Abuse of rights: The continental drug and the common law

Hastings Law Journal

Volumn 61, Issue 3, 2010, Pages 687-748

  Robilant, Anna D I ^a  

^a BOSTON UNIVERSITY   (United States)

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EID: 77950639123     PISSN: 00178322     EISSN: None     Source Type: Journal    
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References (529)

1. H. C. Gutteridge, Abuse of Rights, 5 CAMBRIDGE LJ. 22, 30, 43-44 (1933) (footnote omitted).
2. See Marie-Qaire Belleau, The "Juristes Inquiets": Legal Classicism and Criticbm in Early Twentieth-Century France, 1997 UTAH L. REV. 379, 387;
3. Duncan Kennedy, Three Globalizations of Law and Legal Thought: 1830-2000, in THE NEW LAW AND ECONOMIC DEVELOPMENT: A CRITICAL APPRAISAL 19 (David M. Trubek & Alvaro Santos eds., Cambridge Univ. Press 2006).
4. See Kennedy, supra note 2.
5. See supra note 2.
6. RUDOLF VON JHERING, LAW AS A MEANS TO AN END (Isaak Husik trans., 1913). In Law as a Means to an End, Jhering furnishes both a critique of conceptual formalism and a purposive definition of law. Jhering's "naturalist" conception of law reveals the illusionary nature of the grandiose formalist conceptual architecture, bringing to light the reality of "social mechanics."
7. See generally id. at 71-176. The formalist image of law as clockwork that runs its regulated course into which no disturbing hand enters is contrasted with the image of law as a "mighty machine" in which [t]housands of rollers, wheels, knives... move restlessly, some in one direction, some in another, apparently quite independent of one another as if they existed only for themselves, nay in apparent conflict, as if they wanted mutually to annihilate each other-and yet all work together harmoniously for one purpose, and one single plan rules the whole.
8. Id. at 71-72. The force that moves the wheelwork is the "will of thousands and millions of individuals, the struggle of interests, of the opposition of efforts, egoism, self will."
9. Id. at 72. Purpose is the moving force behind law; "everything found on the ground of law was called into life by a purpose and exists to realize some purpose."
10. Id. at 330.
11. GEORGES GURVTTCH, L'IDEE DU DROIT SOCIAL: NOTION ET SYSTEME DU DROIT SOCIAL (Scientia Verlag 1972) (1932).
12. Also see GEORGES GURVITCH, SOCIOLOGY OF LAW 166-67 (John Rex ed., Routledge & Kegan Paul Ltd. 1973) (1947) for a later formulation of the idea of "Social Law":
13. First we observe the contrast between social law and individual law (or better, interindividual law), corresponding to the contrast between sociality by interpenetration and sociality by interdependence (intuitive union and communication by signs). "Social Law" is a law of objective integration in the "We," in the immanent whole. It permits the subjects, to whom it is addressed, to participate directly in the whole, which in turn effectively participates in jural relations. That is why social law is based on confidence, while individual law, i.e., inter-individual and inter-groupal law, is based distrust. One is the law of peace, mutual aid, common tasks, the other the law of war, conflicts, separation. For even when individual law partly draws together subjects as in the case of contracts, it simultaneously separates them and delimits their interests. All law being a linking of the claims of some with the duties of others, an "imperative- attributive regulation," in social law claims and duties interpenetrate each other and form an indissoluble whole, while in individual law they only limit and crash against each other. In social law, distributive, in individual law, commutative Justice predominates.
14. Id.
15. BERNHARD WINDSCHEID, LEHRBUCH DES PANDEKTENRECHTS [textbook on the Roman Digest (Pandects)] 153, 155 (1862).
16. LOUIS JOSSERAND, DE L'ESPRIT DES DROITS 5-40 (Éditions Dalloz 2006) (1905).
17. Id.
18. On "functionalism" in comparative law, see Ralf Michaels, The Functional Method of Comparative Law, in THE OXFORD HANDBOOK OF COMPARATIVE LAW 339, 360-63 (2006),
19. and Michele Graziadei, The Functionalut Heritage, in COMPARATIVE LEGAL STUDIES: TRADITIONS AND TRANSITIONS 100 (Pierre Legrand & Roderick Munday eds., 2003). Max Rheinstein has offered the clearest account of the functionalist method to date. Every rule, according to Rheinstein, "has to justify its existence under two inquiries: first, what function does it serve in present society? second, does it serve this function well or would another rule serve better?"
20. Max Rheinstein, Teaching Comparative Law, 5 U. Cm. L. REV. 615, 617-18 (1938). Functionalism was a crucial methodological innovation of early-twentieth-century comparative lawyers.
21. See KONRAD ZWEIGERT A HEIN KÖTZ, AN INTRODUCTION TO COMPARATIVE LAW (1977). Saleilles and Lambert's emphasis on a rule's "function" was meant as a powerful critique of the formalism of conceptual analysis and "legal dogmatics."
22. See Edouard Lambert, La Fonction du Droit Civil Compare, in ETUDES DE DROIT COMMUN LEGISLATIVE OU DE CIVIL COMPARE (1903);
23. RAYMON SALEILLES, RAPPORT GENERAL SUR LES TRAVAUX DU CONGRES INTERNATIONAL DE DROIT COMPARE LU A LA SÉANCE DU CLOTURE DE CONGRES (1900). The second generation of comparative lawyers further developed functionalism's critical potential. Roscoe Pound's functionalist approach rested on a set of critical moves: a critique of "mechanical jurisprudence," a functional definition of law as an instrument of social control, and an "is to ought" move that derives the normative assessment of law from the positive facts of social life.
24. See Roscoe Pound, Comparative Law in Space and Time, 4 AM. J. COMP. L. 70 (1955) [hereinafter Pound, Comparative Law];
25. Roscoe Pound, Introduction, 1 AM. J. COMP. L. I (1952);
26. Roscoe Pound, The Scope and Purpose of Sociological Jurisprudence, 24 HARV. L. REV. 591 ( 1911). A pragmatic legal science solicits the adjustment of legal principles and doctrines to the human condition they are to govern, to the findings of the science of society. Legal rules derived from social needs and functions are effective in "ordering the satisfaction of conflicting and overlapping individual claims" with a "minimum of friction and waste."
27. See Pound, Comparative Law, supra, at 84. In other words, law is to be tailored to the discoverable "social objectives" of an ultimately coherent "society." The "is to ought" move was one of the main targets of the Realist critique. If, on the one hand, Felix Cohen appropriated the functionalist discourse, denouncing conceptualist legal science as "transcendental nonsense" and advocating a functionalist jurisprudence, on the other hand, he rejected the "is to ought" move, viewing functionalism as a crucial tool for an "ethical criticism" of law.
28. See Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809 (1935). Cohen envisaged the normative use of a functional definition of law as the prime danger of the functional approach. Id. In order to avoid blindness, functionalism should couple an objective legal science with a critical theory of social values.
29. Id. In recent decades, functionalism has come under attack on several fronts. It has been charged with reductionism in that it focuses exclusively on rules' sociolegal function and overlooks a whole range of complicating factors, including culture, mentality, and ideology.
30. See Pierre Legrand, How to Compare Now, 16 LEGAL STUD. 232 (1996);
31. Pierre Legrand, The Impossibility of 'Legal Transplants', 4 MAASTRICHT J. EUR. COMP. L. III (1997);
32. Vivian Grosswald Curran, Romantic Common Law, Enlightened Civil Law: Legal Uniformity and the Homogenization of the European Union, 7 COLUM. J. EUR. L. 63 (2001). Further, critics claim, functionaUsm assumes a "mirror theory" of the relation between law and society and ignores the fact that law acts upon social interests and needs: The facilitative and ideological role played by law.
33. See Günter Frankenberg, Critical Comparisons: Re-thinking Comparative Law, 26 HARV. INT'L LJ. 411 (1985);
34. David Kennedy, The Methods and the Politics, in COMPARATIVE LEGAL STUDIES: TRADITIONS AND TRANSITIONS, supra, at 345;
35. Jeremy Waldron, Dirty Little Secret, 98 COLUM. L. REV. 510 (1998)
36. -(reviewing ROBERTO MANGABEIRA UNGER, WHAT SHOULD LEGAL ANALYSIS BECOME? (1996)). Finally, functionalism interrogates the comparative effectiveness of functionally equivalent rules, eluding questions of broader legal reform.
37. See id.;
38. Frankenberg, supra;
39. Kennedy, supra.
40. Arthur T. von Mehren, Civil-Law Analogues to Consideration: An Exercue in Comparative Analysu, 72 HARV. L. REV. 1009, 1009 (1959).
41. John T. Langebeta, The Contractarian Basis of the Law of Trusu, 105 YALE LJ. 625, 629 (1995).
42. Fredrich Kessler & Edith Fine, Culpa in Contrahendo, Bargaining in Good Faith, and Freedom of Contract: A Comparative Study, 77 HARV. L. REV. 401, 401 (1964).
43. -2 MARCEL PLANIOL, TREATISE ON THE CIVIL LAW NO.871 (La. State Law Inst. Trans., 11th ed. 1939).
44. Vittorio Scialoja, Aemulatio, in i ENCICLOPEDIA GIURIDICA ITALIANA 426 (NAPOLI-MILANO, 1884).
45. Cf. Gutteridge, supra note 1, at 43;
46. MARIO ROTONDI, L'ABUSO DI DIRITTO "AEMULATIO" (1979);
47. Vittorio Scialoja, Note to Cassazione Firenze, Foro It. 1, 96 (1877).
48. PIETRO RESCIGNO, L'ABUSO DEL DIRITTO (1998);
49. PTETRO RESCIGNO, L'ABUSO DEL DIRITTO, Rrv. DIR. CIV. 205 (1965).
50. Supra note 17.
51. COUNCIL OF EUROPE, ABUSE OF RIGHTS AND EQUIVALENT CONCEPTS: The PRINCIPLE AND ITS PRESENT DAY APPUCATION 10 (1990).
52. Gutteridge, supra note 1, at 44.
53. Bruce Wyman, The Perpetuation of the Open Market, 17 GREEN BAG 210, 221 (1905).
54. For the U.S., see Robert G. Bone, Normative Theory and Legal Doctrine in American Nuuance Law: 1850-1920, 59 S. CAL. L. REV. 1104, 1137, 1184, 1200 (1986). Bone discusses the normative theories that jurists used to reason about nuisance disputes between the 1850s and the 1920s; he focuses on three different legal-ideological models: The "competing rights" model, the "static absolute dominion" model, and the "relative property rights" model.
55. Id.
56. ROTONDI, supra note 16, at 60;
57. Marc Desserteaux, Abus De Droit ou Conflict du Droit, in REV. TRIMESTRIELLE 129 (1906);
58. JOSSERAND, supra note 8, at 32.
59. ROTONDI, supra note 16, at 36-94.
60. Id. at 141.
61. -(1843) 152 Eng. Rep. 1223, 1224. The cause was tried before Rolfe, B. at the Liverpool Spring Assizes in 1841. Against the direction of the judge, the counsel for the plaintiff tendered a bill of exceptions which was argued before the Court of Exchequer Chamber.
62. Id. at 1232.
63. Id. at 1223.
64. Id. at 1223-1224
65. Id. at 1235. The inferior court instructed the jury that, if the defendants had proceeded and acted "in the usual and proper manner" for the purpose of working a coal mine, they might lawfully do so; it further instructed that the plaintiffs evidence was not sufficient to support his allegations.
66. Id. at 1225.
67. Id. at 1228.
68. -(1859) 11 Eng. Rep. 140, 145 (H.L.) (appeal taken from Exch. Div.).
69. Id. at 140.
70. Id. at 141.
71. Id. at 142.
72. Id.
73. Id.
74. Id. at 152.
75. MICHAEL TAGGART, PRIVATE PROPERTY AND ABUSE OF RIGHTS IN VICTORIAN ENGLAND: The STORY OF EDWARD PICKLES AND THE BRADFORD WATER SUPPLY 65 (2002).
76. Chasemore, 11 Eng. Rep. at 145 (opinion of Lord Wensleydale).
77. However, a few decades later, in Corp. of Bradford v. Pickles, [1895] A.C. 587 (H.L.) (appeal taken from Ch.), the House of Lords stepped back, finding motives to be immaterial.
78. Corp. of Bradford v. Pickles is another case involving interference with underground water. The respondent, Mr. Pickles, owned land on a higher level than the parcel of land acquired by the appellants and used for the operation of the Bradford Waterworks Company.
79. See id. at 587-88. Allegedly for the purpose of working minerals, Mr. Pickles drained from the soil the ground water, which would have otherwise percolated to the appellants' land, thereby reducing the latter's supply of water.
80. Id. at 589. The appellants brought an action seeking an injunction to restrain the respondent from continuing to sink the shaft or doing anything to draw off the water or diminish its quantity.
81. Id. They claimed that the respondent was motivated by the intent to injure, thereby inducing them to purchase his land, rather than by a bona fide intention to work his minerals.
82. Id. While the inferior court granted the injunction, the Court of Appeals reversed.
83. Id. The House of Lords confirmed the latter court's decision, dismissing the appeal.
84. Id. at 605. In the court's analysis it is the act, not the motive for the act, that must be regarded.
85. See id. at 594. The deliberate nebulosity of George Bell's Principles of the Law of Scotland should not deceive. Lord Watson warned.
86. Id. at 597-98. The court stated that Aemulatio is a misleading expression and, while its operative scope in the law of Scotland is narrow-translating in mere variations of degree in cases of nuisance-it was never part of English law.
87. Id. at 598.
88. On Corp. of Bradford v. Pickles,
89. see TAGGART, supra note 38, at 54.
90. See Samuel C. Wiel, Waters: American Law and French Authority, 33 HARV. L. REV. 133, 147 (1919). Wiel notes that "the common law of watercourses is not the ancient result of English law, but is a French doctrine (modern at that) received into English law only through the influence of two eminent American jurists."
91. Id.
92. See JOSEPH K. ANGELL, A TREATISE ON THE COMMON LAW IN RELATION TO WATERCOURSES (1824);
93. see also 1 JAMES KENT, COMMENTARIES ON AMERICAN LAW (Boston, Little, Brown, & Co., George F. Comstock ed., 11th ed. 1889).
94. See T.E. Lauer, Reflections on Riparianism, 35 Mo. L. REV. I (1970);
95. J. H. Beuscher, Appropriation Water Law Elements in Riparian Doctrine States, 10 BUFF. L. REV. 448 (1960).
96. See CHARLES DONAHUE et al., CASES AND MATERIALS ON PROPERTY: AN INTRODUCTION TO THE CONCEPT AND INSTITUTION 246 (3d ed. 1993).
97. The "natural flow" rule prohibits any use of the stream by one riparian so as to diminish the natural flow to the other riparian owners; it allows for modest domestic use, thereby preventing waste, malicious diversion, or extraordinary use of water. See TAGGART, supra note 38, at 114, 128, 130, 136.
98. MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1780-1860, at 34, 37-43, 102 (1992).
99. Id.
100. -24 F. Cas. 472 (CCD. R.I. 1827) (No.14,312).
101. In Tyler v. Wilkinson, Justice Story provided a schizophrenic articulation of the rule that reflected an uneasy transition between the older rule and the new reasonableness principle. The case involved a typical conflict between riparian null owners, where the owners of the upper dam appropriated and used a large quantity of water to the detriment of the lower dam.
102. Id. at 473. In Story's reasoning, the natural flow principle was still commanding and the reasonableness test was timidly added as a qualification.
103. -[T]he right being common to all the proprietors on the river, no one has a right to diminish the quantity which will, according to the natural current, flow to a proprietor below, or to throw it back upon a proprietor above. This is the necessary result of the perfect equality of right among all proprietors of that, which is common to all.... When I speak of this common right, I do not mean to be understood, as holding the doctrine, that there can be no diminution whatsoever, and no obstruction or impediment whatsoever, by a riparian proprietor, in the use of the water as it flows; for that would be to deny any valuable use of it. There may be, and there must be allowed of that, which is common to all, a reasonable use. The true test of the principle and extent of the use is, whether it is to the injury of the other proprietors or not.... The law here, as in many other cases, acts with a reasonable reference to public convenience and general good, and it is not betrayed into a narrow strictness, subversive of common sense, nor into an extravagant looseness, which would destroy private rights. The maxim is applied "sic utere tuo, ut non alienum leadas."
104. Id. at 474.
105. -49 Mass. (8 Met.) 466, 477-478 (1844).
106. Id. at 476-477
107. JOSEPH WILLIAM SINGER, INTRODUCTION TO PROPERTY 128 (2005).
108. The reasonable use rule was anticipated in a number of earlier cases. In De Bok v. Doak, 176 N.W. 631, 632 (Iowa 1920), the plaintiff complained of an alleged injury caused him by defendant-appellant's use of an excessive amount of water percolating from the ground, not only as drink for his horses and cattle but also to furnish drink and make a wallow for his hogs. The Supreme Court of Iowa, affirming the decision of the Circuit Court, which had granted injunctive relief, held that the appellant defendant had wasted the excess water to the detriment of the plaintiff.
109. Id. at 632-33. Justice Salinger emphasized the "modern trend" towards a "reasonable use" rule taking tato account "the local conditions, the purpose for which the landowner excavates and the use or non use she makes of the water."
110. Id. at 634.
111. Ernst W. Huffcut, Percolating Waters: The Rule of Reasonable User, 13 YALE L.J. 222, 223 (1904).
112. -43N.H. 5699 (1862).
113. Id. at 577.
114. DONAHUE et al., supra note 43, at 245-248
115. In Gannon v. Hargadon, 92 Mass. (10 Allen) 106, 107 (1865), a Massachusetts case, the defendant, who owned an upper parcel of land, had placed turfs on his own land to protect it from a considerable flow of surface water caused by melting snow and spring rains, thereby causing the water to flow off upon the plaintiffs land. Resorting to the language of absolute rights and declaring that "cujus est solum, ejus est usque ad coelum," the court applied the "common enemy" rule.
116. Id. at 109. The owner of a piece of land, Justice Bellow stated, may lawfully use it in such manner as either to prevent surface water which accumulates elsewhere from coming upon it or to allow surface water to come upon his land from elsewhere, although the water is thereby made to flow upon the land of an adjoining landowner to her loss.
117. Id. at 107-109
118. WILLIAM B. STOEBUCK A DALE A. WHITMAN, THE LAW OF PROPERTY 432 (3d ed. 2000);
119. -6 THOMPSON ON REAL PROPERTY 524-26, 559-561 (David A. Thomas ed., 1994).
120. -50 Md. 73, 80 (1878).
121. Id.
122. Id.
123. Id. at 82.
124. -51 A. 911, 911 (N.H. 1901)
125. -(quoting Haley v. Colcord, 59 N.H. 7, 8 (1879)).
126. See Wilson v. Handley, 119 Cal. Rptr. 2d 263, 268 (Q. App. 2002).
127. G. H. L. Fridman, Motive in the English Law of Nuisance, 40 VA. L. REV. 583, 583 (1954).
128. Id. at 586.
129. Bone, supra note 22, at 1115.
130. See id. at 1139-1141
131. Id. at 1161.
132. Id. at 1137.
133. A 1937 case, Racich v. Mastrovich, 273 N.W. 660, 661 (S.D. 1937), furnished a telling photograph of a "spite fence," complete with the following description: "a fence erected for no benefit or pleasure to the person erecting it, but solely with the malicious motive of injuring the adjoining owner by shutting out his light, air and view."
134. In Mahan v. Brown, 13 Wend. 261, 261 (N.Y. Sup. Q. 1835), the Supreme Court of Judicature of New York held that the defendant was not liable for erecting a spite fence that obstructed the sunlight of his neighbor, regardless of the motive of the obstruction, unless the neighbor had benefitted from that sunlight for a specified period of time or had acquired a right by grant or by occupation and acquiescence. In a nice display of formalistic reasoning, the court distinguished the case at hand from the Aldred's case, where the construction of a hog house infesting the neighbor's property with fetid smells had been found to be a nuisance.
135. Id. at 264. In the latter case, Justice Savage argued, a positive right had been invaded, every person having a right to the use of natural elements in their purity.
136. Id. Conversely, in the case at hand, the plaintiff enjoyed a mere easement that may have ripened into a right.
137. Id. But, before sufficient time had elapsed to raise a presumption of a grant, he was deprived of no right, but only prevented from acquiring a right-without consideration-in his neighbor's property.
138. Id.
139. See James Barr Ames, How Far an Act May Be a Tort Because of the Wrongful Motive of the Actor, 18 HARV. L. REV. 411, 412, 414-415 (1905).
140. Id. at 415. The states were Connecticut, Maine, New Hampshire, Vermont, and Washington.
141. Id. at 415 n.3.
142. -19 N. E. 390, 393 (1889).
143. Id. at 392.
144. Id. at 391-392 Justice Holmes's concern with the arbitrariness of a jury's inquiry into motives echoes the arguments raised by opponents of abuse of rights on the continent: It has been thought by respectable authorities that even at common law the extent of a man's rights in cases like the present might depend upon the motive with which he acted.
145. We do not so understand the common law, and we concede further, that to a large extent the power to use one's property malevolently in any way which would be lawful for other ends is an incident of property which cannot be taken away even by legislation. It may be assumed that under our constitution the legislature would not have the power to prohibit putting up or maintaining stores or houses with malicious intent, and thus to make a large part of the property of the commonwealth dependent upon what a jury might find to have been the past or to be the present motives of the owner. But it does not follow that the rule is the same for a boundary fence, unnecessarily built more than six feet high. It may be said that the difference is only one of degree. Most differences are, when nicely analyzed.
146. Id. (citations omitted).
147. -54 A. 945, 948 (N.H. 1903).
148. -51 A. 911 (N.H. 1901).
149. Horan, 54 A. at 948 (citation omitted) (quoting Franklin, 51 A. at 913).
150. -(1865) 11 Eng. Rep. 1483, 1485.
151. Chasemore v. Richards, (1859) 11 Eng. Rep. 140, 149.
152. See St. Helen's Smelting Co., 11 Eng. Rep. 1483.
153. See Note, Tortious Interference with Contractual Relations in the Nineteenth Century: The Transformation of Property, Contract, and Tort, 93 HARV. L. REV. 1510 (1980);
154. Frances Bowes Sayre, Inducing Breach of Contract, 36 HARV. L. REV. 663, 675-76 (1923) ("If this tort is not to be regarded as simply a particularized manifestation of the old doctrine of Keeble v. Hickeringill, its true basis would seem to lie in the policy of the law to accord to promises the same or statilar protection as is accorded to other forms of property. By lending its protection to promised advantages, the law creates and secures additional property values which further the social welfare." (footnote omitted)).
155. Note, supra note 83, at 1516.
156. Id. at 1511.
157. WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS 927 (4th ed. 1971).
158. -(1853) 118 Eng. Rep. 1083 (Q.B.).
159. Id. at 1084.
160. Id. at 1097.
161. -(1893) 118 Eng. Rep. 749, 749 (Q.B.).
162. Id. at 754.
163. Jersey City Printing Co. v. Cassidy, 53 A. 230, 233 (N.J. Ch. 1902).
164. -[1898] A.C. I (H.L.) (appeal taken from E.).
165. Along with Corp. of Bradford v. Pickles, [1895] A.C. 587 (H.L.) (appeal taken from Ch.), Allen v. Flood stands as the foremost authority for the absence of abuse of rights in English law. The appellant, Allen, the delegate of the iron-workers' union, in order to punish the respondents, a group of shipwrights who had in the past engaged in practices resisted by the union, had informed the employer that unless the latter were discharged, all the iron-workers would be called out.
166. Allen, [1898] A.C. at 90-91. Pressed by this threat, the employer discharged the shipwrights and refused to employ them again.
167. Id. The respondents brought an action against the appellant. The inferior court awarded damages to the respondents.
168. Id. at 143. The decision was affirmed by the Court of Appeal.
169. Id. at 91. Reversing the latter court's decision, the House of Lords gave judgment in favor of the appellant arguing that, however malicious or bad his motive might be, he had done no unlawful act.
170. Id. at 109. A deep and hardly disguisable anxiety permeates the court's profuse discussion of the essence and the scope of malice. The court was eager to vindicate and defend its role as the arbiter of social and economic conflict. The conceptual vagueness of malice is said to threaten legal certainty by putting the assessment of human actions at the mercy of juries, hence resulting in great danger for the community and for individual freedom. Retrieving the well-know adagio of malice's conceptual obscurity, the court restated the doctrine.
171. The definition provided by the court is the same as that offered by the court in Mogul Steamship Co. v. McGregor, (1889) 23 Q.B.D. 598: a wrongful act done intentionally without just cause or excuse; the emphasis, however, is on the wrongful nature of the act, rather than on the presence of a just cause. By shifting the emphasis from the motive to the nature of the act, the court closed the narrow space left open for a theory of abuse of rights in the Mogul case. In the Allen court's words:
172. For the purpose then in hand [in the Mogul case] the statement of the law may be accurate enough, but if it means that a man is bound in law to justify or excuse every wilful act which may damage another in his property or trade, then I say, with all respect, the proposition [of Lord Bowen] is far too wide; everything depends on the nature of the act, and whether it is wrongful or not.
173. -[1898] A.C. at 139-40.
174. See infra note 187 and accompanying text.
175. Allen, [1898] A.C at 94 ("The root of the principle is that, in any legal question, malice depends not upon evil motive which influenced the mind of the actor, but upon the illegal character of the act which he contemplated and committed. In my opinion it is alike consistent with reason and common sense that when the act done is, apart from the feelings which prompted it, legal, the civil law ought to take no cognizance of its motive.").
176. Sayre, supra note 83, at 672.
177. Id.
178. See generally Note, supra note 83.
179. -15 S.W. 57, 57 (Ky. 1891).
180. Id. at 59
181. -(quoting Chatfield v. Wilson, 28 Vt. 49 (1855)).
182. -112 P. 81, 81 (Wash. 1910).
183. Id.
184. Id. at 82.
185. Id. at 84.
186. Dunshee v. Standard Oil CO., 132 N.W. 371, 371 (Iowa 1911).
187. Id. at 373.
188. Quinn v. Leatham, [1901] A.C. 495 (H.L.) (appeal taken from Ir.) (U.K.).
189. Id. at 496.
190. Id.
191. Id.
192. Id. at 495.
193. Id.
194. Id. at 533.
195. Id. at 506.
196. Edwin E. Witte, Early American Labor Cases, 35 YALE LJ. 825, 825 (1926) (quoting GEORGE GORHAM GROAT, ATTITUDE OF AMERICAN COURTS IN LABOR CASES 49 (1911)).
197. See id. at 826 (citing 3 DOCUMENTARY HISTORY OF AMERICAN INDUSTRIAL SOCIETY 68, 233 (John R. Commons & E. A. Gilmore eds., 1910)).
198. -14 Wend. 9, 20 (N.Y. Sup. Q. 1835).
199. Witte, supra note 115, at 825 (citing Commonwealth v. Hunt, 58 Mass. (4 Met.) 49 (1849)).
200. Hunt, 45 Mass. at 111.
201. See Witte, supra note 115.
202. See id.
203. Haggai Hurvitz, American Labor Law and the Doctrine of Entrepreneurial Property Rights: Boycotts, Courts, and the Juridical Reorientation of 1886-1895, 8 INDUS. REL. LJ. 307, 308 (1986).
204. -10 Ohio Dec. Reprint 665 (1889).
205. Id. at 665.
206. Id. at 666.
207. Id. at 665.
208. Id. at 672.
209. Note, Abuse of Rights: Civil Law, Legal Reasoning: Bradford v. Pickles Revisited, 8 U. BRIT. COLUM. L. REV. 343, 348-350 (1973).
210. See FREDERICK H. CHASE, LEMEUL SHAW: CHIEF JUSTICE OF THE SUPREME JUDICIAL COURT OF MASSACHUSETTS 1830-1860 (1918);
211. LEONARD W. LEVY, THE LAW OF THE COMMONWEALTH AND CHIEF JUSTICE SHAW (1957);
212. JOHN P. REID, CHIEF JUSTICE: The JUDICIAL WORLD OF CHARLES DOE (1967);
213. see abo G. EDWARD WHITE, THE AMERICAN JUDICIAL TRADITION: PROFILES OF LEADING AMERICAN JUDGES (1976).
214. See, e.g., Green v. Gilbert, 60 N.H. 144, 145 (1880);
215. Thompson v. Androscoggin River Improvement Co., 54 N.H. 545, 547 (1874).
216. See Jeremiah Smith, Reasonable Use of One's Own Property as a Justification for Damage to a Neighbor, 17 COLUM. L. REV. 383 (1917) [hereinafter Smith, Reasonable Use];
217. Jeremiah Smith, Crucial Issues in Labor Litigation II., 20 HARV. L. REV. 345 (1906) [hereinafter Smith, Crucial Issues II].
218. Smith, Reasonable Use, supra note 131, at 384-85 (footnote omitted) (quoting Middlesex Co. v. McCue, 149 Mass. 103, 103-04 (1889);
219. McCarty v. Natural Carbonic Gas Co., 189 N.Y. 40, 46 (1907)).
220. See Harry N. Scheiber, Instrumentalism and Property Rights: A Reconsideration of American Styles of Judicial Reasoning in the 19th Century, 1975 WIS. L. REV. I;
221. infra notes 182, 184.
222. See Scheiber, supra note 133; infra notes 182, 184.
223. Duncan Kennedy, From the Will Theory to the Principle of Private Autonomy: Lon Fuller's Consideration and Form, 100 COLUM. L. REV. 94 (2000).
224. See, e.g.. GRANT GILMORE, THE AGES OF AMERICAN LAW (1977);
225. KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS (1960);
226. ROSCOE POUND, THE FORMATIVE ERA OF AMERICAN LAW (1938).
227. See LLEWELLYN, supra note 136.
228. Id. at 73.
229. Id.
230. See, e.g., DUNCAN KENNEDY, THE RISE AND FALL OF CLASSICAL LEGAL THOUGHT (2006);
231. Thomas C Grey, Langdell's Orthodoxy, 45 U. PITT. L. REV. I (1983);
232. HoRwrrz, supra note 45.
233. See Grey, supra note 140.
234. American historians have drawn different images of late-nineteenth- century formalist legal thought. Duncan Kennedy offered a nuanced understanding of Qassical Legal Thought. For Kennedy, Classical Legal Thought was a mode of thought providing a conceptual vocabulary, organizational schemes, modes of reasoning, and characteristic arguments. Qassical Legal Thought had no essence, but presented a number of dominant or important traits. More specifically, in Kennedy's own words:
235. My claim was that, in the second half of the nineteenth century, legal actors dramatically revised the conceptual apparatus, reasoning techniques, ideals and images that had dominated in the pre-Classical period. The Qassical subsystem built all legal rules out of a will theory using strictly analogous conceptions of state and federal power private right. Private law rules were elaborately divided and subdivided around the public/private
236. distinction within private law. The preferred reasoning technique was induction/deduction, the ideal was the deployment of democratically validated public power as the framework for private freedom, and the key image was powers and rights that were " absolute within their spheres."
237. KENNEDY, supra note 140, at xi. For Kennedy, Qassical Legal Thought was not the view of law of a particular political ideology: it was " liberal in either a conservative or a progressive way, according to how it balanced public and private in market and household." Kennedy, supra note 2, at 22. Classical Legal Thought was also not " a philosophy of law in the usual sense: in each period there was positivism and natural law," as well as various theories of rights and pragmatisms. Id.;
238. see also KENNEDY, supra note 140. Morton Horwitz, on the other hand, focused more on the relation between legal thought and ideology, between Qassical Legal Thought and Liberal Legalism. Qassical Legal Thought was intimately linked to a " central aspiration of American legal thinkers," the separation between law and politics, and the quest for an " autonomous system of law untainted by politics." HORWITZ, supra note 45, at 9. After the trauma of the Civil War and at a moment of swift social and economic change, jurists sought even more fervently to create a system of autonomous law. Id at 10. Through a process of systematization, integration, and abstraction they built a coherent legal architecture that " sought to depoliticize law by mediating a series of basic contradictions in antebellum legal thought." Id. his legal architecture was characterized by: (a) the private/public distinction; (b) the creation of increasingly abstract and general legal classifications and categories such as will, ownership, or fault; (c) clear, distinct bright-line classifications of legal phenomena; and (d) deductive and analogical reasoning which conferred upon legal reasoning " the qualities of certainty and logical inexorability." Id. at 16. Finally, Thomas Grey focused on the epistemological premises of Classical Orthodoxy. In Grey's analysis, Qassical Legal Science was " a set of ideas to be put to work from inside by those who operate legal institutions." Grey, supra note 140, at 6. It envisioned the legal system as " complete" (i.e., " its substantive norms provide a uniquely correct solution - a 'right answer' - for every case that can arise under it" ) through " universal formality" (i.e., the outcomes of the system are dictated by rationally compelling reasoning). Id. at 7. The system can be made " universally formal" through " conceptual order" (i.e., the " substantive bottom-level rules can be derived from a small number of relatively abstract principles and concepts, which themselves form a coherent system" ). Id. at 8. Grey emphasized the analogy between Qassical Orthodox Legal Science which claims to be empirical and yet highly conceptual, experimental, and inductive - and Euclidean geometry, seen, in the late-nineteenth century, as a set of " well-confirmed inductive generalizations about the physical world." Id. at 16-17. " For legal science, the universe of data was not the totality of sense experience of the physical world, but the restricted set of reported common law decisions...." Id. at 20.
239. For a more recent view, see WILLIAM WIECEK, THE LOST WORLD OF CLASSICAL LEGAL THOUGHT: LAW AND IDEOLOGY IN AMERICA 1866-1937 (1998).
240. Grey, supra note 140, at 7-8.
241. Duncan Kennedy, Legal Formalum, in 13 ENCYCLOPEDIA OF THE SOCIAL AND BEHAVIORAL SCIENCES, 8634, 8634 (Neil J. Smelser & Paul B. Baltes eds., 2001).
242. Grey, supra note 140, at 11.
243. See discussion supra Part I. A. 1-4.
244. See discussion supra Part I.A. 1-4.
245. See ROGER COTTERRELL, THE POLITICS OF JURISPRUDENCE: A CRITICAL INTRODUCTION TO LEGAL PHILOSOPHY 200 (1989).
246. See LLEWELLYN, supra note 136.
247. See MELVIN A. EISENBERG, THE NATURE OF THE COMMON LAW 14 (1988).
248. See, e.g., Thurber v. Martin, 68 Mass. (2 Gray) 394 (1854).
249. See generally LEVY, supra note 129;
250. BENJAMIN FRANKLIN THOMAS, SKETCH OF THE LIFE AND JUDICIAL LABOR OF CHIEF JUSTICE SHAW (1868).
251. LEVY, supra note 129, at 22.
252. Id. at 24.
253. Elliott v. Fitchburg R.R. Co., 64 Mass (10 Cush.) 191, 194 (1852).
254. Thurber, 68 Mass. at 396-397
255. Id.
256. Llewellyn saw Justice Doe as an exception in the " Formal Style." See LLEWELLYN, supra note 136, at 41.
257. -43 N.H. 569, 577-578 (1862).
258. -50 N.H. 439, 443 (1870).
259. Id.
260. Id. at 446.
261. JEREMIAH SMITH, MEMOIR OF HON. CHARLES DOE, LATE CHIEF JUSTICE OF THE SUPREME COURT OF NEW HAMPSHIRE 24-25 (1897).
262. REID, supra note 129, at 133.
263. Though Mr. Holmes has received most of the credit for awakening the bar to the need for a theory of torts and for developing the main lines along which that theory was first formulated, others were working in the vineyard, notably Charles Doe; his determination to bring rationality to the chaotic patterns of tort liability is one of the most significant contributions to American law.
264. Id. at 133-34. " As we shall see in a future chapter, few judges expected as much from the concept of 'reasonableness' as did Doe. He called it a 'general principle' and in the law of torts made it the instrument for resolving most factual issues." Id. at 145;
265. see abo WHITE, supra note 129, at 124.
266. REID, supra note 129, at 339.
267. -54 N.H. 545 (1874).
268. Id. at 550-551
269. Id. at 551.
270. -60 N.H. 144, 145 (1880).
271. Id. at 144.
272. PHILLIPP HECK, BEGRIFFSBILDUNG UND INTERESSENJURIPRUDENZ (1929).
273. See Green, 60 N.H. at 145.
274. -119 N.W. 946, 947 (Minn. 1909).
275. Id.
276. Id.
277. Id. (internal citations omitted).
278. Scheiber, supra note 133. Schieber's article is a response to the discontinuity thesis advanced by William Nelson, who argud that the " instrumental" style of judicial reasoning fell into disfavor after the 1850s and was supplanted by a " formalist" style.
279. See William E. Nelson, The Impact of the AntiSlavery Movement upon Styles of Judicial Reasoning in Nineteenth Century America, 87 HARV. L. REV. 513 (1974). A significant causal factor explaining this shift is, in Nelson's analysis, the success of antislavery jurisprudence. See id. The moral crisis over slavery discredited the amoral tastrumentalism which had become an obstacle on the path of the anti-slavery movement and called for a principleoriented jurisprudence reinforced by greater use of precedent. See id.
280. Scheiber, supra note 133, at 12.
281. Id.
282. Id.
283. See infra notes 182, 184.
284. See Forum, Once More Unto the Breach: Late Nineteenth Century Jurisprudence Revisited, 20 LAW A HIST. REV. 541 (2002).
285. See, in particular, Manuel Cachan, Justice Stephen Field and Free Soil, Free Labor Constitutionalism, 20 LAW A HIST. REV. 541 (2002);
286. Lewis A. Grossman, James Coolidge Carter and Mugwump Jurisprudence, 20 LAW A HIST. REV. 577 (2002) [hereinafter Grossman, Mugwump Jurisprudence];
287. Lewis A. Grossman, Extending the Revbionbt Project, 20 LAW A HIST. REV. 639 (2002);
288. and Stephen A. Siegel, The Revision Thickens, 20 LAW A HIST. REV. 631 (2002).
289. Grossman, Mugwump Jurisprudence, supra note 182, at 604.
290. Brian Z. Tamanaha, The Realism of the " Formalist" Age 3 (Aug. 2007) (unpublished manuscript) [hereinafter Tamanaha, The Realism of the " Formalist" ], available at ssrn.com/abstract=985083. Tamanaha challenges the view that depicts Holmes as a solitary " protoRealist." Id. By contrast, he argues that the standard account of the " formalist" age is fundamentally wrong; " Prevailing understandings of law and of judicial decision making throughout the [formalist] era period were, in essential respects, every bit as realistic as the accounts propounded by the later Realists." Id. " Realist" notions and a " realist" vocabulary were used in a variety of contexts: effectuating legal reform or legal change, doing justice ta particular cases, expressing concern about judicial elections, promoting codification, and criticizing courts for excessive judicial invalidation of legislation.
291. See BRIAN Z. TAMANAHA, BEYOND THE FORMALIST-REALIST DIVIDE 67-90 (2009) [hereinafter TAMANAHA, BEYOND THE DIVIDE]. In Tamanaha's account, the Realists are " the latest episode in a long history of skepticism about the common law and judging prompted by concerns about the disordered state of the law, or by objections, often politically motivated, to the actions of courts." Tamanaha, The Realism of the " Formalist," supra, at 65;
292. see David J. Seipp, Formalism and Realism in FifteenthCentury English Law: Bodies Corporate and Bodies Natural (July 3, 2007) (unpublished manuscript), available at law.harvard.edu/programs/ames-foundation/BLHC07/ SeippOxfordDraft.pdf.
293. See TAMANAHA, BEYOND THE DIVIDE, supra note 184.
294. See HORWITZ, supra note 45; Kennedy, supra note 2, at 21.
295. Gutteridge supra note 1, at 44.
296. JAMES W. HURST, LAW AND THE CONDITIONS OF FREEDOM IN THE NINETEENTH-CENTURY UNITED STATES 5-6 (1956).
297. See discussion supra Part I.A.1-4.
298. HORWITZ, supra note 45, at 34-35.
299. Stephen F. Williams, Transforming American Law: Doubtful Economics Makes Doubtful Hbtory, 25 UCLA L. REV. 1187, 1197-1198 (1978).
300. Id. at 1204.
301. Id. at 1198.
302. Id.
303. HORWITZ, supra note 45, at 31;
304. HURST, supra note 188, at 24.
305. -49 Mass. (8 Met.) 466, 476-477 (1844).
306. LEVY, supra note 129, at 22.
307. -25 Pa. 528 (1855).
308. Id. at 535-536
309. Id.
310. Id. at 535.
311. See Williams, supra note 191.
312. See Katz v. Walkinshaw, 70 P. 663, 663-664 (Cal. 1902).
313. Id.
314. Samuel C. Wiel, Fifty Years of Water Law, 16 OR. L. REV. 203, 203 (1937);
315. Samuel C. Wiel, Theories of Water Law, 27 HARV. L. REV., 530, 543 (1913-1914).
316. See Katz, 70 P. 663.
317. Id. at 663-664
318. Id. at 664.
319. Id. at 669.
320. Id. at 668.
321. Id. at 665.
322. Such law as has been made upon the subject comes from countries and climates where water is abundant, and its conservation and economical use of little consequence, as compared with a climate like southern California. The learned counsel for appellants state in their brief that water at San Bernardino is worth $1,000 per inch of flow. Percolating water or water held in the earth is the main source of supply for domestic uses and for irrigation, without which most lands are unproductive.
323. Id.
324. But the maxim, " Cuius est solum, ejus est usque ad inferos," furnishes a rule of easy application, and saves a world of judicial worry in many cases. And perhaps in England and in our Eastern states a more thorough and minute consideration of the equities of parties
325. may not often be required. The case is very different, however, in an arid country like southern California, where the relative importance of percolating water and water flowing in definite water courses is greatly changed.
326. Id. at 666.
327. Id. at 665.
328. -(1892) I; Ch. 316,328-329
329. Medford v. Levy, 8 S.E. 302, 306 (W. Va. 1888). The defendants' habit of opening the door leading from the kitchen to the hall, thereby "filling the whole house with objectionable odors, owing to the frequent cooking of cabbage, onions, and other things, the odor of which is particularly nauseating" was deemed unreasonable in light of the plaintiffs wife suffering from a form of neuralgia that made her "nervous and excitable" and hence peculiarly affected by the incidents of domestic habits not conforming to those of "a neat and tidy housewife."
330. Id. at 304.
331. Kuzniak v. Kozmtaski, 65 N.W. 275,276 (Mich. 1895).
332. Id.
333. See, e.g., St Helen's Smelting Co. v. Tipping, (1865) 11 Eng. Rep. 1483, 1485.
334. See generally Joel F. Brenner, Nuisance Law and the Industrial Revolution, 3 J. LEGAL STUD. 403 (1974).
335. HORWITZ, supra note 45, at 37.
336. Id. at 40
337. Id. at 41-42
338. See Brenner, supra note 217, at 408. Brenner's thesis is that, "[u]ntil the very end of the eighteenth century the view was strongly held by courts that ta nuisance cases, unless the inconvenience caused by a defendant's activity was trivial, liablity would follow once the plaintiff had established an interference with the use and enjoyment of his land."
339. See John P. S. McLaren, Nuisance Law and the Industrial Revolution - Some Lessons from Social History, 3 OXFORD J. LEGAL STUD. 155, 169 (1983) (discussing Brenner's thesis). The predominant thought was that the plaintiff had a preeminent claim to protection; the fact that the defendant had acted reasonably in the circumstances or that her activity was of public utility was considered no defense.
340. Id. With the advent of industrialization, and the new relevance and frequency of conflicts between time-honored conservatory uses of land and new exploitive industrial uses, courts' views changed
341. Id. After a period of vacillation, the House of Lords compromised with industrial interests, emasculating the common law of nuisance as a curb on air, noise, and water pollution.
342. See generally id.; Brenner, supra note 217.
343. McLaren, supra note 221, at 156;
344. see A. E. Dingle, "The Monster Nuisance of All": Landowners, Alkali Manufacturers, and Air Pollution, 1828-1864, 35 ECON. HIST. REV. 529, 529-30 (1982).
345. See McLaren, supra note 221, at 190.
346. Id.
347. Id. at 170.
348. -(1858) 140 Eng. Rep. 1113,1113 (CB).
349. Id. at 1114.
350. Id.
351. -229- Id. at 1118 (opinion of Willes, J.).
352. -(1865) 11 Eng. Rep. 1483 (H.L.).
353. See Brenner, supra note 217, at 413.
354. Id. at 413-414
355. St. Helen's Smelting Co., 11 Eng. Rep. at 1483.
356. Id. at 1485.
357. Id. at 1484.
358. Id. at 1487 (opinion of Lord Cranworth).
359. Id. (opinion of Lord Wensleydale).
360. This view has been variously articulated, reflecting different methodological approaches and political positions. For example, Hurst argued that the development of nineteenth-century American private law promoted economic growth in that it was shaped by a variety of economic, social, geographical, and technological needs.
361. See HURST, supra note 188. More specifically, it reflected: (1) the needs of emerging industry, (2) a broad consensus among the various social groups on a set of shared values, and (3) above all, "the release of individual creative human energy."
362. Id. at 5. These economic and social factors shaped private law, and tort law in particular, in the sense that they exerted "pressure" on law. Hurst assumed a complex notion of historical causation and distinguished between three types of such "pressure": focused pressure, functional pressure, and inertia.
363. See id. Friedman provides a more deterministic and materialist account of the development of nineteenthcentury tort law. See LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW (1973). The contours of American nineteenth-century tort law, Friedman argues, are "molded by economy and society," by the interplay of plural pressure groups motivated primarily by economic interests - an interplay where the capitalist-entrepreneurs are the winning group.
364. See id. at 350. However, the most well-known and controversial formulation of the thesis is due to Horwitz, who argued that ta the nineteenth century, courts working ta concert with big economic interests effected a revolution in tort law, that from strict liability to negligence, promoted industrialization by exempting corporate enterprises from liability for the harm caused by their activity.
365. See HORWITZ, supra note 45. This doctrinal shift translated into a subsidy to the entrepreneurial class, coerced from the very victims of industrialization.
366. Id. 239. HORWITZ, supra note 45.
367. See Gary T. Schwartz, Tort Law and the Economy in Nineteenth-Century America: A Reinterpretation, 90 YALE LJ. 1717,1719-1720 (1981)
368. Others have placed emphasis on other factors, such as the litigation costs, that, along with the judiciary's ideology and its conscious objectives in shaping tort doctrine, explain tort law's weak response to industrial pollution at the moment of industrialization. See generally Keith N. Hylton, Litigation Costs and the Economic Theory of Tort Law, 46 U. MIAMI L. REV. HI (1991); McLaren, supra note 221.
369. Schwartz, supra note 240, at 1720.
370. Christine Rosen, Differing Perceptions of the Value of Pollution Abatement Across Time and Place: Balancing Doctrine in Pollution Nuisance Law, 1840-1906, 11 LAW A HIST. REV. 303, 313-14 (1993). 244.
371. Id. at 318-320
372. -6 A. 453 (Pa. 1886). For an extensive discussion of the Sanderson case, see Bone, supra note 22, at 1160-1170
373. Sanderson, 6 A. at 454.
374. Id. at 464-465
375. Id. at 456.
376. Id.
377. Id. at 457.
378. Id. at 455. Similarly, in the Huckenstine's Appeal, 70 Pa. 102, 108 (1872), the court reversed the decision of the lower court, which had issued an injunction preventing the defendant from burning bricks, thereby causing injury and annoyance to the plaintiff. The defendant's use of his land, the court asserted, was a reasonable one, the land having upon it a deposit of fine brick clay which could be made into bricks for profit if this was done near the pit form which the clay was taken.
379. Id. at 106. In Doellner v. Tynan, 38 How. Pr. 176, at *4 (N.Y. Sup. Q. 1869), the court found that the defendant exercised his business of blacksmithtag reasonably and refused to grant an injunction. Quoting an earlier English case, the court noted that an action "does not lie for a reasonable use of my right, though it be of annoyance of another."
380. Id. The court dismissed the plaintiffs' injury as mere annoyance and noted the usefulness of the blacksmith trade in urban life.
381. Id. at *6. In Rhodes v. Dunbar, 57 Pa. 274, 285, 289 (1868), the defendants owned a mill that produced shavings, chips, and saw dust. The material used in it was highly flammable, rendering it dangerous to buildings ta the vicinity.
382. Id. In May 1866 the mill burned, injuring many houses in the neighborhood. Id. The plaintiffs sought to prevent the defendants from rebuilding the mill.
383. Id. Chief Justice Thompson conceded that the species of property in question was extra-hazardous, but claimed that if carried on reasonably, the business could not be a nuisance.
384. Id. Justice Thompson discussed at length the benefits and the problems of modern urban life.
385. Id.
386. -22 A. 649,650 (Pa. 1891).
387. Id.
388. Id. at 650-651
389. Id. at 651.
390. Id. at 653.
391. PROSSER, supra note 86, at 927.
392. -132 N. W. 371,374 (Iowa 1911).
393. Id. at 372.
394. Id.
395. Id.
396. Id. at 374.
397. Id. at 372.
398. Id.
399. Note, supra note 83, at 1511.
400. See id.
401. ; see also Jones v. Leslie, 112 P. 81,84 (Wash. 1910);
402. Huskie v. Griffin, 74 A. 595 (N.H. 1909).
403. -112 P. at 84.
404. Id. at 82.
405. -74 A. 595.
406. Id. at 596-597
407. Id. at 598 ("One may not interfere with his neighbor's open market or 'reasonable expectancies' solely for the purpose of doing harm. It has been said, however, in several cases that a wrongful motive cannot convert a legal act into an illegal one, and many judges have thought this was the end of the law upon the question. They seem to proceed upon a theory of absolute right in the defendant. [The right] is a qualified one, and the rightfulness of its exercise depends upon all those elements which go to make up a cause for human action. The reasonableness of the act cannot always be satisfactorily determined until something is known of the state of the actor's mind. The 'justification may be found sometimes in the circumstances under which it is done, irrespective of motive, sometimes in the motive alone, and sometimes in the circumstances and motive combined.'" (
408. quoting Plant v. Woods, 57 N.E. 1011, 1014 (Mass. 1900)).
409. See generally DANIEL R. ERNST, LAWYERS AGAINST LABOR: FROM INDIVIDUAL RIGHTS TO CORPORATE LIBERALISM (1995);
410. WILLIAM E. FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT (President & FeUows of Harvard Coll. 1991) (1989).
411. FORBATH, supra note 272.
412. Hurvitz, supra note 122, at 331-333
413. -275- Id.
414. Ellen M. Kelman, American Labor Law and Legal Formalism: How Legal Logic Shaped and Vitiated the Righu of American Workers, 58 ST. JOHN'S L. REV, 1, 32 (1983).
415. Id.
416. -107 Mass. 555(1871).
417. Id. at 556-557
418. Id. at 557.
419. See id. at 564.
420. See id. at 559.
421. Id. at 564.
422. -44 N.E. 1077, 1077 (Mass. 1896) (finding defendants interfered with right to "engage all persons who are willtag to work for him, at such prices as may be mutually agreed upon" and with the other actual or prospective employees' right to "enter into or remain in the employment of any person or corporation willing to employ them").
423. Id.
424. Id. 287. Id. at 1078.
425. This was later held to be free speech. See Thornhill v. Alabama, 310 U.S. 88, 101-103 (1940).
426. Vegelahn, 44 N.E. at 1077-1078
427. See id. at 1081-1083 (Holmes, J., dissenting).
428. Id.
429. Id. at 1081.
430. -10 Ohio Dec. Reprint 665,673 (1889).
431. Id.
432. See, e.g., ERNST, supra note 272.
433. See, e.g., GARY MINDA, BOYCOTT IN AMERICA: HOW IMAGINATION AND IDEOLOGY SHAPE THE LEGAL MIND (1999).
434. -8 A. 890,894 (Conn. 1887).
435. Moores & Co., Ohio Dec. Reprint at 675 (quoting Crump v. Commonwealth, 6 S.E. 620 (Va. 1888)).
436. See Bone, supra note 22.
437. Ames, supra note 72, at 417.
438. F. P. Walton, Motive as an Element of Torts in the Civil Law and in the Common Law, 22 HARV. L. REV. 501,502 (1909).
439. TAGGART, supra note 38, at 167;
440. see RICHARD A. COSGROVE, OUR LADY THE COMMON LAW: AN ANGLO-AMERICAN LEGAL COMMUNITY, 1870-1930 (1987). The formation of a community dedicated to the celebration of the common law for its unifying force dated from about 1870, reached a zenith of influence in the years before World War I, and then declined until about 1930, when it ceased to attract loyalty on either side of the Atlantic.
441. See id.; TAGGART, supra note 38.
442. Henry T. Terry, Malicious Torts, 20 LAW Q. REV. 10 (1904).
443. Id. at 10-12.
444. Id. at 10.
445. Id. at 11.
446. Id. at 11-12.
447. Id. at 12.
448. Id. at 12-13.
449. Id.
450. Id. at 13-14.
451. Id. at 14-15.
452. Id. at 15.
453. Id. at 20.
454. See id. at 23-24.
455. Id. at 24.
456. Id. at 26.
457. OUver WendeU Holmes, Jr., Privilege, Malice, and Intent, 8 HARV. L. REV. I (1894).
458. Id. at 3.
459. Id.
460. Oliver Wendell Holmes, Jr., The Theory of Torts, 7 AM. L. REV. 652 (1873) [hereinafter Holmes, Theory of Torts];
461. see OLIVER WENDELL HOLMES, JR., THE COMMON LAW 77-163 (Boston, Little, Brown & Co. 1881) [hereinafter HOLMES, COMMON LAW].
462. Holmes, Theory of Torts, supra note 320, at 652-655
463. Id. at 654.
464. Id. at 653.
465. HOLMES, COMMON LAW, supra note 320, at 144-145
466. Id. at 145.
467. FREDERICK POLLOCK, THE LAW OF TORTS, at vii (1887).
468. Id. at 7-17.
469. See id. at 21-46, 129-138
470. Id. at 130.
471. Id. at 21-46, 129-138
472. See Holmes, supra note 318.
473. Id. at 4-5.
474. Id. at 3.
475. Id.
476. See id. at 5-7.
477. Id. at 3.
478. -44 N.E. 1077, 1080 (Mass. 1896) (Holmes, J., dissenting).
479. Id.
480. -339- Id.
481. This organicist and policy-oriented mode of reasoning was proudly championed as a peculiarly American trait, distinguishing American jurists and judges from their English counterparts. In a 1910 article on the influence of social and economic ideals on the law of malicious torts, Gordon Stoner effectively contrasted the social organicism of American judicial reasoning with the formalistic approach of the English courts.
482. See Gordon Stoner, Influence of Social and Economic Ideals on the Law of Malicious Torts, 8 MICH. L. REV. 468 (1910).
483. The questions raised by malice and abuse of rights signal the need for a law organicaUy reflecting evolving ethical, social, and economic ideals. Judges are called to adjust the pace of legal change to that of social and economic evolution. American judges, Stoner noted, were best equipped for this daunting task.
484. Id. at 469.
485. See id. at 478.
486. -(citing Tuttle v. Buck, 119 N.W. 946, 947 (Minn. 1909)). American courts, Stoner suggested, aimed to adapt to social needs rather than uniformity and consistency. See id. 470. Their reasoning techniques and their familiarity with policy questions enable them to facilitate law's constant adaptation to changing conditions. Id.
487. Terry, supra note 303, at 26.
488. Holmes, supra note 318.
489. Duncan Kennedy & Marie Claire Belleau, Le place de René Demogue dans la généalogie depensée juridique contemporaine, 56 REVUE INTERDICIPUNATRE D'ÉTUDES JURIDIQUES 163 (2006).
490. Holmes, supra note 318, at 6.
491. See 44 N.E. 1077, 1081 (Mass. 1896) (Holmes, J., dissenting).
492. Jeremiah Smith, Crucial Issues in Labor Litigation l., 20 HARV. L. REV. 253 (1907).
493. It is impossible to have any clear discussion of the crucial labor cases, he contended, unless "we either discard certain ambiguous expressions altogether or distinctly indicate the meaning intended to be affixed to them."
494. Id. at 255.
495. Seeking to bring clarity, he distinguished between "intent" and "motive": The former describes the defendant's immediate intent, the latter denotes the defendant's ulterior intent.
496. Id. at 256-57.
497. While intent is often material to the question of the defendant's liability, "the cases where motive is material are comparatively rare."
498. Id. at 259.
499. Smith quotes Ames's articulation of the doctrine of intentional tort as an accurate representation of the law: In Ames's words, "The willful causing of damage to another by a positive act, whether by one man alone, or by several acting in concert, and whether by direct action against him or indirectly by inducing a third person to exercise a lawful right, is a tort unless there was cause for inflicting the damage;..."
500. Id. at 263
501. -(alteration in original) (quoting Ames, supra note 72, at 412).
502. Smith, Crucial Issues II, supra note 131, at 361-362
503. Id. at 361.
504. Id.
505. Id.
506. Id. at 361-362
507. Id. at 362.
508. Stoner, supra note 340, at 479.
509. Id. at 475-77. 355. Id.
510. Id. at 479-480
511. Id. at 480.
512. See id.
513. Wm. Draper Lewis, The Closed Market, the Union Shop, and the Common Law, 18 HARV. L. REV. 444, 447 (1905).
514. Bruce Wyman, The Maintenance of the Open Shop, 17 GREEN BAG 21, 21 (1905).
515. Id.
516. Id. at 25.
517. Wyman, supra note 21, at 221.
518. See, e.g., UNGER, supra note 10.
519. Cf. Waldron, supra note 10, at 510 (finding "unconvincing Unger's description of the way legal analysis can become a catalyst for change of the institutional imagination of society").
520. The "un-making" of private law is described by Jay M. Feinman, Un-Making Law: The Classical Revival in the Common Law, 28 SEATTLE U. L. REV. 1 (2004).
521. On the developments of twentieth-century private law, see Daniela Caruso, Private Law and State-Making in the Age of Globalization, N.Y.U. J. INT'L L. & POL. (2006);
522. Daniela Caruso, The Musing View of the Cathedral: The Private Law Paradigm of European Legal Integration, 3 EUR. LJ. 3 (1997);
523. Christian Joerges, The Impact of European Integration on Private Law: Reductionist Perceptions, True Conflicts and a New Constitutionalist Perspective 3 EUR. LJ. 378 (1997);
524. Peer Zumbansen, Semantics of European Law, 5 EUR. LJ. 114 (1999);
525. and Peer Zumbansen, The Law of Society: Governance Through Contract, 14 IND. J. GLOBAL LEGAL STUD. 191 (2007).
526. See Yochai Benkler, Freedom in the Commons: Towards a Political Economy of Information, 52 DUKE L.J. 1245 (2003);
527. James Boyle, The New Enclosure Movement and the Construction of the Public Domain, 66 LAW & CONTEMP. PROBS. 33 (2003);
528. Jedediah Purdy, A Freedom-Promoting Approach to Property: A Renewed Tradition for New Debates, 72 U. CHI. L. REV. 1237 (2005); UNGER, supra note 10.
529. Purdy, supra note 368, at 1238-1241