Gregory Keating has spent his career offering an alternative to the law-and-economics framework that long dominated tort scholarship, arguing instead that tort law is best understood as a body of obligations we owe one another to protect against serious harm. He currently serves on American Law Institute Restatement projects examining employer liability for sexual assault and the application of tort principles to AI. Keating was recently invited to present at the NYU Colloquium in Legal, Political, and Social Philosophy, and his book “Reasonableness and Risk” received the Civil Justice Scholarship Award from the National Civil Justice Institute.
Please introduce yourself.
I teach two first year classes — torts in the fall and legal profession in the spring. I teach upper-year seminars on various topics, but mostly on special issues in tort law. Sometimes I teach seminars that focus on special issues of responsibility presented by tort law. Even more rarely, I teach on a special problem of professional responsibility.
What is your interpretation of law and philosophy?
I think of philosophy as a field that asks about the reasons that we have — of various sorts. Epistemology, for instance, is about what we can know, what we have reason to believe, and how confidently, etc. Generically speaking, legal philosophy is about what law is. The most famous modern work of legal philosophy is entitled “The Concept of Law.” If you think you know what law is — e.g., that it is state coercion that claims to be justified — legal philosophy is about asking what kinds of conduct the law can justifiably coerce. For example, tort law generally supposes that obligations not to harm other people can be coercively enforced whereas obligations to benefit them cannot be. Is that correct? If so, why? With what exceptions? Those are philosophical questions.
How would you describe it to someone who didn’t know about this specific niche?
Legal philosophy is about asking what reasons we have for law in general, for institutions such as the law of contracts, or criminal law, or torts. And about what law should be like and do in light of those reasons.
Can you briefly describe the focus of your research? What gap in existing knowledge do you hope to fill or add to with your scholarship?
My writing is almost exclusively in torts. When I was coming up, tort scholarship was dominated by law and economics. Law and economics conceives of tort liability rules as a shadow price system — tort rules set prices that you have to pay to injure people in various ways. That price system should be constructed so that people injure one another only in ways that, on balance, make society better off (wealthier). This seemed wrong to me. My writing in torts has tried to show that a better way to understand the law of torts is as a body of law that spells out what we owe to one another in the way of obligations not to impair or interfere with each other’s urgent interests. Rights (to the physical and psychological integrity of our persons) and responsibility (to avoid and repair harm to others) are fundamental to tort. Harm (as opposed to cost, economically conceived) is fundamental to tort. Because serious physical harm is especially bad for people, we have reason to demand more than cost-justified precaution against serious risks of harm — as tort and also environmental law and health and safety regulation do. At the moment I’m pondering the fact that juries see in social media a genuinely new form of harm whose infliction is tortious. I’m also thinking about institutional responsibility. Since finishing a book in 2022, I’ve been involved in two American Law Institute “Restatement” projects — one on employer responsibility for sexual assault, and another on the application of tort principles to AI. The social media cases raise a question of the latter sort head-on. They address whether social media platforms are “products” and should be governed by the principles developed to deal with defective mechanical products. The Restatement project on AI is asking the same question about AI.
Tell us a bit about your motivation for your specialty area and how you arrived at Gould.
From my first year of law school, I’ve found tort law fascinating and important. And it used to be a bit understudied by people interested in philosophy and law.
What do you hope your students take away from your courses? What would success as a professor look like for you?
I think that the basic thing law school teaches is how to think like a lawyer. It’s a specialized way of thinking and elusive when you try to describe it. It’s a way of thinking that is normative but which begins with, and returns to, where we are. Philosophically speaking, law is applied moral and political philosophy. Particularly in the first year, I think students most need to develop the ability to think like lawyers — to see how lines of cases form patterns, to see what kinds of rules and reasons recur in an area, and why they do. No one remembers the mass of information that they cram into their brains at exam time. What I hope sticks is a kind of orientation — an understanding of what a torts or professional responsibility problem looks like, how to recognize one, and how to find your way around it when you encounter one outside of the classroom. I’d also love it if students left with the sense that both torts and legal profession involve important kinds of responsibility and if they internalized those ideas of responsibility, especially perhaps the responsibilities addressed in legal profession.
Previous Article
