Cornell Law Review Volume 92 Issue 6

Tort Law and Moral Luck

On its face, tort law is a law of wrongs. The word “tort” means wrong. Before tort was identified as a legal category in its own right, torts were known as “private wrongs.” Judicial opinions in modern tort cases speak of defendants who owe duties to refrain from wrongful conduct. Courts seek to determine whether those duties have been breached. Substantive tort doctrine is filled with rules and concepts that express the idea of one person wronging another.

Obvious as the foregoing observations may seem, the claim that tort law is a law of wrongs is today controversial, perhaps even in disfavor. A major source of the trouble is this: the idea of committing a wrong carries obvious moral connotations, yet some fundamental features of tort doctrine seem to cast doubt on whether tort really has anything to do with wrongful conduct. In particular, liability often seems to stem more from bad luck than from bad acts or bad character. Thus the question arises: Is tort liability so luck-dependent that tort law, despite appearances, cannot be taken seriously as a law of wrongs?

 

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