The Limits of a Nonconsequentialist Approach to Torts
The nonconsequentialist revival in tort theory has focused almost exclusively on one issue: showing that the rules governing compensation for ‘wrongful’ acts reflect corrective justice rather than welfarist norms. The literature is either silent on what makes an act wrongful in the first place or suggests criteria that seem indistinguishable from some version of cost/benefit analysis. As a result, cost/benefit analysis is currently the only game in town for determining appropriate standards of conduct for socially useful acts that pose some risk of harm to others (a category that describes almost all noncriminal conduct). This is no small omission, and the failure of nonconsequentialists to acknowledge it or cure it can be traced to a number of recurring problems in the nonconsequentialist tort literature. Chief among them is the tendency to conflate prohibition and compensation, and to treat imposition of risk and imposition of harm as if they were distinct forms of conduct rather than the same conduct viewed from different temporal perspectives.