Correlativity

Law and Philosophy

Volumn 28, Issue 6, 2009, Pages 537-584

  Perry, Ronen ^a  

^a UNIVERSITY OF HAIFA   (Israel)

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EID: 70350780120     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.1007/s10982-009-9045-2     Document Type: Article

References (282)

1. Wesley N. Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16 (1913).
2. See, e.g., Hillel Steiner, An Essay on Rights 59 (1994) ("The beginning of wisdom in these matters is widely agreed to be the classification of juridical positions by Hohfeld");
3. L.W. Sumner, The Moral Foundation of Rights 18 (1987) ("Where the analysis of rights is concerned, the beginning of wisdom lies in Wesley Hohfeld's celebrated classification");
4. Steven M. Wise, Rattling the Cage Defended, 43 B.C. L. Rev. 623-669 (2002) ("Hohfeld's system remains both the lingua franca of much scholarly rights talk and the 'standard model' of legal rights with which other scholars tinker.");
5. Joseph W. Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 Wis. L. Rev. 975-978 ("Hohfeld's article is a landmark in the history of legal thought").
6. For criticism of other elements in Hohfeld's scheme see, e.g., Andrew Halpin, Rights and Law: Analysis and Theory 27-48 (1997) (contending that Hohfeld's eight fundamental concepts can be reduced to two: right and duty).
7. Hohfeld, supra note 1, at 30.
8. See, e.g., People v. Dikeman, 7 How. Pr. 124-130 (N.Y. Sup. 1852) (observing the various meanings of the term "right").
9. Hohfeld, supra note 1, at 30.
10. Matthew H. Kramer, Rights without Trimmings, in Matthew H. Kramer, N.E. Simmonds & Hiller Steiner, A Debate Over Rights 7, 20 (1998);
11. Sarah Joseph, A Rights Analysis of the Covenant on Civil and Political Rights, 5 J. Int'l Legal Stud. 57-61 (1999).
12. See also J.E. Penner, The Analysis of Rights, 10 Ratio Juris 300-300 (1997) ("the existence of a right necessarily entails the existence of duty, and vice versa").
13. This understanding preceded Hohfeld, as he himself admitted. See Hohfeld, supra note 1, at 33-34. Hohfeld showed, however, that duty is the correlative of right in the narrow sense, whereas the other meanings of "right" in judicial reasoning have different correlatives.
14. Hohfeld, supra note 1, at 32.
15. See also Sean Coyle, Are There Necessary Truths about Rights?, 15 Can. J.L. & Juris. 21, 29-35 (2002);
16. Joseph, supra note 7, at 59
17. Kramer, supra note 7, at 8. Similarly, a has a privilege vis-á -vis b to do something if and only if b has no-right to prevent a from doing it. Hohfeld, supra note 1, at 33-36.
18. See Arthur L. Corbin, Legal Analysis and Terminology, 29 Yale L.J. 163-166 (1919).
19. See David Lyons, The Correlativity of Rights and Duties, 4 Nôus 45-46 (1970) (explaining right-duty correlativity).
20. See Peter Jaffey, Hohfeld's Power-Liability/Right-duty Distinction in the Law of Restitution, 17 Can. J.L. & Juris. 295, 295-96 (2004).
21. See Lyons, supra note 12, at 46.
22. See J.W. Harris, Legal Philosophies 79 (1980). Cf. Coyle, supra note 10, at 31 (contending that each Hohfeldian "position" requires specification with regard to the person who holds the entitlement and the person who has the burden and the content of the entitlement).
23. See, e.g., Ernest J. Weinrib, The Idea of Private Law 114-44 (1995) (discussing correlativity in private law);
24. Jules L. Coleman, The Practice of Corrective Justice, in Philosophical Foundations of Tort Law 53, 66-67 (David G. Owen ed. 1995) ("A person does not, contrary to the view I once defended, have a claim in corrective justice to repair in the air, against no one in particular. It is a claim against someone in particular.").
25. See Nigel E. Simmonds, Introduction, in Fundamental Legal Conceptions As Applied in Judicial Reasoning by Wesley Newcomb Hohfeld xx (David Campbell & Philip A. Thomas eds., 2001).
26. See Harris, supra note 14, at 81 (presenting Hart's view that duties imposed by criminal law are not correlative with rights);
27. Carl Wellman, Real Rights 183 (1995) (same);
28. Alan R. White, Rights 63 (1984) (same);
29. Ben Saul, In the Shadow of Human Rights: Human Duties, Obligations, and Responsibilities, 32 Colum. Hum. Rts. L. Rev. 565-587 (2001) (same);
30. Simmonds, supra note 16, at xx (same).
31. See White, supra note 17, at 63;
32. Simmonds, supra note 16, at xx.
33. See Simmonds, supra note 16, at xx.
34. See Hans Kelsen, Pure Theory of Law 128 (Max Knight tr., 1967) ("[O]ne is satisfied in other cases to assume a legal obligation without a corresponding reflex right: for example, in the case of legal norms that prescribe a certain human behavior toward some animals, plants, or inanimate objects by pain or punishment These are obligations which-indirectly-exist toward the legal community interested in these objects. But no reflex rights are assumed");
35. White, supra note 17, at 63.
36. See Harris, supra note 14, at 85-86;
37. H.L.A. Hart, Essays on Bentham 182-88 (1982);
38. N.E. Simmonds, Rights at the Cutting Edge, in Matthew H.Kramer, N.E. Simmonds & Hiller Steiner, A Debate Over Rights 113-141 (1998).
39. Hart, supra note 21, at 183.
40. See Kramer, supra note 7, at 58-59;
41. Penner, supra note 8, at 302.
42. See Kramer, supra note 7, at 66-78.
43. See Hart, supra note 21, at 168-69, 174 (explaining Bentham's view);
44. Penner, supra note 8, at 302.
45. See Penner, supra note 8, at 303-04. Arguably, a law intends to benefit an individual and so confers a right on that individual if "its breach constitutes a direct individual detriment." Hart, supra note 21, at 179-80 (discussing Bentham).
46. See Kramer, supra note 7, at 9.
47. See id. at 9.
48. See Hart, supra note 21, at 174-77 (explaining Bentham's view);
49. Simmonds, supra note 16, at xxi.
50. See Simmonds, supra note 21, at 144.
51. See Hart, supra note 21, at 168.
52. III The Works of Jeremy Bentham 181 (1843) ("Obligations may be imposed from which no rights shall result; for example, ascetic obligations which are useful neither to the party bound, nor to others.");
53. Hart, supra note 21, at 168.
54. The Works of Jeremy Bentham, supra note 32, at 221.
55. See Hart, supra note 21, at 177 (explaining Bentham's view).
56. See Kramer, supra note 7, at 58.
57. See id. at 59.
58. See id. at 59.
59. But cf. White, supra note 17, at 62 ("Nor is is legitimate to try to circumvent these cases of one person's having a duty where the thing affected has clearly no correlative right, by suggesting that either the person or body imposing the duty or the public at large has the right to the performance of that duty.").
60. See Kramer, supra note 7, at 83-84.
61. See Joseph, supra note 7, at 63;
62. J.G. Wilson, Hohfeld: A Reappraisal, 11 U. Queensland L.J. 190-194 (1980).
63. See Corbin, supra note 10, at 165.
64. See Simmonds, supra note 21, at 142.
65. But see infra note 185 and accompanying text for a different account of interests.
66. Wise, supra note 2, at 624-677, 689-90.
67. Steven M. Wise, Rattling the Cage Defended, 43 B.C. L. Rev. 623-669 at 630.
68. Steven M. Wise, Rattling the Cage Defended, 43 B.C. L. Rev. 623-669 at 630-31 (discussing protection of animals as property).
69. Steven M. Wise, Rattling the Cage Defended, 43 B.C. L. Rev. 623-669 at 667.
70. But cf. White, supra note 17, at 63 (criticizing this view).
71. See Kramer, supra note 7, at 60;
72. Simmonds, supra note 21, at 142-43 ("we might take [Hohfeld] to be offering an analytical representation of some bounded sphere (such as private law) and claiming that the correlativity obtains within that sphere.").
73. See Simmonds, supra note 21, at 142.
74. See White, supra note 17, at 62.
75. Neil MacCormick, Children's Rights: a Test-Case for Theories of Right, in Neil MacCormick, Legal Right and Social Democracy: Essays in Legal and Political Philosophy 154, 161-62 (1982);
76. Neil MacCormick, Rights in Legislation, in Law, Morality, and Society 189, 200-02 (P.M.S. Hacker & Joseph Raz eds, 1977).
77. See, e.g., the Succession (Scotland) Act, 1964, ch. 41, § 2(1)(a), available at http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1964/cukpga_19640041_e n_1 ("where an intestate is survived by children, they shall have right to the whole of the intestate estate.").
78. See supra note 51.
79. N.E. Simmonds, Central Issues in Jurisprudence: Justice, Law and Rights 286 (2nd ed. 2002). Cf. J. W. Harris, Legal Philosophies 92 (2d ed. 1997) (referring to a "duty-shaped gap" before the appointment of the administrator).
80. See Penner, supra note 8, at 309-10.
81. See Jaffey, supra note 12, at 300.
82. See Kramer, supra note 7, at 27-29;
83. Penner, supra note 8, at 309.
84. See Jaffey, supra note 12, at 301.
85. See Jaffey, supra note 12, at 301.
86. See Jaffey, supra note 12, at 301.
87. White, supra note 17, at 64.
88. Alan R. White, Rights 63 (1984) at 64-65.
89. Alan R. White, Rights 63 (1984) at 64.
90. See Kramer, supra note 7, at 29-30.
91. See, e.g., Restatement (Third) of Torts: Liability for Physical Harm § 3, 6-7 (Proposed Final Draft No. 1, 2005);
92. 57A Am. Jur. 2d Negligence §71 (2007)
93. W. Page Keeton et al., Prosser and Keeton on the Law of Torts 164-65 (5th ed. 1984)
94. John C. P. Goldberg & Benjamin C. Zipursky, The Restatement (Third) and the Place of Duty in Negligence Law, 54 Vand. L. Rev. 657, 658-59, 665-67 (2001) (explaining the four-element definition of negligence).
95. See Corbin, supra note 10, at 169-171 (explaining that when A assaults B - thereby violating the duty not to assault - A also creates a secondary right to damages in B, and that, generally, when a primary right is violated a secondary-remedial right arises).
96. See Max Radin, A Restatement of Hohfeld, 51 Harv. L. Rev. 1141, 1151-53 (1938) (explaining that the secondary duty to pay damages is imposed by the court following the breach of the primary duty; the court transmutes the breach of the original right into a new remedial right);
97. Benjamin C. Zipursky, Civil Recourse, not Corrective Justice, 91 Geo. L.J. 695, 719-24 (2003) (arguing that the commission of a tort does not create an affirmative legal duty to pay; instead, it creates a legal liability to the plaintiff, correlative to the plaintiff's power to demand a remedy).
98. See, e.g., P.H. Winfield, A Textbook of the Law of Torts 427 (1937) ("Negligence as a tort is the breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff.").
99. See Keeton et al., supra note 65, at 164;
100. Goldberg and Zipursky, supra note 65, at 684 ("If an instance of unreasonable or faulty conduct is to constitute a 'breach,' then it must be a breach of some duty.");
101. Frank Gulino, Legal Duty to the Unborn Plaintiff: Is There a Limit?, 6 Fordham Urb. L.J. 217-217 (1978).
102. Tonawanda R.R., Co. v. Munger, 5 Denio 255-266 (N.Y. Sup. 1848).
103. See also Morris v. Brown, 18 N.E. 722, 724-25 (N.Y. 1888) ("Negligence is an omission of care and caution in what we do. But the duty to be actively cautious and vigilant is relative, and where that duty has no existence between particular parties, there can be no such thing as negligence in the legal sense of the term.").
104. Francis M. Burdick, The Law of Torts 421 (1905).
105. Francis M. Burdick, The Law of Torts 421 (1905).
106. Frank Gulino, Legal Duty to the Unborn Plaintiff: Is There a Limit?, 6 Fordham Urb. L.J. 217-217 (1978) See also Gulino, supra note 69, at 217 ("the defendant's legal duty to the plaintiff extends only so far as that plaintiff has a correlative right by reason of his relationship with the defendant. Beyond the scope, therefore, of a particular right vested in the plaintiff, the defendant owes him no legal duty".).
107. See Goldberg & Zipursky, supra note 65, at 709. Again, a breach of duty owed to a third party is insufficient to substantiate a cause of action in negligence. Id.
108. See, e.g., Francis Trindade and Peter Cane, The Law of Torts in Australia 405 (2d ed. 1993);
109. Timothy Stoltzfus Jost, Rights of Embryo and Foetus in Private Law, 50 Am. J. Comp. L. 633, 633-34 (2002);
110. Ernest J. Weinrib, The Passing of Palsgraf?, 54 Vand. L. Rev. 803-807 (2001). This rule had several exceptions. For example, a child en ventre sa mére was considered a person for the purposes of inheritance law.
111. See, e.g., Hall v. Hancock, 32 Mass. 255, 257-58 (1884);
112. Wallis v. Hodson, 26 Eng. Rep. 472-472 (Ch. 1740).138 Mass. 14 (1884).
113. Wallis v. Hodson, 26 Eng. Rep. 472-472 (Ch. 1740).138 Mass. 14 (1884) at 15. The case was not a true prenatal-injury case. The plaintiff was a pregnant woman who slipped and fell on a faulty highway in the defendant-town. The fall brought on a miscarriage, and the child survived for only a few minutes after being born. However, the court assumed arguendo that premature birth was equivalent to prenatal-injury.
114. Wallis v. Hodson, 26 Eng. Rep. 472-472 (Ch. 1740).138 Mass. 14 (1884) at 16.
115. See also Allaire v. St., uke's Hosp., 56 N.E. 638, 639-40 (Ill. 1900), overruled by Amann v. Faidy, 114 N.E.2d 412 (Ill. 1953);
116. Buel v., United Rys. Co., 154 S.W. 71-72 (Mo. 1913)
117. overruled by Steggall v. Morris, 258 S.W.2d 577 (Mo. 1953);
118. Drobner v. Peters, 133 N.E. 567-567 (N.Y. 1921) (finding "no separate entity apart from the mother and, therefore, no duty of care");
119. Timothy J. Dawe, Wrongful Life: Time for a "Day in Court," 51 Ohio St. L.J. 473-477 (1990);
120. Anastasia Enneking, The Missouri Supreme Court Recognizes Preconception Tort Liability: Lough v. Rolla Women's Clinic, Inc., 63 UMKC L. Rev. 165, 169-70 (1994).
121. See Allaire, 56 N.E. at 640;
122. Gulino, supra note 69, at 219;
123. Joseph P. Paonessa, Recovery for Prenatal Injuries: Michigan Exorcises its "Ghosts of the Past", 47 Notre Dame L. Rev. 976, 976-77 (1972).65 F. Supp. 138 (D.D.C. 1946).In Canada, a similar development occurred thirteen years earlier.
124. See infra note 91-65 F. Supp. at 139.
125. Joseph P. Paonessa, Recovery for Prenatal Injuries: Michigan Exorcises its "Ghosts of the Past", 47 Notre Dame L. Rev. 976, 976-77 (1972).65 F. Supp. 138 (D.D.C. 1946).In Canada, a similar development occurred thirteen years earlier. at 140-41. The court relied heavily on Justice Boggs' dissent in
126. Allaire, 56 N.E. at 641 (holding that a viable fetus is a separate independent being).
127. See Renslow v., Mennonite Hosp., 367 N.E.2d 1250-1252 (Ill. 1977).
128. See, e.g., Keyes v., Constr. Service, Inc., 165 N.E.2d 912-915 (Mass. 1960);
129. Steggall v. Morris, 258 S.W.2d 577-581 (Mo. 1953). Cf. Tucker v. Howard L. Carmichael & Sons, 65 S.E.2d 909, 910-11 (Ga. 1951) (holding that a fetus is entitled to protection from the moment it becomes "quick" in its mother's womb.). Quickening is the stage of pregnancy at which the mother first feels the movements of the fetus, usually between the sixteenth and eighteenth week of pregnancy.
130. Clarke D. Forsythe, Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms, 21 Val. U. L. Rev. 563, 567 (1987).
131. See, e.g., Amann v. Faidy, 114 N.E.2d 412-416 (Ill. 1953) ("an unborn viable child, being capable of independent physical existence, should be regarded as a separate entity from the mother.");
132. Hale v. Manion, 368 P.2d 1-2 (Kan. 1962) ("The rationale of the decisions supporting the right of a child to maintain an action for its prenatal injuries appears to be that an unborn viable child is capable of independent existence and hence should be regarded as a separate entity.");
133. Steggall, 258 S.W.2d at 579 ("it is not in accordance with the truth to say the law indulges in a fiction when it attributes a legal personality to an unborn child.");
134. Woods v. Lancet, 102 N.E.2d 691-695 (N.Y. 1951) ("To hold, as matter of law, that no viable foetus has any separate existence which the law will recognize is for the law to deny a simple and easily demonstrable fact.");
135. Williams v., Marion Rapid Transit, Inc., 87 N.E.2d 334-340 (Ohio 1949) (holding that viability generates legal personhood);
136. Mallison v. Pomeroy, 291 P.2d 225 (Or. 1955) (endorsing the Woods' reasoning);
137. Seattle First Nat'l Bank v. Rankin, 367 P.2d 835-838 (Wash. 1962) (endorsing the Woods' reasoning);
138. see also Allaire, 56 N.E. at 461-62 (Boggs J., dissenting).
139. See Gulino, supra note 69, at 230.
140. See, e.g., Mich. Comp. Laws Ann. § 600.2922 (2008); Mo. Rev. Stat. § 537.080 (2008).
141. O'Neill v. Morse, 188 N.W.2d 785, 785-86 (Mich. 1971).
142. See also Chrisafogeorgis v. Brandenberg, 304 N.E.2d 88, 91-92 (Ill. 1973) (allowing recovery under wrongful death legislation where the victim was a viable fetus at the time of the injury which caused his death; holding that a viable fetus has a separate and independent physical existence, and is therefore an independent "person" for the purposes of wrongful death legislation);
143. Hale v. Manion, 368 P.2d 1-3 (Kan. 1962) (same);
144. O'Grady v. Brown, 654 S.W.2d 904, 910-11 (Mo. 1983) (same);
145. Poliquin v. Macdonald, 135 A.2d 249-251 (N.H. 1957) (same).
146. See, generally, Sheldon R. Shapiro, Annotation, Right to Maintain Action or to Recover Damages for Death of Unborn Child, 84 A.L.R.3d 411 (1978).
147. Kelly v. Gregory, 125 N.Y.S.2d 696, 697-98 (N.Y. App. 1953).
148. The Supreme Court of Canada, on the other hand, held that an unborn child had a separate legal existence twenty years earlier, in Montreal Tramways v. Leveillé, [1933] 4 D.L.R. 337-345 (Can.). True, the decision focused mainly on the civil law of Quebec, but the court opined that "[t]he separate existence of an unborn child is recognized even at common law." Id. Nearly forty years later, the High Court of Ontario held that an unborn child was "within the foreseeable risk incurred by a negligent motorist" who injured her mother.
149. Duval v. Seguin, [1972] 26 D.L.R.3d 418-434 (Can.).
150. Kelly, 125 N.Y.S.2d at 697.
151. Kelly, 125 N.Y.S.2d at 697 at 698.
152. See also Cal. Civ. Code § 43.1 ("A child conceived, but not yet born, is deemed an existing person, so far as necessary for the child's interests in the event of the child's subsequent birth.");
153. Hornbuckle v. Plantation, Pipe Line Co., 93 S.E.2d 727-728 (Ga. 1956) ("Where a child is born after a tortuous injury sustained at any period after conception, he has a cause of action a child is to be considered as in being, from the time of its conception");
154. Bennett v. Hymers, 147 A.2d 108-110 (N.H. 1958) ("We adopt the opinion that the fetus from the time of conception becomes a separate organism and remains so throughout its life We hold therefore that an infant born alive can maintain an action to recover for prenatal injuries inflicted upon it by the tort of another even if it had not reached the state of a viable fetus at the time of injury."); Smith v. Brennan, 157 A.2d 497, 504 (N.J. 1960) ("medical authority recognizes that an unborn child is a distinct biological entity from the time of conception, and many branches of the law afford the unborn child protection throughout the period of gestation.");
155. Sinkler v. Kneale, 164 A.2d 93-96 (Pa. 1960) ("a child is in existence from the moment of conception, and not merely a part of its mother's body."). The Supreme Court of Victoria used a different strategy to allow recovery by an infant injured in a car accident at a previable stage. It held that "as the child could not in the very nature of things acquire rights correlative to a duty until it became by birth a living person [it was only] at that stage that the duty arising out of the relationship was attached to the defendant, and it was at that stage that the defendant was in breach of the duty to take reasonable care"
156. Watt v. Rama, [1972] V.R. 353-360 (Austl.). This argument is highly problematic, as it hinges on a fiction. Still, the court made an effort to reconcile liability for prenatal conduct with the correlativity axiom. In his concurring opinion Justice Gillard held that "for the purpose of protecting her interests, the infant plaintiff was deemed to be a person in being at the time of the collision."
157. See also Burton v. Islington Health Auth., [1993] Q.B. 204, 218-20 (Eng. C.A.) (following Watt v. Rama). Note that Burton applies only to births taking place before 1976.
158. The Congenital Disabilities (Civil Liability) Act, 1976, c. 28 (Eng.), which applies to subsequent births (id. § 4(5)),
159. provides that a child born with disabilities attributable to a prenatal occurrence that affected the ability of one of the parents to produce a normal child, affected the mother during pregnancy, or affected the mother or child during birth may claim damages from the person at fault (id. § 1(2)).
160. 410 U.S. 113 (1973).
161. Id. at 158.
162. O'Grady v. Brown, 654 S.W.2d 904, 910 (Mo. 1983).
163. 483 F.2d 237, 240 (10th Cir. 1973).
164. Id. at 238.
165. Id. at 239.
166. Id. at 241.
167. Renslow v. Mennonite Hosp., 367 N.E.2d 1250-1258 (Ill. 1977) (Dooley, J., concurring).
168. See Albala v. New York, 429 N.E.2d 786-788 n.1 (N.Y. 1981) ("[Jorgensen] was decided on a products liability theory for which there is strict liability without fault. Under a products liability theory, once a defect in manufacture or design is established or there has been a failure to give adequate notice of foreseeable potential hazards, the liability of the manufacturer is extended to the entire class of persons thereby affected regardless of privity, foreseeability or due care.").
169. See also Hegyes v. Unjian Enters., Inc., 286 Cal. Rptr. 85-89 n.4 (Cal. App. 1991) ("The product liability distinction is important, since in those cases, once a defect in manufacture or design is established, or there has been a failure to give adequate notice of foreseeable potential hazards, the liability of the manufacturer arguably extends to the entire class of persons thereby affected, regardless of privity, foreseeability or due care.");
170. See also Hegyes v. Unjian Enters., Inc., n.4 (Cal. App), ("The product liability distinction is important, since in those cases, once a defect in manufacture or design is established, or there has been a failure to give adequate notice of foreseeable potential hazards, the liability of the manufacturer arguably extends to the entire class of persons thereby affected, regardless of privity, foreseeability or due care." at 94 ("the Jorgensen decision must be limited in its application, as it dealt with preconception torts from a pure products liability standpoint.")
171. Renslow, 367 N.E.2d at 1262 (Underwood, J., dissenting) ("[Jorgensen] was a strict liability case nor relevant to this negligence action").
172. I will address some of the possible criticisms of this statement in Section II.C. But cf. Albala, 429 N.E.2d at 788 (holding that there is no duty not to harm an unconceived child).367 N.E.2d 1250, 1255 (Ill. 1977).
173. I will address some of the possible criticisms of this statement in Section II.C. But cf. Albala, 429 N.E.2d at 788 (holding that there is no duty not to harm an unconceived child).367 N.E.2d 1250, 1255 (Ill. 1977) at 1251.
174. I will address some of the possible criticisms of this statement in Section II.C. But cf. Albala, 429 N.E.2d at 788 (holding that there is no duty not to harm an unconceived child).367 N.E.2d 1250, 1255 (Ill. 1977) at 1255. 604 N.E.2d 591 (Ind. 1992).
175. I will address some of the possible criticisms of this statement in Section II.C. But cf. Albala, 429 N.E.2d at 788 (holding that there is no duty not to harm an unconceived child).367 N.E.2d 1250, 1255 (Ill. 1977) at 592.
176. I will address some of the possible criticisms of this statement in Section II.C. But cf. Albala, 429 N.E.2d at 788 (holding that there is no duty not to harm an unconceived child).367 N.E.2d 1250, 1255 (Ill. 1977) at 593.
177. I will address some of the possible criticisms of this statement in Section II.C. But cf. Albala, 429 N.E.2d at 788 (holding that there is no duty not to harm an unconceived child).367 N.E.2d 1250, 1255 (Ill. 1977) at 595.
178. See, e.g., Empire Cas. Co. v. St. Paul Fire &Marine Ins. Co., 764 P.2d 1191, 1193-94 (Colo. 1988);
179. Lough v. Rolla Women's Clinic, Inc., 866 S.W.2d 851, 853-54 (Mo. 1993);
180. Lynch v. Scheininger, 744 A.2d 113, 126 (N.J. 2000);
181. Graham v. Keuchel, 847 P.2d 342, 364-65 (Okla. 1993).
182. See also Kosky v. Trustees of The Sisters of Charity, [1982] V.R. 961 (Austl.) (allowing recovery for injuries resulting from negligent transfusion of the wrong blood to the plaintiff's mother prior to his conception).
183. 437 N.W.2d 367 (Mich.App. 1989).
184. Id. at 368.
185. Id. at 369-70.
186. 613 N.E.2d 904, 906 (Mass. 1993).
187. Id. at 907.
188. See also X & Y v. Pal, (1991) 23 N.S.W.L.R. 26, 37 (Austl.) (allowing a child born with disabilities to sue a doctor for failing to diagnose and treat his mother's syphilis prior to conception).
189. 577 F.2d 22 (8th Cir. 1978).
190. Id. at 26.
191. See, e.g., Martin v. St. John Hosp. & Med. Ctr., 517 N.W.2d 787 (Mich. Ct. App. 1994) (allowing recovery under similar circumstances);
192. Grover v. Eli Lilly & Co., 591 N.E.2d 696-698 n.1 (Ohio 1992) (stating in obiter dictum that "[a]t least arguably, a doctor should comprehend, at the time that he or she performs an abortion or a Caesarean section, that a negligently performed procedure could cause the woman's uterus to rupture during a subsequent pregnancy.").
193. But see Albala v. New York, 429 N.E.2d 786-788 (N.Y. 1981) (disallowing recovery) 390 N.E.2d 229 (Ind. App. 1979).
194. But see Albala v. New York, 429 N.E.2d 786-788 (N.Y. 1981) (disallowing recovery)
195. Id. at 230.
196. Id. at 231-32.
197. See Matthew Browne, Note, Preconception Tort Law in an Era of Assisted Reproduction: Applying a Nexus Test for Duty, 69 Fordham L. Rev. 2555-2584 (2001).303 S.E.2d 258 (Ga. 1983).
198. See Matthew Browne, Note, Preconception Tort Law in an Era of Assisted Reproduction: Applying a Nexus Test for Duty, 69 Fordham L. Rev. 2555-2584 (2001).
199. 303 S.E.2d 258 (Ga. 1983).
200. Id. at 260.
201. Id. at 260-61.
202. See Lough v. Rolla Women's Clinic, Inc., 866 S.W.2d 851-854 (Mo. 1993) (explaining McAuley).
203. 286 Cal. Rptr. 85 (Cal. Ct. App. 1991).
204. Id. at 86.
205. Id. at 93.
206. UAW v. Johnson Controls, Inc., 499 U.S. 187-213 (1991) (White, J., concurring).
207. William Prosser, Torts 325-26 (4th ed. 1971),
208. cited in Renslow v. Mennonite Hosp., 367 N.E.2d 1250, 1254 (Ill. 1977).
209. See, e.g., Mark L. Monopoli, McNulty v. McDowell: Recognizing Preconception Tort in the Commonwealth?, 29 New Eng. L. Rev. 763, 788-89(1995);
210. David S. Steefel, Note, Preconception Torts: Foreseeing the Unconceived: Renslow v. Mennonite Hospital, 48 U. Colo. L. Rev. 621, 625 (1977).
211. See also Turpin v. Sortini, 643 P.2d 954-966 n.15 (Cal. 1982) (allowing recovery for special damages in a wrongful life case, where defendant's negligence preceded plaintiff's conception; holding that this would "help ensure that the available tort remedies in this area provide a comprehensive and consistent deterrent to negligent conduct.").
212. See Steefel, supra note 139, at 625.
213. Renslow, 367 N.E.2d at 1255.
214. See also Lough v. Rolla Women's Clinic, Inc., 866 S.W.2d 851-854 (Mo. 1993) ("Any question of duty depends upon a calculus of policy considerations.").
215. Renslow, 367 N.E.2d at 1255.
216. See also Bergstreser v. Mitchell, 577 F.2d 22-25 (8th Cir. 1978) ("the case law on prenatal injuries is the best available means of predicting the rule which the Missouri courts would apply to claims for preconception injuries.").
217. Lough, 866 S.W.2d at 854.
218. Pitre v. Opelousas Gen. Hosp., 530 So. 2d 1151, 1158 (La. 1988).
219. Walker v. Rinck, 604 N.E.2d 591, 594 (Ind. 1992).
220. Id. at 594-95.
221. cf. Carucci v. Maimonides Med. Ctr., 641 N.Y.S.2d 725, 727-28 (N.Y. App. Div. 1996) (Altman, J., dissenting in part) (holding under similar circumstances that the child is akin to a third-party beneficiary of a contract arising out of the consensual relationship between the mother and her doctor).
222. See, e.g., Mark Geistfeld, The Analytics of Duty: Medical Monitoring and Related Forms of Economic Loss, 88 Va. L. Rev. 1921-1927 (2002) ("The relationships defined by duty typically are formed by the potential injurer's actions that create foreseeable risks of harm to foreseeable classes of potential victims.").
223. Renslow v. Mennonite Hosp., 367 N.E.2d 1250, 1254-55 (Ill. 1977).
224. Id. at 1259.
225. See, e.g., Monusko v. Postle, 437 N.W.2d 367-369-70 (Mich.App. 1989) ("[it] is readily foreseeable that someone not immunized may catch rubella and, if pregnant, bear a child suffering from rubella syndrome," hence "defendants owed a duty to [plaintiff], even though she was not conceived at the time of the alleged wrongful act.")
226. See, e.g., Monusko v. Postle, 437 N.W.2d 367-369-70 (Mich.App. 1989) ("[it] is readily foreseeable that someone not immunized may catch rubella and, if pregnant, bear a child suffering from rubella syndrome," hence "defendants owed a duty to [plaintiff], even though she was not conceived at the time of the alleged wrongful act.") at 371 (MacKenzie, J., dissenting) ("the majority appears to maintain that the child's conception was foreseeable and that this foreseeability gives rise to defendants' duty to the child.");
227. Lough v. Rolla Women's Clinic, Inc., 866 S.W.2d 851-854 (Mo. 1993) (finding that each of the factors on which a duty of care depends, most notably foreseeability, militate in favor of the existence of duty in the particular case);
228. Lynch v. Scheininger, 744 A.2d 113-126-27 (N.J. 2000) ("foreseeability as a determinant of duty is of sufficient breadth to accommodate the principle that in appropriate circumstances a physician's duty should extend to children conceived after the physician's negligence occurred.").
229. Pitre v. Opelousas Gen. Hosp., 530 So. 2d 1151, 1157 (La. 1988).
230. See Browne, supra note 127, at 2578 (explaining Hegyes thus: "a driver can be expected to foresee harm to a woman he strikes with his car but cannot be expected to foresee, and guard against, harm to a child the injured woman conceives several years after the accident.").
231. Cf. P.J. Pace, Civil Liability for Pre-Natal Injuries, 40 Mod. L. Rev. 141-145-46 (1978) ("the duty of care was not dependent on the existence, at the time of the defendant's fault, of a person with the right correlative to the defendant's duty to take care.").
232. Renslow v. Mennonite Hosp., 367 N.E.2d 1250-1254 (Ill. 1977).
233. See also Julie A. Greenberg, Reconceptualizing Preconception Torts, 64 Tenn. L. Rev. 315-350 (1997) ("The relevant issue is not whether a duty can be owed to a nonperson; it is whether a defendant's negligent conduct creates a foreseeable risk of harm to a person who has not yet been conceived.").
234. See Renslow, 367 N.E.2d at 1264 (Ryan, J., dissenting) ("Today's decision abrogates what I had thought was an unquestionable rule of law, that 'negligence in the air, so to speak, will not do' A holding which finds a duty of care owed to an entity which is not in existence must be considered the classic illustration of 'negligence in the air."');
235. Monusko v. Postle, 437 N.W.2d 367-371 (Mich.App. 1989) (MacKenzie, J., dissenting) ("when defendants' alleged wrongful conduct took place, there was no relationship between defendants and the child upon which to predicate a duty owed to the child for the simple reason that the child did not exist The creation of a legal duty does not rise or fall on the serendipities of when the risk of harm materializes, but on the existence of a relationship between the actor and the plaintiff. Again, there was no such relationship in this case.");
236. Gulino, supra note 69, at 247.
237. 162 N.E. 99, 100 (N.Y. 1928).
238. See Lough v. Rolla Women's Clinic, Inc., 866 S.W.2d 851, 854 (Mo. 1993).
239. See id. (discussing the policy considerations inherent in tort liability).
240. See, e.g., Harriton v. Stephens (2006) 226 C.L.R. 52, para. 66 (Austl.) (Kirby, J., dissenting), available at http://www.austlii.edu.au/au/cases/cth/HCA/2006/15.html;
241. Trindade & Cane, supra note 75, at 405-06.
242. Winfield, supra note 68, at 6.
243. Winfield, supra note 68, at 6. at 8. Quite surprisingly, in discussing the tort of negligence, Win-field reverts to correlativity: "the plaintiff cannot win his action unless he can show in limine facts from which the Court can deduce a legal obligation on the part of the defendant towards the plaintiff to take care."
244. Id. at 428.
245. See, e.g., Avner de-Shalit, Why Posterity Matters: Environmental Policies and Future Generations (1995); Responsibilities to Future Generations (Ernest Partridge ed., 1981).
246. See Denise M. Orlinsky, Note, An Accountant's Liability to Third Parties: Bily v. Arthur Young & Co., 43 DePaul L. Rev. 859-871-87 (1994) (discussing the various approaches to auditors' liability to third parties).
247. Kramer, supra note 7, at 22.
248. Id. at 23.
249. Id. at 23-24, 26-27, 35.
250. Id. at 24.
251. Hohfeld, supra note 1, at 58.
252. See Coyle, supra note 9, at 38.
253. See id. at 38.
254. See Aaron-Andrew P. Bruhl, Note, Justice Unconceived: How Posterity Has Rights, 14 Yale J.L. & Human. 393, 414-15 (2002).
255. See, e.g., Robert Elliot, Contingency, Community and Intergenerational Justice, in Contingent Future Persons 157-157 (Nick Fotion & Jan C. Heller eds., 1997).
256. Indeed, the Supreme Court of Illinois held that "there is a right to be born free from prenatal injuries foreseeably caused by a breach of duty to the child's mother." Renslow v. Mennonite Hosp., 367 N.E.2d 1250-1255 (Ill. 1977). But this reference to a right is exceptional. More importantly, a right to be born without injuries caused by breach of duty to the mother cannot be correlative with a preconception duty to take reasonable care, because the two have different contents. Finally, the court did not make clear whether it relied on "a 'transferred negligence' growing out of a duty to the child's mother, or on an independent duty to the potential child herself growing out of the foreseeability of the harm to the child." Horace B. Robertson, Toward Rational Boundaries of Tort Liability for Injury to the Unborn: Prenatal Injuries, Perconception Injuries and Wrongful Life, 1978 Duke L.J. 1401, 1417-18. Justice Dooley, in his concurring opinion, relied solely on the foreseeability of harm.
257. de-Shalit, supra note 166, at 113-15 (discussing the view that future persons cannot have rights).
258. See Ruth Macklin, Can Future Generations Correctly Be Said to Have Rights?, in Responsibilities to Future Generations 151-152 (Ernest Partridge ed., 1981) ("While it is appropriate to ascribe rights to a class of persons, in general, such ascription is inappropriate when the class in question has no identifiable members.").
259. See Ernest Partridge, On the Rights of Future Generations, in Upstream/Downstream: Issues in Environmental Ethics 40, 56-58 (Donald Scherer ed., 1990) (observing that rights of unidentifiable persons are common and defensible).
260. Richard T. De George, The Environment, Rights, and Future Generations, in Responsibilities to Future Generations 157-159 (Ernest Partridge ed., 1981) ("Future generations by definition do not now exist. They cannot now, therefore, be the present bearer or subject of anything, including rights.").
261. See also Macklin, supra note 179, at 152 ("The ascription of rights is properly to be made to actual persons-not possible persons.").
262. Steiner, supra note 2, at 261 ("A future person is necessarily incapable of either waiving or demanding a present person's compliance or preventing a present person's non-compliance or penalizing him for it, because ex hypothesi two such persons lack any element of contemporaneity.").
263. See Joel Feinberg, Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy 167 (1980).
264. See Thomas Schwartz, Obligations to Posterity, in Obligations to Future Generations 3, 3-13 (Richard I. Sikora & Brian M. Barry eds., 1978). This problem is also known as "the paradox of future individuals"
265. Gregory S. Kavka, The Paradox of Future Individuals, 11 Phil. & Pub. Aff. 93, 94 (1982) or "the repopulation paradox"
266. Partridge, supra note 180, at 44.
267. See Bruhl, supra note 175, at 394.
268. Id. at 394-95.
269. See Bruhl, supra note 175, at 395.
270. Kavka, supra note 185, at 94.
271. See Elliot, supra note 176, at 158-61;
272. Kavka, supra note 185, at 94. In a previous article I showed that the argument that life with severe impairment may be worse than nonexistence is logically self-defeating and unprovable.
273. See Ronen Perry, It's a Wonderful Life, 93 Cornell L. Rev. 329, 360-69 (2008) ("Were we to restore the plaintiff to the original position in a wrongful life claim, the plaintiff would lose legal personality and, therefore, any possible right against the defendant To rectify the harm,' we must place the plaintiff in a position where there is no right for compensation.").
274. See Kavka, supra note 185, at 93.
275. See id. at 94.
276. Perry, supra note 189, 360-69 (discussing wrongful life claims).
277. de-Shalit, supra note 166, at 114.
278. See, e.g., 16 U.S.C. § 1 (2008) (directing the National Park Service to manage the parks so as to "leave them unimpaired for the enjoyment of future generations.");
279. 42 U.S.C. § 4331 (a)-(b)(1) (1994) (one of the purposes of the National Environmental Policy Act is to "Fulfill the social, economic, and other requirements of present and future generations of Americans").
280. See Winfield, supra note 68, at 428 ("Duty means restriction of the defendant's freedom of conduct, and the particular restriction here is that of behaving as a reasonably careful man would behave in the circumstances.").
281. White, supra note 17, at 64.
282. UAW v. Johnson Controls, Inc., 499 U.S. 187-213 (1991) (White, J., concurring).