Muss Es Sein? Not Necessarily, Says Tort Law

I INTRODUCTION When factions quarrel over whether tort law is progressive, (1) they broach a conversation that extends beyond labels and name-calling. Venues for the debate abound. In one, the tort reform battleground, on which millions of dollars and centuries of doctrine are at stake, partisans make conflicting arguments about which side is progressive. One cohort thinks of tort litigation as David aiming his slingshot at Goliath's infinite greed and rapacity; (2) another coins such phrases about injustice as "the tort tax," and "the lawsuit lottery," argues that bloated transaction costs enrich lawyers and bureaucracies, and laments the loss of playgrounds and obstetricians--literally "motherhood issues," as one political scientist calls them, with "equity, efficiency, security, and liberty" at stake. (3) Unabated after many decades, (4) tort-reform rhetoric expresses a struggle over the mantle of progress. The question whether tort law is progressive extends beyond internecine disputes like the tort-reform conflict. Personal injury law, treated as synonymous with tort law for the purposes of this Article, engages subjects that can loom larger than torts: security, freedom, dignity, aggregate efficiency, costs, pain, and the powers and limits of state authority. If it could be answered, or even explored anew. the question might not only help observers decide which side to favor in discrete debates, but also encourage law-focused individuals who call themselves progressive or conservative to find their politics tested and sharpened, in broader contexts. Alliances could shift. Decisions that individuals make about their civic lives--which issues to think about, what projects to pursue--might change. The main obstacle to answering the question is a lack of crisp definitions: Nobody has said with certainty what "'progressive" or its principal antonym, "conservative," means." No definition means no reliable measurement: if "progressive" can mean many things, then almost any tendency might be defended or attacked with one of the adjectives. Put another way, no hypothesis about where to place tort law on a progressive-conservative axis is amenable to testing or falsification. Despite the difficulty in reaching a definition, adding torts to the progressive-conservative axis can support an understanding of this Symposium's central query: What does it mean for a system or method to be "progressive"? Beyond arguing that American tort law is indeed progressive, this Article contends that it is almost uniquely so. If American tort law is (almost) uniquely progressive, then progressive politics may need American-style torts to do its work. In lieu of a definition, this Article uses "progressive" to include three themes. The first comes from the Oxford English Dictionary: (6) "moving forward or advancing." In a word, motion. The O.E.D. further describes motion as "characterized by progress or passing on to more advanced or higher stages: growing, increasing, developing: usually in good sense: advancing toward better conditions: marked by continuous improvement." Progressivism in this spirit expresses optimism about the beneficial effects of change. Things ought to get better and, if human agency can lend a hand, they will get better. Movement is literally part of improvement. The second theme is esteem for the individual. Part of the task of bettering the human condition calls for concern about the wishes and judgments of persons, whom progressives celebrate for resisting the stasis of anti-individualistic forces. One leader among these forces has been "orthodox culture," (8) which demands that "people subordinate their own preferences in political and moral judgment." (9) In contrast to orthodox culture, progressivism seeks to find and honor an individual's anti-authoritarian preferences. Progressivism challenges traditions and conditions that keep individuals in their subordinated place. …