A missing markets theory of tort law

Northwestern University Law Review

Volumn 90, Issue 3, 1996, Pages 977-1007

  Hylton, Keith N ^a  

^a BOSTON UNIVERSITY   (United States)

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EID: 0345786133     PISSN: 00293571     EISSN: None     Source Type: Journal    
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References (125)

1. RESTATEMENT (SECOND) OF TORTS §§ 519, 520 (1977).
2. On the equivalence of strict liability and negligence with respect to precaution, see RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 160-61 (2d ed. 1977);
3. Steven Shavell, Strict Liability Versus Negligence, 9 J. LEGAL STUD. 1, 2-3 (1980).
4. I refer to the mathematical formulation introduced by Judge Learned Hand in United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947). For an economic justification of the Hand formula, see RICHARD A. POSNER, TORT LAW: CASES AND ECONOMIC ANALYSIS 1-9 (1982).
5. Shavell, supra note 2, at 2-3.
6. Id. By socially desirable, I mean the same thing as economically optimal, economically efficient, or wealth-maximizing. The wealth-maximizing level of activity minimizes the sum of avoidance and accident costs. See John Prather Brown, Toward A Theory of Liability, 2 J. LEGAL STUD. 323 (1973). On the relevant notion of economic efficiency, see infra note 23.
7. John Prather Brown demonstrated that the negligence rule is optimal when the probability of an injury can be reduced by precaution on the part of either the injurer or the victim. See Brown, supra note 5, at 340-42. But the negligence rule extends to areas such as medical malpractice in which victim precaution is clearly not an issue. The puzzle this Article seeks to explain is why the domain of the negligence rule is greater than the standard economic models of accidents suggest.
8. This theory of tort law is suggested in chapter 3 of OLIVER WENDELL HOLMES, THE COMMON LAW (Little, Brown and Co. 1881). The theory is explicit in the work of Calabresi and Posner.
9. See GUIDO CALABRESI, THE COSTS OF ACCIDENTS (1970);
10. Richard A. Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29 (1972).
11. A common critique of economically oriented theories such as Judge Posner's is that they tend to ignore or downplay doctrinal complexities. See, e.g., G. EDWARD WHITE, TORT LAW IN AMERICA: AN INTELLECTUAL HISTORY (1985). There is evidence for this in the law and economics literature. Calabresi's book, a general critique of the tort system, has very little to say about tort doctrine. See CALABRESI, supra note 7. Posner's theory, in a nutshell, seems to be that the complexities of doctrine can be largely avoided, and tort case outcomes can be understood by examining the facts and applying the Learned Hand formula. See Posner, supra note 7.
12. An independent paper by Richard Epstein (published as this Article was in progress) emphasizes the importance of benefits in understanding tort law. See Richard A. Epstein, The Ubiquity of the Benefit Principle, 67 S. CAL. L. REV. 1369 (1994). However, Epstein's paper does not develop an alternative economic theory of tort law.
13. Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972).
14. Surprisingly few attempts have been made to justify nuisance doctrine. Perhaps the first to suggest that nuisance doctrine could be justified on economic grounds was Ronald Coase in his critique of externality theory. Ronald H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1, 19-23 (1960).
15. A corrective justice theory was provided in Richard A. Epstein, Nuisance Law: Corrective Justice and Its Utilitarian Constraints, 8 J. LEGAL STUD. 49 (1979).
16. The only attempt to provide a somewhat detailed positive economic theory of nuisance doctrine, of which I am aware, is William D. Manson, A Re-examination of Nuisance Law, 8 HARV. J.L. & PUB. POL'Y 185 (1985), which is broadly consistent with the theory presented in this Article.
17. For criticisms of Manson's argument, see Lawrence H. White, Economics and Nuisance Law: Comment on Manson, 8 HARV. J.L. & PUB. POL'Y 213 (1985). Most of the economic analysis applied to nuisance law has been normative theory, examining in particular the desirability of injunctive versus damage remedies.
18. See Jeff L. Lewin, Compensated Injunctions and the Evolution of Nuisance Law, 71 IOWA L. REV. 775 (1986);
19. A. Mitchell Polinsky, Resolving Nuisance Disputes: The Simple Economics of Injunctive and Damage Remedies, 32 STAN. L. REV. 1075 (1980);
20. see also Edward Rabin, Nuisance Law: Rethinking Fundamental Assumptions, 63 VA. L. REV. 1299 (1977).
21. George P. Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV. 537 (1972).
22. Coase, supra note 11.
23. Calabresi & Melamed, supra note 10.
24. The risk of such expropriation would, in turn, reduce incentives to use property productively and would create other "demoralization" costs. See Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165 (1967).
25. Thomas W. Merrill, Trespass, Nuisance, and the Costs of Determining Property Rights, 14 J. LEGAL STUD. 13 (1985).
26. The direct-indirect distinction corresponds to the distinction between trespass and case, for which the latter required proof of negligence or intent. Blasting rocks onto another's land would be direct, while vibrations from the concussion of a blast would be indirect. See WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS 65 (4th ed. 1971).
27. E.g., Morgan v. High Penn Oil Co., 77 S.E.2d 682 (N.C. 1953); Waschak v. Moffat, 109 A.2d 310 (Pa. 1954).
28. McKinney v. Riley, 197 A.2d 218 (N.H. 1964); Bartel v. Ridgefield Lumber Co., 229 P. 306 (Wash. 1924).
29. E.g., Ryan v. City of Emmetsburg, 4 N.W.2d 435, 438-39 (Iowa 1942) (nuisance involving gas and odors: "The line of demarcation between private nuisance and trespass is not always clear. Under certain circumstances such as in some cases involving the flooding of land there may be both a trespass and a nuisance."). The difficulty in drawing the line is illustrated by Martin v. Reynolds Metals Co., 342 P.2d 790 (Or. 1959), in which an invasion by invisible fluoride particulates was held a to be a trespass.
30. WILLIAM LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW 64-73 (1987).
31. There is really a spectrum of choices ranging between the instantaneous, nondurable precautionary investments, and long-term, durable precautionary investments. In the case of driving, the decision to purchase a car of given safety attributes is on the durable end of the spectrum. The decision to have the brakes checked is an intermediate level of durable precautionary behavior. On the other extreme is the decision to hold one's foot near the brake in case something should appear suddenly from the side of the road. It is clearly artificial to treat precautionary investments as if they fall into one of two categories - either care or activity. But the essential features of the choice problem are captured in this framework without losing much. Expanding the number of categories of precautionary behavior would not alter the conclusions of a simpler model that uses only two categories of precautionary investment.
32. See LANDES & POSNER, supra note 21, at 70. I will use the term "socially desirable," "efficient," and "optimal" interchangeably in the remainder of this Article. The definition is now fairly standard in the law and economics literature: a move from regime A to regime B is "desirable" or "efficient" if all players would still prefer B to A even after the winners have compensated the losers. This is known as Kaldor-Hicks efficiency, and for a non-technical discussion, see RICHARD A. POSNER, THE ECONOMICS OF JUSTICE 48-87 (1981).
33. For a more advanced treatment and critique, see Kenneth J. Arrow, Little's Critique of Welfare Economics, 41 AM. ECON. REV. 923, 923-32 (1951).
34. Shavell, supra note 2, at 2-3.
35. Keith N. Hylton, Costly Litigation and Legal Error under Negligence, 6 J.L. ECON. & ORGANIZATION 433 (1990).
36. 3 H.L. 330 (1868).
37. "[T]he rule of Rylands v. Fletcher is that the defendant will be liable when he damages another by a thing or activity unduly dangerous and inappropriate to the place where it is maintained . . . ." PROSSER, supra note 17, at 508.
38. Merrill, supra note 16, at 39-40, comes very close to admitting that transaction cost theory provides a poor explanation of the Rylands doctrine.
39. Though, the consistency can be questioned because it is difficult to square the inappropriateness requirement of Rylands with the internalization model.
40. New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Before the constitutionalization of American defamation law, by cases such as New York Times, the standard governing an intentional publication of defamatory material was strict liability, which seems to be inconsistent with the assertion in the text. See PROSSER, supra note 17, at 771. However, the common-law rule of strict liability for defamation bore little resemblance to other strict liability rules, such as the Rylands doctrine. Defenses of truth, privilege (of various sorts), or fair comment could be asserted. See, e.g., id. at 776-96. In addition, under the common-law rule a defendant would be held to have published a defamatory statement only if its communication to a third party was foreseeable. Huth v. Huth, 3 K.B. 32 (1915). The common-law standard of liability for defamation was not nearly as unforgiving as a rule of absolute or strict liability, and was probably similar in its incentive effects to a negligence rule.
41. E. Rauh & Sons Fertilizer Co. v. Shreffler, 139 F.2d 38, 41-42 (6th Cir. 1943) (holding that an injury is intentional in the eyes of the law if it is foreseeable and preventable); Burr v. Adam Eidemiller, Inc., 126 A.2d 403, 407 (Pa. 1956) (concluding that the polluting of the plaintiff's spring by the defendant's slag pile was an intentional invasion if plaintiff knew of it and made no attempt to correct it); Jost v. Dairyland Power Coop., 172 N.W.2d 647, 652 (Wis. 1969) (stating that "when the actor knows of the nature of the injury inflicted, [it] is an intentional tort"); see also William L. Prosser, Nuisance Without Fault, 20 TEX. L. REV. 399, 416-17 (1942).
42. See, e.g., Eckenrode v. Life of Am. Ins. Co., 470 F.2d 1 (7th Cir. 1972) (setting out elements of a prima facie case for tort of intentional infliction of emotional distress: "(1) Outrageous conduct by the defendant; (2) The defendant's intention of causing, or reckless disregard of the probability of causing emotional distress; (3) The plaintiff's suffering severe or extreme emotional distress; and (4) Actual and proximate causation of the emotional distress by the defendant's outrageous conduct").
43. Shavell, supra note 2, at 2-3.
44. It should be noted, however, that the costs considered in the transaction cost framework are those associated with the care level decision. Consider, for example, trespass doctrine. Trespass covers a low transaction cost area because it is usually easy for the potential tortfeasor to identify the victim's property boundary and to negotiate with the victim before crossing it. In other words, the transaction costs associated with the tortfeasor's instantaneous care decision - whether to cross the property owner's boundary - are relatively low.
45. RESTATEMENT (SECOND) OF TORTS § 520 (1977) provides as follows: In determining whether an activity is abnormally dangerous, the following factors are to be considered: (a) existence of a high degree of risk of some harm to the person, land or chattels or others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes.
46. Spano v. Perini Corp., 250 N.E.2d 31 (N.Y. 1969) (holding that one who engages in "blasting" in a residential neighborhood will be held liable, without proof of negligence, for injury thereby caused); Federoff v. Harrison Constr., 66 A.2d 817 (Pa. 1949) (same).
47. Even before New York Times and similar cases, the standard governing an intentional publication of defamatory material was something less than strict liability (because of the defenses of truth, privilege, and fair comment), although it is often described by commentators as strict liability. Further, it seems to me that the fundamental reason for applying the type of strict liability observed in pre-1964 defamation law is the administrative burden of assessing the validity of certain excuses or justifications offered by the defendant (such as ignorance of the victim's existence). See E. Hulton & Co. v. Jones, 1910 App. Cas. 20 (H.L.). If the problem of assessing the validity of the defendant's excuses were not so great, the negligence rule probably would have been explicitly adopted by common-law courts. In this sense, pre-1964 defamation law in America is similar to res ipsa doctrine. For a general theory of strict liability that emphasizes the administrative problem of determining "real" negligence - i.e., economically unjustifiable failures to take precautions - see Mark F. Grady, Res Ipsa Loquitur and Compliance Error, 142 U. PA. L. REV. 887 (1994).
48. See, e.g., JACK HIRSHLEIFER, PRICE THEORY AND APPLICATIONS 478-82 (4th ed. 1988); POSNER, supra note 23, at 262.
49. POSNER, supra note 23, at 262.
50. This is the standard under the modern cases. See Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Given the purpose of the earlier strict liability standard and the defenses and privileges available, the pre-1964 standard of conduct was probably weaker than a pure negligence rule.
51. See supra note 32 (discussing Eckenrode); see also PROSSER, supra note 17, at 56.
52. E.g., Curley v. Hoff, 42 A. 731 (N.J. 1899); Wonder v. Baltimore & O.R.R., 32 Md. 411 (1870); Farwell v. Boston & Worcester R.R. Corp., 45 Mass. (4 Met.) 49 (1842).
53. The theoretical core of the assumption of risk defense is that the plaintiff is aware of the hazards and has implicitly accepted them in exchange for the benefits of the transaction. It should be clear that this theory is considerably more plausible in contractual settings than in accidents involving strangers.
54. See, e.g., 1 ARTHUR LARSON, THE LAW OF WORKMEN'S COMPENSATION § 4.30 (1995) (discussing the common-law defenses of the fellow-servant rule, assumption of risk, and contributory negligence as efforts to subsidize industry).
55. Vredenburg v. Behan, 33 La. Ann. 627 (1881) (bear kept on grounds leased by gun club escaped and attacked farmer).
56. McKinney v. City of San Francisco, 241 P.2d 1060, 1063 (Cal. Dist. Ct. App. 1952). The keeping of a bear could be considered analogous to the defendant's activity in Comminge & Geisler v. Stevenson, 13 S.W. 556 (Tex. 1890), in which the court enjoined the defendant from maintaining a powder magazine at a place where it presented a constant threat of harm to the plaintiff.
57. In Guzzi v. New York Zoological Soc'y, 182 N.Y.S. 257 (N.Y. App. Div. 1920), aff'd, 233 N.Y. 511 (1922), the court held that the defendant society, which maintained the Bronx Zoo, was not on the basis of strict liability liable for injury to a girl who crept under the cage of a bear, and that the cages did not constitute a nuisance per se, because the animals were maintained as a public enterprise for educational purposes and to entertain the public.
58. The law is consistent with this proposition. If an animal is dangerous or has shown a tendency to attack, the owner will be held strictly liable for injuries. See Harvey v. Buchannan, 49 S.E. 281 (Ga. 1904) (surprisingly vicious mule); Marshall v. Ranne, 511 S.W.2d 255 (Tex. 1974) (boar); Baker v. Snell, [1908] 2 K.B. 825 (vicious dog); Filburn v. People's Palace & Aquarium Co., 25 Q.B.D. 258 (1890) (elephant); May v. Burdett, 115 Eng. Rep. 1213 (Q.B. 1846) (monkey).
59. See Baker, 2 K.B., at 825.
60. For an impressive discussion of the beneficial external effects of the transportation and communication revolutions caused by the railroads, see ALFRED D. CHANDLER, JR., THE VISIBLE HAND: THE MANAGERIAL REVOLUTION IN AMERICAN BUSINESS 188-239 (1977).
61. MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1780-1860, at 85-99 (1977).
62. HOLMES, supra note 7, at 77-107.
63. Posner, supra note 7, at 29.
64. Id. at 30.
65. Indeed, the courts were telling us this in the plainest language in the nuisance cases. See Lexington & Ohio R.R. v. Applegate, 38 Ky. (8 Dana) 289, 309 (1839) (stating that "railroads and locomotive steamcars - the offsprings, as they will also be the parents, of progressive improvement - should not, in themselves, be considered as nuisances, although, in ages that are gone, they might have been so held, because they would have been comparatively useless, and, therefore, more mischievous"); Losee v. Buchanan, 51 N.Y. 476, 484-85 (1873) ("We must have factories, machinery, dams, canals and railroads. They are demanded by our civilization. If I have any of these upon my lands, and they are not so a nuisance and are not managed as to become such, I am not responsible for any damage they accidentally and unavoidably do my neighbor. He receives his compensation for such damage by the general good, in which he shares, and the right which he has to place the same things upon his lands.").
66. Guido Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 YALE L.J. 499, 515-16 (1961).
67. Id. at 516.
68. Ad coelum refers to the traditional rule recognizing as a trespass any intentional, direct, physical invasion of the column of space extending from the center of the earth to the heavens. According to the Restatement. "Flight by aircraft in the air space above the land of another is a trespass if, but only if, (a) it enters into the immediate reaches of the air space next to the land, and (b) it interferes substantially with the other's use and enjoyment of his land." RESTATEMENT (SECOND) OF TORTS § 159.2 (1977).
69. Merrill, supra note 16, at 36.
70. Id.
71. 3 WILLIAM BLACKSTONE, COMMENTARIES 216-19 (15th ed. 1809).
72. For this reason, trespass has been considered the appropriate action. See, e.g., P.H. Winfield, Nuisance as a Tort, 4 CAMBRIDGE L.J. 189, 203 (1931).
73. Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., 114 So. 2d 357, 359 (Fla. Dist. Ct. App. 1959). But there is evidence that the doctrine of ancient lights exists in a somewhat weaker form. See Prah v. Maretti, 321 N.W.2d 182 (Wis. 1982) (recognizing easements for light going to solar heating panels).
74. Jost v. Dairyland Power Coop., 172 N.W.2d 647 (Wis. 1969).
75. Copart Indus, v. Consolidated Edison Co., 362 N.E.2d 968 (N.Y. 1977). The negligence approach seems to have been taken in Restatement § 826, which defines unreasonable interference as follows: An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if (a) the gravity of the harm outweighs the utility of the actor's conduct, or (b) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible. RESTATEMENT (SECOND) OF TORTS § 826 (1977). For an argument that negligence principles should govern where the harm is not intentional, see Warren A. Seavey, Nuisance: Contributory Negligence and Other Mysteries, 65 HARV. L. REV. 984 (1952).
76. PROSSER, supra note 17, at 596-602; see also W. PAGE KEETON, PROSSER AND KEETON ON THE LAW OF TORTS 630 (5th ed. 1984).
77. Rhoades v. Cook, 98 N.W. 122 (Iowa 1904); Gilbert v. Davidson Constr. Co., 203 P. 1113 (Kan. 1922); Whittemore v. Baxter Laundry Co., 148 N.W. 437 (Mich. 1914); Longtin v. Persell, 76 P. 699 (Mont. 1904); Beecher v. Dull, 143 A. 498 (Pa. 1928); Gossett v. Southern Ry., 89 S.W. 737 (Tenn. 1905); see also 1 FOWLER V. HARPER ET AL., THE LAW OF TORTS § 1.24 (2d ed. 1986); Winfield, supra note 62, at 199-201. It has been argued that the importation of negligence principles into nuisance law was the result of an "incautious obiter dictum."
78. See F. H. Newark, The Boundaries of Nuisance, 65 L.Q. REV. 480 (1949).
79. PROSSER, supra note 17, at 604.
80. id.
81. E.g., Morgan v. High Penn Oil Co., 77 S.E.2d 682 (N.C. 1953) (dismissing defendant's argument that a reasonable activity can be a nuisance only if carried out in a negligent manner).
82. Consumer surplus refers to the net benefits, which is the difference between benefits and costs, received by consumers from purchasing a good in the market. Consider one consumer who values a good at $10 per unit. If the market price of the good is $5 per unit, the "consumer surplus" or net benefit enjoyed by that consumer is $5 per unit of the good consumed. For elaboration, see HIRSHLEIFER, supra note 38, at 204-06.
83. Economic rent refers to net benefits to suppliers. For example, someone willing to work for $5 per hour and who receives a wage of $10 per hour, receives an economic rent of $5 per hour. For elaboration, see HIRSHLEIFER, supra note 38, at 376-77.
84. Here I am making the rather standard assumption that consumers are aware of the important price and quality characteristics of the goods they purchase and that workers are aware of their wages, hours, and conditions of work. If either consumers misperceive the characteristics of their products or workers misperceive their work conditions, "perceived consumer surplus" and "perceived economic rent" will differ from their actual amounts. Expansions of tort liability in order to correct for these misperceptions can therefore be justified. See A. Michael Spence, Consumer Misperception, Product Failure and Producer Liability, 44 REV. ECON. STUD. 561 (1977).
85. See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947).
86. This requires the enterprise to compensate victims for losses that could not be easily measured by courts. For example, the value of an asset that is traded in a thin market may not be fully taken into account under a damages scheme. See David D. Haddock et al., An Ordinary Economic Rationale for Extraordinary Legal Sanctions, 78 CAL. L. REV. 1 (1990).
87. One might wonder whether this argument is inconsistent with the framework of the previous section, which generates four categories of liability rule. See supra Figure 1 accompanying note 34. However, the discussion surrounding Figure 1 assumes total benefits of the defendant's activity exceed total costs. In this section, we are talking about a different area altogether, where total benefits fall below total costs.
88. 181 A.2d 487 (N.J. 1962).
89. Id.
90. This should not be taken to suggest that anything that violates the Rylands doctrine is a nuisance. A tortfeasor can violate the Rylands doctrine without disturbing the victim's use and enjoyment of land, as in the case of a tiger that escapes and bites the victim on public property. For a careful discussion of the points that distinguish nuisance and ultrahazardous activity claims, see Winfield, supra note 62, at 192-97.
91. 172 N.W.2d 647 (Wis. 1970).
92. Id.
93. See, e.g., RESTATEMENT (SECOND) OF TORTS § 829A cmts. (1977) (discussing the unreasonable interference test). One reason to expect the typical nuisance dispute to be of this sort is suggested by research in the theory of litigation. In the case of an ultrahazardous activity, the defendant will generally be as aware as the plaintiff of the likelihood of physical damage to victims. These cases are likely to be settled. This may not describe the case in which the activity is reasonable. In many of these cases, the defendant may not have anticipated the plaintiff's harm, and may find the plaintiff's claim weak. Because of the difference in expectations, these cases are more likely to be litigated.
94. For a general treatment of expectations and the litigation process, see Keith N. Hylton, Asymmetric Information and the Selection of Disputes for Litigation, 22 J. LEGAL STUD. 187 (1993);
95. George Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. LEGAL STUD. 1 (1984).
96. 173 A. 627 (R.I. 1934).
97. Id.
98. Id. at 631-32.
99. Id. at 631.
100. 15 N.E. 768 (Mass. 1888).
101. The process happened in reverse, making a nuisance out of an activity that was not an unreasonable interference at its inception, in Ensign v. Walls, 34 N.W.2d 549 (Mich. 1948), in which a dog-breeder's business became a nuisance within the community that developed around it.
102. See, e.g., Koseris v. J.R. Simplot Co., 352 P.2d 235, 237 (Idaho 1960) (declining an injunction, noting that it would cost 1000 jobs and that the plant represented a substantial capital investment); Boomer v. Atlantic Cement Co., 257 N.E.2d 870 (N.Y. 1970); Whalen v. Union Bag & Paper Co., 101 N.E. 805 (N.Y. 1913); Crushed Stone Co. v. Moore, 369 P.2d 811 (Okla. 1962); Madison v. Ducktown Sulphur, Copper & Iron Co., 83 S.W. 658, 666-67 (Tenn. 1904) (finding the defendant liable but refusing to grant an injunction because it would result in the destruction of two mining companies along with half of the county's tax base, driving 10,000 people from their homes).
103. See e.g., W. Page Keeton & Clarence Morris, Notes on "Balancing the Equities," 18 TEX. L. REV. 412, 416 (1940).
104. HOLMES, supra note 7, at 67-68.
105. See Richard A. Posner, Economic Theory of the Criminal Law, 85 COLUM. L. REV. 1193, 1221-22 (1985) (arguing the same).
106. Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 169 (1968).
107. Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 169 (1968). Id.
108. Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 169 (1968). id.
109. Id. at 194.
110. See PROSSER, supra note 17, at 574-75.
111. For many crimes, particularly violent crimes, proof of "specific intent" (an intent to do the harm that resulted, or to violate the statute in question) is required. See, e.g., WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL LAW 216-17, 224 (2d ed. 1986). An alternative perspective on the different intent requirements of criminal and tort law is provided by examining excuses or justification. Self-defense is an excuse to a criminal charge such as homicide. But if the defendant were to run onto the plaintiff's property in an effort to escape someone who is out to kill him, he would still be liable for damage to the plaintiff's property, even though modem trespass law is said to recognize a privilege in this instance. See, e.g., HARPER, supra note 67, § 1.22, at 71.
112. HOLMES, supra note 7, at 83-84, 96-98.
113. id.
114. See e.g., Maye v. Yappen, 23 Cal. 306 (1863).
115. 96 Eng. Rep. 525 (1773).
116. 96 Eng. Rep. 525 (1773) Id.
117. 96 Eng. Rep. 525 (1773) Id.
118. PROSSER, supra note 17, at 586.
119. Id. at 587.
120. George P. Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV. 537 (1972).
121. George P. Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV. 537 (1972). id.
122. Robert C. Ellickson, Of Coase and Cattle: Dispute Resolution Among Neighbors in Shasta County, 38 STAN. L. REV. 623 (1986).
123. This is also known as the "live and let live" rule, attributed to Baron Bramwell's discussion of low-level nuisances, such as burning weeds and emptying cesspools, in Bamford v. Turnley, 122 Eng. Rep. 27, 32-33 (1862).
124. 2 BLACKSTONE, supra note 61, at 33-34.
125. Coase, supra note 11, at 19-28 (discussing nuisance law).