For the last several decades, academics have been fighting over what we might think of as the soul of tort law. Law & economic theorists contend that tort is about the efficient allocation of the costs of accidents; traditionalists view tort as a law of wrongs and redress. A common criticism wielded against the traditionalists is the problem of moral luck: It is a bedrock principle of morality that you can only be responsible for that which is under your control. But in many cases, whether and how much a plaintiff recovers against a defendant will turn entirely on factors outside of either party's control. And if tort law is fundamentally at odds with a bedrock principle of morality, then any view of tort as a law of wrongs is incoherent, or at least morally arbitrary, and must be rejected. While traditionalists have proposed a variety of answers to this critique, this Article argues that the best response is two-fold. First, the scope of the problem of moral luck is really quite limited: it applies only to the concept of moral blame. As such, the traditionalist can neatly avoid objection entirely by grounding her tort theory on notions of wrongdoing that don't make use of blame. Second, the use of the problem of moral luck in the context of tort law requires the law & economic theorists to take on several controversial positions in the realm of normative ethics-positions in conflict with many of our everyday moral judgments. While some scholars may be perfectly happy to adopt these views, these unintended consequences must be recognized, articulated, and defended before the law & economic theorists can get any traction in their critique.
Tort, Moral Luck, and Blame,
60 Clev. St. L. Rev.
available at http://engagedscholarship.csuohio.edu/clevstlrev/vol60/iss1/3