Tort Law 101: A Reply to Jane Galt

Jane Galt says that she is no lawyer. It shows.

Responding to my post on the Bainbridge-Chemerinsky “debate,” Jane takes issue with my assertion that if a company sells equipment to a government, knowing that that equipment will be used to commit egregious human rights abuses, it is not unreasonable to hold that company liable.

Here’s Jane:

It seems to me that Zasloff is begging the question. Is it unreasonable to think that a vendor should be held liable if it sells Castro’s government equipment to spy on human rights activists? I kinda think it is. Mr Zasloff wants to hold companies accountable for enforcing a collective judgement about Castro’s regime that we aren’t even willing to enforce collectively–by, say, banning sales of such stuff to Cuba,* or getting rid of the offending government.

Maybe Jane thinks it is unreasonable to hold a company civilly liable if it does something legal. But guess what: we do this all the time. Always have. The fact that an activity is legal in no way means it is free from civil liability. This is hornbook law.

Put another way, it’s the common law. Judicially-made, judicially-enforced law that derives not from the legislature but from judges. It’s been around for, oh, half a millenium.

For example, the vast majority of products that are found to have defective designs are legal: a jury, however, can determine that another product is just as useful but far less dangerous, and so the first product is defective. On consider a slip-and-fall in a supermarket: it’s not illegal for the market to leave, say, the broken baby food bottles in the aisle. But if a customer slips on them and sustains damages, then the market is liable even if it violated no safety regulations. Similarly, it’s not illegal for a physician to commit malpractice: but she can be sued for it.

These aren’t public policy issues, you say. Nonsense. Civil liability is all about the social distribution of risk, and there are profound policy judgments to be made about fairness and efficiency. Jane says that it’s unfair for courts to enforce a collective judgment about, say, Cuba, that we haven’t made collectively. (She’s speaking hypothetically here: she of course knows that we have made such a collective judgment.).

But that is precisely what the civil liability system is. It is a judicial form of making collective judgments. The Legislature is not the only place to make such judgments: far from it. That’s what makes tort law controversial: it makes collective public policy judgments. Some conservatives (not Jane, as far as I know) say that we need to reform the tort system because it is making public policy judgments. This is nonsense: they want tort reform because the system is making collective judgments that they don’t like. They should say so, and not scream that it’s crazy to disagree with them.

Consider the case of the manufacturers of asbestos. Asbestos was a completely legal product. No matter: courts throughout the country have found the manufacturers liable for damages caused by the product. (I should note for Jane’s readers that this is also efficient, because it forces manufacturers to internalize the costs caused by their products). This was a profound policy change: asbestos cases took upa quarter of US federal civil dockets in the 80’s–before any legislature acted.

Maybe Jane would counter that the enforcement of human rights norms should be a matter for the political branches, not the judicial one. That’s a fair argument. But it’s certainly not crazy to argue the opposite: indeed, one could argue that the judicial is PRECISELY where the enforcement of human rights norms should occur. That’s why we have courts to begin with.

Is this anti-democratic? Hardly. State courts, that enforce these common-law decisions, are for the most part, elected. And remember, if Congress wanted to say stop, then it could easily do so through pre-empting actions of this sort–as it did in the case of gun manufacturers (unwisely, in my view). There is simply no democracy problem here.

Many libertarian conservatives, such as Peter Huber, think that this goes too far. Huber argues that highly regulated industries shouldn’t go through hoops complying with complex law, only too find that some jury or some judge thinks that they should have done more. Perhaps. But even Huber doesn’t argue that this should generally apply, and in any event, his position has been adopted by exactly zero jurisdictions.

Surely compliance with the law is relevant to a determination of civil liability: but it is most definitely not dispositive.

Jane also complains that ” Zasloff skips over what seems to me to be the main objection to the lawsuit, which is that there is no way that Caterpillar could have reasonably known what the IDF was going to do with that bulldozer, and hence, no grounds for a suit.” Since the entire point of the post was that the attack on Chemerinsky confused the general legal principle (which is valid) with the specific facts of this case (which may not be), I can’t see how she makes this argument. Readers can decide for themselves.

Again, it’s an elementary tort law lesson: if there was really no way for Caterpillar to know what the IDF would do with the bulldozer, then the suit could be (and probably would be) dismissed at the summary judgment stage. Plaintiffs might well have presented evidence that Caterpillar could have known, or should have know, or even DID know. That’s why in fact that is NOT the objection to the lawsuit: the real objection is that there were no grounds for the suit because the IDF did not, in fact, violate Corrie’s human rights.

End of lecture.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.