Instrumentalism and the Disintegration of American Tort Law - The Objective Standard


On February 20, 2003, the manager of the rock band Great White decided that the occasion of the band’s concert at a small Rhode Island nightclub called for something special. Lacking authorization from the club to do so, he lit a series of pyrotechnics on the stage while the band played. Tragically, the ensuing conflagration killed one hundred people and seriously burned or injured almost two hundred others.

In June 2003, a lawsuit was filed naming the band manager as a defendant. It also named as defendants the owners of the nightclub, who had installed on the interior of the building’s walls highly flammable soundproofing material that allegedly caused the fire to spread more quickly than it might have otherwise; Anheuser-Busch, for selling beer at the club and possibly promoting the event; the town of Warwick, Rhode Island, for its alleged role in the tragedy; several town officials, for theirs; and many others—twenty-seven defendants in total.

That was not all. In August 2004, the suit was amended to include an additional twenty-six defendants, bringing the total to fifty-three. Among the new defendants were nearby retail establishments that had sold tickets to the event, the band’s record company, the manufacturer of the pyrotechnics and its parent company, nearby radio stations that had mentioned the concert on the air, a cameraman who was present at the event as well as his television station and its parent company, and the company that owned the bus the band had used to get to the event. The amended lawsuit posited theories of why each defendant was responsible for the death and destruction caused by the fire.

Nor was that all. Other plaintiffs filed additional lawsuits blaming the fire on still others. The largest was filed on behalf of the families of eighty of the deceased and more than one hundred injured plaintiffs. According to the New York Times, that lawsuit—which includes all the defendants named in all the lawsuits to date—names ninety-three defendants.1

It would be an error to dismiss this as an “extreme” case that is not indicative of the reality of litigation in America today. Although the high number of defendants is indeed out of the ordinary, this is simply a function of the extent of damages. Had just one person been killed in the blaze, perhaps just one or two “theories” of liability would have been fabricated in connection with just one or two defendants in addition to the band manager. One hundred deaths produced a predictable torrent of creative legal theorizing, resulting in ninety-three defendants. In today’s litigious environment, this is business as usual.

No suggestion has been made in press accounts of the case that the lawyers involved will be sanctioned for filing suit against so many defendants who would appear to have nothing to do with what happened. As one of the defense attorneys stated in an interview: “We understand what is happening here. The plaintiffs’ lawyers are trying to create as deep of a pool as they can to compensate these people.”2 Indeed, one would search in vain for serious criticism of these tactics from the presiding judges, or in bar publications or law journals. Those experienced in litigation matters barely raised an eyebrow. Everyone understands.

The law that is the basis of these claims of liability against these ninety-three defendants is called “tort law,” and, as this case indicates, tort law in America has become a sprawling accretion of purported responsibility, exposing nearly anyone to liability for nearly anything.

How did American law descend to this level of non-objectivity? To answer this question, we must identify the origin of tort law, observe the kind of justice it was originally intended to serve, and trace its disintegration from there. As we will see, the modern law of torts was born in the “classical” period of American law, an era of respect for individualism and reason; it was killed at the close of that era by lethal ideas that entered American law in the early decades of the 20th century.

The story begins in the latter half of the 19th century. . . .


1 Katie Zezima, “$13.5 Million Is Offered in Settlement for Club Fire,” New York Times, September 6, 2007.

2 Associated Press, “Club fire suit adds 26 defendants,” Boston Globe, August 21, 2004.

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3 John Fabian Witt, The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law (Cambridge, MA: Harvard University Press, 2004), p. 28.

4 G. Edward White, Tort Law in America: An Intellectual History (New York: Oxford University Press, 1985), pp. 4–7.

5 Lawrence Friedman, Contract Law in America (Madison: University of Wisconsin Press, 1965), pp. 20–24.

6 Arthur Underhill and Nathaniel C. Moak, Principles of the Law of Torts, or, Wrongs Independent of Contract (Albany: William Gould and Son, 1881), p. 4, emphasis added.

7 Sir Francis Pollock, Law of Torts (1887), quoted in Morris R. Cohen and Felix S. Cohen, eds., Readings in Jurisprudence and Legal Philosophy (New York: Prentice-Hall, Inc., 1951), p. 198.

8 For a discussion of this development and a survey of relevant scholarship, see Michael Ashley Stein, Priestley v. Fowler (1837) and the Emerging Tort of Negligence, 44 B.C.L. Rev. 689 (2003).

9 Seymour D. Thompson, The Law of Negligence in Relations not Resting in Contract 1234 (St. Louis: F. H. Thomas, 1880), quoted in Witt, The Accidental Republic, p. 48.

10 T. & B. V. Ry. Co. v. Blackshear, 106 Tx. 515, 172 S. W. 544 (1915).

11 The “utility” of actions was expressly adopted as part of the determination of negligence in the first Restatement of Torts (1934). For a detailed discussion, see Richard W. Wright, Justice and Reasonable Care in Negligence Law, 47 Am. J. Juris. 143 (2002).

12 For an excellent discussion of the evolution of civil and punitive functions in European law beginning in the medieval period, see Norman T. Braslow, “The Recognition and Enforcement of Common Law Punitive Damages in a Civil Law System: Some Reflections on the Japanese Experience,” 16 Arizona Journal of International and Comparative Law, 285 (1999).

13 Fay & Ux. v. Parker, 53 N.H. 342 (1872).

14 Ibid.

15 Ken Dornstein, Accidentally on Purpose, The Making of a Personal Injury Underworld in America (New York: St. Martin’s Press, 1996), p. 224.

16 See Dornstein, Accidentally on Purpose, for a fascinating survey of the subject.

17 Ibid., pp. 215–16.

18 Ibid., p. 216.

19 See Witt, The Accidental Republic, chap. 1.

20 Rachel M. Janutis, The Struggle Over Tort Reform and the Overlooked Legacy of the Progressives, 39 Akron L. Rev. 943 (2006), p. 956.

21 See Ibid., pp. 117–35.

22 Michael S. Moore, The Need for a Theory of Legal Theories: Assessing Pragmatic Instrumentalism, 69 Cornell L. Rev. 988 (1984), p. 2.

23 Robert Samuel Summers, Instrumentalism and American Legal Theory (Ithaca, NY: Cornell University Press, 1982), p. 25.

24 O. W. Holmes, The Path of the Law, Harv. L. Rev., vol. X, no. 8 (1897), p. 467.

25 Quoted in William Harbutt Dawson, Bismarck and State Socialism: An Exposition of the Social and Economic Legislation of Germany Since 1870 (New York: Howard Fertig, Inc., 1973), pp. 119–23.

26 Jeremiah Smith, Sequel to Workmen’s Compensation Acts, 27 Harv. L. Rev. 235 (1914), p. 363.

27 L. W. Feezer, Capacity to Bear Loss as a Factor in the Decision of Certain Types of Tort Cases, 78 U. Pa. L. Rev. 805, 813–14 (1930).

28 Donald G. Gifford, The Death of Causation: Mass Torts’ Incomplete Incorporation of Social Welfare Principles, 41 Wake Forest L. Rev. 943, 969 (2006).

29 See George L. Priest, “The Intellectual Foundations of Modern Tort Law,” in Pernicious Ideas and Costly Consequences: The Intellectual Roots of the Tort Crisis (Washington, DC: National Center for the Public Interest, 1990), pp. 7–16.

30 This principle is usually referred to as “joint and several liability.” The statement of the rule as given here is the majority rule in the United States, although some variations apply in different states.

31 Robert E. Keeton, Venturing to Do Justice: Reforming the Private Law (Cambridge, MA: Harvard University Press, 1969), p. 3.

32 William L. Prosser, Handbook of the Law of Torts, 3rd ed. (St. Paul: West Publishing Co., 1964), p. 15.

33 Ibid., pp. 17–23.


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