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Torts As Systems Calnan Book Proof (Do Not Delete) 8/2/2019 5:14 PM TORTS AS SYSTEMS ALAN CALNAN ABSTRACT This article offers a new scientific conception of the tort system. Building on the process theory of torts, it integrates the natural, social, and systems sciences to illuminate the law’s structure, substance, and development. It shows that each feature is really driven by dynamic coordination systems and not by either monist or pluralistic epistemologies. At the structural level, torts continuously synchronizes a dispute resolution system, a lawmaking system, and the surrounding social value system. This multilevel super- system resolves tort disputes by reconciling an assortment of substantive norms derived from our biological, neuropsychological, and sociocultural systems. Though these norms all seek social stability, they emerge incrementally over time according to the primal, social, and ratio-moral phases of human development. Tort “law” coordinates these norms through various doctrines and principles, yet these rules do not define torts’ essence. Because torts is a system of discordant impulses, its legality is decentralized, spontaneous, and synergistic. This can be seen horizontally across tort theories, as supposedly key distinctions among intentional torts, negligence, and strict liability progressively erode and transform. It also is evident within each theory’s allegedly indispensable elements, which are constantly adjusted, informed, or blurred by other key concepts. These emergent patterns even extend vertically in the evolution of important fields like pure emotional distress, premises liability, and strict products liability, where system dynamics can take different trajectories and produce unplanned and unpredictable results. I. INTRODUCTION.............................................................................. 303 II. TORTS AS PROCESS ....................................................................... 306 CONFLICT AND CHANGE .............................................................. 307 . Professor of Law, Southwestern Law School. Because this article breaks with the longstanding jurisprudential tradition of analyzing torts from a purely legal, philosophical, or historical standpoint, I have not relied on existing tort theories to develop my thesis. Instead, I have approached the subject from the perspective of complex systems science. Thus, my acknowledgements here will be equally unconventional, touting some of the unsung heroes of this exciting new field. My original fascination with systems theory was stoked by the inspired musings of polymath Stuart Kaufman and neuroscientist and complexity theorist J.A. Scott Kelso. That passion was deepened and enriched by the systems insights of Neil Johnson, the late Donella Meadows, John Miller, Melanie Mitchell, and Geoffrey West. While their work illuminated various aspects of the tort system, my nonscientific legal background continues to shape my view. So despite the ingenuity of these complexity theorists, I remain solely responsible for any errors in explanation or analysis. Finally, a project like this is not just difficult to write; it also is challenging to review, assess, and edit. Thus, Brandon Thompson and the staff of the Southern California Interdisciplinary Law Journal deserve a special nod of appreciation for embracing my work and striving to strengthen it. Calnan Book Proof (Do Not Delete) 8/2/2019 5:14 PM 302 Southern California Interdisciplinary Law Journal [Vol. 28:301 1. Lost Causes ........................................................................... 307 2. A New Vision ........................................................................ 308 LIMITATIONS ................................................................................ 309 1. Fragile Foundations ............................................................... 309 2. Open Questions ..................................................................... 311 III. SYSTEMS SCIENCE ........................................................................ 312 A. COMPLEXITY AND COMPLEMENTARITY ....................................... 312 1. System Parts .......................................................................... 312 2. Ordered Disorder ................................................................... 313 3. Complex Systems .................................................................. 314 B. COORDINATION DYNAMICS ......................................................... 315 1. Reconciliation ....................................................................... 315 2. Patterns .................................................................................. 316 IV. HUMAN SYSTEMS .......................................................................... 317 A. BIOLOGICAL ................................................................................. 318 1. Homeostasis .......................................................................... 318 2. Cooperation ........................................................................... 319 B. NEUROPSYCHOLOGICAL .............................................................. 320 1. Cognition ............................................................................... 320 2. Morality ................................................................................. 321 C. SOCIOCULTURAL .......................................................................... 323 1. Scalability .............................................................................. 323 2. Meta-Homeostasis ................................................................. 324 V. TORT SYSTEMS ............................................................................... 326 A. LAYERS ........................................................................................ 326 1. Adjoining Systems ................................................................ 327 2. Torts’ Trilogy ......................................................................... 328 B. BOUNDARIES ................................................................................ 331 1. Structure ................................................................................ 331 2. Theories ................................................................................. 333 VI. TORT DYNAMICS ........................................................................... 336 A. TRANSITIONS ............................................................................... 336 1. Historical ............................................................................... 337 2. Systemic ................................................................................ 338 B. INTEGRATIONS ............................................................................. 339 1. Intentional Torts .................................................................... 339 2. Negligence ............................................................................ 342 3. Strict Liability ....................................................................... 345 C. SYNERGIES ................................................................................... 346 Calnan Book Proof (Do Not Delete) 8/2/2019 5:14 PM 2019] Torts as Systems 303 1. Emotional Distress ................................................................ 347 2. Premises Liability ................................................................. 350 3. Strict Products Liability Design Cases .................................. 351 VII. ALL SYSTEMS GO .......................................................................... 354 I. INTRODUCTION Tort theory is in desperate need of reconciliation. For decades now, tort scholars have waged a winner-take-all battle to explain the essence of tort law. Monists say torts1 is unified by a single concept or practice, while pluralists see a multitude of defining influences.2 Though the monists share a global perspective, they cannot agree on anything else. In fact, these unifiers are themselves hopelessly split, grounding torts in antagonistic notions of corrective justice, distributive or social justice, economic efficiency, or civil recourse.3 Such conflicts are compounded by deep differences in methodology, with conceptual analysts logically deducing torts’ true nature4 and social scientists relying on empirical investigation.5 Unfortunately, this rivalry has not brought us any closer to a common understanding of the subject. If anything, it has only polarized the competing positions.6 The few tort theorists who have sought reconciliation have not gone far enough. Rather than harmonize existing accounts, these “connectors”7 have merely pieced them together. According to this view, tort law is a legal composite consisting of two parts: a private domain that retrospectively rights past wrongs, and a public domain that prospectively shapes social policy.8 Corrective justice and civil recourse theories explain the private 1. Throughout this article, I will use the word “torts” as a singular term encompassing all of the field’s many aspects, including its laws, systems, and processes. 2. See generally Benjamin Shmueli, Legal Pluralism in Tort Law Theory: Balancing Instrumental Theories and Corrective Justice, 48 U. MICH. J.L. REFORM 745, 747–48 (2015) (discussing monist and pluralist theories of tort law). 3. Id. at 747, 751–57 (addressing corrective justice, distributive justice, and efficiency or optimal deterrence theories); Cristina Carmody Tilley, Tort Law Inside Out, 126 YALE
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