Intentional Interference with Contract and the Doctrine of Efficient Breach: Fine Tuning the Notion of the Contract Breacher as Wrongdoer

Buffalo Law Review

Volumn 47, Issue 1, 1999, Pages 645-709

  Remington, Clark A ^a  

^a NONE

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EID: 0348194969     PISSN: 00239356     EISSN: None     Source Type: Journal    
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References (242)

1. One might ask why we should worry about interference doctrine if the outcomes of the cases are in line with my proposed third approach. The problem is that there are beneficial transactions that do not occur because they are deterred by an overbroadly stated rule. The approach that is followed by many courts is enough to scuttle any transaction that would fall within the overbroadly articulated rule. This would be less of a problem if it were possible for a prospective breacher and interferer to contract with respect to the risk of tort liability, for example, by having the breacher agree to indemnify the interferer for any tort damages owed to the aggrieved party. But such agreements are probably unenforceable. See infra notes 118-19 and accompanying text. Ask any experienced transactional lawyer and you will hear stories about deals that were put on hold upon discovery of the risk of interference liability and terminated upon knowledge of the unenforceability of risk-shifting agreements.
2. Russell J. Weintraub, The Ten Billion Dollar Jury's Standards for Determining Intention to Contract: Pennzoil v. Texaco, 9 REV. LITIG. 371, 373 n.6 (1990) (citing David A. Anderson, An Errant Tort, 9 REV. LITIG. 409 (1990)).
3. Russell J. Weintraub, The Ten Billion Dollar Jury's Standards for Determining Intention to Contract: Pennzoil v. Texaco, 9 REV. LITIG. 371, 373 n.6 (1990) (citing David A. Anderson, An Errant Tort, 9 REV. LITIG. 409 (1990)).
4. Id.
5. "The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it, - and nothing else." Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457, 462 (1897).
6. See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW § 4.8 (5th ed. 1998); E. ALLAN FARNSWORTH, CONTRACTS § 12.3 (2d ed. 1990).
7. See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW § 4.8 (5th ed. 1998); E. ALLAN FARNSWORTH, CONTRACTS § 12.3 (2d ed. 1990).
8. See infra notes 112-15 and accompanying text.
9. Here and throughout this Article I use the word "efficient" to mean "Pareto superior," unless something is said to the contrary. One state is Pareto superior to a second state when at least one person is better off in the first state relative to the second state, and no one is worse off. There are other criteria of efficiency that are less palatable from the standpoint of private law. Under the Kaldor-Hicks criterion, one state is superior to another if everyone is better off in the aggregate in the first state relative to the second. If I value your watch more than you do, then in a Kaldor-Hicks sense, focussing only on the particular transaction, it is efficient if I steal it from you. The theft is not Pareto efficient, however, because someone (the victim) is made worse off by it. If I value your watch more than you do, in a Pareto world I should negotiate to buy it from you. See Nicholas Kaldor, Welfare Propositions of Economics and Interpersonal Comparisons of Utility, 49 ECON. J. 549 (1939); J.R. Hicks, The Foundations of Welfare Economics, 49 ECON. J. 696 (1939); JACK HIRSHLEIFER & AMIHAI GLAZER, PRICE THEORY AND APPLICATIONS 445-46 (5th ed. 1992); POSNER, supra note 5, § 1.2.
10. Here and throughout this Article I use the word "efficient" to mean "Pareto superior," unless something is said to the contrary. One state is Pareto superior to a second state when at least one person is better off in the first state relative to the second state, and no one is worse off. There are other criteria of efficiency that are less palatable from the standpoint of private law. Under the Kaldor-Hicks criterion, one state is superior to another if everyone is better off in the aggregate in the first state relative to the second. If I value your watch more than you do, then in a Kaldor-Hicks sense, focussing only on the particular transaction, it is efficient if I steal it from you. The theft is not Pareto efficient, however, because someone (the victim) is made worse off by it. If I value your watch more than you do, in a Pareto world I should negotiate to buy it from you. See Nicholas Kaldor, Welfare Propositions of Economics and Interpersonal Comparisons of Utility, 49 ECON. J. 549 (1939); J.R. Hicks, The Foundations of Welfare Economics, 49 ECON. J. 696 (1939); JACK HIRSHLEIFER & AMIHAI GLAZER, PRICE THEORY AND APPLICATIONS 445-46 (5th ed. 1992); POSNER, supra note 5, § 1.2.
11. Here and throughout this Article I use the word "efficient" to mean "Pareto superior," unless something is said to the contrary. One state is Pareto superior to a second state when at least one person is better off in the first state relative to the second state, and no one is worse off. There are other criteria of efficiency that are less palatable from the standpoint of private law. Under the Kaldor-Hicks criterion, one state is superior to another if everyone is better off in the aggregate in the first state relative to the second. If I value your watch more than you do, then in a Kaldor-Hicks sense, focussing only on the particular transaction, it is efficient if I steal it from you. The theft is not Pareto efficient, however, because someone (the victim) is made worse off by it. If I value your watch more than you do, in a Pareto world I should negotiate to buy it from you. See Nicholas Kaldor, Welfare Propositions of Economics and Interpersonal Comparisons of Utility, 49 ECON. J. 549 (1939); J.R. Hicks, The Foundations of Welfare Economics, 49 ECON. J. 696 (1939); JACK HIRSHLEIFER & AMIHAI GLAZER, PRICE THEORY AND APPLICATIONS 445-46 (5th ed. 1992); POSNER, supra note 5, § 1.2.
12. Here and throughout this Article I use the word "efficient" to mean "Pareto superior," unless something is said to the contrary. One state is Pareto superior to a second state when at least one person is better off in the first state relative to the second state, and no one is worse off. There are other criteria of efficiency that are less palatable from the standpoint of private law. Under the Kaldor-Hicks criterion, one state is superior to another if everyone is better off in the aggregate in the first state relative to the second. If I value your watch more than you do, then in a Kaldor-Hicks sense, focussing only on the particular transaction, it is efficient if I steal it from you. The theft is not Pareto efficient, however, because someone (the victim) is made worse off by it. If I value your watch more than you do, in a Pareto world I should negotiate to buy it from you. See Nicholas Kaldor, Welfare Propositions of Economics and Interpersonal Comparisons of Utility, 49 ECON. J. 549 (1939); J.R. Hicks, The Foundations of Welfare Economics, 49 ECON. J. 696 (1939); JACK HIRSHLEIFER & AMIHAI GLAZER, PRICE THEORY AND APPLICATIONS 445-46 (5th ed. 1992); POSNER, supra note 5, § 1.2.
13. See, e.g., RESTATEMENT (SECOND) OF TORTS § 766 cmt. v (1979).
14. See infra notes 10-23 and accompanying text.
15. See, e.g., Macklin v. Robert Logan Assoc., 639 A.2d 112 (Md. 1994); Idaho First Nat'l Bank v. Bliss Valley Foods, Inc., 824 P.2d 841 (Idaho 1991); Quinn v. Cardiovascular Physicians, P.C., 326 S.E.2d 460 (Ga. 1985); Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 406 N.E.2d 445, 449-50 (N.Y. 1980). Running parallel to intentional interference with contract is a different variety of the same tort, intentional interference with prospective contract. The two are so related that a court's treatment of an interference-with-prospective-contract case is often a source of important information about that court's interference-with-contract jurisprudence. In the interference-with-prospective-contract cases, the courts have generally settled on the position that there can be no liability for offering someone a better deal. See RESTATEMENT (SECOND) OF TORTS § 768(1) (1979). It is surprising that there could ever have been any doubt about this, given the sort of marketplace upon which our economy is based. Allowing a plaintiff to collect damages in tort from a defendant who did nothing more than offer to do business with a third party with whom the plaintiff planned or hoped to do business (the plans or hopes not having risen to the level of a contract) would go a long way toward outlawing the very core of our competitive market system. One way of characterizing the question asked by this Article is whether offering a better deal should be similarly privileged in the interference with contract cases. Much of what we know about the answer to that question comes from dicta generated while courts struggle with the related question of whether there is such a privilege in the law of interference with prospective contract.
16. See, e.g., Nordling v. Northern States Power Co., 478 N.W.2d 498, 505 (Minn. 1991) ("[A]t-will employment subsists at the will of the employer and employee, not at the will of a third party meddler."); Bochnowski v. Peoples Fed. Sav. & Loan Ass'n, 571 N.E.2d 282 (Ind. 1991); Pacific Gas & Elec. Co. v. Bear Stearns & Co., 791 P.2d 587, 590-91 (Cal. 1990); Wagenseller v. Scottsdale Mem'l Hosp., 710 P.2d 1025, 1041 (Ariz. 1985); see also RESTATEMENT (SECOND) OF TORTS § 766 cmt. f ("It is not, however, necessary that the contract be legally enforceable against the third person."). But while these jurisdictions analyze at-will contracts under the rubric of interference with contract, it is generally true that they nevertheless afford the defendant the same broader range of privileges that are available under the tort of interference with prospective contract.
17. See, e.g., NBT Bancorp Inc. v. Fleet/Norstar Financial Group, Inc., 664 N.E.2d 492, 496 (N.Y. 1996).
18. See, e.g., Pacific Gas & Elec., 791 P.2d at 592; Lewis v. Oregon Beauty Supply Co., 733 P.2d 430, 434 (Or. 1987) (holding that discharge not a necessary element; it was enough that third party's interference caused aggrieved party to resign employment); RESTATEMENT (SECOND) OF TORTS § 766 (1979).
19. Winkler v. V.G. Reed & Sons, Inc., 638 N.E.2d 1228, 1234-36 (Ind. 1994).
20. Applied Equipment Corp. v. Litton Saudi Arabia Ltd., 869 P.2d 454 (Cal. 1994).
21. The Restatement chose the word "improper" for its characterization of the tort because it was a word that was not "traditionally identified with a different tort so as to possess a special meaning that would affect its meaning in connection with this tort" and because it did not suggest that issues connected with it "must be a matter for the case of either the plaintiff or the defendant." RESTATEMENT(SECOND) OF TORTS Ch. 37, 6 (1979).
22. See, e.g., Lewis, 733 P.2d at 434 (finding improper interference consisting of physical and verbal intimidation, threats and defamation).
23. See, e.g., Swaney v. Crawley, 157 N.W. 910 (Minn. 1916) (finding improper interference consisting of intentional misrepresentations addressed to breaching party).
24. For a more detailed analysis of the interference tort as a means to extend traditional tort liability in a carefully limited way, see Harvey S. Perlman, Interference with Contract and Other Economic Expectancies: A Clash of Tort and Contract Doctrine, 49 U. CHI. L. REV. 61, 69-78 (1982).
25. The Restatement describes a privilege that would cover the giving of advice where one is "charged with responsibility for the welfare of" the advisee. RESTATEMENT (SECOND) OF TORTS § 770 (1979). It describes another privilege that applies to the giving of "honest advice within the scope of a request for the advice." RESTATEMENT (SECOND) OF TORTS § 772. One can imagine many instances of advice not falling within either of these specific sections: for example, unsolicited advice to a sibling with whose responsibility one is not "charged." In such a case, the Restatement would have us turn to its general balancing test for determining improperness - a relatively indeterminate factors test. RESTATEMENT (SECOND) OF TORTS § 767. Judges have shown common sense in dealing with cases of advice. See, e.g., Click Model Management Inc. v. Williams, 561 N.Y.S.2d 781 (N.Y. App. Div. 1990) (finding no intent to procure breach where model was merely accommodating friend when she said friend should come over to Ford Agency).
26. The Restatement describes a privilege that would cover the giving of advice where one is "charged with responsibility for the welfare of" the advisee. RESTATEMENT (SECOND) OF TORTS § 770 (1979). It describes another privilege that applies to the giving of "honest advice within the scope of a request for the advice." RESTATEMENT (SECOND) OF TORTS § 772. One can imagine many instances of advice not falling within either of these specific sections: for example, unsolicited advice to a sibling with whose responsibility one is not "charged." In such a case, the Restatement would have us turn to its general balancing test for determining improperness - a relatively indeterminate factors test. RESTATEMENT (SECOND) OF TORTS § 767. Judges have shown common sense in dealing with cases of advice. See, e.g., Click Model Management Inc. v. Williams, 561 N.Y.S.2d 781 (N.Y. App. Div. 1990) (finding no intent to procure breach where model was merely accommodating friend when she said friend should come over to Ford Agency).
27. The Restatement describes a privilege that would cover the giving of advice where one is "charged with responsibility for the welfare of" the advisee. RESTATEMENT (SECOND) OF TORTS § 770 (1979). It describes another privilege that applies to the giving of "honest advice within the scope of a request for the advice." RESTATEMENT (SECOND) OF TORTS § 772. One can imagine many instances of advice not falling within either of these specific sections: for example, unsolicited advice to a sibling with whose responsibility one is not "charged." In such a case, the Restatement would have us turn to its general balancing test for determining improperness - a relatively indeterminate factors test. RESTATEMENT (SECOND) OF TORTS § 767. Judges have shown common sense in dealing with cases of advice. See, e.g., Click Model Management Inc. v. Williams, 561 N.Y.S.2d 781 (N.Y. App. Div. 1990) (finding no intent to procure breach where model was merely accommodating friend when she said friend should come over to Ford Agency).
28. See, e.g., Jones v. Runft, Leroy, Coffin & Matthews, Chartered, 873 P.2d 861 (Idaho 1994) (holding that attorney who acted as representative of company could not be liable for causing company to breach contract); Nordling v. Northern States Power Co., 478 N.W.2d 498, 507 (Minn. 1991) (concluding that company employee who acts in good faith is privileged to cause company to breach contract with other employee); Murtha v. Yonkers Child Care Ass'n, 383 N.E.2d 865, 866 (N.Y. 1978) ("[A] corporate officer who is charged with inducing the breach of a contract between the corporation and a third party is immune from liability if it appears that he is acting in good faith."). In the scheme of the Restatement, these cases fall under the privilege for those "charged with the responsibility for the welfare of a third person." RESTATEMENT (SECOND) OF TORTS § 770 & cmt. b.
29. See, e.g., Foster v. Churchill, 665 N.E.2d 153, 156 (N.Y. 1996) (holding 75% shareholder of corporation privileged to interfere with contract of corporation "unless there is a showing of malice or illegality"); Ran Corp. v. Hudesman, 823 P.2d 646 (Alaska 1991) (holding that lessor was privileged to withhold consent to assignment of lease of his property); Langeland v. Farmers State Bank of Trimont, 319 N.W.2d 26, 32 (Minn. 1982) (finding that defendant's "entirely legal" debt collection efforts were "in furtherance of a superior legal right").
30. See Maura Lao, Tortious Interference and the Federal Antitrust Law of Vertical Restraints, 83 IOWA L. REV. 35, 60 (1997) ("If tortious interference is concerned with the preservation of community values that are not generally recognized in contract analysis, then it can be seen as complementary with contract law, not contradictory, despite its conflict with the efficient breach theory." (footnotes omitted)); William J. Woodward, Jr., Contractarians, Community, and the Tort of Interference with Contract, 80 MINN. L. REV. 1103, 1180-81 (1996) (discussing "different ways of thinking about and addressing the complexities of human relations and human exchange").
31. See Maura Lao, Tortious Interference and the Federal Antitrust Law of Vertical Restraints, 83 IOWA L. REV. 35, 60 (1997) ("If tortious interference is concerned with the preservation of community values that are not generally recognized in contract analysis, then it can be seen as complementary with contract law, not contradictory, despite its conflict with the efficient breach theory." (footnotes omitted)); William J. Woodward, Jr., Contractarians, Community, and the Tort of Interference with Contract, 80 MINN. L. REV. 1103, 1180-81 (1996) (discussing "different ways of thinking about and addressing the complexities of human relations and human exchange").
32. See infra notes 70-85 and accompanying text.
33. See infra notes 112-15 and accompanying text.
34. WILLIAM BLACKSTONE, 3 COMMENTARIES ON THE LAWS OF ENGLAND 142 (1768). This action is itself a kind of generalization by the common law courts of two more specific earlier actions, one statutory and one in trespass. These actions can in turn be traced back to more ancient times. The law is indeed a seamless web.
35. Id.
36. Id.
37. The link between the modern tort that protects a contract right and the older action that protected the master's property interest in his servant is evident in Salter v. Howard, 43 Ga. 601 (1871). Within eight days of the certification of the Thirteenth Amendment to the United States Constitution in December of 1865, one Georgia plantation owner, Mr. Howard, had already hired his former slaves to continue working for him as employee/servants. A neighbor, Mr. Salter, enticed Howard's former slaves to come and work for him. Howard succeeded in an action in damages against Salter "for enticing servants out of his employ." Id. at 603.
38. 118 Eng. Rep. 749, 2 El. & Bl. 216 (Q.B. 1853).
39. For well-told versions of the story of the birth of the interference tort, see Francis Bowes Sayre, Inducing Breach of Contract, 36 HARV. L. REV. 663, 663-75 (1923); G.A. Owen, Interference with Trade: The Illegitimate Offspring of an Illegitimate Tort?, 3 MONASH U.L. REV., 41, 41-58 (1976); Note, Tortious Interference with Contractual Relations in the Nineteenth Century: The Transformation of Property, Contract, and Tort, 93 HARV. L. REV. 1510 passim (1980) [hereinafter Tortious Interference].
40. For well-told versions of the story of the birth of the interference tort, see Francis Bowes Sayre, Inducing Breach of Contract, 36 HARV. L. REV. 663, 663-75 (1923); G.A. Owen, Interference with Trade: The Illegitimate Offspring of an Illegitimate Tort?, 3 MONASH U.L. REV., 41, 41-58 (1976); Note, Tortious Interference with Contractual Relations in the Nineteenth Century: The Transformation of Property, Contract, and Tort, 93 HARV. L. REV. 1510 passim (1980) [hereinafter Tortious Interference].
41. For well-told versions of the story of the birth of the interference tort, see Francis Bowes Sayre, Inducing Breach of Contract, 36 HARV. L. REV. 663, 663-75 (1923); G.A. Owen, Interference with Trade: The Illegitimate Offspring of an Illegitimate Tort?, 3 MONASH U.L. REV., 41, 41-58 (1976); Note, Tortious Interference with Contractual Relations in the Nineteenth Century: The Transformation of Property, Contract, and Tort, 93 HARV. L. REV. 1510 passim (1980) [hereinafter Tortious Interference].
42. Lumley, 118 Eng. Rep. at 760, 2 El. & Bl. at 246 (Coleridge, J., dissenting).
43. Lumley, 118 Eng. Rep. at 755, 2 El. & Bl. at 231 (Crompton, J.).
44. Temperton v. Russell, 1 Q.B. 715 (C.A. 1893).
45. See, e.g., Campbell v. Gates, 141 N.E. 914, 915 (N.Y. 1923); Knickerbocker Ice Co. v. Gardiner Dairy Co., 69 A. 405, 407-08 (Md. 1908); Comment, Inducing Breach of Contract: Herein of Contracts Terminable at Will, 56 Nw. U. L. REV. 391, 394 n.17 (1961) [hereinafter Contracts Terminable at Will]. That the tort was applicable to all employment contracts, "if not to contracts of every description" was established as early as 1871 in Massachusetts. Walker v. Cronin, 107 Mass. 555, 567 (1871).
46. See, e.g., Campbell v. Gates, 141 N.E. 914, 915 (N.Y. 1923); Knickerbocker Ice Co. v. Gardiner Dairy Co., 69 A. 405, 407-08 (Md. 1908); Comment, Inducing Breach of Contract: Herein of Contracts Terminable at Will, 56 Nw. U. L. REV. 391, 394 n.17 (1961) [hereinafter Contracts Terminable at Will]. That the tort was applicable to all employment contracts, "if not to contracts of every description" was established as early as 1871 in Massachusetts. Walker v. Cronin, 107 Mass. 555, 567 (1871).
47. See, e.g., Campbell v. Gates, 141 N.E. 914, 915 (N.Y. 1923); Knickerbocker Ice Co. v. Gardiner Dairy Co., 69 A. 405, 407-08 (Md. 1908); Comment, Inducing Breach of Contract: Herein of Contracts Terminable at Will, 56 Nw. U. L. REV. 391, 394 n.17 (1961) [hereinafter Contracts Terminable at Will]. That the tort was applicable to all employment contracts, "if not to contracts of every description" was established as early as 1871 in Massachusetts. Walker v. Cronin, 107 Mass. 555, 567 (1871).
48. Glamorgan Coal Co. v. South Wales Miners' Fed'n, 2 K.B. 545, 556 (1903) (C.A.) (quoting trial judge), aff'd, [1905] A.C. 239 (H.L.).
49. South Wales Miners' Fed'n v. Glamorgan Coal Co., [1905] A.C. 239, 246 (H.L) (Lord Macnaghten).
50. See, e.g., Lamb v. S. Cheney & Son, 125 N.E. 817, 818 (N.Y. 1920) (holding that malice "does not mean actual malice or ill will, but consists in the intentional doing of a wrongful act without legal justification"); Cumberland Glass Mfg. Co. v. De Witt, 87 A. 927, 931 (Md. 1913) ("Malice in this form of action does not mean actual malice, or ill will, but consists in the intentional doing of a wrongful act without legal justification or excuse."), aff'd, 237 U.S. 447 (1915).
51. Sayre, supra note 32, at 675. Justice Crompton mentioned a third factor in Lumley, which for a time would serve to limit the application of the tort. The contract, the breach of which was procured, was a valid one. Lumley, 118 Eng. Rep. at 755, 2 El. & Bl. at 231. This apparently continues to be a restriction on the tort under English law. See CLERK & LINDSELL ON TORTS 1185 (17th ed. 1995); Contracts Terminable at Will, supra note 36, at 395-96. Already in 1915 the United States Supreme Court would say, "[t]he fact that the employment is at the will of the parties, respectively, does not make it one at the will of others." Truax v. Raich, 239 U.S. 33, 38 (1915). Such a view was apparently in accord with a substantial number of state decisions. See Contracts Terminable at Will, supra note 36, at 396-97 & n.32. But cf. Sayre, supra note 32, at 701 ("[E]xcept for a few scattered dicta, the current of authority [in 1923] is wellnigh unanimous that no action for enticement can be brought where the service was at will."). Today it is widely accepted in the United States that there can be liability for interference with contract even though the plaintiff would have no right to enforce the contract that was the subject of the interference. See Bochnowski v. Peoples Fed. Sav. & Loan Ass'n, 571 N.E.2d 282, 285 (Ind. 1991); Wagenseller v. Scottsdale Mem'l Hosp., 710 P.2d 1025, 1041 (Ariz. 1985); RESTATEMENT (SECOND) OF TORTS § 766 cmt. g (1979). New York is the exception. See Guard- Life Corp. v. S. Parker Hardware Mfg. Corp., 406 N.E.2d 445, 449-50 (N.Y. 1980).
52. Sayre, supra note 32, at 675. Justice Crompton mentioned a third factor in Lumley, which for a time would serve to limit the application of the tort. The contract, the breach of which was procured, was a valid one. Lumley, 118 Eng. Rep. at 755, 2 El. & Bl. at 231. This apparently continues to be a restriction on the tort under English law. See CLERK & LINDSELL ON TORTS 1185 (17th ed. 1995); Contracts Terminable at Will, supra note 36, at 395-96. Already in 1915 the United States Supreme Court would say, "[t]he fact that the employment is at the will of the parties, respectively, does not make it one at the will of others." Truax v. Raich, 239 U.S. 33, 38 (1915). Such a view was apparently in accord with a substantial number of state decisions. See Contracts Terminable at Will, supra note 36, at 396-97 & n.32. But cf. Sayre, supra note 32, at 701 ("[E]xcept for a few scattered dicta, the current of authority [in 1923] is wellnigh unanimous that no action for enticement can be brought where the service was at will."). Today it is widely accepted in the United States that there can be liability for interference with contract even though the plaintiff would have no right to enforce the contract that was the subject of the interference. See Bochnowski v. Peoples Fed. Sav. & Loan Ass'n, 571 N.E.2d 282, 285 (Ind. 1991); Wagenseller v. Scottsdale Mem'l Hosp., 710 P.2d 1025, 1041 (Ariz. 1985); RESTATEMENT (SECOND) OF TORTS § 766 cmt. g (1979). New York is the exception. See Guard- Life Corp. v. S. Parker Hardware Mfg. Corp., 406 N.E.2d 445, 449-50 (N.Y. 1980).
53. Sayre, supra note 32, at 675. Justice Crompton mentioned a third factor in Lumley, which for a time would serve to limit the application of the tort. The contract, the breach of which was procured, was a valid one. Lumley, 118 Eng. Rep. at 755, 2 El. & Bl. at 231. This apparently continues to be a restriction on the tort under English law. See CLERK & LINDSELL ON TORTS 1185 (17th ed. 1995); Contracts Terminable at Will, supra note 36, at 395-96. Already in 1915 the United States Supreme Court would say, "[t]he fact that the employment is at the will of the parties, respectively, does not make it one at the will of others." Truax v. Raich, 239 U.S. 33, 38 (1915). Such a view was apparently in accord with a substantial number of state decisions. See Contracts Terminable at Will, supra note 36, at 396-97 & n.32. But cf. Sayre, supra note 32, at 701 ("[E]xcept for a few scattered dicta, the current of authority [in 1923] is wellnigh unanimous that no action for enticement can be brought where the service was at will."). Today it is widely accepted in the United States that there can be liability for interference with contract even though the plaintiff would have no right to enforce the contract that was the subject of the interference. See Bochnowski v. Peoples Fed. Sav. & Loan Ass'n, 571 N.E.2d 282, 285 (Ind. 1991); Wagenseller v. Scottsdale Mem'l Hosp., 710 P.2d 1025, 1041 (Ariz. 1985); RESTATEMENT (SECOND) OF TORTS § 766 cmt. g (1979). New York is the exception. See Guard- Life Corp. v. S. Parker Hardware Mfg. Corp., 406 N.E.2d 445, 449-50 (N.Y. 1980).
54. Sayre, supra note 32, at 675. Justice Crompton mentioned a third factor in Lumley, which for a time would serve to limit the application of the tort. The contract, the breach of which was procured, was a valid one. Lumley, 118 Eng. Rep. at 755, 2 El. & Bl. at 231. This apparently continues to be a restriction on the tort under English law. See CLERK & LINDSELL ON TORTS 1185 (17th ed. 1995); Contracts Terminable at Will, supra note 36, at 395-96. Already in 1915 the United States Supreme Court would say, "[t]he fact that the employment is at the will of the parties, respectively, does not make it one at the will of others." Truax v. Raich, 239 U.S. 33, 38 (1915). Such a view was apparently in accord with a substantial number of state decisions. See Contracts Terminable at Will, supra note 36, at 396-97 & n.32. But cf. Sayre, supra note 32, at 701 ("[E]xcept for a few scattered dicta, the current of authority [in 1923] is wellnigh unanimous that no action for enticement can be brought where the service was at will."). Today it is widely accepted in the United States that there can be liability for interference with contract even though the plaintiff would have no right to enforce the contract that was the subject of the interference. See Bochnowski v. Peoples Fed. Sav. & Loan Ass'n, 571 N.E.2d 282, 285 (Ind. 1991); Wagenseller v. Scottsdale Mem'l Hosp., 710 P.2d 1025, 1041 (Ariz. 1985); RESTATEMENT (SECOND) OF TORTS § 766 cmt. g (1979). New York is the exception. See Guard- Life Corp. v. S. Parker Hardware Mfg. Corp., 406 N.E.2d 445, 449-50 (N.Y. 1980).
55. Sayre, supra note 32, at 675. Justice Crompton mentioned a third factor in Lumley, which for a time would serve to limit the application of the tort. The contract, the breach of which was procured, was a valid one. Lumley, 118 Eng. Rep. at 755, 2 El. & Bl. at 231. This apparently continues to be a restriction on the tort under English law. See CLERK & LINDSELL ON TORTS 1185 (17th ed. 1995); Contracts Terminable at Will, supra note 36, at 395-96. Already in 1915 the United States Supreme Court would say, "[t]he fact that the employment is at the will of the parties, respectively, does not make it one at the will of others." Truax v. Raich, 239 U.S. 33, 38 (1915). Such a view was apparently in accord with a substantial number of state decisions. See Contracts Terminable at Will, supra note 36, at 396-97 & n.32. But cf. Sayre, supra note 32, at 701 ("[E]xcept for a few scattered dicta, the current of authority [in 1923] is wellnigh unanimous that no action for enticement can be brought where the service was at will."). Today it is widely accepted in the United States that there can be liability for interference with contract even though the plaintiff would have no right to enforce the contract that was the subject of the interference. See Bochnowski v. Peoples Fed. Sav. & Loan Ass'n, 571 N.E.2d 282, 285 (Ind. 1991); Wagenseller v. Scottsdale Mem'l Hosp., 710 P.2d 1025, 1041 (Ariz. 1985); RESTATEMENT (SECOND) OF TORTS § 766 cmt. g (1979). New York is the exception. See Guard- Life Corp. v. S. Parker Hardware Mfg. Corp., 406 N.E.2d 445, 449-50 (N.Y. 1980).
56. Sayre, supra note 32, at 675. Justice Crompton mentioned a third factor in Lumley, which for a time would serve to limit the application of the tort. The contract, the breach of which was procured, was a valid one. Lumley, 118 Eng. Rep. at 755, 2 El. & Bl. at 231. This apparently continues to be a restriction on the tort under English law. See CLERK & LINDSELL ON TORTS 1185 (17th ed. 1995); Contracts Terminable at Will, supra note 36, at 395-96. Already in 1915 the United States Supreme Court would say, "[t]he fact that the employment is at the will of the parties, respectively, does not make it one at the will of others." Truax v. Raich, 239 U.S. 33, 38 (1915). Such a view was apparently in accord with a substantial number of state decisions. See Contracts Terminable at Will, supra note 36, at 396-97 & n.32. But cf. Sayre, supra note 32, at 701 ("[E]xcept for a few scattered dicta, the current of authority [in 1923] is wellnigh unanimous that no action for enticement can be brought where the service was at will."). Today it is widely accepted in the United States that there can be liability for interference with contract even though the plaintiff would have no right to enforce the contract that was the subject of the interference. See Bochnowski v. Peoples Fed. Sav. & Loan Ass'n, 571 N.E.2d 282, 285 (Ind. 1991); Wagenseller v. Scottsdale Mem'l Hosp., 710 P.2d 1025, 1041 (Ariz. 1985); RESTATEMENT (SECOND) OF TORTS § 766 cmt. g (1979). New York is the exception. See Guard- Life Corp. v. S. Parker Hardware Mfg. Corp., 406 N.E.2d 445, 449-50 (N.Y. 1980).
57. Sayre, supra note 32, at 675. Justice Crompton mentioned a third factor in Lumley, which for a time would serve to limit the application of the tort. The contract, the breach of which was procured, was a valid one. Lumley, 118 Eng. Rep. at 755, 2 El. & Bl. at 231. This apparently continues to be a restriction on the tort under English law. See CLERK & LINDSELL ON TORTS 1185 (17th ed. 1995); Contracts Terminable at Will, supra note 36, at 395-96. Already in 1915 the United States Supreme Court would say, "[t]he fact that the employment is at the will of the parties, respectively, does not make it one at the will of others." Truax v. Raich, 239 U.S. 33, 38 (1915). Such a view was apparently in accord with a substantial number of state decisions. See Contracts Terminable at Will, supra note 36, at 396-97 & n.32. But cf. Sayre, supra note 32, at 701 ("[E]xcept for a few scattered dicta, the current of authority [in 1923] is wellnigh unanimous that no action for enticement can be brought where the service was at will."). Today it is widely accepted in the United States that there can be liability for interference with contract even though the plaintiff would have no right to enforce the contract that was the subject of the interference. See Bochnowski v. Peoples Fed. Sav. & Loan Ass'n, 571 N.E.2d 282, 285 (Ind. 1991); Wagenseller v. Scottsdale Mem'l Hosp., 710 P.2d 1025, 1041 (Ariz. 1985); RESTATEMENT (SECOND) OF TORTS § 766 cmt. g (1979). New York is the exception. See Guard- Life Corp. v. S. Parker Hardware Mfg. Corp., 406 N.E.2d 445, 449-50 (N.Y. 1980).
58. Sayre, supra note 32, at 675. Justice Crompton mentioned a third factor in Lumley, which for a time would serve to limit the application of the tort. The contract, the breach of which was procured, was a valid one. Lumley, 118 Eng. Rep. at 755, 2 El. & Bl. at 231. This apparently continues to be a restriction on the tort under English law. See CLERK & LINDSELL ON TORTS 1185 (17th ed. 1995); Contracts Terminable at Will, supra note 36, at 395-96. Already in 1915 the United States Supreme Court would say, "[t]he fact that the employment is at the will of the parties, respectively, does not make it one at the will of others." Truax v. Raich, 239 U.S. 33, 38 (1915). Such a view was apparently in accord with a substantial number of state decisions. See Contracts Terminable at Will, supra note 36, at 396-97 & n.32. But cf. Sayre, supra note 32, at 701 ("[E]xcept for a few scattered dicta, the current of authority [in 1923] is wellnigh unanimous that no action for enticement can be brought where the service was at will."). Today it is widely accepted in the United States that there can be liability for interference with contract even though the plaintiff would have no right to enforce the contract that was the subject of the interference. See Bochnowski v. Peoples Fed. Sav. & Loan Ass'n, 571 N.E.2d 282, 285 (Ind. 1991); Wagenseller v. Scottsdale Mem'l Hosp., 710 P.2d 1025, 1041 (Ariz. 1985); RESTATEMENT (SECOND) OF TORTS § 766 cmt. g (1979). New York is the exception. See Guard- Life Corp. v. S. Parker Hardware Mfg. Corp., 406 N.E.2d 445, 449-50 (N.Y. 1980).
59. Sayre, supra note 32, at 675. Justice Crompton mentioned a third factor in Lumley, which for a time would serve to limit the application of the tort. The contract, the breach of which was procured, was a valid one. Lumley, 118 Eng. Rep. at 755, 2 El. & Bl. at 231. This apparently continues to be a restriction on the tort under English law. See CLERK & LINDSELL ON TORTS 1185 (17th ed. 1995); Contracts Terminable at Will, supra note 36, at 395-96. Already in 1915 the United States Supreme Court would say, "[t]he fact that the employment is at the will of the parties, respectively, does not make it one at the will of others." Truax v. Raich, 239 U.S. 33, 38 (1915). Such a view was apparently in accord with a substantial number of state decisions. See Contracts Terminable at Will, supra note 36, at 396-97 & n.32. But cf. Sayre, supra note 32, at 701 ("[E]xcept for a few scattered dicta, the current of authority [in 1923] is wellnigh unanimous that no action for enticement can be brought where the service was at will."). Today it is widely accepted in the United States that there can be liability for interference with contract even though the plaintiff would have no right to enforce the contract that was the subject of the interference. See Bochnowski v. Peoples Fed. Sav. & Loan Ass'n, 571 N.E.2d 282, 285 (Ind. 1991); Wagenseller v. Scottsdale Mem'l Hosp., 710 P.2d 1025, 1041 (Ariz. 1985); RESTATEMENT (SECOND) OF TORTS § 766 cmt. g (1979). New York is the exception. See Guard- Life Corp. v. S. Parker Hardware Mfg. Corp., 406 N.E.2d 445, 449-50 (N.Y. 1980).
60. Sayre, supra note 32, at 675. Justice Crompton mentioned a third factor in Lumley, which for a time would serve to limit the application of the tort. The contract, the breach of which was procured, was a valid one. Lumley, 118 Eng. Rep. at 755, 2 El. & Bl. at 231. This apparently continues to be a restriction on the tort under English law. See CLERK & LINDSELL ON TORTS 1185 (17th ed. 1995); Contracts Terminable at Will, supra note 36, at 395-96. Already in 1915 the United States Supreme Court would say, "[t]he fact that the employment is at the will of the parties, respectively, does not make it one at the will of others." Truax v. Raich, 239 U.S. 33, 38 (1915). Such a view was apparently in accord with a substantial number of state decisions. See Contracts Terminable at Will, supra note 36, at 396-97 & n.32. But cf. Sayre, supra note 32, at 701 ("[E]xcept for a few scattered dicta, the current of authority [in 1923] is wellnigh unanimous that no action for enticement can be brought where the service was at will."). Today it is widely accepted in the United States that there can be liability for interference with contract even though the plaintiff would have no right to enforce the contract that was the subject of the interference. See Bochnowski v. Peoples Fed. Sav. & Loan Ass'n, 571 N.E.2d 282, 285 (Ind. 1991); Wagenseller v. Scottsdale Mem'l Hosp., 710 P.2d 1025, 1041 (Ariz. 1985); RESTATEMENT (SECOND) OF TORTS § 766 cmt. g (1979). New York is the exception. See Guard- Life Corp. v. S. Parker Hardware Mfg. Corp., 406 N.E.2d 445, 449-50 (N.Y. 1980).
61. Sayre, supra note 32, at 675. Justice Crompton mentioned a third factor in Lumley, which for a time would serve to limit the application of the tort. The contract, the breach of which was procured, was a valid one. Lumley, 118 Eng. Rep. at 755, 2 El. & Bl. at 231. This apparently continues to be a restriction on the tort under English law. See CLERK & LINDSELL ON TORTS 1185 (17th ed. 1995); Contracts Terminable at Will, supra note 36, at 395-96. Already in 1915 the United States Supreme Court would say, "[t]he fact that the employment is at the will of the parties, respectively, does not make it one at the will of others." Truax v. Raich, 239 U.S. 33, 38 (1915). Such a view was apparently in accord with a substantial number of state decisions. See Contracts Terminable at Will, supra note 36, at 396-97 & n.32. But cf. Sayre, supra note 32, at 701 ("[E]xcept for a few scattered dicta, the current of authority [in 1923] is wellnigh unanimous that no action for enticement can be brought where the service was at will."). Today it is widely accepted in the United States that there can be liability for interference with contract even though the plaintiff would have no right to enforce the contract that was the subject of the interference. See Bochnowski v. Peoples Fed. Sav. & Loan Ass'n, 571 N.E.2d 282, 285 (Ind. 1991); Wagenseller v. Scottsdale Mem'l Hosp., 710 P.2d 1025, 1041 (Ariz. 1985); RESTATEMENT (SECOND) OF TORTS § 766 cmt. g (1979). New York is the exception. See Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 406 N.E.2d 445, 449-50 (N.Y. 1980).
62. Ramondo v. Pure Oil Co., 48 A.2d 156, 160 (Pa. Super. Ct. 1946) (emphasis added) (quoting Klauder v. Cregar, 192 A. 667, 668 (Pa. 1937)), quoted in Cranford v. Shelton, 378 So.2d 652, 655 (Miss. 1980). In Cranford a lessee broke its lease in order to enter into a better deal with another lessor. This appeared to violate a nineteenth century statute (which was a descendent of the fourteenth century English statutes that spawned the interference torts). The court, doubting that the statute applied, analyzed the case under common law interference principles.
63. Knickerbocker Ice Co. v. Gardiner Dairy Co., 69 A. 405, 410 (Md. 1908).
64. See Contracts Terminable at Will, supra note 36, at 394 & n.18.
65. Derby Road Bldg. Co. v. Commonwealth, 317 S.W.2d 891, 895 (Ky. 1958) (emphasis added), overruled on other grounds by Foley Constr. Co. v. Ward, 375 S.W.2d 392 (Ky. 1964).
66. National Collegiate Athletic Ass'n v. Hornung, 754 S.W.2d 855, 857 (1988).
67. See Sayre, supra note 32, at 683-86; Charles E. Carpenter, Interference with Contract Relations, 41 HARV. L. REV. 728, 754-57 (1928); Fowler V. Harper, Interference with Contractual Relations, 47 NW. U.L. REV. 873, 881 (1953); Charles Q. Kamps, Interference with Contractual Relations: A Survey of the Wisconsin Law, 43 MARQ. L. REV. 231, 242 (1959).
68. See Sayre, supra note 32, at 683-86; Charles E. Carpenter, Interference with Contract Relations, 41 HARV. L. REV. 728, 754-57 (1928); Fowler V. Harper, Interference with Contractual Relations, 47 NW. U.L. REV. 873, 881 (1953); Charles Q. Kamps, Interference with Contractual Relations: A Survey of the Wisconsin Law, 43 MARQ. L. REV. 231, 242 (1959).
69. See Sayre, supra note 32, at 683-86; Charles E. Carpenter, Interference with Contract Relations, 41 HARV. L. REV. 728, 754-57 (1928); Fowler V. Harper, Interference with Contractual Relations, 47 NW. U.L. REV. 873, 881 (1953); Charles Q. Kamps, Interference with Contractual Relations: A Survey of the Wisconsin Law, 43 MARQ. L. REV. 231, 242 (1959).
70. See Sayre, supra note 32, at 683-86; Charles E. Carpenter, Interference with Contract Relations, 41 HARV. L. REV. 728, 754-57 (1928); Fowler V. Harper, Interference with Contractual Relations, 47 NW. U.L. REV. 873, 881 (1953); Charles Q. Kamps, Interference with Contractual Relations: A Survey of the Wisconsin Law, 43 MARQ. L. REV. 231, 242 (1959).
71. Sayre, supra note 32, at 676.
72. Under the scheme of the second Restatement, the mother could invoke the privilege of one "charged with responsibility for the welfare of" another. RESTATEMENT (SECOND) OF TORTS § 770 (1979). See supra note 21.
73. Sayre, supra note 32, at 678.
74. Id. at 683.
75. Id. at 685.
76. Id. at 678.
77. Id. at 700. Dean Charles Carpenter proposed a distinction for determining whether a privilege of competition should be available for interference with contract: [W] e must differentiate the cases where the defendant acts for the specific purpose or with the desire of invading, or knows that the end he seeks to accomplish in itself constitutes an invasion of the plaintiff's contract interests, from the cases where the act is done for a purpose other than a desire to invade, although an invasion incidentally and indirectly results from the acts done. Competition gives no privilege to invade in the former while it does in the latter group of cases. Carpenter, supra note 46, at 754. Carpenter appears to have regarded the offering of a better deal as falling outside the privilege. See id. at 755-56.
78. Lumley v. Gye, 119 Eng. Rep. 749, 760, 2 El. & Bl. 216, 246 (Q.B. 1853) (Coleridge, J., dissenting).
79. Weintraub, supra note 2, at 373 n.6.
80. Id.
81. Dan B. Dobbs, Tortious Interference with Contractual Relationships, 34 ARK. L. REV. 335, 343 (1980).
82. RESTATEMENT (SECOND) OF TORTS § 766 cmt. v (1979).
83. Dobbs, supra note 57.
84. See id. at 347-50.
85. See id. at 350-56.
86. See id. at 358-59.
87. See id. at 361-63.
88. Id. at 337.
89. See id. at 365.
90. Id.
91. Id. at 375. Professor Dobbs' analysis of this issue was admittedly sketchy, and he invited further development of it. See id. at 376.
92. Perlman, supra note 20.
93. Id. at 97-98.
94. 538 So.2d 228 (La. 1989).
95. Id. at 234 (citations omitted).
96. 710 P.2d 1025 (Ariz. 1985).
97. Id. at 1042.
98. The position of the Restatement on this point was self-consciously neutral on the issue of burdens. See RESTATEMENT (SECOND) OF TORTS, ch. 37, at 5 (1979); Perlman, supra note 20, at 67.
99. The position of the Restatement on this point was self-consciously neutral on the issue of burdens. See RESTATEMENT (SECOND) OF TORTS, ch. 37, at 5 (1979); Perlman, supra note 20, at 67.
100. Wagenseller, 710 P.2d at 1043.
101. For an illustration of the interplay between burdens and liability, see Insurance Assoc. Corp. v. Hansen, 782 P.2d 1230 (Idaho 1989), in which the majority found that defendant had not intentionally interfered, that in fact the defendant, acting on the advice of counsel, had tried hard not to interfere. On the dissent's view, the majority is making the mistake of requiring the plaintiff to show wrongfulness of interference, something that the plaintiff was unable to do in light of the defendant's reliance on the advice of counsel. According to the dissent, it is up to the defendant to show justification, something that this defendant failed to do, since reliance on counsel's mistake of law should be treated no differently than defendant's mistake of law.
102. Sayre, supra note 32, at 685.
103. The RESTATEMENT (SECOND) OF TORTS itself provides an illustration of this approach. On the question of burdens, the Second Restatement clearly did not require the defendant to prove justification in all cases where mere intentional interference had been shown. But the drafters were unwilling to move decisively in the other direction. Their scheme (with the choice of the words "improperly" and "subject to liability" in § 766) was meant to communicate neutrality on the complex question of burdens. See RESTATEMENT (SECOND) OF TORTS, ch. 37, at 4-7 (1979). At the same time, the Restatement's general test for determining improperness would seem to leave open the question of improperness in a better deal case. Id. § 767. The drafters, however, left no doubt in the comments that they regarded interference in the better deal cases as improper. Id. § 768 cmts. a & h.
104. Wagenseller, 710 P.2d at 1043.
105. Top Service Body Shop v. Allstate Ins. Co., 582 P.2d 1365 (Or. 1978).
106. See Ran Corp. v. Hudesman, 823 P.2d 646, 649 (Alaska 1991); United Truck Leasing Corp. v. Geltman, 551 N.E.2d 20, 23 (Mass. 1990); Perlman, supra note 20, at 66.
107. Top Service, 582 P.2d at 1371 (footnote omitted).
108. Id. at 1371 n.11.
109. Perlman, supra note 20, at 66.
110. United Truck Leasing Corp. v. Geltman, 551 N.E.2d 20, 23 (Mass. 1990) (quoting Top Service, 582 P.2d at 1371); see Blake v. Levy, 464 A.2d 52, 55 (Conn. 1983); Leigh Furniture & Carpet Co. v. Isom, 657 P.2d 293, 304 (Utah 1982). Cf. Ran Corp. v. Hudesman, 823 P.2d 646, 649 (Alaska 1991) (citing "Oregon rule" as one that "may be desirable" but "not necessary to decide whether it should be adopted at present").
111. See Wagenseller v. Scottsdale Mem'l Hosp. 710 P.2d 1025 (Ariz. 1985) (involving at-will contract); Top Service Body Shop v. Allstate Ins., Co., 582 P.2d 1365 (Or. 1978) (involving interference with a prospective contract); King v. Driscoll, 638 N.E.2d 488 (Mass. 1994) (involving at-will contract); Blake v. Levy, 464 A.2d 52 (Conn. 1983) (involving interference with business relations). In King v. Driscoll, 638 N.E.2d 488 (Mass. 1994), a case involving interference with contract, the court held that "[o]ne of the elements of intentional interference with contractual relations is improper motive or means," and that "[t]he motivation of personal gain, including financial gain" is generally "not enough to satisfy the improper interference requirement." Id. at 494-95 (citing United Truck Leasing Corp. v. Geltman, 551 N.E.2d 20 (1990)). This certainly appears to give teeth to the improper motive or means requirement, but it should be noted that the plaintiff here was an employee suing the president and shareholders of his employer for breach of his at-will employment contract. Ordinarily, on such facts, the defense would be privilege and the reply would be that malice defeats privilege. While the court is not analyzing it in these terms, a high hurdle of improperness seems appropriate because the plaintiff must not only show improper interference but must defeat established privileges. See United Wild Rice, Inc. v. Nelson, 313 N.W.2d 628 (Minn. 1982) for an illustration of the breadth of the privilege to compete in cases of interference with prospective contract, where the defendant's luring away of plaintiff's customers was found to be permissible even though his motive was in part to put the plaintiff out of business. And note that this is in a state that appears to lean toward the sanctity of contract. See Langeland v. Farmers State Bank of Trimon, 319 N.W.2d 26, 32 (Minn. 1982). The privilege is not always and everywhere construed so broadly. See, e.g., Wear-ever Aluminum, Inc. v. Townecraft Industries, Inc., 182 A.2d 387 (N.J. Super. Ct. Ch. Div. 1962) (involving liability for luring away at-will employees).
112. See Ran Corp. v. Hudesman, 823 P.2d 646, 649 n.4 (Alaska 1991) ("The Oregon rule may be desirable. However, it is not necessary to decide whether it should be adopted at present because the direct financial interest privilege . . . applies . . . ."). The case that comes closest to being a mere interference case is United Truck Leasing Corp. v. Geltman, 551 N.E.2d 20 (Mass. 1990), in which the interferer was a lease consultant whose advice to a client that was a lessee of equipment led the client to breach a lease and enter into a lease with a different lessor. The trial court was held to have appropriately directed a verdict for the defendant/consultant as there was no evidence that he had used any improper means. The court said that the consultant's "apparent motives were to benefit his customers and himself financially." Id. at 24. If the consultant had induced the breaching party to breach his contract with the plaintiff and do business with the consultant himself, this would have been a prototypical better deal case. In the actual case, the consultant's actions were less directly self-interested, and they had about them at least a hint of the privilege to offer advice.
113. See Idaho First Nat'l Bank v. Bliss Valley Food, Inc., 824 P.2d 841 (Idaho 1991); see also Leigh Furniture & Carpet Co. v. Isom, 657 P.2d 293, 304 (Utah 1982) (discussing primarily intentional interference with prospective economic relations).
114. 791 P.2d 587 (Cal. 1990).
115. Id. at 598.
116. Id.
117. Id. at 597-98 & n.20; see also Applied Equipment Corp. v. Litton Saudi Arabia Ltd., 869 P.2d 454, 463 (Cal. 1994) (referring to potentially efficient and socially desirable breaches of contract).
118. Justice Traynor's opinion in Imperial Ice Co. v. Rossier stated unequivocally that inducing breach by offering a better deal was tortious: It is well established . . . that a person is not justified in inducing a breach of contract simply because he is in competition with one of the parties to the contract and seeks to further his own economic advantage at the expense of the other. Whatever interest society has in encouraging free and open competition by means not in themselves unlawful, contractual stability is generally accepted as of greater importance than competitive freedom. Competitive freedom, however, is of sufficient importance to justify one competitor in inducing a third party to forsake another competitor if no contractual relationship exists between the latter two . . . . A party may not, however, under the guise of competition actively and affirmatively induce the breach of a competitor's contract in order to secure an economic advantage over that competitor. Imperial Ice v. Rossier, 112 P.2d 631, 633 (Cal. 1941) (citations omitted).
119. Penna v. Toyota Motor Sales, U.S.A., Inc., 902 P.2d 740, 755 (Cal. 1995) (Mosk, J., concurring) (citations omitted).
120. Id. at 761 n.9. The opinion goes on to say that this question "need not be addressed here" and that the question might be answered either affirmatively or negatively. Id.
121. 664 N.E.2d 492 (N.Y. 1996).
122. 406 N.E.2d 445 (N.Y. 1980).
123. Id. at 448-50.
124. NBT Bancorp, 664 N.E.2d at 496 n. 1.
125. RESTATEMENT(SECOND) OF TORTS § 766 (1979) (emphasis added).
126. NBT Bancorp, 664 N.E.2d at 497.
127. Id. at 497 n.2 (citations omitted).
128. New York recognizes a privilege of economic interest, but the desire to do business does not qualify. In Foster v. Churchill, 665 N.E.2d 153 (N.Y. 1996), which was decided the same day as NBT Bancorp, the New York court held that a person who induces the breach of a contract while acting to protect a vested economic interest (here a majority interest in a corporation) acts under a qualified privilege and will not be found liable for tortious interference with contract absent "a showing of either malice on the one hand, or fraudulent or illegal means on the other." Id. at 157 (citation omitted).
129. Guard-Life, 406 N.E.2d at 450-51 (citations omitted). The Court of Appeals in NBT Bancorp mistakenly said that it "affirmed an award to plaintiff on the interference-with-contract part of the Guard-Life case. In fact, the court had ordered that the case be remitted to the lower court for trial on the issue.
130. Holmes, supra note 4, at 462.
131. Holmes, of course, recognized that there were cases "in which equity [would] grant an injunction," but he "hardly [thought] it advisable to shape general theory from the exception . . . ." Id. at 462-63.
132. See RESTATEMENT (SECOND) OF TORTS § 766 cmt. v (1979).
133. See infra notes 111-21 and accompanying text.
134. See Jonathan K. Van Patten & Robert E. Willard, The Limits of Advocacy: A Proposal for the Tort of Malicious Defense in Civil Litigation, 35 HASTINGS L.J. 891, 891-901 (1984); Comment, Controlling the Malicious Defendant, 2 STAN. L. REV. 184, 185-87 (1949).
135. See Jonathan K. Van Patten & Robert E. Willard, The Limits of Advocacy: A Proposal for the Tort of Malicious Defense in Civil Litigation, 35 HASTINGS L.J. 891, 891-901 (1984); Comment, Controlling the Malicious Defendant, 2 STAN. L. REV. 184, 185-87 (1949).
136. Specific performance is generally available in some other legal systems. See Dawson, Specific Performance in France and Germany, 57 MICH. L. REV. 495 (1959).
137. For the classic exposition of the distinction between liability and property rules, see Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089, 1106-10 (1972). The distinction continues to be a vital one. See Saul Levmore, Symposium: Property Rules, Liability Rules, and Inalienability: A Twenty-Five Year Retrospective, 106 YALE L.J. 2149, 2150-53 (1997).
138. For the classic exposition of the distinction between liability and property rules, see Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089, 1106-10 (1972). The distinction continues to be a vital one. See Saul Levmore, Symposium: Property Rules, Liability Rules, and Inalienability: A Twenty-Five Year Retrospective, 106 YALE L.J. 2149, 2150-53 (1997).
139. See, e.g., Thomas S. Ulen, The Efficiency of Specific Performance: Toward a Unified Theory of Contract Remedies, 83 MICH. L. REV. 341 (1984); Peter Linzer, On the Amorality of Contract Remedies - Efficiency, Equity, and the Second Restatement, 81 COLUM. L. REV. 111 (1981); Alan Schwartz, The Case for Specific Performance, 89 YALE L.J. 271 (1979); see also Harold Greenberg, Specific Performance Under Section 2-716 of the Uniform Commercial Code: "A More Liberal Attitude" in the "Grand Style", 17 NEW ENG. L. REV. 321 (1982).
140. See, e.g., Thomas S. Ulen, The Efficiency of Specific Performance: Toward a Unified Theory of Contract Remedies, 83 MICH. L. REV. 341 (1984); Peter Linzer, On the Amorality of Contract Remedies - Efficiency, Equity, and the Second Restatement, 81 COLUM. L. REV. 111 (1981); Alan Schwartz, The Case for Specific Performance, 89 YALE L.J. 271 (1979); see also Harold Greenberg, Specific Performance Under Section 2-716 of the Uniform Commercial Code: "A More Liberal Attitude" in the "Grand Style", 17 NEW ENG. L. REV. 321 (1982).
141. See, e.g., Thomas S. Ulen, The Efficiency of Specific Performance: Toward a Unified Theory of Contract Remedies, 83 MICH. L. REV. 341 (1984); Peter Linzer, On the Amorality of Contract Remedies - Efficiency, Equity, and the Second Restatement, 81 COLUM. L. REV. 111 (1981); Alan Schwartz, The Case for Specific Performance, 89 YALE L.J. 271 (1979); see also Harold Greenberg, Specific Performance Under Section 2-716 of the Uniform Commercial Code: "A More Liberal Attitude" in the "Grand Style", 17 NEW ENG. L. REV. 321 (1982).
142. See, e.g., Thomas S. Ulen, The Efficiency of Specific Performance: Toward a Unified Theory of Contract Remedies, 83 MICH. L. REV. 341 (1984); Peter Linzer, On the Amorality of Contract Remedies - Efficiency, Equity, and the Second Restatement, 81 COLUM. L. REV. 111 (1981); Alan Schwartz, The Case for Specific Performance, 89 YALE L.J. 271 (1979); see also Harold Greenberg, Specific Performance Under Section 2-716 of the Uniform Commercial Code: "A More Liberal Attitude" in the "Grand Style", 17 NEW ENG. L. REV. 321 (1982).
143. See Daniel Friedmann, The Efficient Breach Fallacy, 18 J. LEGAL STUD. 1, 20-23 (1989).
144. See Edward Yorio, In Defense of Money Damages for Breach of Contract, 82 COLUM. L. REV. 1365 (1982); Anthony T. Kronman, Specific Performance, 45 U. CHI. L. REV. 351 (1978); POSNER, supra note 5; see also Richard Craswell, Contract Remedies, Renegotiation, and the Theory of Efficient Breach, 61 SO. CAL. L. REV. 629 (1988).
145. See Edward Yorio, In Defense of Money Damages for Breach of Contract, 82 COLUM. L. REV. 1365 (1982); Anthony T. Kronman, Specific Performance, 45 U. CHI. L. REV. 351 (1978); POSNER, supra note 5; see also Richard Craswell, Contract Remedies, Renegotiation, and the Theory of Efficient Breach, 61 SO. CAL. L. REV. 629 (1988).
146. See Edward Yorio, In Defense of Money Damages for Breach of Contract, 82 COLUM. L. REV. 1365 (1982); Anthony T. Kronman, Specific Performance, 45 U. CHI. L. REV. 351 (1978); POSNER, supra note 5; see also Richard Craswell, Contract Remedies, Renegotiation, and the Theory of Efficient Breach, 61 SO. CAL. L. REV. 629 (1988).
147. See Edward Yorio, In Defense of Money Damages for Breach of Contract, 82 COLUM. L. REV. 1365 (1982); Anthony T. Kronman, Specific Performance, 45 U. CHI. L. REV. 351 (1978); POSNER, supra note 5; see also Richard Craswell, Contract Remedies, Renegotiation, and the Theory of Efficient Breach, 61 SO. CAL. L. REV. 629 (1988).
148. Douglas Laycock, in The Death of the Irreparable Injury Rule, 103 HARV. L. REV. 687 (1990), appears at times to be arguing that contract law has moved to a general rule of specific performance. But he in fact makes repeated references to a class of cases involving "the loss of fungible goods or services in an orderly market" for which damages are adequate. See, e.g., id. at 695.
149. See RESTATEMENT (SECOND) OF CONTRACTS § 192 & cmt. b (1981).
150. It is possible that T would escape liability by being found to have acquiesced in the breach rather than to have induced it. See Frontier Cos. of Alaska, Inc. v. Jack White Co., 818 P.2d 645, 650-51 (Alaska 1991); RESTATEMENT (SECOND) OF TORTS § 766 cmt. n (1979). That somewhat uncertain escape hatch would be unavailable here as T appears to be the instigator.
151. It is possible that T would escape liability by being found to have acquiesced in the breach rather than to have induced it. See Frontier Cos. of Alaska, Inc. v. Jack White Co., 818 P.2d 645, 650-51 (Alaska 1991); RESTATEMENT (SECOND) OF TORTS § 766 cmt. n (1979). That somewhat uncertain escape hatch would be unavailable here as T appears to be the instigator.
152. See RESTATEMENT (SECOND) OF TORTS § 774A.
153. See Perlman, supra note 20, at 88; RESTATEMENT (SECOND) OF CONTRACTS §§ 192, 194 (1981). The problem is not that A can recover twice for the same damages; she cannot. See RESTATEMENT (SECOND) OF TORTS § 774A(2). The problem is that B and T cannot know in advance whom A will sue, and any agreement between B and T for indemnification would be unenforceable.
154. See Perlman, supra note 20, at 88; RESTATEMENT (SECOND) OF CONTRACTS §§ 192, 194 (1981). The problem is not that A can recover twice for the same damages; she cannot. See RESTATEMENT (SECOND) OF TORTS § 774A(2). The problem is that B and T cannot know in advance whom A will sue, and any agreement between B and T for indemnification would be unenforceable.
155. See Perlman, supra note 20, at 88; RESTATEMENT (SECOND) OF CONTRACTS §§ 192, 194 (1981). The problem is not that A can recover twice for the same damages; she cannot. See RESTATEMENT (SECOND) OF TORTS § 774A(2). The problem is that B and T cannot know in advance whom A will sue, and any agreement between B and T for indemnification would be unenforceable.
156. For a case in which Judge Posner explicitly analyzes the availability of specific performance in these terms, see Walgreen Co. v. Sara Creek Property Co., 966 F.2d 273 (7th Cir. 1992).
157. See De Rivafinoli v. Corsetti, 4 Paige Ch. 263, 270 (N.Y. 1833). I am not aware that any officer of this court has that perfect knowledge of the Italian language, or possesses that exquisite sensibility in the auricular nerve, which is necessary to understand and to enjoy with a proper zest the peculiar beauties of the Italian opera, so fascinating to the fashionable world. Id.; 5A CORBIN ON CONTRACTS § 1204 (1964).
158. Beverly Glen Music, Inc. v. Warner Communications, Inc., 224 Cal. Rptr. 260, 261 (Cal. Ct. App. 1986). Involuntary servitude and a court order of specific performance may seem to be miles apart, but they are chillingly close. Immediately after the Thirteenth Amendment abolished slavery as a legal institution in the United States, slave owners turned to contract as a means of maintaining control over their former slaves. The person who enticed away a southern plantation owner's newly hired slaves-turned-servants was liable in damages. Salter v. Howard, 43 Ga. 601 (1871). If orders of specific performance for contracts of personal service had been available, the passage of the Thirteenth Amendment would have been far less significant to the workers on the plantation of Mr. John Howard in Houston County, Georgia, during 1866. Id. at 602 (referring to testimony by the plaintiff, Mr. Howard, that he had "said he would send the sheriff after [his former slaves] and [the defendant] too").
159. 42 Eng. Rep. 687 (Ch. 1852).
160. FARNSWORTH, supra note 5, at 855-56; JOHN D. CALAMARI & JOSEPH M. PERILLO, THE LAW OF CONTRACTS 667 n.49 (3d ed. 1987).
161. FARNSWORTH, supra note 5, at 855-56; JOHN D. CALAMARI & JOSEPH M. PERILLO, THE LAW OF CONTRACTS 667 n.49 (3d ed. 1987).
162. 118 Eng. Rep. 749, 2 El. & Bl. 216 (Q.B. 1853).
163. 118 Eng. Rep. at 760, 2 El. & Bl. at 245 (Coleridge, J., dissenting).
164. 118 Eng. Rep. at 749, 2 El. & Bl. at 216.
165. See, e.g., Northern Delaware Indus. Dev. Corp. v. E.W. Bliss Co., 245 A.2d 431 (Del. Ch. 1968).
166. See id.
167. This is, of course, true for all breaches, not only the bad faith breach. The aggrieved party must pay to enforce her contract right under the American rule, whether she is entitled to damages or specific performance. This enforcement cost distorts the incentives that contract law provides for efficient transactions, but it is not at all clear that this distortion argues against the current bifurcation of remedies. In any case, it is hard to imagine why, if we were troubled by enforcement costs, we would seek to mitigate its effects in only that arbitrary set of cases implicated in the interference tort. See Perlman, supra note 20, at 88-89.
168. See Van Patten & Willard, supra note 109, at 904.
169. In some cases the litigation costs of the bad faith defendant are actually outweighed by the return that the defendant is likely to earn by investing the plaintiff's money. See Hersch v. Citizens Sav. & Loan Ass'n, 194 Cal. Rptr. 628, 633 (Cal. Ct. App. 1983); Van Patten & Willard, supra note 109, at 893 & n.9.
170. "[M]alicious motive may be important in determining whether a material breach has occurred, but it is immaterial in so far as damages for contract breach are concerned." Wild v. Rarig, 234 N.W.2d 775, 790 (Minn. 1975), cert. denied, 424 U.S. 902 (1976).
171. See Communale v. Traders & Gen. Ins. Co., 328 P.2d 198 (Cal. 1958); FARNSWORTH, supra note 5, at 876-77.
172. See Crisci v. Security Insurance Co., 426 P.2d 173 (Cal. 1967).
173. See Vernon Fire & Cas. Ins. Co. v. Sharp, 349 N.E.2d 173 (Ind. 1976); Gruenberg v. Aetna Ins. Co., 510 P.2d 1032 (Cal. 1973); White v. Unigard Mut. Ins. Co., 730 P.2d 1014 (Idaho 1986). In some jurisdictions the tort of bad faith refusal to settle was made available not only to insureds (who are in privity with the insurer), but to third party claimants, on the theory that there was a private right of action under statutes governing the settlement practices of insurers. See Royal Globe Ins. Co. v. Superior Court, 592 P.2d 329 (Cal. 1979), overruled by Moradi-Shalal v. Fireman's Fund Ins. Cos., 758 P.2d 58 (Cal. 1988).
174. Crisci, 426 P.2d at 178.
175. Id.
176. See, e.g., White, 730 P.2d at 1019 (holding that "special relationship . . . exists between insurer and insured"); Battista v. Lebanon Trotting Ass'n, 538 F.2d 111, 118 (6th Cir. 1976); Crisci, 426 P.2d at 178; John Monaghan, Note, Extending the Bad Faith Tort Doctrine to General Commercial Contracts, 65 B.U. L. REV. 355, 358-63 (1985).
177. See, e.g., White, 730 P.2d at 1019 (holding that "special relationship . . . exists between insurer and insured"); Battista v. Lebanon Trotting Ass'n, 538 F.2d 111, 118 (6th Cir. 1976); Crisci, 426 P.2d at 178; John Monaghan, Note, Extending the Bad Faith Tort Doctrine to General Commercial Contracts, 65 B.U. L. REV. 355, 358-63 (1985).
178. See Craft v. Economy Fire & Gas. Co., 572 F.2d 565, 569 (7th Cir. 1978); Battista, 538 F.2d at 118.
179. D'Ambrosio v. Pennsylvania Nat'l Mut. Cas. Ins. Co., 396 A.2d 780, 785 (Pa. Super. Ct. 1978), aff'd, 431 A.2d 966 (Pa. 1981); Battista, 538 F.2d at 118.
180. Grand Sheet Metal Prod. Co. v. Protection Mut. Ins. Co., 375 A.2d 428, 430 (Conn. Super. Ct. 1977); Battista, 538 F.2d at 118.
181. Seaman's Direct Buying Serv., Inc. v. Standard Oil Co., 181 Cal. Rptr. 126, 136 (Cal. Dist. Ct. App. 1982), vacated, 686 P.2d 1158 (Cal. 1984), overruled by Freeman & Mills, Inc. v. Belcher Oil Co., 900 P.2d 669 (Cal. 1995); see also White, 730 P.2d at 1019 (noting that the "unique 'personal' (non-commercial) nature of insurance contracts" justifies imposing the duty of good faith and fair dealing) (citation omitted).
182. Vernon Fire & Cas. Ins. Co. v. Sharp, 349 N.E.2d 173 (Ind. 1976).
183. 686 P.2d 1158, 1167 (Cal. 1984), overruled by Freeman & Mills, Inc. v. Belcher Oil Co., 900 P.2d 669 (Cal. 1995).
184. Id. at 1166.
185. Id. at 1167.
186. Id. (citation omitted).
187. For citations to some of the voluminous commentary on the Seaman's case, see Freeman & Mills, Inc. v. Belcher Oil Co., 900 P.2d 669, 678-79 (1995), which overruled Seaman's Direct Buying Serv. v. Standard Oil Co., 686 P.2d 1158, 1167 (Cal. 1984); FARNSWORTH, supra note 5, at 878 n.35; Kerry L. Macintosh, Gilmore Spoke Too Soon: Contract Rises from the Ashes of the Bad Faith Tort, 27 LOY. L.A. L. REV. 483, 493-94 (1994).
188. For citations to some of the voluminous commentary on the Seaman's case, see Freeman & Mills, Inc. v. Belcher Oil Co., 900 P.2d 669, 678-79 (1995), which overruled Seaman's Direct Buying Serv. v. Standard Oil Co., 686 P.2d 1158, 1167 (Cal. 1984); FARNSWORTH, supra note 5, at 878 n.35; Kerry L. Macintosh, Gilmore Spoke Too Soon: Contract Rises from the Ashes of the Bad Faith Tort, 27 LOY. L.A. L. REV. 483, 493-94 (1994).
189. Macintosh, supra note 150, at 494.
190. 765 P.2d 373 (Cal. 1988).
191. Id. at 401. Other jurisdictions saw a similar waxing and waning of bad faith breach. The tort of bad faith breach, recognized in the insurance context in White v. Unigard Mutual Insurance Co., 730 P.2d 1014 (Idaho 1986), was held not to apply in the commercial lending context. Black Canyon Racquetball Club, Inc. v. Idaho First Nat'l Bank, 804 P.2d 900 (Idaho 1991); see also Nicholson v. United Pac. Ins. Co., 710 P.2d 1342 (Mont. 1985) (recognizing bad faith breach); Story v. City of Bozeman, 791 P.2d 767, 775 (Mont. 1990) (holding that "the Nicholson tort remedy is excessive"); Davey v. Nessan, 830 P.2d 92, 96 (Mont. 1992) (describing the aspect of Nicholson that held "that a person breaches the implied covenant of good faith and fair dealing by acting 'arbitrarily, capriciously, or unreasonably,'" as having been overruled in Story).
192. See Okun v. Morton, 250 Cal. Rptr. 220, 232-33 (Cal. Ct. App. 1988).
193. See DuBarry Int'l, Inc. v. Southwest Forest Indus., Inc., 282 Cal. Rptr. 181 (Cal. Ct. App. 1991); see also Oki America, Inc. v. Microtech Int'l, Inc., 872 F.2d 312, 315 (9th Cir. 1989) (Kozinski, J., concurring) ("It is impossible to draw a principled distinction between a tortious denial of a contract's existence and a permissible denial of liability under the terms of the contract.").
194. See Multiplex Ins. Agency, Inc. v. California Life Ins. Co., 235 Cal. Rptr. 12 (Cal. Ct. App. 1987).
195. 900 P.2d 669 (Cal. 1995).
196. Id. at 679-80 (citations omitted).
197. Foley v. Interactive Data Corp., 765 P.2d 373, 396 (Cal. 1988).
198. DuBarry Int'l, Inc. v. Southwest Forest Industries, Inc., 282 Cal. Rptr. 181 (Cal. Ct. App. 1991).
199. See J.J. White, Inc. v. Metropolitan Merchandise Mart, 107 A.2d 892 (Del. Super. Ct. 1954); Den v. Den, 222 A.2d 647 (D.C. 1966); FARNSWORTH, supra note 5, § 12.8.
200. See Timothy J. Sullivan, Punitive Damages in the Law of Contract: The Reality and the Illusion of Legal Change, 61 MINN. L. REV. 207, 236-40 (1977). Sometimes the "independent tort" amounts to little more than refusing to perform after accepting the other party's performance. See Excel Handbag Co. v. Edison Bros. Stores, 630 F.2d 379, 384-85 (5th Cir. 1980).
201. See Brown v. Coates, 253 F.2d 36 (D.C. Cir. 1958) (finding that real estate broker is a quasi-fiduciary); Fort Smith & W. R. Co. v. Ford, 126 P. 745 (Okla. 1912) (pertaining to a railroad).
202. See Wright v. Public Sav. Life Ins., 204 S.E.2d 57 (S.C. 1974); Wellborn v. Dixon, 49 S.E. 232 (S.C. 1904). Prior to the mid-nineteenth century, juries were given relatively free reign to determine damages and one imagines that bad faith behavior on the part of breachers was taken into account in the jury room. A side effect of the creation of rules by judges to control damage awards was the creation of a safe harbor for bad faith breach. It is not surprising that the classic rules limiting damages - the limitations of avoidability, foreseeability and certainty - can all function somewhat flexibly, allowing higher damage awards in the case of bad faith breachers.
203. 118 Eng. Rep. 749, 2 El. & Bl. 216 (Q.B. 1853).
204. FARNSWORTH, supra note 5, at 858 (footnote omitted).
205. See U.C.C. § 2-716 cmt. 2 (1995).
206. See, e.g., Gold Medal Farms, Inc. v. Rutland County Co-Operative Creamery, Inc., 195 N.Y.S.2d 179 (N.Y. App. Div. 1959).
207. 135 N.E. 938 (N.Y. 1922) (mem.).
208. 195 N.Y.S.2d 179.
209. Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 406 N.E.2d 445, (N.Y. 1980)
210. Gonzales v. Kentucky Derby Co., 197 A.D. 277, 278 (1921), aff'd sub nom., Gonzales v. Reichenthaler, 135 N.E. 938 (1922) (mem.).
211. 195 N.Y.S.2d 179.
212. See U.C.C. § 2-716 cmt. 2 (1995).
213. 112 P.2d 631 (Cal. 1941).
214. Id. at 633.
215. See Westinghouse Elec. & Mfg. Co. v. Diamond State Fibre Co., 268 F. 121 (D. Del. 1920).
216. See American League Baseball Club of New York, Inc. v. Pasquel, 63 N.Y.S.2d 537 (N.Y. Sup. Ct. 1946) (enjoining defendant from interfering with contracts of baseball players, whether or not contracts enforceable by specific performance); Wade v. Culp, 23 N.E.2d 615, 619 (Ind. App. 1939) (affirming liability for inducing inventor to breach promise "to spend [his] entire time in the development of a working model" electric steak grill); Anderson v. Moskovitz, 157 N.E. 601, 602 (Mass. 1927) (finding "evidence that it was difficult, if not impossible, for the plaintiff to hire a competent" substitute).
217. See Winston v. Williams & McKeithan Lumber Co., 42 S.E.2d 218 (N.C. 1947) (finding cause of action stated for interference with contract to sell standing timber); White v. Massee, 211 N.W. 839 (Iowa 1927) (involving contract for transfer of homestead); Swaney v. Crawley, 157 N. W. 910 (Minn. 1916) (involving conveyance of land).
218. See McNutt Oil & Ref. Co. v. D'Ascoli, 281 P.2d 966 (Ariz. 1955); Imperial Ice Co. v. Rossier, 112 P.2d 631 (Cal. 1941); Mahoney v. Roberts, 110 S.W. 225 (Ark. 1908). Wear-Ever Aluminum, Inc. v. Townecraft Indus., Inc., 182 A.2d 387 (N.J. Super. Ct. 1962) is a remarkable case in which a substantial segment of a company's door-to-door sales force, at-will employees, were stolen away by a competitor. The court treats these at-will contracts almost as if they contained no-compete clauses.
219. See Engine Specialties, Inc. v. Bombardier, Ltd., 605 F.2d 1 (1st Cir. 1979) (involving an exclusive dealer), cert. denied, 446 U.S. 983, and cert. denied, 449 U.S. 890 (1980); Beekman v. Marsters, 80 N.E. 817, 818 (Mass. 1907) (involving exclusive agency for hotel bookings; "damage . . . incapable of accurate ascertainment").
220. 173 N.E. 674 (N.Y. 1930).
221. Id. at 674-75.
222. Id. at 675.
223. Guard-Life Corp. v S. Parker Hardware Mfg. Corp., 406 N.E.2d 445 (N.Y. 1980).
224. Id. at 450-51 (citations omitted).
225. See GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW 218-25 (1978).
226. DuBarry Int'l, Inc. v. Southwest Forest Industries, Inc., 282 Cal. Rptr. 181, 192 (Cal. Ct. App. 1991). 190. See, e.g., Kennedy v. George Cully Real Estate, Inc., 296 So.2d 551 (Fla. Dist. Ct. App. 1974), cert. denied, 307 So.2d 183 (Fla. 1975); Allen v. Powell, 56 Cal. Rptr. 715 (Cal. Ct. App. 1967); Johnson v. Gustafson, 277 N.W. 252 (Minn. 1938).
227. See Tortious Interference, supra note 32, at 1533 ("While combinations of businessmen that destroyed the livelihood of nonmembers were tolerated, unions that inflicted similar harm as a means to increase bargaining power rather than as an end were found to have engaged in intimidation and duress.") (footnotes omitted); see also Roraback v. Motion Picture Mach. Operators Union, 168 N.W. 766, 767 (Minn. 1918) (holding that union's attempt to force theater owner to hire union projectionists was "clearly an invasion of the rights secured to him by the Constitution"); Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 259 (1917) (holding "that the purpose entertained by defendants to bring about a strike at plaintiff's mine in order to compel plaintiff, through fear of financial loss, to consent to the unionization of the mine as the lesser evil, was an unlawful purpose"); Curran v. Galen, 46 N.E. 297, 299 (N.Y. 1897) (holding that union's agreement with association of employers to only hire union workers is no defense to action by employee against union for procuring employee's dismissal, "for there would certainly be a compulsion or a fettering of the individual glaringly at variance with that freedom in the pursuit of happiness which is believed to be guaranteed to all by the provisions of the fundamental law of the state"); Vegelahn v. Guntner, 167 Mass. 92, 44 N.E. 1077 (1896); Lucke v. Clothing Cutters' & Trimmers' Assembly, 26 A. 505 (Md. 1893) (holding union's causing of non-union employee's discharge actionable, even though discharge did not breach employment contract).
228. Typical of the kinds of questions raised in these labor cases are the following: [W] hat means may lawfully be used by a collection or order of workmen to cause the discharge of other workmen . . . . Whether means which would be lawful if used by an individual become unlawful and amount to a conspiracy when used in combination. . . . Whether acts which might lawfully be done simply to further the welfare of those who participate in them become unlawful when inspired by a malevolent design to injure obnoxious workmen. Carter v. Oster, 112 S.W. 995, 997-98 (Mo. Ct. App. 1908).
229. See, e.g., Vane v. Nocella, 494 A.2d 181 (Md. 1985) (holding that National Labor Relations Act preempts tort claim); California State Council of Carpenters v. Associated Gen. Contractors of Cal., Inc., 648 F.2d 527, 540 (1980), rev'd on other grounds, 459 U.S. 519 (1983).
230. See, e.g., Tuttle v. Buck, 119 N.W. 946 (Minn. 1909); Knickerbocker Ice Co. v. Gardiner Dairy Co., 69 A. 405 (Md. 1908).
231. 69 A. 405 (Md. 1908).
232. Id. at 406.
233. Id.
234. Id. at 407.
235. Id. at 408.
236. See, e.g., Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985) (involving federal law); Natural Design, Inc. v. Rouse Co., 485 A.2d 663 (Md. 1984) (involving claims of violation of state anti-trust laws and malicious interference with business).
237. Professor Lao, evidently concerned that the Supreme Court has "redefined the requirements for establishing [a case of per se illegal vertical price fixing] so narrowly as to make it almost impossible to prove in the real world," Lao, supra note 24, at 36-37 (footnote omitted), argues for an expansive version of the interference tort. Even if she is right that we would be better off if state courts picked up the anti-trust ball that the feds have dropped, it does not follow that we should have an expansive interference tort that regards mere interference with a contract as improper. If state courts want to make anti-trust law they should do so by identifying the kind of behavior that is illegal, not by hiding behind the abstract principle of mere interference. Courts are often quite open about their trade concerns, but too often they then proceed to state their holdings generally. See, e.g., Sperry & Hutchinson Co. v. Louis Weber & Co., 161 F. 219 (N.D. Ill. 1908).
238. Alexander & Alexander Inc. v. B. Dixon Evander & Associates, Inc., 650 A.2d 260, 270 (Md. 1994) (recharacterizing its holding in Natural Design, Inc. v. Rouse Co., 485 A.2d 663 (Md. 1984)).
239. 604 P.2d 1090 (Alaska 1979).
240. Id. at 1094. The holding is remarkable because it allows liability even if a reasonable person in the interferer's shoes acting with no ill-will would have interfered with the contract under similar circumstances - acting, for example, out of safety concerns. It is also remarkable because the contract was at-will, specifically providing that it might be terminated.
241. Perlman, supra note 20, at 98.
242. See, e.g., Cumberland Glass Mfg. Co. v. DeWitt, 87 A. 927 (1913), aff'd, 237 U.S. 447 (1915); Sorenson v. Chevrolet Motor Co., 214 N.W. 754 (Minn. 1927).