Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 4. Negligence Standard
Critiques from Distributive Justice
Is there a distributional impact to using cost-benefit analysis as the measure of
reasonableness? Professor Zachary Liscow describes how cost-benefit analysis interacts with the
common law of torts by focusing on the cost of injury (or the “L,” in the Learned Hand formula):
[W]orkers are typically eligible for compensation for lost wages resulting from
tortious behavior. Higher-income workers have higher wages and, thus, de facto
have a larger legal entitlement. For example, consider a dangerous driver driving
in a rich neighborhood versus a poor neighborhood. Drivers responding to
incentives would expect to pay more if they cause an injury in the rich neighborhood
than in the poor neighborhood. They may thus drive more dangerously in the poor
neighborhood, increasing the likelihood of an accident there, thereby reducing the
legal entitlement of poor groups to safe traffic conditions.
Zachary Liscow, Is Efficiency Biased?, 85 U. CHI. L. REV. 1649, 1692 (2018). Does cost-benefit
analysis legitimize this choice, deeming “reasonable” conduct that would burden poor people with
greater risks and ultimately more injuries?
This insight becomes all the more troubling when we bring the demographics of wealth
into view. Consider the long-standing wealth gap between black Americans and white
Americans. Do cost-benefit analyses lead American companies to target poor and minority
communities when making ex ante judgments about where to site risky behavior? Professors
Kimberly Yuracko and Ronen Avraham argue that the idea is hardly far-fetched:
A 2004 study, for example, found that the risk of accidents for chemical facilities
in heavily African-American counties is twice as high as the risk in other counties,
and a Harvard study conducted for the City of New York in 1990 documented higher
numbers of adverse actions caused by negligence in hospitals serving minority
communities. There is also a history of legislative bodies disproportionately siting
hazardous waste dumps in minority communities.
Kimberly A. Yuracko & Ronen Avraham, Valuing Black Lives: A Constitutional Challenge to the
Use of Race-Based Tables in Calculating Tort Damages, 106 CAL. L. REV. 325, 334-35 (2018).
The distributional critique can be bypassed if you believe, as some scholars do, that
distributional questions really are not the concern of private law fields like tort, because such
fields are ill-equipped to address them. According to this view, tort ought to maximize welfare
through cost-benefit reasoning and the like, and leave distributive questions to tax policy and
social provision policy. How has that strategy fared in practice? Liscow contends that the
distributive effects of private law allocations are “sticky”: tax policy doesn’t adjust to do the
distributive work we might desire, even if in theory the world would be better off if it did.
Liscow, Is Efficiency Biased?, supra, at 1662-66. Are there political institutions that would more
effectively translate distributional effects into redistributive tax or social policy?
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