Rights, Wrongs, and Recourse in the Law of Torts

Abstract

I. INTRODUCTION Cardozo's opinion in Palsgraf v. Long Island Railroad Co.1 hinges on a stark assertion about rights and wrongs: A plaintiff has no right of action unless she can show "'a wrong' to herself; i.e., a violation of her own right."2 Cardozo himself made this principle the core of his analysis, yet scholars typically regard it as impenetrable, circular, vacuous, or, as Posner put it, "eloquent bluff."3 Small wonder, then, that readers typically turn to "reasonable foreseeability" as the essence of the case. Leading scholars treat Palsgraf as a proximate cause case,4 despite Cardozo's pronouncement that "[t]he law of causation, remote or proximate, is thus foreign to the case before us."5 Though Palsgraf is widely regarded as the most famous case in American tort law, Cardozo's own reasoning in Palsgraf is typically ignored or derided, but not explained. The facts of Palsgraf may be peculiar, but its core principle is pervasive: For all torts, courts reject a plaintiffs claim when the defendant's conduct, even if a wrong to a third party, was not a wrong to the plaintiff herself. For example, an injured plaintiff can win in fraud only if she was defrauded, in defamation only if she was defamed, in trespass only if her land rights were violated, and so on. Courts reach these results even where the defendant acted tortiously, the plaintiff suffered a real injury, and the plaintiffs injury was reasonably foreseeable. The legal rule upon which these cases rely is that which our scholarly tradition treats so ambivalently in Palsgraf: A plaintiff cannot win unless the defendant's conduct was a wrong relative to her, i.e., unless her right was violated. I shall call this principle the "substantive standing" rule and shall show that it is a fundamental feature of tort law. Proponents of the most prominent theoretical approaches to tort law, law and economics6 and corrective justice theory,7 have generally neglected the substantive standing rule, and there are strong reasons to believe these approaches are unable to explain this area of tort doctrine. The larger problem is that the substantive standing rule provides evidence that tort law is built around certain conceptions of "wrongs," "rights," and "rights of action," and yet, I shall argue, seminal versions of law and economics and corrective justice theory do not appear to have adequate resources to accommodate these conceptions. With this in mind, I shall sketch a third way of understanding tort law.8 While this third view differs markedly from its competitors, it is far from eccentric. Indeed, I think it is the view that has always been embedded in tort law itself.9 Tort law is not just a system for the selective imposition of liability in ways that will maximize wealth or other social welfare goals, as some law and economics scholars contend. Nor is it simply a system for rectifying losses or apportioning moral responsibility, as some corrective justice theorists maintain. Like a great deal of statutory law, tort law articulates rules telling citizens how they may and may not treat one another and how they may expect to be treated by others. In deciding and announcing these rules, appellate courts are imposing duties on individuals not to treat others in certain ways and creating rights in individuals not to be treated in certain ways. The tort law's web of rights and duties embodies a plurality of values as broad as those found in our statutory law. Rights of action should be understood against the backdrop of these rights, wrongs, and duties. Our system normally prohibits individuals and the state from acting against another individual. However, when the state recognizes a private right of action, it empowers and privileges an individual to act against another through the coercive machinery of the state-to take his property or to force him to behave a certain way. The substantive standing rule states the conditions under which an individual is so empowered to act against a defendant: only when she has been legally wronged by the defendant, only when her own legal right has been violated by the defendant. …