Mc GILL LAW JOURNAL
REVUE DE DROIT DE McGILL
Mon tral
Volume 34
1989
No 3
The Special Morality of Tort Law
Ernest Weinrib*
This article outlines the morality latent in the
structure of tort law. Rejecting both the in-
strumentalism of economic analysis and
non-instrumental accounts that do not reflect
tort laws special moral character, the author
suggests that tort law reflects the morality dis-
tinctive to the relationship of doing and suf-
fering harm. This morality –
first
formulated in Aristotle’s discussion of cor-
rective justice and elaborated by Kant –
treats doing and suffering as an integrated
normative unit that allows the court to fulfill
a properly non-instrumental adjudicative
function. Corrective justice thus illuminates
the coherent normative structure of tort law
and provides an internal standpoint for the
critique of tort doctrine.
Cet article fait ressortir de ]a structure du
droit de la responsabilit6 ddlictuelle la morale
qui y est latente. L’auteur rejette l’instrumen-
talisme de l’analyse 6conomique ainsi que les
approches non-instrumentalistes qui ne rMfl –
tent pas le caract&re moral spEcial du droit
de la responsabilit6 d~lictuelle. Uauteur sug-
gre que le droit de la responsabilitE d~lic-
tuelle r~fl~te une morale distincte: celle de ]a
relation entre celui qui fait du tort et celui
qui subit un tort. Cette morale fut d’abord
formulae par Aristote i propos de ]a justice
corrective puis elle fut dlabor~e par Kant. Elle
consid~re la commission d’un tort et le fait
de devoir en subir un comme une seule et
meme unit6 normative int~gr~e qui permet
au tribunal de remplir une fonction adjudi-
cative proprement non-instrumentale. La
justice corrective fait donc ressortir la struc-
ture normative coh~rente de la responsabilit6
d~lictuelle qui est la pierre d’assise permet-
tant une critique de la doctrine de la respon-
sabilit6 ddlictuelle de r’int~rieur.
*
*
*
*Professor of Law and Special Lecturer in Classics, University of Toronto. This paper is the
text of a talk to the Tort Law Section at the 1988 Annual Meeting of the Association of American
Law Schools.
McGill Law Journal 1989
Revue de droit de McGill
McGILL LAW JOURNAL
[Vol. 34
I.
What is the moral significance of tort law? The economic writing that
has dominated tort scholarship for two decades has largely ignored or cir-
cumvented this question. The terminology of moral discourse rarely appears
in the immense and brilliant tort literature that revolves around efficiency,
transactions costs, and cheapest cost avoidance. Yet most tort scholars would
acknowledge that their subject has a moral dimension that economic anal-
ysis fails to illuminate.
Behind this contrast of the moral with the economic lie two grounds
for dissatisfaction with economic analysis. The first is normative: because
economic analysis is unabashedly instrumentalist, it depends on what many
observers regard as a particularly problematic moral theory. The second is
explanatory: whatever its general merit, economic analysis seems alien to
tort law specifically. To take just one example, how can a mode of analysis
that starts with the causal nihilism of the Coase theorem I yield an adequate
account of a field of law for which causation is a central organizing concept?
These two considerations may be different ways of saying that economic
analysis does not take tort law seriously as a system of rights. By treating
rights only instrumentally as the placeholders of certain economic values,
economic analysis misses the significance of the rights-vindicating structure
of tort law.
Reflection on the morality of tort law points us in a different direction.
Tort law is to be considered not as a vehicle of economic regulation, but as
a repository of non-instrumental judgments about action. Our concern is
thus with the propriety, rather than the price, of activity.
How are we to specify the morality of tort law? I propose to start with
a tempting but erroneous answer, in order to work back to an appreciation
of what the question really involves. I will then outline a different approach,
and conclude with some general comments. My aim is to take the contrast
between the moral and the economic to its extreme by setting out a com-
pletely non-instrumental understanding of tort law.
II.
First, the tempting error. George Fletcher’s article, “Fairness and Utility
in Tort Theory” 2 is a magnificent attempt to elucidate the moral foundations
IR.H. Coase, “The Problem of Social Cost” (1960) 3 J. Law & Econ. 1.
2(1972) 85 Harv. L. Rev. 537.
1989]
MORALITY OF TORT LAW
of tort law. Fletcher construes tort liability as a function of two consider-
ations: did the defendant impose a non-reciprocal risk on the plaintiff, and
was the defendant’s act excused? I want to focus on the second of these
considerations because it interestingly misapprehends the relation of moral
notions to tort law.
Excuses occupy a second stage of a legal argument because they pre-
suppose the liability that would obtain in their absence. If applicable to tort
law, an excuse would supervene upon an already completed cause of action
to frustrate the plaintiff’s entitlement. Fletcher sees excusing conditions as
suspending the defendant’s blameworthiness in a concrete situation without
denying the wrongfulness of what he or she did. The fact that the act was
performed in circumstances of ignorance or exigence induces compassion
for human failing in times of stress. Moreover, because anyone in similar
circumstances would have done the same thing, the presence of excusing
conditions removes the rational basis for distinguishing between the party
causing harm and other people.
Throughout, Fletcher’s analysis prescinds from instrumental judgments
about collective welfare. Its focus is on the nature of the defendant’s act and
the fairness of holding him liable for it. Fletcher thus attempts to provide
an alternative to instrumentalism by grounding liability in the moral quality
of a tortious act.
and what Fletcher does not provide –
The difficulty is that Fletcher does not explain why the excuse is allowed
to affect the tort plaintiff at all. Because an excuse “excuses” from something,
the plaintiff’s right to recover from the defendant must be notionally com-
plete before the excuse becomes juridically significant. What we now need
is an account not of why the
–
excuse mitigates the defendant’s blameworthiness generally, but of why it
neutralizes the plaintiff’s, right specifically. Why should the probability that
most people in the defendant’s position would have committed the same
wrong lead to the cancellation of the right of a particular plaintiff?. Even if
the excusing condition moves us to compassion, on what grounds does our
compassion operate at the plaintiff’s expense? By allowing the excuse, we
are either obligating the victim to be compassionate to the wrongful injurer
or we are exercising collective generosity with the plaintiff’s right.
Fletcher’s mistake is to incorporate excuses into his tort theory on the
basis of the general moral significance he ascribes to them. He ignores the
fact that tort law does not express morality at large but has a specific structure
that a moral account of it must track. Fletcher’s theory fails because his
excuses are incompatible with the special moral nature of tort law as a
medium for the vindication of the plaintiff’s rights against the defendant.
One can perhaps trace Fletcher’s tort theory to his masterly writings on
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[Vol. 34
criminal law, where he has expounded the role of excuses with great subtlety.3
Criminal law, however, with its public prosecutions and its insistence on
mens rea, has its own doctrinal and procedural structure. Although both
tort and criminal law deal with responsibility, the moral concepts that inform
each of them need not coincide.
Tort law itself gives evidence of its special moral character. Although
concerned with culpability, it judges this culpability objectively and thus
sets standards that may be beyond the capacity of particular defendants. A
finding of liability can even be accompanied by an acknowledgment that
the defendant is in no way morally to blame.4 Some have concluded from
this that tort law can make no moral sense. I wish to suggest, however, that
tort law exhibits a specific kind of moral sense.
III.
This criticism of Fletcher reminds us that we seek not simply a non-
instrumental morality, but one that captures and reflects the special moral
character of tort law. Our question, “What is the moral significance of tort
law?”
is thus equivalent to “How can tort law be conceived as non-
instrumentally normative?” At stake is our understanding of tort law, not
merely our understanding of morality.
What, then, do we mean by tort law? Without prejudging the moral
issue, we must identify our subject matter in a way that remains true to our
juristic experience. I propose that we take as minimal a view as possible by
concentrating on aspects of tort law that are indispensable to its intelligibility
as a distinctive mode of legal ordering. 5 Among the mass of doctrines,
holdings, principles, and institutional arrangements that we associate with
tort law are features that are constitutive of our conception of tort law. The
systemic absence of these features would preclude our identifying what re-
mained as tort law at all. Whatever the morality of tort law, it is necessarily
the morality of these constitutive features.
For example, causation is one such feature. I think we would not identify
as tort law a mode of ordering that systemically exacted damages regardless
of whether the defendant caused the injury that the damages were to repair.
A legal arrangement under which compensation was triggered by the injury
3See especially G.P Fletcher, Rethinking Criminal Law (Boston: Little Brown, 1978) at 798-
875.
4E.g., Roberts v. Ramsbottom, [1980] 1 W.L.R. 823, [1980] 1 All E.R. 7 (Q.B.D.).
5For an extended treatment of the methodology toward which this sentence gestures, see E.
Weinrib, “Understanding Tort Law” (1988) 23 Valparaiso U. L. Rev. 486 (the 1988 Monsanto
Lecture on Tort Law Reform and Jurisprudence).
1989]
MORALITY OF TORT LAW
itself and not by its tortious infliction might be desirable, but it would be
an alternative to tort law, not a version of it.6
Of course, causation is under attack in American tort law to a degree
unimaginable a generation ago. These attacks, however, do not undermine
the conceptual centrality of causation for tort law. They carve out particular
exceptions to a systemic requirement. Even in a case like Sindell,7 causation
is still present to our thinking, just as one can have sensation of a limb now
amputated. Only because we recognize that causation is fundamental for
tort law does the attenuation of that requirement in the Sindell case become
a matter of celebrity.8
Features such as causation, which are constitutive of our conception of
tort law, are doubly significant. Not only do they identify the tort law whose
morality we seek; they also provide a principal justification for seeking it.
Because they isolate a relationship of two litigants, they cut off the com-
prehensive consequentialism of instrumentalist and economic inquiry.9
Hence the plausibility of attempting to account for tort law in terms of a
non-instrumental morality.
IV.
The approach I now wish to outline recognizes that causation is con-
stitutive of tort law as an identifiable legal field. Tort law is characteristically
61 mean this as a substantive, not a semantic, point. Whether or not we would call it tort
law, we would be sensitive to a radical difference between this arrangement and the mode of
ordering that we presently call tort law.
7Sindell v. Abbott Laboratories, 163 Cal. Rptr. 132, 607 R 2d 924 (Cal. S.C. 1980).
8Even in Sindell the hold exerted by causation is evident from the fact that the defendants
were allowed to disprove causation despite the incoherence thereby introduced into the court’s
reasoning. The justification for holding each defendant liable for the proportion of each injury
represented by its market share is that, over the aggregate of DES cases, each defendant will
be subject to a total liability that approximates its share of the costs of all the DES injuries.
Ibid. at 145. This rationale requires apportioning the cost of each and every DES injury, not
merely of the ones that the defendant may have caused; otherwise, the exonerated defendant’s
total liability will, at the end of the day, be smaller than its proportional share of all DES
injuries. On the court’s reasoning, apportionment should be ordered regardless of whether the
evidence shows that the defendant did or did not cause the injury of a particular plaintiff. The
inconsistency of causation with the Sindell court’s larger rationale was recently recognized by
the New York Court of Appeals, which held, in a DES case similar to Sindell, that “because
causation is based on the overall risk produced, and not causation in a single case, there should
be no exculpation of a defendant who, although a member of a market producing DES for
pregnancy use, appears not to have caused a particular plaintiff’s injury.” See Hymovitz v. Eli
Lilly and Company et al. (Ct. App. N.Y. April 4, 1989) (Westlaw NY-CS, 1989 WL 30301).
9For a discussion of the problems with economic interpretations of causation, see R. Wright,
“Actual Causation vs. Probabalistic Linkage: The Bane of Economic Analysis” (1985) 14 J.
Legal Stud. 435.
McGILL LAW JOURNAL
[Vol. 34
concerned with the defendant’s doing and the plaintiff’s suffering the same
harm. The special morality of tort law, accordingly, is the morality that
pertains to this relationship of doer and sufferer.
Our question is how to conceive of this relationship non-instrumentally.
The answer is clear enough in general terms: the relationship of doer and
sufferer must be seen as having in and by itself a normative dimension that
tort law reflects. On this view the doing and suffering of harm is not the
occasion to promote an independently justifiable goal, such as deterrence,
compensation, or wealth maximization. Because the normative dimension
is intrinsic to the doing and suffering, the tort relationship is not a means
to an end. Rather, each harm done and suffered is the core of a single
transaction that relates this doer to this sufferer, and each such transaction
is a discrete unit of normative significance.
This non-instrumental conception of tort law has the following dimen-
sions. First, because each transaction is a discrete unit, tort law is not an
ordering over an aggregate of transactions. Accordingly, it does not seek to
combine or to average utilities, however defined, across transactions. Of
course, the norms of tort law apply to many transactions, but only because
they apply separately and self-sufficiently to each. No consideration extrinsic
to a particular instance of doing and suffering has any bearing. Thus it is
irrelevant that the defendant who was negligent on this occasion may oth-
erwise be a person of exemplary carefulness. Similarly, loss-spreading
through insurance cannot be a basis for liability, because loss-spreading
operates across a set of potential transactions rather than within a single
transaction. Tort justification is therefore not geared to the desirable con-
sequences of transactions in the aggregate, but to the entitlements of the
doer and sufferer in each transaction.
Second, the treatment of each transaction as a unit implies that its
elements are internally integrated. If the harm constitutes an integrated
relationship of doing and suffering, the respective parties cannot be consid-
ered independently of each other. Normative considerations that are uni-
laterally applicable either to the doer or to the sufferer are, therefore, out
of place. For instance, the tort relationship is not morally explicable in terms
of deterrence, because deterrence can, without loss of any of its justificatory
force, focus on the doer even in the absence of any particular sufferer. If
deterrence were the justification for tort law, there would be no need for
actual damage, nor for compensation to be paid to the plaintiff, nor for
plaintiff’s injury to be the measure of damages. Similarly, tort law is not
understandable as a compensation mechanism, because compensation ap-
plies one-sidedly to the sufferer and does not necessarily encompass the
doer. If compensation were the justification for tort law, there would be no
reason to insist on causation by the defendant or to make compensation
1989]
MORALITY OF TORT LAW
take the form of a payment by the tortfeasor. The goals of deterrence and
causation each fail to embrace both parties. This unilateral emphasis was
also, as we have seen, the problem with Fletcher’s excuses which, by focusing
solely on the doer, imposed on the sufferer the cost of collective compassion.
Third, if the integration of the doer and sufferer is to count as a moral
relationship, the parties must stand on a footing of equality. Doing-and-
suffering is not a merely natural phenomenon beyond the range of morality;
it has an intrinsically normative dimension. Because it is intrinsic, the nor-
mativeness cannot impinge upon the relationship from the outside. More-
over, because the parties may be strangers to each other, the law cannot
properly require acts of love or generosity or the commitment that inheres
in community.10 Equality as between doer and sufferer is the only conception
internally available to define the relationship’s normative character. This
equality is not an equality across transactions that would be satisfied by
any liability rule so long as it was uniformly applied to all lawsuits. Con-
siderations that order across transactions have already been excluded as
irrelevant to the intelligibility of the transaction as such. Rather, equality
must operate within each transaction. This, in my view, is the significance
of the objective standard of negligence, which precludes the doer’s personal
qualities from being decisive to the relationship and thus dominating it.
Fourth, when the doer violates this equality, for instance, by acting
negligently or inflicting an intentional harm, he or she wrongs the sufferer.
The payments exacted by tort law are not taxes or licensing fees for acts
that are permitted on condition that the defendants pay for damage thereby
caused.’1 A tort is an act that wrongs the victim. The defendant owes the
plaintiff a duty, operative at the moment of action, to abstain from com-
mitting such an act. The obligation to compensate is the juridical reflex of
an antecedent obligation not to wrong.
Fifth, attention to the standpoint internal to the relationship of doer
and sufferer allows the court to fulfill a properly adjudicative function. The
court’s task is to decipher and to specify what is required by the normative
dimension of this relationship in the context of a particular dispute. Because
tort adjudication is morally limited to what is inherent in the defendant’s
doing and the plaintiff’s suffering of the same harm, a court cannot impose
upon the relationship an independent policy of its own choosing. It inter-
venes at the instance of the wronged party in order to undo or prevent the
1’The role of community in tort law is discussed in E. Weinrib, “Liberty, Community, and
Corrective Justice” (1988) 1 Can. J. Law & Jurisprudence 3.
SFor a discussion of the structure and implications of construing torts as permissible acts,
see J.L. Coleman & J. Krauss, “Rethinking the Theory of Legal Rights” (1986) 95 Yale L. Rev.
1335.
REVUE DE DROIT DE McGILL
[Vol. 34
wrongful harm. Adjudication thus conceived makes explicit what is latent
in the relationship between the parties. It does not involve the legislative
selection of a course of action that will promote the general welfare. In other
words, tort law is not public law in disguise. 12
These five aspects, and the relationship of doer and sufferer out of which
they arise, account for all the fundamental doctrines of negligence law. The
unit of analysis is the sequence from the unreasonable creation of risk by
the defendant to the materialization of the risk in harm to the plaintiff. The
transitivity of the doer’s acting on the sufferer is reflected in the requirement
of factual causation and, more broadly, in the law’s insistence that liability
presuppose misfeasance rather than non-feasance. The rubrics of duty and
proximate cause also link doing and suffering, by requiring the plaintiff’s
injury to be within the ambit of the unreasonable risk created by the de-
fendant’s negligence. 13 The unity of the plaintiff-defendant relationship is
further attested to by the damage award itself, which quantifies into a single
sum both the defendant’s wrongdoing and the plaintiff’s injury. The equality
of the parties is embodied in the objective standard of care, which prevents
the terms of the relationship from being unilaterally determined by the
subjective capacities of the doer. Finally, the entire moral relationship is
implemented through the adjudication of the plaintiff’s claim that the de-
fendant’s action has wronged him.
V.
For this account of the special morality of tort law I can claim no credit,
if any credit be due. I have merely summarized and applied to tort law the
oldest and most durable philosophical tradition about the nature ofjuridical
ordering. The distinctive moral structure of the doing and the suffering of
harm was first noticed by Aristotle, who termed it corrective justice.14 This
discovery marked the beginning of legal philosophy properly speaking, be-
cause it disclosed how an interaction between persons could be understood
in terms that were purely juridical, rather than political, ethical or com-
munitarian. Aristotle’s achievement was all the more remarkable because
corrective justice stood apart from the rest of his moral philosophy. Although
12Contrast L. Green, “Tort Law: Public Law in Disguise” (1959-60) 38 Texas L. Rev. 1, 257,
reprinted in L. Green, The Litigation Process in Tort Law, 2d ed. (Indianapolis: Bobbs-Merrili,
1977) at 115.
13Palsgrafv. Long Island R.R., 162 N.E. 248, N.Y. Supp. 339, 99 (1928); Overseas Tankship
(U.K.) Ltd. v. Morts Dock & Engineering Co. (The Wagon Mound, No. 1), [1961] A. C. 388,
[1961] All E.R. 404 (PC.).
4Aristotle, Nicomachean Ethics V, 2-4, discussed in E. Weinrib, “Aristotle’s Forms ofJustice”
(1989) 2 Ratio Juris (forthcoming).
1989]
MORALITY OF TORT LAW
Aristotle’s ethical writing explicates the nature of virtue, he nonetheless
acknowledged that private law had a distinctive rationality based not on
virtue but on the doing and suffering of harm.
Aristotle was a theorist of the good. This was the reason that he could
only describe corrective justice but not absorb it into the fabric of his phi-
losophy. For corrective justice concerns the right, not the good. Its thrust
is entirely negative: not what one ought to do to achieve the good, but what
the rights of another require one to abstain from doing. It sets out a structure
of entitlement in interaction that does not engage the question of whether
such entitlements are the optimal way of promoting well-being, however
conceived.
Corrective justice was not integrated into a comprehensive moral phi-
losophy until Kant’s great elucidation of the concept of right.’5 For Kant
the basic question of legal philosophy was whether the action of one freely
willing person could be conjoined with the freedom of everyone in accord-
ance with a universal law. The aspects of Aristotle’s corrective justice that
I set out above coalesce in Kant’s reference to universal law: because the
law is universal, it exhibits the normativeness intrinsic to each transaction
on the basis of the equality of freely willing beings. The rights manifested
by corrective justice are thus tied to Kant’s notion of freedom and to the
concept of right entailed in that freedom.
Although corrective justice has long been prominent in European think-
ing about law, it has not fared well in contemporary theorizing. In the United
States corrective justice is most closely associated with Richard Epstein’s
promotion of strict liability. 16 In postulating that tort law should in principle
hold the defendant liable for whatever injury he causes, Epstein confuses
what tort law is about –
the doing and suffering of harm – with what tort
law requires. Because his suggestion allows the plaintiff’s holdings to de-
termine the limits of the defendant’s action, it violates the equality of doer
and sufferer. Epstein thus ignores the norm that pertains to corrective justice.
1I. Kant, The Metaphysical Elements of Justice, Part I of the Metaphysics of Morals, trans.
J. Ladd (Indianapolis: Bobbs-Merrill, 1965), recently discussed in E. Weinrib, “Law as a Kantian
Idea of Reason” (1987) 87 Colum. L. Rev. 472, and P Benson, “External Freedom According
to Kant” (1987) 87 Colum. L. Rev. 559.
16See especially R.A. Epstein, “A Theory of Strict Liability” (1973) 2 J. Legal Stud. 151, and
R.A. Epstein, “Defenses and Subsequent Pleas in a System of Strict Liability” (1974) 3 J. Legal
Stud. 165.
McGILL LAW JOURNAL
[Vol. 34
As a result, his writings state and restate an elaborate intuition without ever
supplying a convincing argument on its behalf.’ 7
The notable feature of corrective justice in its Aristotelian version is
that it is the moral idea internal to tort law. This internalism has two mu-
tually sustaining aspects. First, corrective justice is internal to the relation-
ship of doer and sufferer: it is the morality applicable when this relationship
is considered on its own, without being oriented toward some extrinsic ideal.
Second, the morality of doing and suffering inheres in the underlying con-
ceptual structure of tort law: tort law is a distinctive and coherent mode of
legal ordering only inasmuch as it actualizes corrective justice.
Because corrective justice is internal to tort law, an account that features
corrective justice is both ambitious and modest. The ambition lies in show-
ing how the basic doctrinal and institutional structure of tort law can be
understood as embodying a coherent non-instrumental idea. Such an ac-
count has both the normative and explanatory dimensions that, as I men-
tioned at the outset, are problematic for economic analysis. Moreover, it
provides the decisive standpoint for the criticism of specific tort doctrines,
namely, the standpoint implicit in tort law itself.
However, such an account is also modest because, in representing only
the special morality of tort law, it provides no reason for preferring tort law
to its competitors. A general scheme of compensation for personal injuries
has its own morality rooted in distributive justice. From its own premises,
the morality of tort law cannot be established as superior to an alternative
legal morality. Yet even in this context, attention to corrective justice allows
us to filter out the bad arguments against tort law. A standard criticism of
tort law that is supposed to justify its abolition is that the two-party structure
of tort litigation accomplishes neither compensation for plaintiffs nor the
deterrence of negligent defendants. 18 Such one-sided purposes, however, are
alien to the relationship of doer and sufferer in corrective justice. Given the
inherently bilateral nature of tort law, one can no more fault tort law for
failing to achieve a purpose that implicates only one of the parties than one
can criticize a turtle for failing to fly.
17For criticism of Epstein’s strict liability theory, see I. Englard, “Can Strict Liability Be
Generalized?” (1982) 2 Oxford J. of Legal Stud. 245; S. Perry, “The Impossibility of General
Strict Liability” (1988) 1 Can. J. of Law & Jurisprudence 147; E. Weinrib, “Causation and
Wrongdoing” (1987) 63 Chi.-Kent L. Rev. 407 at 416-429. For Epstein’s reaction to such
In Context: An Afterword” (1987) 63 Chi.-Kent
criticisms, see R.A. Epstein, “Causation –
L. Rev. 653 at 657-664.
IsSee, for instance, M.A. Franklin, “Replacing the Negligence Lottery: Compensation and
Selective Reimbursement” (1967) 53 Virginia L. Rev. 774; D. Sugarman, “Doing Away with
Tort Law” (1985) 73 Calif. L. Rev. 555.
1989]
MORALITY OF TORT LAW
The popularity of these goal-oriented criticisms of tort law is a symptom
of our estrangement from the internal mode of justification represented by
corrective justice. Contemporary legal scholarship assumes that justification
must operate as a normative lever that moves its object from without.
Corrective justice, on the other hand, implies that tort law can be compre-
hended by reference to a normativeness immanent to it. Because it reveals
how tort law can be a coherent juridical enterprise, corrective justice is the
justificatory structure that renders tort law intelligible from within.
To talk of immanence and intelligibility is to harken back to the ra-
tionalism that began with the natural law of Greek antiquity and continued
with the natural right of the Enlightenment. This tradition has little vitality
amid the functionalism and skepticism of contemporary scholarship, both
in tort law and more generally. 19 Until we return to its riches, we will con-
tinue to be perplexed about the morality of tort law. Having covered our
eyes, we can hardly be expected to notice the path that has long been open
before us.
19E. Weinrib, “Legal Formalism: On the Immanent Rationality of Law” (1988) 97 Yale L.J.
949.
