Modularity and Morality in the Law of Torts

Tort law presents a puzzle from an information cost point of view. Like property, its duties often avail against others generally, but unlike property it is appears not to be standardized and is more subject to judicial innovation. This essay argues that torts, like property, employs modular structures to manage the complexity of interactions between actors. Both property and torts solve the information cost problem with “in rem” rights in similar ways, by chopping up the world of interactions between parties into manageable chunks—modules—that are semi-autonomous. Instead of employing “things” to achieve modularity, tort law employs other strategies to limit information costs, by hiding information and making tort law less context-dependent than one might expect from a “law of actions.” The features of tort law emphasized by noneconomic theories of tort law—corrective justice, civil recourse, and natural rights—can be seen as managing the complexity of tort law. These include tort’s bilateral structure, the content of duties, and proximate cause. As in property, a heavy reliance in tort law on simple moral norms, which are easy to communicate and self-enforce, receives a partial explanation in terms of information costs. Economic analysis and broadly moral theories of torts turn out to be closer together at the descriptive level than is usually thought. ∗Henry E. Smith is Fessenden Professor of Law, Harvard Law School. Please send correspondence to [email protected]. For helpful comments, the author would like to thank Lisa Austin, Richard Epstein, Michael Heller, Andrew Gold, John Goldberg, Greg Keating, and participants at the Property, Tort & Private Law Theory Conference at the University of Southern California Gould School of Law.