The limits of private law: Tort law and distributive justice

Based on my instrumentalist, pluralist, contextual and progressive understanding of tort law, I argue that tort law should be attentive to its distributive effects and that one of its goals should be the promotion of the status of the disadvantaged. I argue that, while tort law cannot bring about an ideal distributive result alone, it can promote a fairer and more progressive distribution of the benefits and burdens held by individuals in society. After evaluating the intersection between tort law, the concept of distributive justice and progressive politics, I provide a typology of the ways in which distributive considerations can and should play a role in tort law. Then I provide a normative defense for the claim that tort law should both be generally attentive to distributive considerations and in particular promote an egalitarian agenda. I refute those charges that warn against the desirability and feasibility of such understanding of tort law, which are based on the public/private dichotomy and on the alleged institutional incapacity of tort law to engage in redistribution. I show both the promise and the limits of the use of tort law as one tool in achieving distributive justice, and the ways in which an egalitarian commitment could be interwoven into the fabric of tort law's other goals.

I argue that the weight that should be given to the distributive-egalitarian concern and the doctrinal ways the concern manifests itself should vary with the context. Therefore, I examine the validity and usefulness of my general claim in three case studies involving questions of the duty of care in the tort of negligence and the well-being of women. One case study is the issue of maternal prenatal duty. The second is the liability of public authorities for failure to protect the plaintiff from a known risk. The last case study deals with parents' liability to strangers for negligent supervision of their children. The studies show how my approach to tort law can attain justice in concrete cases, reshape tort doctrine, contribute to the theoretical discourse of equality and progressivism and add another voice—richer, more nuanced and sensitive—to the chorus that is tort theory.