Hybrid Torts and Explanatory Tort Theory.

• Author: Murphy, John

This article examines the problem of fit caused by "hybrid torts" for several contemporary, explanatory theories of tort law: those belonging to Ernest Weinrib, Robert Stevens, and John Goldberg and Benjamin Zipursky. The term hybrid tort is intended to capture a cause of action that is treated routinely by practitioners, judges and doctrinal jurists alike as a tort proper even though its ingredients suggest that it is only part tort and part something else (like, for example, equity). The central argument of the article is as follows: at tort law's borders with other legal categories, there exists a number of hybrid actions that are widely acknowledged to be torts but which comprise a range of juridical components, some of which are typical within tort law and some of which are more germane to some other legal category. This set of hybrid actions suggests that--whatever theoretical neatness might dictate--tort law's boundaries are fuzzy and porous, not clearly defined and rigid. This fuzziness in the object of theorization naturally casts doubt on the apple-pie neatness of the theories in view. In addition, the obvious response-that these juridically mixed causes of action are not proper torts (and therefore do not require explanation)--is shown to be unavailable to the theorists whose work is examined given that each of them commits to explaining the law as it presents itself. Put differently: since the law as we encounter it clearly treats these hybrid actions as torts, they cannot be dismissed in this way. Nor, it is argued-for a combination of reasons that establish their practical significance--can these hybrid torts be dismissed as irrelevant.

Uet article examine le probleme d'adequation pose par la > pour plusieurs theories contemporaines explicatives celles defendues par Ernest Weinrib, Robert Stevens, ainsi que John Goldberg et Benjamin Zipursky. Le terme > vise a designer une cause d'action qui est traitee systematiquement par les practiciens, les juges et les auteurs de doctrine comme de la responsabilite delictuelle meme si ses composantes suggerent qu'il ne s'agit qu'en partie de responsabilite delictuelle et en partie d'autre chose (comme de l'equity). L'argument au coeur de l'article est le suivant: aux frontieres entre la responsabilite delictuelle et d'autres categories du droit, il existe de nombreux recours hybrides qui sont largement connus comme relevant de la responsabilite delictuelle, mais qui sont composees d'un eventail de composantes juridiques, dont certaines sont caracteristiques de la responsabilite delictuelle et d'autres en lien plus etroit avec une autre categorie du droit. Ce nombre de recourses hybrides suggere que--peu importe l'ordre theorique impose--les frontieres de la responsabilite delictuelle sont troubles et poreuses, sans definition claire ou rigide. Ce flou entourant l'objet theorique qu'est la responsabilite delictuelle jette naturellement un doute sur l'ordre favorise dans les theories etudiees. De plus, la reponse evidente--que ces cas a la frontiere de plusieurs theories juridiques ne constituent pas de la responsabilite delictuelle a proprement parler (et ainsi ne necessitent pas d'explications)--est presentee comme invalide pour les theoriciens presentes, dont le travail est examine en tenant compte du fait que chacun d'eux s'engage a expliquer le droit tel qu'il se presente. Autrement dit, celui-ci traite clairement ces cas hybrides comme de la responsabilite delictuelle, ils ne peuvent etre rejetes de cette categories. Ils ne peuvent pas non plus etre rejetes comme hors de propos, meme si certains l'affirment pour plusieurs raisons reliees a leur portee pratique.

Introduction I. Three Shared Claims A. Tort Law's Bipolarity B. Tort Law is Exclusively a Branch of Private Law C. Tort Law is a Discrete Legal Category II. Hybrid Torts II. Tort Law as a Discrete Legal Category. Theory IV. Tort Law as a Discrete Legal Category; Reality A. Introduction B. The Prevalence of Hybrid Torts 1. Tort and Contract 2. Tort and Equity 3. Tort and Property Law 4. Tort and Unjust Enrichment 5. Port and Public Law V. Implications of Hybrid Torts for Explanatory Theories VI. Irrelevance Conclusion Legal, like natural divisions, however clear in their general outline, will be found on exact scrutiny to end in a penumbra. Oliver Wendell Holmes, Jr (1) [It is] a hopeless task to draw a shaip picture corresponding to the blurred [object]. Ludwig Wittgenstein (2) Introduction

The aim of this article is to show that, taken together, certain torts--which I label "hybrid torts" because they straddle two legal categories--pose a significant problem of fit for leading, explanatory theories of tort law in so far as they set out to explain tort law as a whole. The principal theories falling into this category are those belonging to Robert Stevens, Ernest Weinrib, and John Goldberg and Benjamin Zipursky. (3) It is fairly obvious that any given tort deserves to be explained (or, at least, ought not to be ignored) by a theory which sets out to provide an explanatory account of all of tort law, unless the tort in question can be seen as anomalous, marginal or trivial. (4) A tort will be none of these if it is well entrenched, its credentials qua tort have never seriously been challenged by either judges or jurists, and it possesses considerable practical significance (on account of its being invoked regularly by btigants). If a putatively explanatory theory of tort law cannot account for well-estabhshed, widely recognized and practically significant torts, then that theory may fairly be described as being beset by a significant problem of fit. (5)

What is perhaps less obvious is why the array of hybrid torts upon which this article focuses should also require explanation by such theories and why, when they cannot be so explained, they should be thought of as presenting a significant problem of fit for those theories. The simple reason why they ought to be explained by the theories in view is that the relevant theorists all implicitly commit themselves to providing such explanation.

That Weinrib is committed to explaining all causes of action that are widely recognized as being torts cannot be doubted given the method underpinning his theory. He makes clear that "the point of departure for theorizing about tort law--as well as about anything else--is experience" since, crucially, such "experience allows us to recognize a tort issue." (6) For him, "[a]n inquiry into the nature of tort law is ... a visit to the familiar landmarks of our legal world," (7) which involves "drawing on what is salient in juristic experience" (8) and, in particular, "the experience of those who are lawyers." (9) In other words, if a particular action comprises a "familiar landmark" within the world of tort law, this is good reason for it to be treated as an object of theorization.

Stevens is similarly committed. On more than one occasion in Torts and Rights, he makes plain his determination to explain "the law as we find it" (10) and, as we shall see, the law as we find it (whether ideally or not) most certainly treats hybrid torts as part of tort law. They ought therefore to come within the compass of his theory.

Finally, Goldberg and Zipursky are no less tethered to popular conceptions of tort law in developing their theory. They expressly adopt the Hartian position that a legal system (or body of rules) can best be understood from what Hart labelled the "internal point of view" or "internal aspect of rules." (11) Signing up to this internal point of view, they insist that the "first move in an effort to theorize a subject is to work with, rather than dismiss as empty, the ways in which those acting within a practice make sense of it." (12) In other words, they defend a strong prima facie case for regarding "tort law to be what it appears to be" (13) and thereby presumptively undertake to explain those actions--including hybrid torts--that are generally taken to constitute part of tort law.

It is perhaps worth spelling out why hybrid torts present a particular problem of fit for explanatory theories. The plausibility of each of my target theories is intimately linked to the idea that tort law has clearly defined and rigid borders. Without such borders, there is an inescapable problem which besets such theories. It is this: if the boundaries between tort law and other legal categories are indistinct, or if they are porous, then the very idea that there exists a discrete body of law to which the theory in question applies, and against which that theory may be tested, is called into question. In short, blurred boundaries carry with them unavoidable ramifications for the explanatory ambitions of the theorists in view given Wittgenstein's observation (quoted above) that it is impossible to paint a clear picture of a fuzzy object.

Now of course, not all torts are equally well entrenched, and the practical significance of some torts is undoubtedly dwarfed by that of others. From this emerges one ostensibly attractive escape route for tort theorists who find themselves confronted by the problem of fit posed by hybrid torts. The escape route involves showing that the hybrid torts are anomalies, or otherwise insignificant causes of action. Either way, the action in question can be portrayed as something which need not be explained, for there is no need to account for actions that are not proper torts, or actions that are mere trivial exceptions to the norm. As we shall see, however, no such escape route can plausibly be invoked in relation to the hybrid torts considered in this article. They are all too firmly entrenched and/or significant to be sidelined. Any attempt to dismiss the actions in question as something other than torts involves a flagrantly Procrustean approach to theorization. The claim that hybrid torts X, Y, and Z fall outside tort's clear and rigid borders is an unpersuasive assertion of...