Nathaniel Donahue and John Fabian Witt on Tort as Private Administration

At the Seminar in Private Law on February 11, 2020, Nathaniel Donahue, a J.D./Ph.D. candidate at Yale University and John Fabian Witt ’99, Allen H. Duffy Class of 1960 Professor of Law at Yale Law School, presented their paper, titled “Tort as Private Administration.”

Donahue and Witt began with the observation that a significant number of tortious claims in the United States are currently being resolved out of court. Repeat players like insurance firms, tort law practitioners, and other actors have, over time, developed a fairly comprehensive and privately managed system of “private administration” of such claims, they said. Certain features of American tort law, including rules regarding compensation, the contractual nature of the settlements, as well as the pervasive drive towards efficiency, made this phenomenon possible, according to the speakers.

This observation challenges, in Donahue and Witt’s view, the descriptive presuppositions of the leading tort law theories. They recounted the two most popular accounts of what tort law “does”: the corrective justice theory and the utility-maximizing theory. According to the former, the social function of tort law is to remedy the wrongful losses suffered by persons, whereas the latter holds that the primary function of tort law is to efficiently allocate certain social resources. However, both of these accounts presume that it is a court (a judge and a jury) who issue decisions regarding tortious claims. When this assumption no longer holds, as the speakers argued, a new explanation is due.

Donahue and Witt presented their account as descriptive in nature, purposely refraining from presenting evaluative or prescriptive claims. However, they provided an overview of possible further avenues of research, including the assessment of the secretive character of the private administrations’ operations. They also looked at the phenomenon from a comparative perspective, asking why the evolution of American tort law management has been different than in other jurisdictions.

Each spring, the Seminar in Private Law brings speakers from academia and practice to Yale Law School to present papers addressing a common theme. The 2020 Seminar is devoted to the theme of private law and inequality. The Seminar is organized by Guido Calabresi Professor of Private Law Daniel Markovits ’00 and the Yale Law School Center for Private Law, which promotes teaching and research in contracts, property, and torts at Yale Law School and in the broader legal community.