A Systems Theory of Tort Law: Reevaluating the Case Against “Regulation by Litigation”

For decades, critics of tort law have argued that lawsuits are a poor substitute for government regulation. These detractors compare the institutional capacities of courts and agencies, and they conclude that litigation is ineffective, inefficient, and illegitimate as an alternative to notice-and-comment rulemaking. In response, this Article asserts that characterizing tort law and administrative regulation as alternatives obscures their interdependence. By using systems theory to model this interdependence, the Article argues that any fair-minded assessment of tort litigation’s contribution to regulatory governance requires understanding it as part of a system.

Ignoring the systemic impacts of tort litigation overlooks the subtle ways in which it enhances expertise, stakeholder participation, feedback, and learning in regulatory regimes. To illustrate, the Article examines the most urgent food safety problem currently facing U.S. consumers: foodborne illness outbreaks caused by leafy greens contaminated with virulent microbial pathogens. Systems theory demonstrates how tort litigation has played a vital role in the development of government regulations and industry standards to reduce the risk of contamination. Through interactions with media coverage, consumer advocacy, and insurance underwriting, tort litigation has shaped and motivated the development of the food safety standards that govern leafy greens production.

From a careful analysis of how lawsuits have advanced food safety policy, the Article derives a general theory of the interdependence of tort litigation and government regulation.