CRISTINA CARMODY TILLEY Tort Law Inside Out abstract. For more than a century, scholars have been looking at tort law from the outside in. Theorists committed to external goals like efficient allocation of resources or moral justice have treated tort as a mere vehicle for the achievement of their policy preferences, rather than as a body of law with a discernible internal purpose. It is time to revisit tort on its own terms. This Article takes its cue from the New Doctrinalists, who urge that extralegal normative insights from fields such as economics or philosophy aid adjudication only when they are directly tethered to legal concepts; that is, to doctrine. Scrutinizing tort doctrine yields a surprising in- sight: tort law is not primarily concerned with efficiency or morality, as the instrumentalists have long contended, but with community. A linguistic study of the Restatement of Torts reveals that doctrine alludes to community more frequently and more comprehensively than it does to any other justificatory concept. Specifically, throughout the Restatement’s discussion of negligence, strict liability, and intentional wrongs, doctrine disfavors stating interpersonal duties in positive terms, preferring to let them float with community values. Consequently, tort operates as a vehi- cle through which communities perpetually reexamine and communicate their values, encourag- ing individuals to coordinate private relationships without undue state involvement. Tort law’s stated goal is to construct community. Moreover, tort doctrine acknowledges that two distinct kinds of community—closed and open—can generate the values that govern resolu- tion of interpersonal disputes. Accordingly, tort doctrine embeds a choice between the morality norms of traditional, closed communities and the efficiency norms of the modern, open commu- nity, depending on whether the dispute is local or national in scope. So a descriptive account of tort doctrine suggests that morality and efficiency are not mutually exclusive theories of tort, but rather complementary manifestations of tort law’s broader community-constructing purpose. A survey of American tort cases confirms that courts have intuitively been fluctuating between local morality norms and national efficiency norms rfo decades, without fully acknowledging or op- erationalizing this practice. Pivoting from theory to practice, the Article suggests that tort law should embrace and re- fine its ability to toggle between local morality and national efficiency. The Article briefly sketch- es how the toggle would operate to adjudicate select hot-button issues arising within each type of tort liability: battery (intentional tort), youth football (strict liability), and failure to vaccinate (negligence). On each of these topics, group norms—and therefore liability—would be expected to vary within adjudicative communities. Making this normative toggle explicit would both en- hance the internal integrity of tort law and improve tort law’s external standing relative to other bodies of law such as the Constitution or federal statutes. Moreover, the Article concludes, un- derstanding tort liability as an expression of particular community values might prevent the con- stitutional override of injury verdicts arising from protected behavior such as gun ownership or speech. 1320 tort law inside out author. Distinguished Scholar in Residence, Loyola University Chicago School of Law. Thanks to Robert Cooter, Richard Epstein, John C.P. Goldberg, Lyrissa Lidsky, James Lindgren, James Pfander, Christopher Robinette, Nadia Sawicki, Marshall Shapo, Catherine Sharkey, Barry Sullivan, Alex Tsesis, Benjamin Zipursky, participants in the American Bar Foundation Research Seminar series, participants in the Chicago Area Junior Faculty Workshop, and participants at the Northwestern University School of Law Legal Scholarship Workshop, and William Stone and participants in the Yale Law Journal Reading Group for helpful comments on earlier drafts of this Article. All errors remain my own. 1321 the yale law journal 126:1320 2017 article contents introduction 1324 i. justifications for tort liability 1326 A. A Brief History of Tort Theory 1327 B. The Externality of Existing Tort Theories 1331 C. The Degenerative Results of Competing External Tort Theories 1335 D. Using Doctrine To Devise an Internal Account of Tort 1336 1. Approach 1337 2. Results 1341 E. “Community” as the Doctrinal Source of Liability Norms 1343 ii. unpacking community 1346 A. Political Community and Public Law 1348 B. Sociological Community and Tort 1349 C. Toggling Between Different Sociological Communities 1356 D. Sociological Community in the United States 1360 1. Early American Community 1360 2. Modern American Community 1361 3. Nested American Community 1363 iii. the doctrinal significance of sociological community 1364 A. Community in Case Law 1365 1. The Colonial and Antebellum Period 1366 2. Doctrinal Pivot Points 1370 3. The Modern Period 1372 B. Community in the Restatement 1376 C. The Prescriptive Implications of Community in Tort Doctrine 1384 iv. tort law’s community toggle in operation 1385 A. Intentional Torts 1386 B. Strict-Liability Torts 1387 C. Negligence 1389 D. Implementing the Toggle 1390 1322 tort law inside out v. community as a means for measuring tort law’s overlap with other bodies of law 1393 A. Tort Versus the Constitution 1394 1. Dignitary Torts and Freedom of Speech 1394 2. Negligence and the Right To Keep and Bear Arms 1396 3. Other Potential Clashes Between Tort and Public Law Rights 1398 B. Preemption 1399 conclusion 1403 appendix 1405 1323 the yale law journal 126:1320 2017 introduction For more than a century, scholars have been looking at tort law from the outside in. Theorists committed to external goals like efficient allocation of re- sources or moral justice have treated tort law as a mere vehicle for the achieve- ment of their policy preferences, rather than as a body of law with a discernible internal purpose. It is time to revisit tort on its own terms. This Article takes its cue from the New Doctrinalists,1 who urge that extra- legal normative insights from fields such as economics or philosophy aid adju- dication only when they are directly tethered to legal concepts—that is, to doc- trine. Scrutinizing tort doctrine yields a surprising insight: tort law is not primarily concerned with efficiency or morality, as the instrumentalists have long contended, but with community. A linguistic study of the Restatement of Torts reveals that doctrine alludes to the concept of community more frequently and more comprehensively than it does to any other justificatory concept. Spe- cifically, throughout the Restatement’s discussion of negligence, strict liability, and intentional wrongs, doctrine disfavors stating interpersonal duties in posi- tive terms, preferring to let them float with community values. Consequently, tort law operates as a vehicle through which communities perpetually reex- amine and communicate their values, encouraging individuals to coordinate private relationships without undue state involvement. In short, the goal of tort law is to construct community. Tort doctrine acknowledges that two distinct kinds of community—closed and open—can generate the values that govern resolution of interpersonal dis- putes. Accordingly, tort doctrine embeds a choice between the morality norms of traditional, closed communities and the efficiency norms of the modern, open community, depending on whether the dispute is local or national in scope. Thus, a descriptive account of tort doctrine suggests that morality and efficiency are not mutually exclusive theories of tort, but rather complementary manifestations of tort law’s broader community-constructing purpose. Fur- thermore, as a prescriptive matter, this Article suggests that tort should em- brace and refine its ability to toggle between local morality and national effi- ciency. Making this normative toggle explicit would enhance the internal integrity of tort and improve its external standing relative to other bodies of law such as the Constitution or federal statutes. Part I of this Article rehearses the history of tort theory in the United States, situating its evolution within the wider academic tension between doc- trinal formalism and Legal Realism. Broadly speaking, tort theory has split into 1. See infra text accompanying notes 76-82. 1324 tort law inside out two camps: economists view tort as a method of encouraging efficient private behavior, while philosophers and political scientists view it as a method of achieving a kind of moral justice. These schools of thought are antagonistic and each levels an effective critique against the other. Part I then shifts from exter- nal accounts of tort by these disciplines to an internal view of the law itself, as represented by standard tort doctrine. The Part demonstrates that doctrine is less concerned with efficiency or morality than it is with the concept of com- munity. Part II unpacks the concept of community. First, it distinguishes between political and sociological versions of community. It demonstrates that while public law “communities” are political organizations, the private law tort com- munity is a sociological organization. It summarizes the devices that sociologi- cal communities use to develop and maintain relational norms, and shows how those devices are replicated within the operation of tort. Further, it explains that sociological community can organize itself in either a closed, traditional configuration