John C.P. Goldberg & Benjamin C. Zipursky, Seeing Tort Law from the Internal Point of View: Holmes and Hart on Legal Duties, 75 Fordham L. Rev. 1563 (2006).
Abstract: This Essay, part of a Fordham Law Review symposium on the "internal point of view" in law and ethics, explores the intersection of jurisprudence and tort theory. In American legal thought, these two subjects were indelibly linked in the work of Oliver Wendell Holmes, Jr. In particular, Holmes's claim that legal duties are just predictions of judicially-imposed sanctions went hand in hand in with his understanding of tort as a law of indemnity or loss-shifting. As it turns out, these two core features of Holmes's thought have suffered radically different fates. More than a century after the publication of The Common Law, Holmesian-inspired thinking still dominates academic tort theory. Yet in modern jurisprudence, H.L.A. Hart is widely credited with having demolished the prediction-of-sanction account of duty. Conceding that Holmes's analysis was well-motivated in its attempt to distinguish legal from moral duties, Hart nonetheless demonstrated that the prediction theory errs in divorcing the concept of a duty from notions of normativity or "oughtness." In place of an emphasis on sanctions, Hart located the distinctiveness of legal duties in their being grounded in legal rules, and the observation that citizens who accept legal rules feel a special sort of normative pull to comply with those rules. We argue that it is time for tort theory to catch up with analytic jurisprudence. Tort law ought to be understood as a law of genuine legal duties (guidance rules), rather than predictions about sanctions (liability rules). In developing this claim, we rebut several prominent contemporary arguments meant to bolster the case for treating tort law as a collection of liability rules.