John C. P. Goldberg

History, Theory, and Tort: Four Theses

Brian Simpson’s article arguing that the House of Lords’ 1868 decision in Rylands v. Fletcher must be understood against the backdrop of contemporaneous, catastrophic dam failures is a work of history, first and foremost. Guido Calabresi’s book arguing that the costs of accidents are most likely to be minimized if liability is assigned to cheapest cost avoiders is a work of theory, first and foremost. Both deservedly classics, they ask different kinds of questions, and analyze them using different methods. Still, the foregoing contrast is easily overstated. Without theory, history risks a descent into trivia. Part of what makes Simpson’s article worth reading 35 years after its publication is that it has a theory about Rylands, and indeed about common law adjudication. Theory without history is lacking in its own way—angels dancing on pinheads and all that. Part of what makes

War for the Wrong Reasons: Lessons from Law

In Ethics for Enemies, Frances Kamm argues that, under certain conditions, it is morally permissible for a state to launch a war for opportunistic reasons. We consider how law might shed light on Kamm’s argument. Part I addresses the application of criminal and tort law to individual acts of violence analogous to the acts of war analyzed by Kamm. It primarily argues that these bodies of law rely on a framework for determining legal permissibility that runs counter to, and perhaps demonstrates weaknesses in, Kamm’s framework for assessing moral permissibility. Part II considers the law of war. It maintains that, although modern law permits certain opportunistic acts of war, the law does so on terms that cut against Kamm’s claim as to their moral permissibility.

Misconduct, misfortune, and just compensation: Weinstein on torts

In this Comment on Professor Minows article, Professor Goldberg explores Judge Weinsteins understanding of the relationship between justice and compensation in mass tort litigation. Professor Goldberg questions whether Judge Weinstein accepts the traditional notion that justice requires full restoration of an injured plaintiff to the status quo ante. Instead, in mass tort cases, where either there is no wrongdoer or the extent of injury to the plaintiff is disproportionate to the degree of wrongdoing by the defendant, Judge Weinstein may believe that compensation is more properly measured by the plaintiffs needs. This belief may explain why damage awards approved by Judge Weinstein have sometimes fallen substantially below the full compensation demanded by the traditional doctrine. While a need-based approach to compensation departs from tort law orthodoxy, Professor Goldberg shows that Judge Weinsteins approach finds support in the works of tort theorist FlemingJames. James likened mass torts to natural disasters. Whereas the orthodox tort model presupposes an individual wrongdoer who directly caused the plaintiffs losses, responsibility in modern mass torts may be so widespread and diffuse as to be attributable to no one in particular. In such cases, where liability may not track fault, Weinstein and James question the need, and even the justice, of requiring the defendant to make the plaintiff whole. Professor Goldberg demonstrates how Weinstein, like James, shows a preference in mass tort cases for distributive, rather than corrective, justice. He thus answers the charges of critics who would see mass tort settlements approved by Judge Weinstein as a denial of justice, while assuring admirers that, in the area of compensation too, Judge Weinsteins ultimate concern is that justice is done.