A Pragmatic Approach to Improving Tort Law

Abstract

This paper argues that there has been an unfortunate lack of connection between the various forms of tort theory and ongoing efforts to improve or "reform" tort law. The reason for this, the paper suggests, is that, for the past twenty years, tort theory has focused on abstract normative theories such as corrctive justice and economic efficiency and has placed little emphasis on the real world operation of the tort system. Similarly, recent efforts by the ALI to restate tort law principles have concentrated upon the felicities of linguistic formulation rather than on the realities of the system. As an alternative to these approaches, the paper explores a more pragmatic approach that would focus less on the substance of tort doctrine and more on its procedural operation. This makes sense, I argue, because substantive tort doctrine generally consists of the application of general normative terms whose chief function is to structure jury deliberation of the underlying normative issues. For better or worse, it is the jury rather than tort doctrine that defines the "law" of torts. Tort law is one way that society deals with the unexpected and sometimes tragic course of human events and any attempt to improve tort law should be judged in terms of improving its efficancy in performing this function.