Judging plaintiffs

Vanderbilt Law Review

Volumn 60, Issue 6, 2007, Pages 1749-1808

  Solomon, Jason M ^a  

^a UNIVERSITY OF GEORGIA   (United States)

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EID: 39449120037     PISSN: 00422533     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (332)

1. 111 N.E. 1050 (N.Y. 1916).
2. Ultramares Corp. v. Touche, Niven & Co., 174 N.E. 441, 445 (N.Y. 1931).
3. The development is discussed in George L. Priest, The Invention of Enterprise Liability: A Critical History of the Intellectual Foundations of Modern Tort Law, 14 J. LEGAL STUD. 461 (1985).
4. 162 N.E. 99, 101 (N.Y. 1928).
5. Id. at 102 (Andrews, J., dissenting).
6. See ARTHUR RIPSTEIN, EQUALITY, RESPONSIBILITY, AND THE LAW 66-67 (1999) (approvingly discussing the principle found in Palsgraf that an actor's liability in negligence should be limited to those toward whom the actor is negligent, or wrongs);
7. ERNEST J. WEINRIB, THE IDEA OF PRIVATE LAW 159-65 (1995) (comparing Cardozo's and Andrews' approaches to the duty of care, and favoring that of Cardozo, as Andrews' approach "makes manifest his failure to integrate negligence and injury").
8. 166 N.E. 173, 173-74 (N.Y. 1929).
9. Id. at 174.
10. See infra Section III.B.1 and accompanying notes.
11. See infra Section III.A.3.
12. See infra Section III.A.4.
13. See infra Sections III.C.1-2.
14. To be sure, to the extent that a descriptive theory of torts includes historical claims about why tort law is the way it is, there may be no puzzle here. The historian can trace notions of contributory negligence, for example, back to Roman law, to early English common law after that, through Blackstone, and on to twentieth century America. Others writing from a more Marxist perspective, like Morton Horwitz, trace contributory negligence's rise to 19th-century judges seeking to subsidize the industrial revolution.
15. See NORMAN F. CANTOR, IMAGINING THE LAW: COMMON LAW AND THE FOUNDATIONS OF THE AMERICAN LEGAL SYSTEM 8 (1997) (explaining Horwitz's Marxist approach as the view that "legal systems simply serve as the instruments of dominant classes"). But to the extent that one wants more than historical claims from a positive theory of tort law-and, as I explain below, I think we do-one needs further justification of this social institution.
16. See infra Part II.
17. See infra Part III.
18. See infra Section IV.B.
19. See infra Section IV.C.
20. See infra Part V. Following in the footsteps of other torts scholars, I am working on a satisfying theoretical framework for what tort law is-mostly, I leave whether that is what tort law ought to be (or even whether tort law is something that ought to exist) for another day.
21. See, e.g., Stephen D. Sugarman, Assumption of Risk, 31 VAL. U. L. REV. 833, 835-36 (1997) (employing a "mixed descriptive/prescriptive" approach to analyzing tort law).
22. See Benjamin Zipursky, Civil Recourse, Not Corrective Justice, 91 GEO. L.J. 695, 707 (2003) (explaining "pragmatic conceptualism," based on the approach that "understanding of legal concepts requires an understanding of the structure of practical inferences in which our legal concepts and principles are involved").
23. JULES L. COLEMAN, RISKS AND WRONGS 8-9 (1992). I take as a given the desirability of a unifying account for tort law, rather than a pluralist account. Without such a unified account, it is difficult to prevent granular issues in tort doctrine from dissolving into ad hoc policymaking by judges, liberated to choose from an unprioritized menu of policy goals depending on political or other preferences. I recognize that many scholars believe that a unified account is not possible, and I do not defend the desirability of a unified account at any length here.
24. RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL HARM (Proposed Final Draft No. 1, 2005).
25. Deontological (morality-based) and consequentialist (what I call instrumental) are alternative denominations for these theoretical camps.
26. Gary T. Schwartz, Mixed Theories of Tort Law: Affirming Both Deterrence and Corrective Justice, 75 TEX. L. REV. 1801 (1997).
27. RALPH KEYES, THE QUOTE VERIFIER: WHO SAID WHAT, WHERE, AND WHEN 22 (2006).
28. John C.P. Goldberg, What Are We Reforming? Tort Theory's Place in Debates over Malpractice Reform, 59 VAND. L. REV. 1075 (2006).
29. Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 99, 101 (N.Y. 1928).
30. OLIVER WENDELL HOLMES, JR., THE COMMON LAW (Dover Publ'ns 1991) (1888).
31. For a discussion of instrumentalism in legal reasoning, see Robert S. Summers, Pragmatic Instrumentalism in Twentieth Century American Legal Thought: A Synthesis and Critique of Our Dominant General Theory About Law and Its Use, 66 CORNELL L. REV. 861 (1981).
32. Here, I refer to what are variously called "descriptive," "interpretive," or "positive" theories of tort law-theories that focus on what tort law is, as opposed to normative theories that focus on what tort law ought to be.
33. See John C.P. Goldberg, Twentieth-Century Tort Theory, 91 GEO. L.J. 513, 521-60 (2003) (grouping instrumental theories within these categories).
34. Id. at 525 ("And so we arrive at the baseline proposition of compensation-deterrence theory, repeated at the outset of countless law review articles published in the last fifty years: The function of tort law is to compensate and deter.").
35. This concept has intellectual founders that include Realists like Fleming James and Leon Green, and economic theorists like Guido Calabresi. See, e.g., Priest, supra note 3, at 471, 500 (citing James' argument that most defendants are enterprises and thus better positioned than individual plaintiffs to distribute risks, and Green's 1952 declaration that the fault system of tort should be replaced with a simple compensation system);
36. Guido Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 YALE L.J. 499, 514 (1961) (arguing that a compensation system based on enterprise liability "would enhance proper resource allocation").
37. Goldberg, supra note 30, at 540.
38. Id. at 538-39 (describing the enterprise-liability view that traditional negligence law, with its plaintiff-conduct defenses, is ill-suited to govern the kinds of inevitable accidents that dominate the modern industrialized economy).
39. See GUIDO CALABRESI, THE COST OF ACCIDENTS: A LEGAL AND ECONOMIC ANALYSIS 26 (1970) (taking as "axiomatic" that this is the principal function of accident law);
40. WILLIAM M. LANDES & RICHARD POSNER, THE ECONOMIC STRUCTURE OF TORT LAW 58-62 (1987) (modeling due care levels to minimize the social costs of accidents).
41. Goldberg, supra note 30, at 544-60.
42. I am referring here to their interpretive as opposed to normative form. For an overall critique of instrumentalism as a legal theory, see BRIAN Z. TAMANAHA, LAW AS A MEANS TO AN END: THREAT TO THE RULE OF LAW (2006).
43. See, e.g., COLEMAN, supra note 20, at 382 ("[T]he victim's connection to his injurer is fundamental and analytic, not tenuous and contingent. Thus, even if the current structure of tort litigation is consistent with economic analysis, it is better understood as embodying some conception of corrective justice.");
44. WEINRIB, supra note 6, at 132-33 ("[E]conomic analysis makes the wrong kind of considerations the primary building blocks of its enterprise. At the core of this treatment lies a straightforward idea: welfare cannot supply the normative underpinning for private law because private law relationships are bipolar and welfare is not.").
45. Benjamin Zipursky, Pragmatic Conceptualism, 6 LEGAL THEORY 457, 466 (2000).
46. Id.
47. Jody S. Kraus, Transparency and Determinacy in Common Law Adjudication: A Philosophical Defense of Explanatory Economic Analysis, 93 VA. L. REV. 287, 289 (2007).
48. H.L.A. HART, THE CONCEPT OF LAW 88-90 (2d ed. 1994);
49. see also STEPHEN A. SMITH, CONTRACT THEORY 15 (2004) ("[T]here has been a general agreement that a central feature ... of [law's] self-understanding is [its] claim to authority-the claim or belief that law is morally justified.").
50. WEINRIB, supra note 6, at 15.
51. See Ernest J. Weinrib, The Special Morality of Tort Law, 34 MCGILL L.J. 403, 408 (1989) ("[T]he tort relationship is not a means to an end. Rather, each harm done and suffered is the core of a single transaction that relates this doer to THIS sufferer . . . .").
52. Zipursky, supra note 19, at 703 ("Weinrib and Coleman . . . seem to agree that the bipolarity critique is a powerful argument that economists have never adequately met. . . ."). It also fails to explain the causation requirement in tort law-that is, why ALL unreasonably risky activity is not taxed, as opposed to only such activity that causes harm.
53. SMITH, supra note 42, at 24-32; Robert L Rabin, The Duty Concept in Negligence Law: A Comment, 54 VAND. L. REV. 787, 794 (2001) ("[D]octrinal analysis is essentially static-an organizing tool but little more-unless it is attentive to the policy concerns that channel discretion in one direction or another.").
54. See HART, supra note 42, at 8-13 (outlining some issues that must be addressed to develop an adequate concept of law).
55. I do not mean to suggest that instrumental theories, such as economic accounts, do not have valuable insights to add to our understanding of tort law, particularly as a normative vision for what tort law should aspire to achieve. But I do think they are inadequate as descriptive accounts of tort law.
56. I use the term "individual justice" to mean justice between private parties, as opposed to social justice.
57. Leon Green, Tort Law: Public Law in Disguise, 38 TEX. L. REV. 1 (1959).
58. See, e.g., COLEMAN, supra note 20, at 432-35 (1992) (comparing conceptions of corrective justice);
59. RIPSTEIN, supra note 6, at 2-3 ("Corrective justice, criminal law, and tort law together set out the conditions of responsibility, the conditions under which agents appropriately bear the costs of their choices.");
60. WEINRIB, supra note 6, at 19 (claiming that corrective justice is essential to conceptualizing the structure of private law coherently).
61. See WEINRIB, supra note 6, at 56-83 (explaining Aristotle's account of corrective justice).
62. Id. at 114-36.
63. This is a familiar example that helps distinguish corrective justice from distributive justice. Corrective justice is indifferent as to the fairness of individuals' prior holdings.
64. See, e.g., G. Edward White, The Unexpected Persistence of Negligence, 1980-2000, 54 VAND. L. REV. 1337, 1341 (identifying welfare economics and corrective justice as the dominant theories of tort law). Other morality-based justice theories of tort law, based on libertarian notions, distributive justice, or social justice, fail as plausible descriptive accounts.
65. See Goldberg, supra note 30, at 563-78 (describing goals of different individual-justice tort theories).
66. See infra text accompanying notes 90-91.
67. This Part is quite similar in methodology to the development of the "substantive standing" rule by Benjamin Zipursky, Rights, Wrongs, and Recourse in the Law of Torts, 51 VAND. L. REV. 1, 15-40 (1998). I hope he considers it flattery.
68. It is worth noting that corrective justice has little to say about the content of wrongful behavior or wrongful loss-that is, how we ought to define the primary rules of conduct between citizens. My argument here necessarily leaves the precise contours of wrongfulness undefined.
69. Each of these doctrines could be, and have been, the subject of separate articles; my discussion of them here will be necessarily brief.
70. I use the term "contributory negligence" to refer to both the traditional all-or-nothing doctrine and the various forms of comparative negligence now in place in most jurisdictions.
71. The origin of contributory negligence in Anglo-American tort law is somewhat unclear, although most scholars agree it made its first appearance in Butterfield v. Forrester, 11 East 60, 103 Eng. Rep. 926 (K.B. 1809), where the court announced the principle as if it were wellestablished and uncontroversial.
72. For a notable exception, see Kenneth Simons, The Puzzling Doctrine of Contributory Negligence, 16 CARDOZO L. REV. 1693 (1995), which provides an in-depth analysis of plaintiff's conduct-defenses, including contributory negligence.
73. Moreover, no jurisdiction has adopted the "pure" form of comparative negligence since 1980, and some jurisdictions have moved from a pure to a modified form during that time.
74. The facts of this case are described in an opinion arising from collateral litigation over insurance coverage, U. S. Fid. & Guar. Co. v. Preston, 26 S.W.3d 145, 146 (2000).
75. Thirty-eight states follow either old-fashioned contributory negligence or some kind of "modified" comparative negligence regime whereby if the plaintiffs negligence exceeds the defendant's, the plaintiff recovers nothing. See VICTOR E. SCHWARTZ, COMPARATIVE NEGLIGENCE 31-33 (4th ed. 2002) (describing the different types of comparative negligence and listing which states follow each variation).
76. Simons, supra note 62, at 1722-23.
77. Id. at 1723-25.
78. Id. at 1747.
79. See RESTATEMENT (SECOND) OF TORTS § 402A cmt. h (1965) ("[The] product is not in a defective condition when it is safe for normal handling and consumption. If the injury results from abnormal handling . . . or from abnormal preparation for use, . . . or from abnormal consumption, . . . the seller is not liable.").
80. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 cmt. p (1998) ("Product misuse, modification, and alteration are forms of post-sale conduct by product users or others that can be relevant to the determination of the issues of defect, causation, or comparative responsibility.").
81. Id.
82. See John W. Wade, On the Nature of Strict Tort Liability for Products, 44 MISS. L.J. 825, 837-38 (1973), for a full enumeration of the seven factors in Wade's proposed risk-utility analysis of a product's defectiveness.
83. Id. at 837.
84. Id. The sixth factor also looks in part to the adequacy of the warnings-a way of helping determine whether defendant has satisfied its obligation and therefore whether any injury is really the plaintiffs fault, in the lay sense of the word.
85. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 17 cmt. d (1998) ("Product misuse, alteration, and modification have been treated by some courts as an absolute bar to recovery and by others as a form of plaintiff fault that should be compared with that of other parties to reduce recovery.").
86. See James A. Henderson & Aaron D. Twerski, Doctrinal Collapse in Products Liability: The Empty Shell of Failure to Warn, 65 N.Y.U. L. REV. 265, 314 (1990) ("[M]ost courts agree that product suppliers owe no duty to warn of open and obvious dangers . . . .").
87. See id. at 297 (admitting that "the visible monetary costs of additional warnings are typically quite low-a few pennies for a bit more paper and ink").
88. Id. at 314 ("[A]s product warnings address each new level of risk, the lists of warnings becomes increasingly longer and consumer focus more attenuated and difficult.").
89. Indeed, under the current Restatement, this cost-benefit analysis matters explicitly in determining whether there is a post-sale duty to warn. RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 10(b) (1998) ("A reasonable person in the seller's position would provide a warning after the time of sale if . . . the risk of harm is sufficiently great to justify the burden of providing a warning.").
90. 108 F.3d 1176, 1178 (9th Cir. 1997).
91. Id. at 1180.
92. Id. at 1181 ("Appellants cannot meet the consumer expectations test because just as ordinary consumers would recognize that riding in a pickup cargo bed is dangerous, they also would not expect the pickup truck to protect passengers in the cargo bed during an accident.").
93. Id. at 1180.
94. Id. ("At some point, manufacturers must be relieved of the paternalistic responsibility of warning users of every possible risk that could arise from foreseeable use of their product. That point comes when ordinary users readily recognize the risk on their own."). If the plaintiffs' awareness of the risk is what really drives the no-liability determination, then this case might better be seen as a species of assumption of risk in the "judging plaintiffs' choices" category.
95. See infra text accompanying notes 108-112.
96. RESTATEMENT (SECOND) OF TORTS § 525 (1977);
97. DAN B. DOBBS, THE LAW OF TORTS 1359 (2000).
98. But see Margaret V. Sachs, The Relevance of Tort Law Doctrines to Rule 10b-5: Should Careless Plaintiffs be Denied Recovery?, 71 CORNELL L. REV. 96, 138-40 (1985) (arguing that courts were historically quite divided on the requirement of justifiable reliance, despite the Supreme Court's characterization of it as established doctrine).
99. 170 N.W.2d 807, 808 (Wis. 1969).
100. Id. at 810.
101. Id. at 811 ("In the instant case the respondent had ample opportunity to determine whether the car was air-conditioned. He had examined the car on the lot and had been allowed to remove the car from the lot unaccompanied by a salesman for a period of approximately one and one-half hours. . . . No great search was required to disclose the absence of the air-conditioning unit since a mere flip of a knob was all that was necessary.").
102. RESTATEMENT (SECOND) OF TORTS § 481 (1965) ("The plaintiff's contributory negligence does not bar recovery against a defendant for a harm caused by conduct of the defendant which is wrongful because it is intended to cause harm to some legally protected interest of the plaintiff or a third person.").
103. See John C.P. Goldberg, Anthony J. Sebok & Benjamin C. Zipursky, The Place of Reliance in Fraud, 48 ARIZ. L. REV. 1001, 1004 (2006) (discussing the related issue of whether the element of actual reliance itself captures something distinctive or is merely a stand-in for causation, and finding that there are independent justifications for the reliance requirement in fraud).
104. Courts and commentators have also struggled with whether or not this is more appropriately considered akin to contributory negligence, the notion captured in the phrase "reasonable reliance" that the plaintiff acted carelessly, or closer to the notion of reckless disregard for the truth captured in "justifiable reliance." Different jurisdictions use different terms, some interchangeably. See DOBBS, supra note 85, at 1361 ("[T]he justified reliance requirement seems less like a separate issue and more like evidence about the plaintiff's actual reliance or the defendant's culpability. . . . Courts could, in other words, abolish the separate requirement of justified reliance without changing the outcome of cases, only the mode of analysis.");
105. Andrew R. Klein, Comparative Fault and Fraud, 48 ARIZ. L. REV. 983, 987 (2006) ("According to some scholars, courts do not actually view justifiable reliance as an independent element.").
106. This is the case unless we are talking about puffery. See David A. Hoffman, The Best Puffery Article Ever, 91 IOWA L. REV. 1395 (2006) (arguing that the puffery defense is a legitimate concept that is unfortunately lacking uniform application).
107. RESTATEMENT (SECOND) OF TORTS § 652D cmt. b (1977).
108. Id. ("[T]here is no liability for giving further publicity to what the plaintiff himself leaves open to the public eye.").
109. Jonathan B. Mintz, The Remains of Privacy's Disclosure Tort: An Exploration of the Private Domain, 55 MD. L. REV. 425,440 (1996) ("[F]acts that either are public knowledge or have already been publicizedO are not actionably private, regardless of their nature." (footnotes omitted)).
110. RESTATEMENT (SECOND) OF TORTS § 580A cmt. C (1977).
111. Id.
112. See New York Times Co. v. Sullivan, 376 U.S. 254, 283 (1964).
113. Gertz v. Robert Welch, Inc., 418 U.S. 323, 344-45 (1974).
114. Id. at 345.
115. This two-prong test comes from the common law and is now widely accepted. E.g., Dicks v. Jensen, 768 A.2d 1279, 1283 (Vt. 2001). It has since been codified in the Uniform Trade Secrets Act, 14 U.L.A. 437 (1990), which has been adopted in some form in at least 45 U.S. jurisdictions. R. Mark Halligan, U.S. Trade Secret Protection by State, http://my.execpc.com/ ∼mhallign/41state.html (listing trade secret statutes and date of enactment, updated through July 13, 2005) (last visited Nov. 3, 2007).
116. See, e.g., Douglas Lichtman, How the Law Responds to Self-Help, 1 J.L. ECON. & POL'Y 215, 226-30 (2005).
117. Dicks, 768 A.2d at 1284.
118. See, e.g., COLEMAN, supra note 20, at 216 n.7 (acknowledging that he has not given enough thought to positive defenses to liability);
119. RICHARD A. EPSTEIN, A THEORY OF STRICT LIABILITY 83-131 (1980) (arguing that contributory negligence should be a separate defense);
120. George P. Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV. 537, 549 (1972) (mentioning contributory negligence only briefly);
121. Stephen R. Perry, The Moral Foundations of Tort Law, 77 IOWA L. REV. 449, 499, 512-13 (1992) (arguing that corrective justice as comparative apportionment is consistent with "outcome- responsibility");
122. Richard W. Wright, The Logic and Fairness of Joint and Several Liability, 23 MEMPHIS ST. U. L. REV. 45, 75-78 (1992) (looking at possible differences between victim and injurer negligence).
123. WEINRIB, supra note 6, at 169 n.53.
124. See Simons, supra note 62, at 1713-18 (explaining why "this view of negligence as unjustifiable egoism does not easily carry over to a victim's negligence").
125. See supra text accompanying note 64.
126. I do not deal with explicit assumption of risk defenses because those claims are more straightforward and are based on contract, rather than tort, principles.
127. Sugarman, supra note 18, at 835. Sugarman persuasively argues that consent to the risk of physical harm does not logically entail consent to legal injury, or consent to bearing the full financial burden of physical harm.
128. Id. at 834.
129. RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIABILITY § 2 cmt. i (2000) (implied assumption of risk distinguished).
130. This Section abandons the traditional doctrine of implied, voluntary assumption of risk embodied in RESTATEMENT (SECOND) OF TORTS §§ 496C-G (1965).
131. See Annotation, Effect of Adoption of Comparative Negligence Rules on Assumption of Risk, 16 A.L.R.4th 700, § 2 (1982).
132. See Kenneth W. Simons, Reflections on Assumption of Risk, 50 UCLA L. REV. 481, 482 (2002) (pointing out that "[r]eports of the death of assumption of risk are slightly exaggerated," as many courts continue to recognize assumption of risk as a substantive doctrine, and also rely implicitly on the consensual rationale behind assumption of risk in applying other doctrines).
133. 166 N.E. 173, 174 (N.Y. 1929) (finding that the risk of injury on a ride at defendant's amusement park was foreseeable, and plaintiff therefore assumed the risk).
134. See introductory discussion in text accompanying supra notes 7-9.
135. Murphy, 166 N.E. at 174.
136. BLACK'S LAW DICTIONARY 1489 (6th ed. 1990). The word "tort" derives from Latin word for "to twist."
137. WEINRIB, supra note 6, at 169 n.53.
138. The recourse theorists make this point. See John C.P. Goldberg & Benjamin C. Zipursky, Shielding Duty: How Attending to Assumption of Risk, Attractive Nuisance, and Other "Quaint" Doctrines Can Improve Decisionmaking in Negligence Cases, 79 S. CAL. L. REV. 329, 344 (2006) ("[I]mplied assumption of risk concerns whether the plaintiff has done something that undermines her entitlement to complain about the defendant's conduct, not whether the defendant was under an obligation to take care to avoid injuring a person such as the plaintiff, or whether that obligation was breached.").
139. See Kenneth W. Simons, Assumption of Risk and Consent in the Law of Torts: A Theory of Full Preference, 67 B.U. L. REV. 213, 218-48 (1987) (presenting model of full preference).
140. It might well be consistent with Arthur Ripstein's account, based on Kant and Rawls, of tort law reinforcing people's ability to pursue their own ends. RIPSTEIN, supra note 6, at 24-47;
141. Arthur Ripstein, The Division of Responsibility and the Law of Tort, 72 FORDHAM L. REV. 1811, 1820-29 (2004).
142. See Simons, supra note 112, at 508 (describing no-duty rules as "wholesale, categorical rules conclusively presuming that adequately warned participants in such an activity sufficiently consent to the risk and therefore should not obtain recovery");
143. Kenneth W. Simons, Murphy v. Steeplechase Amusement Co.: While the Timorous Stay at Home, the Adventurous Ride the Flopper, in TORTS STORIES 179, 201-02 (Robert L. Rabin & Stephen D. Sugarman eds., 2003) (explaining the difference between the more "individualized and subjective" assumption of risk approach, and the more "wholesale" no-duty approach).
144. Simons, supra note 118, at 248 (defining consent as plaintiffs "relative certainty that the risk will materialize").
145. I am referring to implied consent here, not express consent, as the latter does not pose such conceptual difficulties. For discussion of the difficulties in defining the proper scope of consent doctrine, see Kenneth Simons, Book Review, The Conceptual Structure of Consent in Criminal Law, 9 BUFF. CRIM. L. REV. 577, 616-29 (2006),
146. a review of PETER WESTEN, THE LOGIC OF CONSENT: THE DIVERSITY AND DECEFTTVENESS OF CONSENT AS A DEFENSE TO CRIMINAL CONDUCT (2004).
147. See Jaske v. State, 539 N.E.2d 14, 17 (Ind. 1989) ("We first note that lack of consent is not included among the statutory elements of the offense of battery.");
148. RESTATEMENT (SECOND) OF TORTS § 5 cmt. c (1965) ("The word 'defense' is not used in any technical procedural sense. Thus in an action for battery the burden rests upon the plaintiff to prove that the contact inflicted was without his consent.").
149. E.g., RESTATEMENT (SECOND) OF TORTS § 496A cmt. b (1965) ("[N]o wrong is done to one who consents.").
150. Heidi M. Hurd, The Moral Magic of Consent, 2 LEGAL THEORY 121, 123 (1996).
151. 601 F.2d 516, 519 (10th Cir. 1979).
152. Id. at 518-19.
153. See Hogan v. Tavzel, 660 So. 2d 350, 352 (Fla. Dist. Ct. App. 1995) ("Consent to sexual intercourse is not the equivalent of consent to be infected with a venereal disease."); Kathleen K. v. Robert B., 150 Cal. App. 3d 992, 997 (Cal. Ct. App. 1984) ("[A] woman's consent to sexual intercourse [is] vitiated by the man's fraudulent concealment of a risk of infection with venereal disease.");
154. RESTATEMENT (SECOND) OF TORTS § 892B cmt. e, illus. 5 (1979) ("A consents to sexual intercourse with B, who knows that A is ignorant of the fact that B has a venereal disease. B is subject to liability to A for battery.").
155. See RESTATEMENT (SECOND) OF TORTS §§ 333, 342, 343 (1965) (setting forth standards of care owed to trespassers, licensees, and invitees).
156. Id. § 330.
157. Id. § 332.
158. E.g., Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630 (1959) ('The distinctions which the common law draws between licensee and invitee were inherited from a culture deeply rooted to the land, a culture which traced many of its standards to a heritage of feudalism.").
159. The California Supreme Court stated the rationale underlying this choice: A man's life or limb does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without a business purpose. Reasonable people do not ordinarily vary their conduct depending upon such matters, and to focus upon the status of the injured party as a trespasser, licensee, or invitee in order to determine the question whether the landowner has a duty of care, is contrary to our modern social mores and humanitarian values. Rowland v. Christian, 443 P.2d 561, 568 (Cal. 1968). By statute, California has since made an exception for trespassers.
160. See, e.g., Nicoletti v. Westcor, Inc., 639 P.2d 330, 332 (Ariz. 1982) ("The particular duty owed to the entrant on the land is defined by the entrant's status."); Caroff v. Liberty Lumber Co., 369 A.2d 983, 985 (N.J. Super. Ct. App. Div. 1977) (refusing to abolish the historical distinctions among invitees, licensees, and trespassers).
161. See, e.g., Mounsey v. Ellard, 297 N.E.2d 43, 51-52 (Mass. 1973) (abolishing the distinction between licensees and invitees); O'Leary v. Coenen, 251 N.W.2d 746, 751 (N.D. 1977) (determining that abandonment "of the common law categories of licensee and invitee in premises liability cases" is a matter of 'judicial necessity"); Antoniewicz v. Reszczynski, 236 N.W.2d 1, 10 (Wis. 1975) (finding "little to commend the continued use of the categories of licensee or invitee in respect to the liability of the occupier of the property").
162. See Fleming James, Jr., Tort Liability of Occupiers of Land: Duties Owed to Licensees and Invitees, 63 YALE L.J. 605, 612-13 (1954) (describing this as "the economic benefit theory").
163. William L. Prosser, Business Visitors and Invitees, 26 MINN. L. REV. 573, 585 (1942) ("[T]he duty of the occupier toward his 'invitee' was not, in its inception, a matter of a quid pro quo for a benefit conferred . . . .").
164. See Rowland, 443 P.2d at 564 (holding that a major consideration in the determination of an occupier's liability is the forseeability of harm to the plaintiff).
165. RESTATEMENT (SECOND) OF TORTS § 336 cmt. f (1965) ("A trespasser who intrudes upon the premises of another is not entitled to expect the possessor to sacrifice his own safety and that of persons lawfully upon the land in order to secure the safety of the trespasser." (emphasis added));
166. id. § 343 cmt. b ("Therefore such a licensee is entitled to expect only that he will be placed upon an equal footing with the possessor himself by an adequate disclosure of any dangerous conditions that are known to the possessor." (emphasis added));
167. id. § 343 cmt. d ("An invitee is entitled to expect that the possessor will take reasonable care to ascertain the actual condition of the premises and, having discovered it, either to make it reasonably safe by repair or to give warning of the actual condition and the risk involved therein." (emphasis added)).
168. For cases in which plaintiff is denied recovery because the plaintiff, given her status, was not entitled to expect certain precautions and actions by landowner or occupant, see Williams v. Martin Marietta Alumina, Inc., 817 F.2d 1030, 1045 (3d Cir. 1987), in which the court distinguishes "commercial construction where the contractor and his employees expect certain risks and are prepared to cope with them" from "a situation where the invitee is a patron of a store, hotel, theater, or office building who is entitled to expect that the owner of the property will have made far greater preparation to secure the safety of invitees than will have been made by the owner of an industrial plant about to undergo alteration by the invitees"; Wriglesworth v. Doyle, 417 P.2d 999, 1000-01 (Or. 1966), in which the court holds that a land occupier who invites a repairman onto premises has no general duty to inspect the land unless the occupier had a reasonable belief that the land was unsafe and that the repairman, as a business invitee, was not entitled to expect more; Stimus v. Hagstrom, 944 P.2d 1076, 1081 (Wash. Ct. App. 1997), in which the court denies recovery for injuries sustained while on the premises to do reroofing work because the plaintiff was not entitled to expect the landowner to warn about dangers of which the plaintiff, a business invitee, has superior knowledge.
169. For cases in which plaintiff is granted recovery because, given her status, she was entitled to expect certain precautions and actions by landowner or occupant, see generally Crim v. International Harvester Co., 646 F.2d 161, 163 n.3 (5th Cir. 1981), in which the court allows the invitee plaintiff to recover against the landowner for not warning the invitee about risks of dust exposure or providing protective mask because "[a]n invitee is entitled to expect that an owner or occupier will take reasonable care to ascertain the actual condition of the premises"; Thacker v. J. C. Penney Co., 254 F.2d 672, 677 n.8 (5th Cir. 1958), in which the court holds that a child in a store who is injured when playing on a railing "is entitled to expect that the possessor will take reasonable care to discover the actual condition of the premises and either make them safe or warn him of dangerous conditions"
170. (citing RESTATEMENT (SECOND) OF TORTS § 343 (1965)); Sheil v. T.G. & Y. Stores Co., 781 S.W.2d 778, 782 (Mo. 1989), in which the court allows recovery from the store owner for a customer who tripped over a box in the aisle because "one entering a store, theatre, office building, or hotel, is entitled to expect that his host will make far greater preparations to secure the safety of his patrons than a householder will make for his social or even his business visitors"
171. (quoting RESTATEMENT (SECOND) OF TORTS § 329 cmt. e (1965)).
172. WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS § 57, at 354-56 (4th ed. 1971).
173. Louah v. Riechling, No, 06-C-31-C, 2006 U.S. Dist. LEXIS 47720, at *2 (W.D. Wis. July 11, 2006).
174. Or not so. See, e.g., Streenz v. Streenz, 471 P.2d 282, 282 (Ariz. 1970) (allowing an unemancipated child to bring a negligence suit against her parents for injuries from her mother's negligent driving); Gibson v. Gibson, 479 P.2d 648, 654 (Cal. 1971) (allowing an unemanicpated child to bring negligence suit against his father); Dunlap v. Dunlap, 150 A. 905, 913 (N.H. 1930) (allowing an emancipated child to sue his father for injuries sustained while working for him); Unah v. Martin, 676 P.2d 1366, 1368 (Okla. 1984) (allowing an unemancipated child to sue his father for injuries received from the father's negligent driving).
175. Louah, 2006 U.S. Dist. LEXIS 47720, at *7.
176. Id. at *11-12 ("In Wisconsin, it is well-established that when ice or snow accumulates on a sidewalk abutting private property, said property owner 'owes no duty to passers-by either to clear said sidewalk or to scatter abrasive material thereon. However, a defendant may incur liability for artificial accumulations. Whether an accumulation of ice constitutes a natural or an artificial condition is a question of law.").
177. RESTATEMENT (SECOND) OF TORTS § 520 cmt. f (1977). The term "non-natural" use originated in Rylands v. Fletcher, 159 Eng. Rep. 737 (Ex.1865), rev'd, L.R. 1 Ex. 265 (1866), aff'd, L.R. 3 H.L. 330 (1868).
178. See, e.g., Danielle Keats Citron, Reservoirs of Danger: The Evolution of Public and Private Law at the Dawn of the Information Age, 80 S. CAL. L. REV. 241, 245 (2007) (arguing that the Rylands approach ought to apply to emerging technologies like computerized databases of personal information);
179. Jed Handelsman Shugerman, Note, The Floodgates of Strict Liability: Bursting Reservoirs and the Adoption of Fletcher v. Rylands in the Gilded Age, 110 YALE L.J. 333, 335 (2000) (arguing that the most direct and substantial cause for the Rylands decision was a series of tragic dam failures, in contrast to assertions that socioeconomic, political, and academic forces were the catalyst). A full discussion of the vast literature around this case is beyond the scope of this paper.
180. Fletcher, supra note 104, at 547 ("It is apparent, for example, that the uncommon, ultrahazardous activities pinpointed in the Restatement are readily subsumed under the rationale of nonreciprocal risk-taking. . . . They represent threats of harm that exceed the level of risk to which all members of the community contribute in roughly equal shares.").
181. RESTATEMENT (SECOND) OF TORTS § 840D (1979).
182. Id.
183. 2 SIR WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 402-03 (16th ed. 1766),
184. quoted in Donald Wittman, Coming to the Nuisance, in THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW (Peter Newman ed., 1998).
185. RESTATEMENT (SECOND) OF TORTS § 840D cmt. b (1979) ("The rule generally accepted by the courts is that in itself and without other factors, the 'coming to the nuisance' will not bar the plaintiffs recovery.").
186. These are contained in "right to farm" statutes that provide immunity from nuisance liability for agricultural operations that were established before plaintiffs acquisition of or use of land. See, e.g., Note, Alexander A. Reinert, The Right to Farm: Hog-Tied and Nuisance-Bound, 73 N.Y.U. L. REV. 1694, 1706-14 (1998) (giving an overview of right-to-farm statutes).
187. Manis v. Gibson, No. E2005-00007-COA-R3-CV, 2006 Tenn. App. LEXIS 153, at *1-2 (Term. Ct. App. Mar. 3, 2006).
188. Id. at *2.
189. Id. at *15 (affirming the trial judge's application of comparative fault principles).
190. I recognize the meaning of "choice" is a difficult issue in philosophy, political theory, neuroscience, and many other disciplines (not to mention law). Here, I focus narrowly on how the concept appears to be used in judging-plaintiffs law.
191. See Koffman v. Garnett, 574 S.E.2d 258, 262 (Va. 2003) (Kinser, J., dissenting). Even in a friendly game of touch football, this might hold true.
192. See, e.g., Knight v. Jewett, 834 P.2d 696, 710-11 (1992).
193. Rowland v. Christian, 443 P.2d 561, 568 (Cal. 1968).
194. RESTATEMENT (SECOND) OF TORTS § 21 (1965).
195. Id. § 31 ("Words do not make the actor liable for assault unless together with other acts or circumstances they put the other in reasonable apprehension of an imminent harmful or offensive contact with his person.").
196. 99 S.E. 350, 351 (S.C 1919).
197. Id.
198. Id.
199. Id.
200. Id. ("[H]er nervous system was so shocked and wrecked that she suffered and continues to suffer in health, mind, and body on account of the abusive and threatening language addressed to her by defendant.").
201. Id. at 352.
202. RESTATEMENT (SECOND) OF TORTS § 46(1) (1965) ("One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." (emphasis added)).
203. Id. § 35.
204. Id. § 35(1)(a)-(b).
205. Id. § 35 (1)(c) (requiring as an element of false imprisonment that the plaintiff was "conscious of the confinement or . . . harmed by it");
206. id. § 42 ("Under the rule stated in § 35, there is no liability for intentionally confining another unless the person physically restrained knows of the confinement or is harmed by it.").
207. Scofield v. Critical Air Med., 45 Cal. App. 4th 990, 1003 (Cal. Ct. App. 1996).
208. William L. Prosser, False Imprisonment: Consciousness of Confinement, 55 COLUM. L. REV. 847, 849-50 (1955).
209. RESTATEMENT (SECOND) OF TORTS § 42 cmt. b (1965) ("There may, however, be situations in which actual harm may result from a confinement of which the plaintiff is unaware at the time. In such a case more than the mere dignitary interest, and more than nominal damages, are involved, and the invasion becomes sufficiently important for the law to afford redress.").
210. Scofield, 45 Cal. App. 4th at 1004 (citing Prosser's critique of the second Restatement in W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § H (5th ed. 1984)).
211. Id. at 1006.
212. RESTATEMENT (SECOND) OF TORTS § 46(1) (1965) ("One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." (emphasis added)).
213. Id. § 46 cmt. j.
214. To be sure, it is an empirical question whether this screening mechanism is, indeed, necessary to keep more trivial claims out of the courts.
215. COLEMAN, supra note 20, at 216 n.7 (explaining that the problem remains unresolved).
216. See generally WEINRIB, supra note 6, at 56-83 (discussing the foundations and critiques of corrective justice theory).
217. See Ernest J. Weinrib, Correlativity, Personality, and the Emerging Consensus on Corrective Justice, 2 THEORETICAL INQUIRIES L. 107, 158 (2001) ("[F]or all its theoretical sophistication, the exploration of corrective justice by tort theorists has involved a comparatively narrow set of legal doctrines.").
218. Weinrib, supra note 44, at 409.
219. Compare Goldberg, supra note 30, at 571 ("[Under corrective justice theory,] the basic features of tort law are not a mere historical byproduct, nor a convenient means of achieving deterrence or compensation, but instead a system designed for the goal of correcting private injustices by transferring wrongful losses to the wrongdoer who caused them."),
220. and Zipursky, supra note 57, at 92 ("The justice in the enforcement of private law lies in recognizing in those who are aggrieved a right to recourse against those who wronged them. It does not lie in the justice of bringing about a state of affairs that is optimal from a social point of view, whether corrective, distributive, or economic considerations provide the criteria of optimality."),
221. with Leon Green, Tort Law: Public Law in Disguise, 38 TEX. L. REV. 257, 269 (1960) ("[T]ort law calls for as delicate and as profound probing as any of the other areas of law in which the public good is more obvious. It is thus that I conclude that tort law is public law in disguise.").
222. Zipursky, supra note 57, at 81.
223. Id.
224. See John C.P. Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to a Law for Redress of Wrongs, 115 YALE L.J. 524, 626 (2005) ("[A] society without a law for the redress of private wrongs may be a society more prone than ours to accept... a less robust civil society, and a more statist conception of how government interacts with its citizens.").
225. See Benjamin C Zipursky, A Theory of Punitive Damages, 84 TEX. L. REV. 105, 150 (2005) ("What we in fact have is a system in which the power to bring a tort action belongs to the one who has been wronged. It is literally a legal power to force defendant to pay plaintiff, a legal power to take from the defendant. This legal power is a right of action.").
226. See Zipursky, supra note 57, at 87-88 ("Harm per se does not entitle a plaintiff to recourse.").
227. Zipursky, supra note 19, at 714.
228. Id.
229. Id. at 715 ('The substantive standing rules are most startling in the wide range of cases in which the defendant commits a tort in a context in which it could have been foreseen that the commission of this tort would injure the plaintiff. Yet courts often deny recovery in these cases on the grounds mentioned above: The defendant's conduct was not wrongful relative to the plaintiff.").
230. Zipursky, supra note 57, at 81, 85 ("The law solves this problem by recognizing a privilege and creating a power in the person whose rights were violated to act against the rightsviolator through the authority of the state. In doing so, the law creates what is literally a right of action against the rights-violator." (emphasis added)).
231. See Zipursky, supra note 19, at 733. Zipursky also describes it this way: 'The very question of whether the defendant will be held hable is a question of whether the plaintiff is genuinely entitled to an avenue of recourse-to an action-against the defendant."
232. Id. at 739.
233. Id. at 733 (emphasis added).
234. Benjamin C. Zipursky, Philosophy of Private Law, in THE OXFORD HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAW 623,632 (Jules Coleman & Scott Shapiro eds., 2002).
235. Douglas Ivor Brandon et al., Self Help: Extrajudicial Rights, Privileges and Remedies in Contemporary American Society, 37 VAND. L. REV. 845, 850 (1984);
236. Richard A. Epstein, The Theory and Practice of Self-Help, 1 J.L. ECON. & POL"Y 1, 2 (2005) (citing the Brandon article's definition of self-help);
237. see also Tom W. Bell, Free Speech, Strict Scrutiny, and Self-Help: How Technology Upgrades Constitutional Jurisprudence, 87 MINN. L. REV. 743, 743 (2003) (espousing a normative concept of self-help, that "[t]he state ought not to help those who can better help themselves").
238. See supra Section III.A.4.
239. Bell, supra note 196, at 751 ("[C]ourts have found state action restricting speech based on its content unconstitutional in cases where they have found self-help capable of generating the same benefits.");
240. Lichtman, supra note 102, at 216-17 ("On countless occasions, courts have struck down government restrictions on speech for the simple reason that self-help provides a seemingly adequate alternative.").
241. See Lichtman, supra note 102, at 226 (explaining that trade secret law "denies a remedy to any trade secret holder who has failed to exercise reasonable self-help precautions"). For an overview of trade secret law,
242. see id. at 225-29.
243. See Bell, supra note 196, at 745-46 ("These two aspects of strict scrutiny-the 'compelling interest' prong and the 'least restrictive means' inquiry-have provided two openings for courts to consider self-help alternatives to state action.");
244. Lichtman, supra note 102, at 219 ("[S]elf-help . . . reduces the government's overall role in regulating speech.").
245. See generally Epstein, supra note 196, at 4-18 (describing the origins of purely self-help regimes in a state of nature).
246. See generally id. at 24-30 (describing how self-help governs in civil society);
247. JOHN LOCKE, THE SECOND TREATISE ON CIVIL GOVERNMENT 10 (Prometheus Books 1986) (1690) ("[Without self-help,] the law of Nature would, as all other laws that concern men in this world, be in vain, if there were no body that in the state of Nature had the power to execute that law.").
248. The assumption of risk aspect of the public-figure doctrine encompasses the preventive aspect as well.
249. See generally Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021, 2033-36 (1996) (describing how the law operates to create socially accepted norms in dangerous activities, providing a threshold of legally expected behavior).
250. See Zipursky, supra note 19, at 755 ("To be sure, individuals exercising their rights of action are often seeking to restore themselves, to 'get even' or to achieve corrective justice, but the state's recognition that such individuals have a right of action must not be misinterpreted as an embrace of corrective justice.").
251. See Margaret V. Sachs, Materiality and Social Change: The Case for Replacing "the Reasonable Investor" with "the Least Sophisticated Investor" in Inefficient Markets, 81 TUL. L. REV. 473, 481-82 (2006) (describing the Securities Exchange Act of 1934 Rule 10-b5 requirement that a plaintiff establish her justifiable reliance on fraud).
252. Murphy v. Steeplechase Amusement Co., 166 N.E. 173 (1929).
253. Id. at 174.
254. Id.
255. See Simons, supra note 62, at 1722 ("Another approach, which I call the moral parity, asserts that what victims can legitimately expect of injurers, injurers can legitimately expect of victims. Insofar as a victim is seeking a remedy based on the injurer's deficient behavior, the injurer has two prima facie arguments: first, that the victim should be held to a similar standard of behavior; and second, that the victim's failure to do so should limit recovery." (emphasis added)).
256. See supra Section III.A.4.
257. Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974).
258. See supra Section III.B.3.
259. Id.
260. Heidi Hurd discusses this issue in Is it Wrong to Do Right When Others Do Wrong?: A Critique of American Tort Law, 7 LEGAL THEORY 307 (2001). My thanks to Tom Eaton for pushing me on this objection.
261. LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry. Co., 232 U.S. 340, 349-50 (1914).
262. E.g., Connelly v. Hyundai Motor Co., 351 F.3d 535, 542-44 (1st Cir. 2003) (discussing the admissibility of evidence of seatbelt use for purposes of establishing the comparative negligence of the plaintiff, and citing several additional seatbelt cases).
263. I refer here to the notion of "outcome-responsibility," developed in the context of tort law by Stephen Perry, building on the work of Tony Honore. See Perry, supra note 104, at 489-514 (elaborating on outcome-responsibility).
264. The concept of "responsibility" is by no means self-defining, and is the subject of great debate in both the philosophical and legal literatures. A more complete exploration of what we mean by " responsibility" within the normative structure of tort law awaits future work, but I begin to explore this topic in Part V.
265. The concept of the cheapest cost avoider is described in CALABRESI, supra note 35, at 135-97.
266. Even a non-economic, autonomy-based version of the cheapest cost avoider concept, such as the one put forward by John Attanasio, does not really work here. See John B. Attanasio, The Principle of Aggregate Autonomy and the Calabresian Approach to Products Liability, 74 VA. L. REV. 677, 723 (1988) (positing as a formulation of aggregate autonomy: "act to protect the individual against severe constrictions of life plans whenever such protection may be accomplished through de minimis wealth-related interference with the life plans of some members of society"). It seems odd to suggest that it promotes "aggregate autonomy" to allow people to get ripped off without recourse simply because they failed to investigate.
267. Goldberg, supra note 30, at 519.
268. Id. at 552 ("Here the debate among economists centers on the degree to which parties are likely to enter into such transactions with access to good information, clear understandings of that information, a genuine will and ability to negotiate, and the like.").
269. Schwartz, supra note 23, at 1822-23. To be clear, I take no issue here with the cheapestcost-avoider concept as a normative framework for deciding certain kinds of tort cases. But that is not my project. My project is interpretive, to look at a particular swath of tort law that is relatively unexamined in order to see what tort law is doing, and to use this analysis to help illuminate the theoretical debate. The cheapest-cost-avoider doctrine is not determining liability in judging-plaintiffs law.
270. R.H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1, 2 (1960).
271. See supra note 65 for statistical information.
272. Lichtman, supra note 102, at 229 ("Most legal rules do not require self-help as a precondition to formal legal process . . . .").
273. Id.
274. See supra Section III.A.4.
275. Brandon et al., supra note 196, at 849 ("The judicial scheme survived despite its apparent contravention of American wherewithal and human nature, partly because the courts and laws provide an adequate and efficient alternative for redressing wrongs.").
276. David J. Seipp, The Distinction Between Crime and Tort in the Early Common Law, 76 B.U. L. REV. 59, 59 (1996).
277. Id.
278. Goldberg, supra note 186, at 542-43.
279. Zipursky, supra note 57, at 85-86.
280. HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 137 (William N. Eskridge, Jr. & Philip P. Frickey eds., Foundation Press 1994).
281. See Zipursky, supra note 195, at 636 (explaining that Zipursky did not mean "privilege" in a Hohfeldian sense). For Hohfeld's use of privilege-in terms of liberty to act without infringing on another's rights
282. - see Wesley N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16, 32-33, 36-37 (1913).
283. Zipursky, supra note 195.
284. See Bell, supra note 196, at 748-49 ("[A] fundamental principle of liberal jurisprudence [is this]: Political entities should undertake only those projects that they can accomplish more effectively than private ones can.").
285. Zipursky, supra note 57, at 5.
286. John C.P. Goldberg, Rights and Wrongs, 97 MICH. L. REV. 1828, 1835 (1999).
287. See, e.g., Stephen D. Sugarman, Doing Away with Tort Law, 73 CAL. L. REV. 558, 604 (1985) ("The much-vaunted individualized attention to victims in practice sanctions flagrant horizontal inequity ...." (footnote omitted)).
288. The one exception that I have been able to identify is that of assumption of risk, which the recourse theorists appear to treat as forfeiture of remedy. See Goldberg & Zipursky, supra note 117.
289. See Alan Calnan, In Defense of the Liberal Justice Theory of Torts: A Reply to Professors Goldberg and Zipursky, 1 N.Y.U. J.L. & LIBERTY 1023, 1024-26 (1996) (referring to recourse theorists as corrective justice "insiders");
290. John Finnis, Natural Law: The Classical Tradition, in THE OXFORD HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAW, supra note 195, at 1, 55-58 (arguing that recourse theory fails by refusing to engage in "full-blooded normative justification").
291. See Hohfeld, supra note 236, at 33 (positing that "a duty is the invariable correlative of that legal relation which is most properly called a right or claim" but failing to analyze the remedial right separately).
292. HART & SACKS, supra note 235, at 136.
293. Zipursky, supra note 57, at 8-10.
294. See Zipursky, supra note 19, at 743 (arguing that legal norms and wrongs are relational). A full analysis of this claim awaits a subsequent paper. For now, I agree with the thrust of Jane Stapleton's critique of the recourse theorists on relational duties and wrongs.
295. See Jane Stapleton, Evaluating Goldberg and Zipursky's Civil Recourse Theory, 75 FORDHAM L. REV. 1529, 1541-51 (2006) (describing several major objections to civil recourse theory).
296. To be sure, the recourse theorists acknowledge that a right of action is relational. But they do not treat the concept as necessitating a separate analytic inquiry.
297. Although much of my discussion below relates to how to reconstruct and strengthen civil-recourse theory with respect to negligence law, in Section V.B. I indicate the practical payoff for other types of tort claims.
298. See PETER CANE, RESPONSIBILITY IN LAW AND MORALITY (2002) (explaining the concept of "historic responsibility" and distinguishing it from other forms of responsibility in morality and law).
299. Compare to discussion in supra Section III.B.1, describing Weinrib's analytical structure of tort law, which does not include a normative force.
300. I would probably include duty in one of these categories, but will further develop this idea in future work.
301. It is beyond the scope of this paper to defend or criticize these particular requirements or more fully develop the meaning of historic responsibility. My task here is to explain how they fit within the normative structure of tort law.
302. See supra text accompanying notes 190-91 (discussing Zipursky's "substantive standing" rule as "wrongfulness-relative-to- plaintift").
303. I will explain why in future work.
304. See COLEMAN, supra note 20, at 437 (describing the role of corrective justice in sustaining societal norms and autonomous choice).
305. See, e.g., Christina Hull Eikhoff, Note, Out with the Old: Georgia Struggles with Its Dated Approach to the Tort of Negligent Infliction of Emotional Distress, 34 GA. L. REV. 349, 356-57 (1999) (summarizing different approaches).
306. Zipursky, supra note 57, at 87-88.
307. Id. at 17.
308. Id. at 18.
309. See Schwartz, supra note 23, at 1818 ("[T]ort law can be understood in economic terms as supplying appropriate incentives to injurers and victims alike.").
310. See Ellen M. Bublick, Citizen No-Duty Rules: Rape Victims and Comparative Fault, 99 COLUM. L. REV. 1413, 1427 (1999) (indicating that courts accept or reject comparative fault defenses based on the defendant's status as an intentional or negligent tortfeasor);
311. Ellen M. Bublick, Comparative Fault to the Limits, 56 VAND. L. REV. 977, 989-90 (2003) (describing rules that limit the availability of comparative fault defenses).
312. RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIAB. § 2 cmt. a (2000).
313. See, e.g., Scott v. Pac. W. Mountain Resort, 834 P.2d 6, 13 (Wash. 1992) ('To the extent a plaintiff is injured as a result of a risk inherent in the sport, the defendant has no duty and there is no negligence.");
314. KEETON ET AL., supra note 175, § 68.
315. By saying that the concept is analytically distinct, I do not mean to say that it could not be considered alongside plaintiffs negligence as part of the comparative responsibility inquiry as, for example, New York does by statute.
316. MARIKA F. X. LITRAS ET AL., BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, BULLETIN: TORT TRIALS AND VERDICTS IN LARGE COUNTIES, 1996, at 2 (2000), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/ttvlc96.pdf.
317. See supra Section III.B.3 for a discussion of the California rule.
318. The last is the most common. See generally DOBBS, supra note 85, at 534-49.
319. Peter H. Schuck, Judicial Avoidance of Juries in Mass Tort Litigation, 48 DEPAUL L. REV. 479, 487 (1998).
320. Careful scrutiny of these judicial decisions must be undertaken given the adverse effect such judgments have on disadvantaged groups. Specific and corroborated incidences of judicial bias in courts throughout the country are well-documented. See Martha Chamallas, Questioning the Use of Race-Specific and Gender-Specific Economic Data in Tort Litigation: A Constitutional Argument, 63 FORDHAM L. REV. 73, 87 (1994) (examining judicial neutrality and relevance of race-based economic data in calculating damage awards);
321. Sherrilyn A. Ifill, Judging the Judges: Racial Diversity, Impartiality and Representation on State Trial Courts, 39 B.C. L. REV. 95, 102 (1997) (finding that race bias is a common feature within state court systems);
322. Sheri Lynn Johnson, Black Innocence and the White Jury, 83 MICH. L. REV. 1611, 1621 (1985) ("Both black and white judges convicted black defendants more often than white defendants ....").
323. RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL HARM (Proposed Final Draft No. 1, 2005).
324. RESTATEMENT (THIRD) OF TORTS: GENERAL PRINCIPLES §§ 3, 6 (Discussion Draft, 1999).
325. See Dylan Esper & Gregory C. Keating, Abusing "Duty," 79 S. CAL. L. REV. 265, 267-73 (2006) (picking up this critique of more recent California decisions);
326. Goldberg & Zipursky, supra note 117, at 331 ("Esper and Keating decry the excessive eagerness of contemporary California appellate judges to circumvent juries and issue matter-of-law rulings for defendants.").
327. See John C.P. Goldberg & Benjamin C. Zipursky, The Restatement (Third) and the Place of Duty in Negligence Law, 54 VAND. L. REV. 657, 724-32 (2001) (explaining the benefits of a robust conception of duty for negligence law).
328. RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL HARM § 7 (Proposed Final Draft No. 1, 2005) (recommending that "no-duty" determinations occur only in "exceptional cases");
329. id. at § 7 cmt. a (arguing that this position is consistent with the approach taken in "almost every torts treatise and casebook").
330. RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL HARM, Scope Note ch. 6 (Proposed Final Draft No. 1, 2005).
331. W. Jonathan Cardi, Purging Foreseeability, 58 VAND. L. REV. 739, 790-94, 799-802 (2005) (supporting the proposed Restatement (Third)'s § 7 for its purging of foreseeability considerations from the "duty" element, in part because foreseeability is better decided by the jury under the rubric of breach and proximate cause).
332. W. Jonathan Cardi, Reconstructing Foreseeability, 46 B.C. L. REV. 921, 924 (2005) (arguing that foreseeability "might fit wholly and seamlessly within the elements of breach and proximate cause").