean Leon Green once famously described tort law as public law in disguise. 24 Today, about a half-century later, the ‘disguise’ has been dropped: every year in classrooms around the country, law students are taught that tort law is public law because it has to be. Yet our lawyerly intuitions -- indeed, even the intuitions of the most public- law oriented Court in our judicial system -- tell us otherwise. It is time to listen to those instincts. To gain a genuinely realistic sense of what tort law actually does, 21 [Cite to Prof. Priest’s article in this issue.] 22 George Priest, The Invention of Enterprise Liability: A Critical History of the Intellectual Foundations of Modern Tort Law, 14 J. Legal Stud. 461 (1985). 23 See John C. P. Goldberg, Unloved: Tort in the Modern Legal Academy, 55 Vand. L. Rev. 1501, 1504-12 (2002) (briefly rehearsing this intellectual history). 24 Leon Green, Tort Law Public Law in Disguise (Parts I & II), 38 Tex. L. Rev. 1, 257 (1959 & 1960). 20 what it can do, and what it ought to do, we must dispense with the notion that tort law ‘ought’ to be public regulatory law because that is the only thing that it can be. It is time to recognize that tort law, as it functions today, is private law in disguise.