Professor Greg Keating makes arguments for a moral view of tort law in new book
By Leslie Ridgeway
Professor Greg Keating became fascinated with tort law during his first semester as a student at Harvard Law School, when both law and economics and tort liability were rising forces in American law. Keating found the economic view of tort law as an instrument for minimizing the combined costs of paying for and avoiding accidents — thereby maximizing the wealth at society’s disposal — powerful but disturbing.
“To suppose that the infliction of severe harm on human beings should be treated as just another circumstance where the proper objective is to ensure that scarce resources are put to their highest uses, seemed wrongheaded,” says Keating.
Keating’s career-long interest in torts has culminated in the publication of Reasonableness and Risk: Right and Responsibility in the Law of Torts (Oxford University Press, 2022).
For Keating, the book is a chance to recast tort law as a matter of what people owe to each other in the way of responsibilities to avoid and repair harm. In developing this view, Reasonableness and Risk engages both the economic view of tort and the corrective justice and civil recourse views that arose to challenge the economic approach.
“Corrective justice and civil recourse theory think that the point of tort law is to repair or redress wrongs,” Keating says. “But repair and redress come into play only when tort law’s primary norms are violated, and the role of those primary norms is to spell out what we owe to each other in the way of responsibilities not to impair or interfere with each other’s urgent interests as we go about our lives.”
Reasonableness and Risk is constructed around several fundamental ideas, including that tort law is about what people owe to each other in the way of obligations not to impair urgent interests. Another is the idea of reasonableness. Economic analysis reduces reasonableness to social rationality, making what people owe to each other a matter of what a single, self-interested rational actor would do. To Keating, this cuts the moral heart out of tort law.
“We are distinct persons with separate lives to lead, and what we owe to each other in the way of care and repair is tort law’s subject,” Keating says. “Tort law’s rhetoric of reasonableness signals that it takes our relations to one another to be a matter of morality, not prudence.”
Keating also posits that harms and benefits are not, as economic analysis supposes, pluses and minuses on the same scale, but fundamentally asymmetrical. Physical harm comes close to being unconditionally bad whereas most benefits are only contingently good. Keating therefore challenges the economic view that taking more than efficient precaution against physical harm is an irrational squandering of wealth. Keating argues there is good reason to go beyond efficient prevention of harm to persons and to embrace more stringent norms of “safe” and “feasible” precaution, as environmental and workplace safety regulations commonly do.