Informal social norms play a crucial, albeit largely unheralded, role in negligence law. The reasonable person standard is an empty vessel that jurors fill with community norms. Jurors do this rather than performing cost-benefit analysis. The proposed Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft") misses both of these points. It dramatically overstates the role of utilitarian, cost-benefit analysis in the reasonable person standard, and it dramatically understates the role of non-utilitarian negligence norms in this standard. This Article will explore these twin failings of the Discussion Draft.
The negligence cause of action makes up the lion's share of modern tort law. Negligence is thus the focus of the Discussion Draft of the "General Principles" of tort law.1 It is settled law that there are four elements to a cause of action in negligence-duty, breach, causation, and damage.2 I will raise the question whether the Discussion Draft properly characterizes the case law with respect to the second element, breach. The Discussion Draft strongly endorses a Hand Test formulation for determining the standard for breach.3 Specifically, the so-called balancing test is interpreted in terms of cost-benefit analysis.4 While the Hand Test is not inherently utilitarian, nevertheless, in the Discussion Draft's analysis, this test is transformed into a tool for the advancement of social welfare, the touchstone of utilitarian value theory.5 I will argue that this mischaracterizes case law, however, as the common law of negligence is not best interpreted as utilitarian.
With regard to duty, the first element of a cause of action in negligence, Professors Goldberg and Zipursky argue that the Discussion Draft mischaracterizes case law because it fails to list duty as an element despite the fact that almost all United States jurisdictions routinely and overwhelmingly list duty as the first element to be established in a negligence cause of actions Because a restatement should, by definition, restate the core features of the law for which it claims to be a restatement, in effect, Goldberg and Zipursky may be seen as arguing that the Discussion Draft is not a restatement with respect to the duty element.
If Goldberg and Zipursky are right that the Discussion Draft fails to restate the element of duty, and I am right that the Discussion Draft fails to restate the law of breach, we may fairly conclude that the Discussion Draft fails to restate the law of negligence. Contrary to the pronouncements of the American Law Institute, then, the Discussion Draft is not principally an interpretative document that seeks to provide an "explanation" or to "clarify" key terms of tort law.7 Rather, as I will suggest, the Discussion Draft is a thoroughgoing normative document, one that seeks to promote one normative theory of tort law over competing normative theories of tort law. Specifically, the Discussion Draft promotes utilitarianism. If the common law of negligence were best described as utilitarian, then an accurate Restatement would also be utilitarian in character. The problem with the Discussion Draft's descriptive account, then, is not that it is normatively loaded, but that it is incorrectly normatively loaded.8
In fairness, it must be noted that the Reporter of the Discussion Draft appears to think he has achieved theory neutrality with respect to the standard for breach.9 The Discussion Draft notes that its account is consistent with "fairness" concerns as well as welfarist concerns in this regard. 10 I will argue below, however, that this passing nod to theoretical pluralism or neutrality fails, as the proposed Restatement's conception of fairness is also a utilitarian conception.
The goal of the following discussion is not to criticize the proposed Restatement's utilitarian account qua normative account. Nor is it to criticize this account in order to make room for a distinct normative account. …