The tort/crime distinction: A generation later

Boston University Law Review

Volumn 76, Issue 1-2, 1996, Pages 1-20

  Epstein, Richard A ^a  

^a NONE

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EID: 0030529813     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (45)

1. Richard A. Epstein, Crime and Tort: Old Wine in New Bottles, in ASSESSING THE CRIMINAL: RESTITUTION, RETRIBUTION, AND THE LEGAL PROCESS 231 (Randy E. Barnett & John Hagel III eds., 1977).
2. See, e.g., JOHN RAWLS, A THEORY OF JUSTICE 30 (1971) (characterizing a deontological theory, i.e., "justice as fairness," as "one that either does not specify the good independently from the right, or does not interpret the right as maximizing the good"); see also Heidi M. Hurd, What in the World is Wrong?, 1994 J. CONTEMP. LEGAL ISSUES 157, 160-62 (summarizing deontological theory and distinguishing it from consequentialism).
3. See, e.g., JOHN RAWLS, A THEORY OF JUSTICE 30 (1971) (characterizing a deontological theory, i.e., "justice as fairness," as "one that either does not specify the good independently from the right, or does not interpret the right as maximizing the good"); see also Heidi M. Hurd, What in the World is Wrong?, 1994 J. CONTEMP. LEGAL ISSUES 157, 160-62 (summarizing deontological theory and distinguishing it from consequentialism).
4. See infra Part IV, at 16.
5. See, e.g., RICHARD A. EPSTEIN, FORBIDDEN GROUNDS 12 (1992) (identifying such problems as possible justifications for "government coercion or control"); RICHARD S. POSNER, ECONOMIC ANALYSIS OF LAW 61-65 (4th ed. 1992) (addressing holdout problems in connection with pollution abatement).
6. See, e.g., RICHARD A. EPSTEIN, FORBIDDEN GROUNDS 12 (1992) (identifying such problems as possible justifications for "government coercion or control"); RICHARD S. POSNER, ECONOMIC ANALYSIS OF LAW 61-65 (4th ed. 1992) (addressing holdout problems in connection with pollution abatement).
7. See RAWLS, supra note 2, at 100-08 (suggesting that "[t]he natural distribution [of talents] is neither just nor unjust" and that such distributions are "simply natural facts").
8. Id. at 274-84 (identifying the function of such measures in an ideal institutional framework based on the principle of distributive justice).
9. See ROBERT NOZICK, ANARCHY, STATE, UTOPIA at ix (1974).
10. In principle, this statement could invite a long disquisition of what form of consequentialism is appropriate. And even though philosophers are quite conscious of the different versions of utilitarianism, I shall largely overlook them here. For a more complete view of my approach, see Richard A. Epstein, The Utilitarian Foundations of Natural Law, 12 HARV. J.L. & PUB. POL'Y 713, 718 (1989) (suggesting that "a proper application of utilitarian principles generates many of the categorical conclusions that [anti-consequentialist] natural rights thinkers first articulated and defended") and Richard A. Epstein, Postscript: Subjective Utilitarianism, 12 HARV. J.L. & PUB. POL'Y 769 (1989).
11. In principle, this statement could invite a long disquisition of what form of consequentialism is appropriate. And even though philosophers are quite conscious of the different versions of utilitarianism, I shall largely overlook them here. For a more complete view of my approach, see Richard A. Epstein, The Utilitarian Foundations of Natural Law, 12 HARV. J.L. & PUB. POL'Y 713, 718 (1989) (suggesting that "a proper application of utilitarian principles generates many of the categorical conclusions that [anti-consequentialist] natural rights thinkers first articulated and defended") and Richard A. Epstein, Postscript: Subjective Utilitarianism, 12 HARV. J.L. & PUB. POL'Y 769 (1989).
12. THOMAS HOBBES, LEVIATHAN 86-96 (A.R. Walker ed., Cambridge Univ. Press 1935) (1651).
13. JOHN LOCKE, SECOND TREATISE OF GOVERNMENT 3-10 (Richard H. Cox ed., Harlan Davidson, Inc. 1982) (1689).
14. HOBBES, supra note 9, at 115-19.
15. The ex ante constraint is surely decisive because any system that imposes criminal sanctions on aggressors will not leave violators well off ex post. Indeed, one of the greatest perils to any system of contract - voluntary or hypothetical - is the institutionalization of a general principle of ex post regret, whereby those who do not like the observed outcomes can undo the entire arrangement. When that regret contingency is known in advance, the initial deal will not get off the ground because no one will regard himself as a potential winner.
16. For discussion, see Richard A. Epstein, The Harm Principle - And How it Grew, 45 U. TORONTO L.J. 369, 375-97 (1995).
17. Coastal Zone Management Act of 1972, 16 U.S.C. §§ 1451-1464 (1994).
18. Endangered Species Act of 1973 § 11, 16 U.S.C. § 1540(b)(1) (1994) (providing for criminal sanctions of up to $50,000 and one year imprisonment for knowing violations).
19. See generally RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 263-73 (1985) (addressing the applicability of the Takings Clause of the Fifth Amendment to, inter alia, land use regulations).
20. Supra notes 9-12 and accompanying text.
21. Fair Labor Standards Act of 1938 § 6, 29 U.S.C. § 206 (1994) (establishing minimum wage requirement).
22. 42 U.S.C. § 2000e-2(a) (1988 & Supp. V) (prohibiting employment decision based on consideration of race, color, religion, sex, or national origin).
23. Occupational Safety and Health Act of 1970 § 17, 29 U.S.C. § 666 (1994) (providing for criminal sanctions for violating standards or orders promulgated under OSHA).
24. On which I am tempted by a standard that eliminates all punishment for use, all public aid for illegal drug users, and all defenses of diminished responsibility based on drug use. See Richard A. Epstein, The Moral and Practical Dilemmas of an Underground Economy, 103 YALE L.J. 2157, 2175-76 (1994).
25. For a recent anecdotal indictment of the follies of OSHA, see PHILIP K. HOWARD, THE DEATH OF COMMON SENSE 12-15 (1994) (commenting on the scope and specificity of OSHA regulations and the massive expenditures made by employers to reach mandated compliance levels).
26. E.g., id.
27. E.g., supra notes 5-8 and accompanying text.
28. See, e.g., Richard A. Posner, An Economic Theory of the Criminal Law, 85 COLUM. L. REV. 1193, 1205-14 (1985) (discussing optimal criminal penalties); Steven Shavell, Deterrence and the Punishment of Attempts, 19 J. LEGAL STUD. 435, 448 (1990) (utilizing optimal deterrence theory to address the punishment of attempts).
29. See, e.g., Richard A. Posner, An Economic Theory of the Criminal Law, 85 COLUM. L. REV. 1193, 1205-14 (1985) (discussing optimal criminal penalties); Steven Shavell, Deterrence and the Punishment of Attempts, 19 J. LEGAL STUD. 435, 448 (1990) (utilizing optimal deterrence theory to address the punishment of attempts).
30. See H.L.A. HART, THE CONCEPT OF LAW 181 (1961) (observing that the development of law has been "profoundly influenced" by moral discourse, but that legal validity need not be explicitly tied to morality).
31. See, e.g., POSNER, supra note 4, at 119-77.
32. See J.H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 571 (3d ed. 1990) ("In early societies there is no concept of the 'state.' Both compensation and
33. E.g., Hulle v. Orynge, Mich. 6 Edw. 4, fol. 7, pl. 18 (1466), reprinted in J.H. BAKER & S.F.C. MILSOM, SOURCES OF ENGLISH LEGAL HISTORY 327, 330 (1986). A participant in that case observed: [I]f a man is shooting at the butts and his bow swerves in his hand and [the arrow] kills a man, against his will, this (as has been said) is not a felony. If, however, he injures a man by his archery, the man shall have a good action of trespass against him: and yet the archery was lawful, and the injury which the other suffered was against his will. Id.; see also Weaver v. Ward, 80 Eng. Rep. 284 (K.B. 1616) (applying a similar distinction to the insanity defense that, although irrelevant in tort, is critical in criminal law).
34. LOCKE, supra note 10, at 6-7. The references to the transition from collective punishment by individuals to collective punishment by magistrates marks the transition from a state of nature. Of course noxious beasts could be killed with impunity, and the parallel Locke draws between such conduct and private enforcement of one's interests in the state of nature is an intentional one. Id. at 7. Further, the deadly punishments are allowed for lesser offenses, if such is needed for public safety. Id. ("[E]ach transgression may be punished to that degree, and with so much severity as will suffice to make it an ill bargain to the offender . . . .").
35. Id. (emphasis omitted).
36. E.g., RICHARD A. EPSTEIN, CASES AND MATERIALS ON TORTS 35-39 (6th ed. 1995).
37. See Kenneth Mann, Punitive Civil Sanctions: The Middle Ground Between Criminal and Civil Law, 101 YALE L.J. 1795, 1861-71 (1992) (assessing the impact of the expansion of civil punitive damages on the tort/criminal law distinction).
38. Shavell, supra note 25, at 436-37.
39. Id at 435.
40. See e.g., Peter J. Benekos & Alida V. Merlo, Three Strikes and You're Out!: The Political Sentencing Game, FED. PROBATION, Mar. 1995, at 3, 6 (commenting on observations by police officers that offenders facing a third conviction under a "three strikes" system are more prone to violent acts); Timothy Egan, A 3-Strike Law Shows It's Not As Simple As It Seems, N.Y. TIMES, Feb. 15, 1994, at A1 (noting that police officers have encountered a "nothing to lose" attitude in confrontations with suspects facing a third conviction).
41. See e.g., Peter J. Benekos & Alida V. Merlo, Three Strikes and You're Out!: The Political Sentencing Game, FED. PROBATION, Mar. 1995, at 3, 6 (commenting on observations by police officers that offenders facing a third conviction under a "three strikes" system are more prone to violent acts); Timothy Egan, A 3-Strike Law Shows It's Not As Simple As It Seems, N.Y. TIMES, Feb. 15, 1994, at A1 (noting that police officers have encountered a "nothing to lose" attitude in confrontations with suspects facing a third conviction).
42. GERALD N. ROSENBERG, THE HOLLOW HOPE (1991) (questioning the capacity of the Supreme Court to produce significant social reform).
43. 411 U.S. 113 (1973).
44. 478 U.S. 186 (1986).
45. ROSENBERG, supra note 38, at 157-69 (contending that the success of the civil rights movement resulted from economic and electoral developments, shifting international demands, and other fundamental societal changes); id. at 247-65 (attributing the end of discrimination against women to changing economics, decreasing fertility rates, and improved education).