The law and political economy perspective is defined by its focus on power, the ability to control and change things (especially people). From the vantage point of law and political economy, courts, markets, legislatures, and all other institutions can and must be assessed in terms of how they create and distribute power. Because power exists within and among people, the function of an institution cannot be grasped by simply looking at its formal structure, the words that define its constitutive rules. This is why, as Michael A. Wilkinson and Hjalte Lokdam have noted, the law and political economy perspective demands that institutions be seen through “a historical, conceptual and interdisciplinary lens.”
That lens may help students running through the confusing maze that is many first-year torts classes. Tort law is made up of a hodgepodge of liability rules, running from the apparently criminal (false imprisonment) to the vague (nuisance) to the obscure (abnormally dangerous activity) to a dog’s name with a t on the front (trover). The judicial opinions assigned to illuminate these rules are often written in dense, arcane legalese. If students manage to distill a judge’s reasoning from these opinions, what they often discover are idiosyncratic justifications that do not seem to hang together as a cohesive, intelligible whole.
The law and political economy perspective can clear up some of tort law’s messiness by providing a conceptual framework for tort law’s liability rules. Like criminal law’s rules of criminality, liability rules define and address certain kinds of wrongs. But while rules of criminality address their wrongs by depriving power from a wrongdoer through punishment, rules of liability address their wrongs by transferring power from a wrongdoer to the wronged, often through the payment of money damages.
Tort’s rules of liability not only redistribute power in the wake of a wrong, but also create power well before any wrong has been committed. People look to tort law (as well as criminal law) to know what is wrong, and what the consequences are for wrongdoing. The threat of power-shifting stated by rules of liability encourage them to take some behaviors and avoid others. To craft a rule of liability is to both distribute power and to exercise it over others.
With this fact in mind, tort law’s irregularity can be seen as the product of different answers to the question of who deserves power. Each rule of liability is the result of some struggle to answer this question in a given context. Whatever that answer is, it was produced by a particular confluence of history, ideology, and identity. To present a tort case without examining these forces, to frame liability rules as matters of ahistorical logic instead of contingent perspective, is to obscure the true nature of tort law – and its potential for structuring just distributions of power.
Tort law is one of many institutions capable of creating and distributing power, including legislatures, regulators, and businesses. So what distinguishes tort law is not only how it creates and distributes power, but also to whom it grants these power-structuring abilities. Tort law is a common law system, which means that its rules are within a body of judicial opinions. Rules of liability are written by one kind of person: a judge. This is why tort law is often called “judge-made law.”
But it is a mistake to believe that judges are the only ones that create and distribute power using tort law. For one, many of the rules that define the tort law system are not written by judges. In every state, a complex web of statutes written by legislators define the reach of tort law’s power. These include jurisdictional rules about who can access the tort system, damage caps that limit how much power can be transferred in the context of a given wrong, and even bans on recovery for certain kinds of wrongs.
There is also a more fundamental error in seeing tort law as “judge-made law.” Judges only play a reactive role in making tort law, as they cannot file lawsuits. Judges may write the opinions that decide how power will be redistributed in a given dispute. But it is plaintiffs (and, to a lesser extent, defendants) who frame the facts and arguments that judicial opinions must utilize and address. Judges, of course, can reframe those facts and arguments. But no judge crafts a new rule of liability, or expands an existing rule, on their own. It is a plaintiff who defines the wrong concretely and proves that they deserve redress. Judges are not the only – or even primary – actors shaping and driving tort law.
Likewise, it is a mistake to believe that the only way that tort law creates and redistributes power is through liability rules. Tort law is a key with which people can unlock the extraordinary tools of the judiciary. By filing a complaint, you can force another person – no matter how powerful – to address a wrong. By obtaining discovery, you can generate the knowledge necessary to understand your problems. By aggregating your claims, you can create solidarity among the similarly harmed. And by engaging a court’s powers to create equitable remedies, you can craft flexible, innovative tools for controlling those who are otherwise empowered to control you.
If there is a democratic heart of tort law, it is here, in its ability to crack open the doors of courts to the disempowered. There are many other institutions for creating and distributing power. But there are few that offer the ability to craft rules of power to, at least in theory, anyone. It is the rare person that has the authority and influence to pass a statute or draft a regulation. But any of us – regardless of who we are or where we stand in society – have the capacity to file a tort suit.
In practice, tort law is rarely so empowering. The doors of many courtrooms are not so easily opened, thanks to regressive filing fee requirements and arcane procedural rules. Even when courtrooms can be accessed, winning a case typically takes a good lawyer, lots of time, and a judge who can put prejudice aside to decide a case fairly. These resources are few and far between, leaving a yawning gap between the high aspirations and grim realities of tort law.
But the purpose of the law and political economy perspective is not to simply judge our current institutions as lacking. Instead, by tracing lines of power and control, the perspective seeks to explore what institutional changes are necessary to create what David Singh Grewal, Amy Kapczynski and Jedediah Purdy call “a more egalitarian and democratic society.” It may be that the essential features of tort law, the whos and the hows of its power- structuring functions, make it irredeemable. But it also may be that tort law can be an essential part of an institutional ecosystem aimed at achieving egalitarian justice – especially in a world where concentrated power can easily capture and contort other institutions traditionally seen as avenues for democratic restructuring of power relations.
The purpose of this piece is not to establish with certainty the value of tort law. That task requires a deeper examination of history and political theory, with a focus on how tort law reifies existing categories of power like class, race, and gender. (The forthcoming Torts: A Law & Political Economy Countersyllabus and other posts in the Torts 1LPE series provide some of these examinations). The purpose of this piece is to reveal tort law’s fluid and complex identity as a multipurpose tool reforged a thousand times for a thousand purposes. Perhaps it can be reforged to yours.