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

Witt & Tani, TCPI 8. Duty Problem
Richard A. Posner, Epstein’s Tort Theory: A Critique, 8 J. LEGAL STUD. 457, 460-61 (1979).
Others have argued that taking a potential rescuer’s previous contributions into account would
supply the principled stopping point that Epstein worries does not exist. See T. M. SCANLON,
WHAT WE OWE EACH Other 224 (1998).
6. Moral heuristics? Still another view—one rooted deep in the nineteenth-century
intellectual history of utilitarianism—is that the rule against a duty to rescue is the kind of moral
mistake that “common sense morality” (in philosopher Henry Sidgwick’s phrase from his The
Methods of Ethics 425 (1907)) or the “morality of the multitude” (in John Stuart Mill’s cutting
formulation from his Utilitarianism (1879)) makes when it encounters unusual situations in which
the conventional moral norms fail to advance the general happiness. Cass Sunstein has recently
advanced this argument in an updated form:
It is worth considering the possibility that the act-omission distinction operates as a
heuristic . . . . From the moral point of view, harmful acts are generally worse than
harmful omissions, in terms of both the state of mind of the wrongdoer and the likely
consequences of the wrong. A murderer is typically more malicious than a
bystander who refuses to come to the aid of someone who is drowning; the murderer
wants his victim to die, whereas the bystander need have no such desire. In addition,
a murderer typically guarantees death, whereas a bystander may do no such thing.
(I put to one side some complexities about causation.) But in terms of either the
wrongdoer’s state of mind or the consequences, harmful acts are not always worse
than harmful omissions. The moral puzzles arise when life, or a clever interlocutor,
comes up with a case in which there is no morally relevant distinction between acts
and omissions, but when moral intuitions . . . strongly suggest that there must be
such a difference. . . .
In such cases, we might hypothesize that moral intuitions reflect an
overgeneralization of principles that usually make sense—but that fail to make
sense in the particular case . . . .
Cass Sunstein, Moral Heuristics, 28 BEHAV. & BRAIN SCI. 531 (2005).
If Mill, Sidgwick, and Sunstein are correct—if the confusion around the no-duty rule is
the result of what Sidgwick called the “Unconscious Utilitarianism” of everyday moral
distinctions such as act and omission—what should the law do? On the one hand, Mill urged us
to see such situations as ones of moral confusion to be corrected by an explicit utilitarian calculus
such as the one contained in Ames’s proposal. On the other hand, common sense morality’s value
as a proxy or heuristic for complex utilitarian calculations might be undermined if the law
dropped the pretense of common sense morality in hard cases. The use of everyday morality as a
proxy for utilitarianism might, as Sidgwick observed, require the rule makers to mislead the
public about the real basis of the moral rules. HENRY SIDGWICK, THE METHODS OF ETHICS 447
(7th ed. 1981).
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