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Gail Heriot Archives

I (and no doubt others) have made this point before, but maybe PointofLaw.com readers can shed some light on the question for me ...

Tort law can teach you a lot about what a society values. I am particularly fond of comparisons between 19th century America and modern America, which I believe can be distinguished this way: the 19th century loved doers and modern America loves talkers.

Let me start with the 19th century: It used to be fashionable for scholars to describe tort law of that period in terms of class warfare. Nineteenth century judges were said to favor capitalists�particularly railroads and manufacturers�over ordinary folks. Some scholars made it sound like this alleged bias was conscious and even corrupt.

It comes a lot closer to the truth to say that 19th century judges were pro-action. Their "bias", if you want to call it that, seems to be in favor of people who did things�whether it was build a railroad, till the land, or fix the plumbing. Call the favored class doers, not capitalists. The negligence standard, which had become the prevailing rule by mid-century, is an example of doer protection. Sure, if a doer was acting negligently in causing a harm, he should be made to pay damages. But if the accident was not due to negligence, why punish the doer? At least he was trying to do something useful and not just sitting by the sidelines�or so the 19th century argument might run.

The textbook case used to demonstrate the establishment of a broad negligence standard in 19th century tort law is Brown v. Kendall. And it�s is an excellent example of what I�m talking about. The defendant in that case was not a railroad or a manufacturer. He was just a guy who was trying to separate a pair of fighting dogs. In doing so, he accidently hit the plaintiff with a stick, who was apparently standing there like a dummy. The court held the defendant could be held liable only if he failed to act with reasonable care.

Contrast this with much of tort law in the 20th century, a period in which strict liability standards were on the rise. The essence of a strict liability standard is that action is not privileged over non-action. Act at your peril, for if your actions are the proximate cause of another's harm, you must pay damages, no matter how careful you were. Under this view, undertaking the risk that something will go wrong is part of what you do when you act.

Furthermore, under the 20th century (and now 21st century) view, strict liability is especially appropriate if the actor is acting for profit. One can imagine a legal regime under which actors who are "goofing off" are held to a higher standard than those who are trying to perform a valuable service (and hence are charging for it). But the law is otherwise. We apply strict liability to sellers who are in the business of selling the product that caused the injury. We go more lightly on the dilettante.

I�ll confess that I don�t feel strongly about the strict liability vs. negligence issue. I can see arguments both ways. What I find interesting is the stark contrast between the way the two eras treat doers and the way they treat talkers. Nineteenth century judges had no special place in their hearts for talkers. Defamation, for example, was a strict liability tort, when just about every other tort required proof of the defendant�s negligence. If you opened your mouth and defamed someone, these judges were not in the least interested to know that you honestly and reasonably believed that what you said was true. In their view, you speak at your peril. If you don�t want to run the risk of liability, avoid saying defamatory things. Running one�s mouth off was evidently not in the same category as building railroads, tilling the land or even separating angry dogs.

Modern judges, on the other hand, evidently regard talk as the highest form of human activity. It needed "breathing room," they say. They held in New York Times v. Sullivan, for example, that in order for a newspaper to be liable for defaming a public figure it must have acted with "malice" (i.e. it must know of the statement�s falsity or act in reckless disregard of its truth or falsity). In particular, courts bend over backwards to protect newspapers, magazines and book authors�professional chatterers. Dilettantes received slightly less protection, instead of slightly more.

It�s certainly not obvious to me that all this talk about the need for First Amendment "breathing room" is false. What I don�t understand is why it doesn�t seem to occur to courts that other equally or more valuable human activities don�t also need "breathing room" in the form of legal standards that give them the benefit of a presumption in the actor's favor. Chattering is fine. I do it for a living myself. But it seems odd to elevate it over activities that receive no such presumption like the manufacture of life-saving pharmaceutical products. Might not they need a little "breathing room" too?

Here's an interesting news item from the Los Angeles Times. Evidently, the L.A. area is the nation's leader in what the Times calls "non-employment." According to the Times:

"California businesses have been hiring contract and temporary workers in construction, administrative and high-tech jobs for years, and the practice appears to be spreading to industries such as real estate brokerages, beauty salons and insurance agencies, [a recent Census report] said."

The Times calls this a means to avoid "the soaring cost of health insurance and other benefits," but unless the Times is using the word "benefits" very broadly here, I think it is missing a large part of the reason for the "non-employment" phenomenon. The use of independent contractors and temporary workers allows businesses to avoid some of the risk entailed in hiring an employee in today's legal environment, which sometimes makes it difficult to fire that employee even for good reason.

Years ago "at will" employment was the norm. In the absence of an agreement to the contrary, both the employer and the employee could terminate the employment relationship at any time for good reason, bad reason or no reason at all. Such a legal regime has its upside and its downside for employees. Some employees may be unfairly fired (although bear in mind that it is not in the interest of an employer to act cruelly or capriciously, so we would not expect them to regularly do so). On the other hand, since the employer can hire an employee with little risk, it isn't so hard to find another employer.

Over time, however, a large number of exceptions to the "at will" rule have developed--to the point where in some places (California included) it has become very difficult to terminate an employee--even a poorly performing one--without extensive documentation of the employee's inadequacy. And even with extensive documentation, a disgruntled, former employee can usually make his former employer miserable in court. Lots of employees can make a colorable claim that their termination was the result of some improper motivation even if they can't ultimately prove it.

The upside for employees under this system--job security--was no doubt on the minds of the policymakers who brought about this legal regime. The downside may have been less obvious: When a poorly performing employee must be kept on (or bought off), that means other employees have to take up the slack and productive employees are paid less than they are worth. It also means that high-risk employees, like the young, the unskilled, the ex-offender and the employee who was fired from a previous job often don't get job offers at all. Few employers are willing to undertake the risk. The result is chronic unemployment for some.

"Non-employment" is not a perfect solution to all this, but it's a solution. Those who favor strong "worker protection" measures are unhappy that these measures are being by-passed, but it strikes me as on the whole a good thing and in any event inevitable. The market for jobs is not as protected from foreign competition as it used to be. We might as well get used to it.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.