Tort Law

The topical interest of moral responsibility did not end with the Civil War, for human suffering was to remain a visible problem all through the nineteenth century. Indeed, beginning in the 1840s, a whole new arena of suffering would open up, fueled by the pace of industrial expansion and the rate of industrial accidents. Injury was an accepted hazard of early industrialization, its liability cost being computed as a standard operational cost.^[70] Not surprisingly, it was during this period that a newly consolidated legal field should come into being, drastically expanding its domain to cope with the drastically escalating cases of civil responsibility for injury. Modern tort law (popularly known as "injury law") was very much a creation of the nineteenth century. And among the many injurers brought before it, none was guiltier than the railroad. Still primitive in its safety features, operating without the benefit of the air brake, the early railroads, according to Lawrence Friedman, behaved like "wild beasts; they roared through the countryside, killing livestock, setting fires to houses and crops, smashing wagons at grade crossings, mangling passengers and freight. Boilers exploded; trains hurtled off tracks; bridges collapsed; locomotives collided in a grinding scream of steel."^[71]

The nineteenth-century railroad might be said to carry an economy of pain of its own—quite literally so, since judges were increasingly called upon to award money damages for bodily injuries, and thus to work out a numerical equivalent not only for the experience of

physical harm but also for the scope of moral responsibility. Here then was a unique juncture of the moral and the economic,^[72] one whose resolution would have profound consequences both for legal and nonlegal thinking. What the court adopted was the doctrine of "negligence" (as opposed to the doctrine of strict liability), which made the relation between injury and compensation a mediate relation, contingent upon demonstrable fault on the part of the injurer.^[73] In Farwell v. Boston & Worcester Railroad Corporation (1842), a landmark case decided by Chief Justice Lemuel Shaw of Massachusetts (better known to literary critics as Melville's father-in-law), a railroad engineer, who had lost his right hand in an accident caused by a switchman, sued the railroad for damages. His claim was rejected. The court ruled that since the engineer had voluntarily taken on a dangerous job, he must also be held to have assumed the ordinary risks of that job. His higher than usual wages had already adjusted for the higher than usual hazard, and any injuries sustained must be considered already compensated for.

The legal reasoning exhibited in this case (and in the tort law that came after it) was a style of reasoning very much predicated on a notion of reflexive compensation and reflexive equilibrium. Even though the employee was hurt, his wages had already rectified that hurt, and so everything ended up being balanced out. This compensatory equilibrium quickly became a standard premise of legal reasoning, and, by the beginning of the Gilded Age, the general drift of the new tort law was unmistakable. Its central features—the fault principle, assumption of risk, contributory negligence, the fellow-servant rule—all helped to limit the grounds for redress and hence the scope of entrepreneurial responsibility. Liability was unquestionably a critical issue in late-nineteenth-century legal thinking, so critical, in fact, that when Oliver Wendell Holmes delivered his famous lectures at the Lowell Institute—collected into his equally famous The Common Law (1881)—he was inspired to devote his first lecture to "Early Forms of Liability," followed by others on criminal liability, tort liability, and contractual liability.^[74] For Holmes, too, the notion of "universal and unlimited responsibility" was infinitely troubling, because it would "make a defendant responsible for all damage, however remote, of which his act might be called the cause." If such a concept were to prevail, the state would have to act like "a mutual insurance company against accidents, and distribute the burden of its citizens' mishaps

among all its members." This was clearly unacceptable to Holmes; it would "offend the sense of justice." To guard against this eventuality, it was the business of tort law "to fix the dividing line" between what was actionable negligence and what was not, and to ensure that the "loss from accident must lie where it falls."^[75]

Austerely just, and austerely economical, the modern tort law is now seen by some of its theorists as a "mirror of American society, held up to some of its most difficult moments of private conflict."^[76] If so, what that mirror revealed in the late nineteenth century was not only the frequency of injury but also the seeming ability of legal reasoning to localize its effects, to restrict its claims, and to define legal responsibility without moral ambiguities. The emergence of the modern tort law might be seen, in this context, as an especially important moment in the history of American law, consonant with that broad process whose stated goal, in the words of Holmes, was to shape the "law as a business with well understood limits," to "emphasize the difference between law and morals," and to keep "the boundary constantly before our minds."^[77] What is further clear is that, in that proposed parting of ways between the legal and the moral, it was the economic that was consistently enlisted as the instrument of separation. The economic, that is to say, was now appealed to as something more basic than morality, subsuming it and replacing it as the cognitive foundation for the law. Economics, and economics alone, would now furnish the rational ground for legal action.

It is logical, then, that in our own time, exponents of Law and Economics—notably Richard Posner—would be quick to commend Holmes on just this point and quick to endorse nineteenth-century tort principles on the ground of efficiency.^[78] And yet, to read Law and Economics against Holmes (or against contemporaries of Holmes who also wrote on liability, including Charles Peirce and Nicholas St. John Green),^[79] is to be struck by the enormous distance, intellectual as well as stylistic, between the nineteenth-century theorists and their twentieth-century successors. For Holmes, Peirce, and Green, liability was primarily a philosophical (or perhaps even metaphysical) problem. The technicalities of tort law were anchored and broadened, always, within a discourse as wide-ranging as it was conceptually intricate. For them, what had to be circumscribed through a focus on tort liability was the idea of causation itself, for here as elsewhere, this vexed concept, with its radically enlarged operative radius, proved to

be both intriguing and intolerable. Indeed, the nineteenth-century debate on tort liability quickly became a debate over what Morton Horwitz has called the "politics of causation."^[80]

In a series of important cases, including Stone v. Boston and Albany Railroad Co. (1898) and Central of Georgia Railway Co. v. Price (1898), the court decided that "the proximate, and not the remote, cause is to be regarded" as responsible for damage and that "a proximate cause must be that which immediately precedes and produces the effect, as distinguished from the remote, mediate, or predisposing cause."^[81] Proximate cause—the narrowest range of causal attribution—must be upheld, for it alone could provide an adequate safeguard against the specter of unlimited claims, not only in specific cases of industrial accidents but more generally in any distributive situation: any situation, that is, where a dispute might arise about the proper allocation of pleasures and pains, burdens and benefits. Theories of causation are, at heart, social theories on a grand scale, with broad implications for distributive justice and broad conclusions about the legitimacy of a particular social order. Nineteenth-century theorists of causation were very much aware of this. Indeed, for Francis Wharton, the influential treatise writer, the seemingly arcane question of "whether a railroad company is to be liable for all fires of which its locomotives are the occasion" turned out to be the central question for "the industrial interests of the land," so central that what hinged upon it was nothing other than the life of capitalism itself.^[82]

Wharton reprimanded those who acted on the assumption that "when we are seeking for a responsible cause, we are allowed to go back until we hit, in the line of antecedents, upon wealth that is without immediate friends." Such a mistake is all too common, he said, because we "are accustomed to look with apathy at the ruin of great corporations, and to say, 'Well enough, they have no souls, they can bear it without pain, for they have nothing in them by which pain can be felt.'" For Wharton, this was not at all the right way to think about causation, or about corporations, or about pain. It would lead to "communism," which "makes wealth the basis of liability."^[83] It would encourage us to blame our sufferings on an unlimited range of causal antecedents and to say:

"Here is a capitalist among these antecedents; he shall be forced to pay." The capitalist, therefore, becomes liable for all disasters of which

he is in any sense the condition, and the fact that he thus is held liable, multiplies these disasters. Men become prudent and diligent by the consciousness that they will be made to suffer if they are not prudent and diligent. If they know they will not be made to suffer for their neglects; if they know that though the true cause of a disaster, they will be passed over in order to reach the capitalist who is a remote condition, then they will cease to be prudent.^[84]

For Wharton, pain, in all its undesirability, was nonetheless an economic resource and as such must be instrumentally distributed. It must be distributed, that is, as a corrective mechanism, a hard lesson to those who needed it. In the case of industrial accidents, this lesson must fall on those who were "mediately or immediately employed,"^[85] those who were injured by the accidents, and who, for that reason, must also be designated the cause of those accidents. Wharton thus insisted that "one of the chief offices of society was to discriminate between the antecedents by which an event is conditioned," to "single out one only of the antecedents under the denomination of cause, calling the others merely conditions."^[86] That being done, the employer, as a "remote condition," would be excused from the scene, leaving behind only the workers, the real causes of the disaster and therefore the rightful sufferers—which, for Wharton, was all to the good. Pain would teach the lesson of prudence.

In localizing the distribution of suffering, Wharton offered one way to think about time and space, about distance and nearness, about causation and responsibility. In converting suffering into a resource, a usable resource, he offered as well an example (perhaps the most striking we have seen thus far) of the rationalization of pain: a rationalization openly economic, grounded in the trade-off between the brute fact of suffering and the moral it could be counted on to deliver. Nineteenth-century tort law thus stood as one of the boldest experiments in commensurability, one of the boldest attempts to create a symmetrical order out of its designated problem and solution. It did so, we might add, primarily by instrumentalizing pain, turning it into what Spencer would call "salutary suffering." Chastened by it, workers would become so prudent as to make any further suffering unlikely. The cause of pain and the effect of pain were understood, then, both to emanate from and to descend upon the same party. Mutually entailed and inversely corresponding, they would work to neutralize and cancel out each other. Tort law thus brought about an adaptative

equilibrium in the workforce, even as it achieved an operative equilibrium within itself, by a method of damage control that contained the damage within the narrowest possible compass. The problem of pain was not at all a problem here: not a problem, because it could be counted on to take care of itself, to work toward its own cure and its own end.