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Volumn 88, Issue 5, 2010, Pages 917-986

Torts as wrongs

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EID: 78649266067     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article
Times cited : (190)

References (402)
  • 1
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    • E.g., United States v. Carroll Towing Co., 2d Cir
    • E.g., United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947);
    • (1947) F.2d , vol.159 , pp. 169
  • 2
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    • Sindell v. Abbott Labs, Cal
    • Sindell v. Abbott Labs, 607 P.2d 924 (Cal. 1980);
    • (1980) P.2d , vol.607 , pp. 924
  • 3
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    • Dillon v. Legg, Cal
    • Dillon v. Legg, 441 P.2d 912 (Cal. 1968);
    • (1968) P.2d , vol.441 , pp. 912
  • 4
    • 84883716932 scopus 로고
    • Summers v. Tice, Cal
    • Summers v. Tice, 199 P.2d 1 (Cal. 1948);
    • (1948) P.2d , vol.199 , pp. 1
  • 5
    • 84859624403 scopus 로고
    • Escola v. Coca Cola Bottling Co., Cal
    • Escola v. Coca Cola Bottling Co., 150 P.2d 436 (Cal. 1944);
    • (1944) P.2d , vol.150 , pp. 436
  • 6
    • 78649363972 scopus 로고
    • Brown v. Kendall, 6 Cush.
    • Brown v. Kendall, 60 Mass. (6 Cush.) 292 (1850);
    • (1850) Mass , vol.60 , pp. 292
  • 7
    • 77952402508 scopus 로고
    • Palsgraf v. Long Island R. R., N. Y
    • Palsgraf v. Long Island R. R., 162 N. E. 99 (N. Y. 1928);
    • (1928) N. E. , vol.162 , pp. 99
  • 8
    • 84897875821 scopus 로고
    • Rylands v. Fletcher, appeal taken from Eng. U. K.
    • Rylands v. Fletcher, (1868) 3 L. R. E. & I. App. 330 (appeal taken from Eng.) (U. K.).
    • (1868) L. R. E. & I. App. , vol.3 , pp. 330
  • 9
    • 78649337780 scopus 로고
    • E.g., Garrat v. Dailey, Wash, Vosburg v. Putney, N. W. 403, Wis
    • E.g., Garrat v. Dailey, 279 P.2d 1091 (Wash. 1955); Vosburg v. Putney, 50 N. W. 403 (Wis. 1891).
    • (1891) P.2d , vol.50-279 , pp. 1091
  • 10
    • 84869453931 scopus 로고
    • See, e.g., Boomer v. Atl. Cement Co., N. Y, inviting discussion of when entitlements should be protected by injunction rather than liability
    • See, e.g., Boomer v. Atl. Cement Co., 257 N. E.2d 870 (N. Y. 1970) (inviting discussion of when entitlements should be protected by injunction rather than liability);
    • (1970) N. E.2d , vol.257 , pp. 870
  • 11
    • 33846809763 scopus 로고
    • see also Vincent v. Lake Erie Transp. Co., 221-22 Minn, raising the issues of whether and why it might be just or efficient to impose liability for injurious acts taken out of "necessity"
    • see also Vincent v. Lake Erie Transp. Co., 124 N. W. 221, 221-22 (Minn. 1910) (raising the issues of whether and why it might be just or efficient to impose liability for injurious acts taken out of "necessity").
    • (1910) N. W. , vol.124 , pp. 221
  • 12
    • 78649387746 scopus 로고    scopus 로고
    • noun "tort" means "wrong." See, 9th ed, defining "tort" as a civil wrong, other than breach of contract, for which a remedy may be obtained
    • The noun "tort" means "wrong." See BLACK'S LAW DICTIONARY 1626 (9th ed. 2009) (defining "tort" as a civil wrong, other than breach of contract, for which a remedy may be obtained).
    • (2009) Black's Law Dictionary , pp. 1626
  • 13
    • 78649368172 scopus 로고    scopus 로고
    • *2 describing "private wrongs" as "an infringement or privation of the private or civil rights belonging to individuals"
    • *2 (describing "private wrongs" as "an infringement or privation of the private or civil rights belonging to individuals");
    • , vol.3
    • William, B.1
  • 14
    • 78649374714 scopus 로고    scopus 로고
    • id, treating causes of action for infringing the rights of persons or property as articulating private wrongs for which the law provides a remedy to victims
    • *115-19 (treating causes of action for infringing the rights of persons or property as articulating private wrongs for which the law provides a remedy to victims).
  • 15
    • 33947428007 scopus 로고
    • See MacPherson v. Buick Motor Co., 1053 N. Y, observing that the duties recognized by negligence laws are duties of conduct grounded in law rather than defined by agreement
    • See MacPherson v. Buick Motor Co., 111 N. E. 1050, 1053 (N. Y. 1915) (observing that the duties recognized by negligence laws are duties of conduct grounded in law rather than defined by agreement).
    • (1915) N. E. , vol.111 , pp. 1050
  • 16
    • 77952402508 scopus 로고
    • See, e.g., Palsgraf v. Long Island R. R., 101 N. Y, "Negligence, like risk, is thus a term of relation. Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all. Negligence is not a tort unless it results in the commission of a wrong, and the commission of a wrong imports the violation of a right...."
    • See, e.g., Palsgraf v. Long Island R. R., 162 N. E. 99, 101 (N. Y. 1928) ("Negligence, like risk, is thus a term of relation. Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all. Negligence is not a tort unless it results in the commission of a wrong, and the commission of a wrong imports the violation of a right....").
    • (1928) N. E. , vol.162 , pp. 99
  • 17
    • 0032350230 scopus 로고    scopus 로고
    • Rights, wrongs, and recourse in the law of torts
    • See, 85, explaining the centrality to tort of the private right of action
    • See Benjamin C. Zipursky, Rights, Wrongs, and Recourse in the Law of Torts, 51 VAND. L. REV. 1, 85 (1998) (explaining the centrality to tort of the private right of action).
    • (1998) Vand. L. Rev. , vol.51 , pp. 1
    • Zipursky, B.C.1
  • 18
    • 78649363497 scopus 로고    scopus 로고
    • Needless to say, the wrongs of tort include negligence and other wrongs that can be committed unintentionally. Restatement Third of Torts: Liab. for Physical & Emotional Harm §§ 3, 20-23 Proposed Final Draft No. 1, 2005. In this sense, accidents are central to tort law-not because tort is a law of accidents, but because many instances of accidental injury constitute wrongs for which victims are entitled to redress
    • Needless to say, the wrongs of tort include negligence and other wrongs that can be committed unintentionally. Restatement (Third) of Torts: Liab. for Physical & Emotional Harm §§ 3, 20-23 (Proposed Final Draft No. 1, 2005). In this sense, accidents are central to tort law-not because tort is a law of accidents, but because many instances of accidental injury constitute wrongs for which victims are entitled to redress.
  • 19
    • 78649377045 scopus 로고    scopus 로고
    • section of the American Association of Law Schools devoted to tort law, established in 1972, is titled the "Section on Torts and Compensation Systems." See generally The Association of American Law Schools, Section on Torts and Compensation Systems, https://memberaccess.aals.org/eWeb/dynamicpage. aspx?webcode=ChpDetail
    • The section of the American Association of Law Schools devoted to tort law, established in 1972, is titled the "Section on Torts and Compensation Systems." See generally The Association of American Law Schools, Section on Torts and Compensation Systems, https://memberaccess.aals.org/eWeb/dynamicpage. aspx?webcode=ChpDetail.
  • 20
    • 78649385189 scopus 로고    scopus 로고
    • See infra Part III
    • See infra Part III.
  • 22
    • 78649370713 scopus 로고
    • see also, e.g., §, "'Tort' is a term applied to a miscellaneous... group of civil wrongs... for which a court of law will afford a remedy in the form of an action for damages."
    • see also, e.g., WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS § 1, at 1 (1941) ("'Tort' is a term applied to a miscellaneous... group of civil wrongs... for which a court of law will afford a remedy in the form of an action for damages.").
    • (1941) Handbook of the Law of Torts , vol.1 , pp. 1
    • William, L.P.1
  • 23
    • 78649375583 scopus 로고    scopus 로고
    • See, e.g., Prosser, supra note 12, § 1, at 3-4 recognizing the great difficulties scholars have faced in trying to give a coherent definition of the field of tort law
    • See, e.g., Prosser, supra note 12, § 1, at 3-4 (recognizing the great difficulties scholars have faced in trying to give a coherent definition of the field of tort law).
  • 24
    • 78649352957 scopus 로고    scopus 로고
    • See, eg., id. § 1, at 8 "Enough has been said to indicate that definition or description of a tort in terms of generalities distinguishing it from other branches of the law is difficult, or impossible. It is somewhat easier to consider the function and purpose of the law of torts."
    • See, eg., id. § 1, at 8 ("Enough has been said to indicate that definition or description of a tort in terms of generalities distinguishing it from other branches of the law is difficult, or impossible. It is somewhat easier to consider the function and purpose of the law of torts.").
  • 25
    • 0345818682 scopus 로고    scopus 로고
    • Accidental torts
    • See, e.g., 1256, describing Holmes's early writings as the "first serious attempt in the common law world to give torts both a coherent structure and a distinctive substantive domain"
    • See, e.g., Thomas C. Grey, Accidental Torts, 54 VAND. L. REV. 1225, 1256 (2001) (describing Holmes's early writings as the "first serious attempt in the common law world to give torts both a coherent structure and a distinctive substantive domain").
    • (2001) Vand. L. Rev. , vol.54 , pp. 1225
    • Grey, T.C.1
  • 26
    • 78649337775 scopus 로고    scopus 로고
    • See, e.g., id, "Holmes's approach centered tort doctrine around... accidental personal injuries."
    • See, e.g., id. at 1282 ("[Holmes's] approach centered tort doctrine around... accidental personal injuries.").
  • 27
    • 78649343467 scopus 로고
    • See, Mark DeWolfe Howe ed., Harv. Univ. Press, arguing that the law "is continually transmuting... moral standards into external or objective ones"
    • See OLIVER WENDELL HOLMES, JR., THE COMMON LAW 33 (Mark DeWolfe Howe ed., Harv. Univ. Press 1963) (1881) (arguing that the law "is continually transmuting... moral standards into external or objective ones").
    • (1881) The Common Law , vol.33
    • Holmes Jr., O.W.1
  • 28
    • 78649383649 scopus 로고    scopus 로고
    • Id
    • Id. at 65.
  • 29
    • 78649355379 scopus 로고    scopus 로고
    • See id. noting that trespass "affords a fair field for a discussion of the general principles of liability for unintentional wrongs"
    • See id. (noting that trespass "affords a fair field for a discussion of the general principles of liability for unintentional wrongs").
  • 30
    • 78649377604 scopus 로고    scopus 로고
    • See id. stating that the historically more popular view of liability was that "a man is answerable for all the consequences of his acts"
    • See id. (stating that the historically more popular view of liability was that "a man is answerable for all the consequences of his acts").
  • 31
    • 78649378472 scopus 로고    scopus 로고
    • Id
    • Id. at 65-66.
  • 32
    • 78649346307 scopus 로고    scopus 로고
    • See id, arguing that the general principle of the common law is that losses from genuine accidents lie where they fall. Here we reject David Rosenberg's provocative argument that Holmes sought only to resist "absolute" forms of strict liability but endorsed strict liability for acts causing losses that could have been foreseen and thus avoided
    • See id. at 76 (arguing that the general principle of the common law is that losses from genuine accidents lie where they fall). Here we reject David Rosenberg's provocative argument that Holmes sought only to resist "absolute" forms of strict liability but endorsed strict liability for acts causing losses that could have been foreseen and thus avoided.
  • 33
    • 78649392180 scopus 로고
    • See, concluding that Holmes's "theory held that rules of strict liability qualified by a foresight condition. were just and rational". Holmes did believe that the propriety of imposing liability in tort turns on the foreseeability and the avoidability of the plaintiff's loss
    • See DAVID ROSENBER, THE HIDDEN HOLMES: HIS THEORY OF TORTS IN HISTORY 5-6 (1995) (concluding that Holmes's "theory held that rules of strict liability qualified by a foresight condition... were just and rational"). Holmes did believe that the propriety of imposing liability in tort turns on the foreseeability and the avoidability of the plaintiff's loss.
    • (1995) The Hidden Holmes: His Theory of Torts in History , pp. 5-6
    • David, R.1
  • 34
    • 78649340309 scopus 로고    scopus 로고
    • See HOLMES, supra note 17, at 45-46 "There must be actual present knowledge of the present facts which make an act dangerous. and the act must be made with a chance of contemplating the consequence complained of....". Rosenberg is mistaken, however, to suppose that these aspects of Holmes's theory stood apart from his commitment to the idea that tort liability turns on a failure of the defendant to meet the law's standard for prudent conduct
    • See HOLMES, supra note 17, at 45-46 ("[T]here must be actual present knowledge of the present facts which make an act dangerous... [and the act] must be made with a chance of contemplating the consequence complained of...."). Rosenberg is mistaken, however, to suppose that these aspects of Holmes's theory stood apart from his commitment to the idea that tort liability turns on a failure of the defendant to meet the law's standard for prudent conduct.
  • 35
    • 78649389220 scopus 로고    scopus 로고
    • See, e.g., Holmes, supra note 17, at 97 endorsing a nonsuit granted in a slip-and-fall case on the ground that the defendant "had done all that it was bound to do in maintaining its staircase"
    • See, e.g., Holmes, supra note 17, at 97 (endorsing a nonsuit granted in a slip-and-fall case on the ground that the defendant "had done all that it was bound to do in maintaining [its] staircase").
  • 36
    • 78649340923 scopus 로고    scopus 로고
    • See Holmes, supra note 17, at 88 "What the law really forbids, and the only thing it forbids, is the act on the wrong side of the line, be that act blameworthy or otherwise."
    • See Holmes, supra note 17, at 88 ("What the law really forbids, and the only thing it forbids, is the act on the wrong side of the line, be that act blameworthy or otherwise.").
  • 37
    • 78649362919 scopus 로고    scopus 로고
    • Holmes next addressed torts such as deceit, which seem not to be about accidents, and to be all about "actual wickedness."
    • Holmes next addressed torts such as deceit, which seem not to be about accidents, and to be all about "actual wickedness."
  • 38
    • 78649353237 scopus 로고    scopus 로고
    • Id, Retracing Lecture I's argument for a de-moralized understanding of criminal law, he again insisted that appearances are misleading and that the default rule of tort liability is action causing harm under circumstances that would alert an ordinary person to the risk of harm, in turn permitting him to avoid causing harm through the exercise of prudence
    • Id. at 104. Retracing Lecture I's argument for a de-moralized understanding of criminal law, he again insisted that appearances are misleading and that the default rule of tort liability is action causing harm under circumstances that would alert an ordinary person to the risk of harm, in turn permitting him to avoid causing harm through the exercise of prudence.
  • 39
    • 78649363189 scopus 로고    scopus 로고
    • Id, For example, liability for deceit rests on the defendant's having uttered a statement in circumstances in which there was a foreseeable likelihood that it might prove to be false and might induce someone to rely on it to his detriment
    • Id. at 104-05. For example, liability for deceit rests on the defendant's having uttered a statement in circumstances in which there was a foreseeable likelihood that it might prove to be false and might induce someone to rely on it to his detriment.
  • 40
    • 78649359606 scopus 로고    scopus 로고
    • Id
    • Id. at 109.
  • 41
    • 78649351501 scopus 로고    scopus 로고
    • Grey, supra note 15, at 1232
    • Grey, supra note 15, at 1232.
  • 42
    • 78649350645 scopus 로고    scopus 로고
    • Holmes, supra note 17, at 64
    • Holmes, supra note 17, at 64;
  • 43
    • 78649356575 scopus 로고
    • see also Commonwealth v. Pierce, 176, characterizing civil liability for negligence as "the redistribution of losses" and contrasting it with criminal law, which sets limits on conduct "in the interest of the safety of all"
    • see also Commonwealth v. Pierce, 138 Mass. 165, 176 (1884) (Holmes, J.) (characterizing civil liability for negligence as "the redistribution of losses" and contrasting it with criminal law, which sets limits on conduct "in the interest of the safety of all").
    • (1884) Mass , vol.138 , pp. 165
    • Holmes, J.1
  • 44
    • 78649388013 scopus 로고    scopus 로고
    • See Holmes, supra note 17, at 115 "The general purpose of the law of torts is to secure a man indemnity against certain forms of harm to person, reputation, or estate, at the hands of his neighbors, not because they are wrong, but because they are harms.... Fault-based liability is intended to reconcile the policy of letting accidents lie where they fall, and the reasonable freedom of others with the protection of the individual from injury.". Of course in Holmes's view, the fact that a particular defendant is incapable of exercising ordinary prudence, and hence incapable of taking advantage of the opportunity provided by the state to avoid liability, is not a ground for excusing him from the duty to indemnify
    • See Holmes, supra note 17, at 115 ("[T]he general purpose of the law of torts is to secure a man indemnity against certain forms of harm to person, reputation, or estate, at the hands of his neighbors, not because they are wrong, but because they are harms.... [Fault-based liability] is intended to reconcile the policy of letting accidents lie where they fall, and the reasonable freedom of others with the protection of the individual from injury."). Of course in Holmes's view, the fact that a particular defendant is incapable of exercising ordinary prudence, and hence incapable of taking advantage of the opportunity provided by the state to avoid liability, is not a ground for excusing him from the duty to indemnify.
  • 45
    • 78649359946 scopus 로고    scopus 로고
    • Id
    • Id.
  • 46
    • 78649351785 scopus 로고    scopus 로고
    • Prosser, supra note 12
    • Prosser, supra note 12.
  • 47
    • 78649389495 scopus 로고    scopus 로고
    • Id. §
    • Id. § 1, at 3.
    • , vol.1 , pp. 3
  • 48
    • 78649354800 scopus 로고    scopus 로고
    • Id
    • Id. at 8.
  • 49
    • 78649373865 scopus 로고    scopus 로고
    • Id
    • Id.
  • 50
    • 78649338915 scopus 로고    scopus 로고
    • Id
    • Id. at 10.
  • 51
    • 78649384892 scopus 로고    scopus 로고
    • Id. §
    • Id. § 2, at 10.
    • , vol.2 , pp. 10
  • 52
    • 78649362300 scopus 로고    scopus 로고
    • Id
    • Id. at 11.
  • 54
    • 78649375860 scopus 로고    scopus 로고
    • Id
    • Id. at 1.
  • 56
    • 78649389798 scopus 로고    scopus 로고
    • Id
    • Id. at 6.
  • 57
    • 78649343469 scopus 로고    scopus 로고
    • Id
    • Id. at 239;
  • 58
    • 78649371885 scopus 로고    scopus 로고
    • see also id, describing negligence law as a scheme for "deciding if compensation should be paid to an innocent accident victim"
    • see also id. at 59 (describing negligence law as a scheme for "decid[ing] if compensation should be paid to an innocent accident victim").
  • 60
    • 78649352662 scopus 로고    scopus 로고
    • See id, asserting that the "the fault system" is properly assessed in terms of how well it performs as a scheme for minimizing the costs of accidents
    • See id. at 239 (asserting that the "the fault system" is properly assessed in terms of how well it performs as a scheme for minimizing the costs of accidents).
  • 61
    • 78649377328 scopus 로고    scopus 로고
    • For one thing, it asks lay jurors to focus on highly particularized facts rather than conditions that generally obtain and to decide where liability should fall within an artificially constrained universe of potential loss-bearers
    • For one thing, it asks lay jurors to focus on highly particularized facts rather than conditions that generally obtain and to decide where liability should fall within an artificially constrained universe of potential loss-bearers.
  • 62
    • 78649342103 scopus 로고    scopus 로고
    • Id, Worse, it shifts back and forth between the goals of deterrence and loss spreading in a way that undermines its ability to achieve either, while also generating large administrative costs
    • Id. at 246-49. Worse, it shifts back and forth between the goals of deterrence and loss spreading in a way that undermines its ability to achieve either, while also generating large administrative costs.
  • 63
    • 78649344987 scopus 로고    scopus 로고
    • Id
    • Id. at 274-77.
  • 64
    • 78649381560 scopus 로고    scopus 로고
    • See id, suggesting that accident costs can be reduced by assigning costs to those that can avoid accidents most cheaply
    • See id. at 312 (suggesting that accident costs can be reduced by assigning costs to those that can avoid accidents most cheaply).
  • 65
    • 0348198479 scopus 로고    scopus 로고
    • Misconduct, misfortune, and justice compensation: Weinstein on torts
    • See, Comment, 2045-47, 1997, summarizing James's view that tort law has come primarily to serve an insurance function
    • See John C. P. Goldberg, Comment, Misconduct, Misfortune, and Justice Compensation: Weinstein on Torts, 97 COLUM. L. REV. 2034, 2045-47 (1997) (summarizing James's view that tort law has come primarily to serve an insurance function).
    • Colum. L. Rev. , vol.97 , pp. 2034
    • Goldberg, J.C.P.1
  • 66
    • 0011038661 scopus 로고
    • Fairness and utility in tort theory
    • George P. Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV. 537 (1972).
    • (1972) Harv. L. Rev. , vol.85 , pp. 537
    • Fletcher, G.P.1
  • 67
    • 78649373579 scopus 로고    scopus 로고
    • See id, "All individuals in society have the right to roughly the same degree of risk."
    • See id. at 550 ("All individuals in society have the right to roughly the same degree of risk.").
  • 68
    • 78649343468 scopus 로고    scopus 로고
    • See id, arguing that fairness requires the imposition of strict liability for activities that impose nonreciprocal risks of loss
    • See id. at 544-49 (arguing that fairness requires the imposition of strict liability for activities that impose nonreciprocal risks of loss).
  • 70
    • 78649376125 scopus 로고    scopus 로고
    • See id, "There are two essential components in the concept of corrective justice... wrongfulness and responsibility."
    • See id. at 329 ("There are two essential components in the concept of corrective justice... wrongfulness and responsibility.").
  • 71
    • 0037568915 scopus 로고    scopus 로고
    • See, e.g., explaining the concept of fault by examining the "fair" allocation of risk
    • See, e.g., ARTHUR RIPSTEIN, EQUALITY, RESPONSIBILITY, AND THE LAW 48-58 (1999) (explaining the concept of fault by examining the "fair" allocation of risk);
    • (1999) Equality, Responsibility, and the Law , pp. 48-58
    • Arthur, R.1
  • 72
    • 0011538305 scopus 로고
    • A theory of strict liability
    • 151, attempting to reconcile tort theory with "common sense notions of individual responsibility" by exploring concepts of causation
    • Richard A. Epstein, A Theory of Strict Liability, 2 J. LEGAL STUD. 151, 151 (1973) (attempting to reconcile tort theory with "common sense notions of individual responsibility" by exploring concepts of causation);
    • (1973) J. Legal Stud. , vol.2 , pp. 151
    • Epstein, R.A.1
  • 73
    • 21144478652 scopus 로고
    • The moral foundations of tort law
    • 450, identifying outcome-responsibility and fault as the conditions set by tort law for the recognition of a duty of repair
    • Stephen R. Perry, The Moral Foundations of Tort Law, 77 IOWA L. REV. 449, 450 (1992) (identifying outcome-responsibility and fault as the conditions set by tort law for the recognition of a duty of repair).
    • (1992) Iowa L. Rev. , vol.77 , pp. 449
    • Perry, S.R.1
  • 74
    • 0004106103 scopus 로고
    • See, claiming that a tortious act is "an act of wrongdoing"
    • See ERNEST J. WEINRIB, THE IDEA OF PRIVATE LAW 134-35 (1995) (claiming that a tortious act is "an act of wrongdoing").
    • (1995) The Idea of Private Law , pp. 134-135
    • Ernest, J.W.1
  • 75
    • 78649373866 scopus 로고    scopus 로고
    • See Coleman, supra note 48, at 330-32 arguing that tort law is concerned to correct wrongful losses, not wrongs per se
    • See Coleman, supra note 48, at 330-32 (arguing that tort law is concerned to correct wrongful losses, not wrongs per se).
  • 76
    • 78649389499 scopus 로고    scopus 로고
    • See id, distinguishing risk allocation by tort law and punishment by criminal law
    • See id. at 222-24 (distinguishing risk allocation by tort law and punishment by criminal law).
  • 77
    • 78649355380 scopus 로고    scopus 로고
    • See id, criticizing "relational" views that treat tort law as responding to wrongs, as opposed to losses
    • See id. at 314-18 (criticizing "relational" views that treat tort law as responding to wrongs, as opposed to losses);
  • 78
    • 78649368731 scopus 로고    scopus 로고
    • Perry, supra note 50, at 486-87 criticizing Weinrib's characterization of torts as wrongs
    • Perry, supra note 50, at 486-87 (criticizing Weinrib's characterization of torts as wrongs).
  • 79
    • 78649382460 scopus 로고    scopus 로고
    • Perry, supra note 50, at 489-96
    • Perry, supra note 50, at 489-96.
  • 80
    • 0011297243 scopus 로고
    • Responsibility and luck
    • See generally, creating the concept
    • See generally Tony Honoré, Responsibility and Luck, 104 L. Q. REV. 530 (1988) (creating the concept).
    • (1988) L. Q. Rev. , vol.104 , pp. 530
    • Honoré, T.1
  • 81
    • 0346352544 scopus 로고    scopus 로고
    • Second thoughts and other first impressions
    • See, in, 302, Brian Bix ed., "Tort law is about messes. A mess has been made, and the only question before the court is, who is to clean it up?"
    • See Jules L. Coleman, Second Thoughts and Other First Impressions, in ANALYZING LAW 257, 302 (Brian Bix ed., 1998) ("Tort law is about messes. A mess has been made, and the only question before the court is, who is to clean it up?").
    • (1998) Analyzing Law , pp. 257
    • Coleman, J.L.1
  • 82
    • 0004082608 scopus 로고
    • See generally, &, arguing that tort law is best understood as a means of inducing cost-effective precaution taking
    • See generally WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW (1987) (arguing that tort law is best understood as a means of inducing cost-effective precaution taking).
    • (1987) The Economic Structure of Tort Law
    • William, M.L.1    Richard, A.P.2
  • 83
    • 78649337778 scopus 로고    scopus 로고
    • See id, arguing that tort law operates to achieve Kaldor-Hicks efficiency
    • See id. at 16-17 (arguing that tort law operates to achieve Kaldor-Hicks efficiency).
  • 84
    • 78649356864 scopus 로고    scopus 로고
    • See id, tracing the roots of positive economic analysis of tort law to the work of Coase and Calabresi, and arguing that judicial decisions in fact impose liability when doing so furthers the goal of efficient deterrence
    • See id. at 6-8 (tracing the roots of positive economic analysis of tort law to the work of Coase and Calabresi, and arguing that judicial decisions in fact impose liability when doing so furthers the goal of efficient deterrence).
  • 85
    • 0010080485 scopus 로고
    • A theory of negligence
    • See, 32, acknowledging that harm caused through negligence arouses indignation
    • See Richard A. Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29, 32 (1972) (acknowledging that harm caused through negligence arouses indignation).
    • (1972) J. Legal Stud. , vol.1 , pp. 29
    • Posner, R.A.1
  • 86
    • 78649339427 scopus 로고    scopus 로고
    • See id, suggesting torts are "wrongs" in the particular sense of being failures to take cost-justified precautions
    • See id. at 31-32 (suggesting torts are "wrongs" in the particular sense of being failures to take cost-justified precautions).
  • 87
    • 78649375292 scopus 로고    scopus 로고
    • Id
    • Id.
  • 88
    • 0042573413 scopus 로고    scopus 로고
    • See, criticizing economic analysis of tort law for its inability to capture adequately the structure of tort law
    • See JULES L. COLEMAN, THE PRACTICE OF PRINCIPLE: IN DEFENCE OF A PRAGMATIST APPROACH TO LEGAL THEORY 13-24 (2001) (criticizing economic analysis of tort law for its inability to capture adequately the structure of tort law);
    • (2001) The Practice of Principle: In Defence of A Pragmatist Approach to Legal Theory , pp. 13-24
    • Jules, L.C.1
  • 89
    • 78649361115 scopus 로고    scopus 로고
    • WEINRIB, supra note 51, at 48 criticizing economic analysis for presuming the plaintiff's suit is "not to secure redress for wrongful injury but to claim a bounty for prosecuting inefficient economic activity"
    • WEINRIB, supra note 51, at 48 (criticizing economic analysis for presuming the plaintiff's suit is "not to secure redress for wrongful injury but to claim a bounty for prosecuting inefficient economic activity").
  • 90
    • 0042692973 scopus 로고    scopus 로고
    • Toward a new history of american accident law: Classical tort law and the cooperative first-party insurance movement
    • See, 694, asserting that the common law of torts expanded in the late nineteenth century as an alternative institutional mechanism for dealing with "an accident crisis like none the world had ever seen", stemming largely from industrial accidents
    • See John Fabian Witt, Toward a New History of American Accident Law: Classical Tort Law and the Cooperative First-Party Insurance Movement, 114 HARV. L. REV. 690, 694 (2001) (asserting that the common law of torts expanded in the late nineteenth century as an alternative institutional mechanism for dealing with "an accident crisis like none the world had ever seen", stemming largely from industrial accidents).
    • (2001) Harv. L. Rev. , vol.114 , pp. 690
    • Witt, J.F.1
  • 91
    • 78649351789 scopus 로고    scopus 로고
    • See, e.g., Landes & Posner, supra note 57, at 2-3 suggesting that tort law was an unimportant field until the rise of litigation over railroad accidents
    • See, e.g., Landes & Posner, supra note 57, at 2-3 (suggesting that tort law was an unimportant field until the rise of litigation over railroad accidents).
  • 92
    • 78649370406 scopus 로고    scopus 로고
    • See supra note 5
    • See supra note 5.
  • 93
    • 77956359455 scopus 로고    scopus 로고
    • Ten half-truths about tort law
    • See, 1237 &, hereinafter Goldberg, Ten Half-Truths noting that early U. S. treatises by Hilliard and Addison defined torts, respectively, as "Private Wrongs" and "Wrongs"
    • See John C. P. Goldberg, Ten Half-Truths About Tort Law, 42 VAL. U. L. REV. 1221, 1237 & n. 40 (2008) [hereinafter Goldberg, Ten Half-Truths] (noting that early U. S. treatises by Hilliard and Addison defined torts, respectively, as "Private Wrongs" and "Wrongs");
    • (2008) Val. U. L. Rev. , vol.42 , Issue.40 , pp. 1221
    • Goldberg, J.C.P.1
  • 94
    • 78649386246 scopus 로고    scopus 로고
    • Two Conceptions of Tort Damages: Fair v. Full Compensation, 444-45, 456-59, hereinafter Goldberg, Two Conceptions discussing the adoption of a Blackstonian view of torts by Nathan Dane, Zephaniah Swift, and Simon Greenleaf
    • John C. P. Goldberg, Two Conceptions of Tort Damages: Fair v. Full Compensation, 55 DEPAUL L. REV. 435, 444-45, 456-59 (2006) [hereinafter Goldberg, Two Conceptions] (discussing the adoption of a Blackstonian view of torts by Nathan Dane, Zephaniah Swift, and Simon Greenleaf).
    • (2006) Depaul L. Rev. , vol.55 , pp. 435
    • Goldberg, J.C.P.1
  • 95
    • 69749104752 scopus 로고    scopus 로고
    • See, arguing that the "rights model" of tort law, which analyzes torts as a "species of wrong", is clearly preferable over the "loss model" for torts actionable per se. Gardner clearly takes wrongs to be central to tort law
    • See ROBERT STEVENS, TORTS AND RIGHTS 2-3 (2007) (arguing that the "rights model" of tort law, which analyzes torts as a "species of wrong", is clearly preferable over the "loss model" for torts actionable per se). Gardner clearly takes wrongs to be central to tort law.
    • (2007) Torts and Rights , pp. 2-3
    • Robert, S.1
  • 96
    • 77956389511 scopus 로고    scopus 로고
    • See, Oxford Legal Stud. Research Paper Series, Paper No. 1, available at, describing tort law as requiring those who commit legal wrongs to pay reparative damages "in respect of" those losses occasioned by their wrongs. Yet he is also inclined to describe tort law as implementing corrective justice and to maintain that corrective justice is a matter of allocation
    • See John Gardner, What Is Tort Law for? Part 1: The Place of Corrective Justice 19 (Oxford Legal Stud. Research Paper Series, Paper No. 1, 2010), available at http://ssrn.com/abstract=1538342 (describing tort law as requiring those who commit legal wrongs to pay reparative damages "in respect of" those losses occasioned by their wrongs). Yet he is also inclined to describe tort law as implementing corrective justice and to maintain that corrective justice is a matter of allocation.
    • (2010) What is Tort Law For? Part 1: The Place of Corrective Justice , vol.19
    • Gardner, J.1
  • 97
    • 78649351496 scopus 로고    scopus 로고
    • Id, Ripstein's book Equality, Responsibility, and the Law is fairly read as being at least equivocal about how central a role losses should play in tort theory, for the concept of risk-ownership carries substantial weight in that work, and it surely resonates deeply with the loss-orientation of Coleman's work from the late 1980s and early to mid-1990s
    • Id. at 59-60. Ripstein's book Equality, Responsibility, and the Law is fairly read as being at least equivocal about how central a role losses should play in tort theory, for the concept of risk-ownership carries substantial weight in that work, and it surely resonates deeply with the loss-orientation of Coleman's work from the late 1980s and early to mid-1990s.
  • 98
    • 78649392178 scopus 로고    scopus 로고
    • Compare Ripstein, supra note 50, at 53-58 discussing how "the person who exposes another to a risk 'owns' the risk, and if the risk ripens into an injury, that person owns the injury"
    • Compare Ripstein, supra note 50, at 53-58 (discussing how "the person who exposes another to a risk 'owns' the risk, and if the risk ripens into an injury, that person owns the injury")
  • 99
    • 78649376127 scopus 로고    scopus 로고
    • with Coleman, supra note 48, at 253 "If a victim can show that her loss is wrongful in the appropriate sense, the burden of making good her loss falls to the individual responsible for it.". However, Ripstein's work over the past several years has become increasingly wrongs based
    • with Coleman, supra note 48, at 253 ("[I]f a victim can show that her loss is wrongful in the appropriate sense, the burden of making good her loss falls to the individual responsible for it."). However, Ripstein's work over the past several years has become increasingly wrongs based.
  • 100
    • 78649903198 scopus 로고
    • As if it had never happened
    • See, 2007, linking legal remedies to wrongs
    • See Arthur Ripstein, As If It Had Never Happened, 48 WM. & MARY L. REV. 1957, 1960 (2007) (linking legal remedies to wrongs).
    • (1957) Wm. & Mary L. Rev. , vol.48
    • Ripstein, A.1
  • 101
    • 34548636226 scopus 로고    scopus 로고
    • A plea against retributivism
    • See, e.g., 87, noting, critically, the renewed emphasis in criminal law theory on retributive rather than therapeutic conceptions of criminal law
    • See, e.g., James Q. Whitman, A Plea Against Retributivism, 7 BVUFF. CRIM. L. REV. 85, 87 (2003) (noting, critically, the renewed emphasis in criminal law theory on retributive rather than therapeutic conceptions of criminal law).
    • (2003) Bvuff. Crim. L. Rev. , vol.7 , pp. 85
    • Whitman, J.Q.1
  • 102
    • 78649379461 scopus 로고
    • See generally, The study "never received the imprimatur of the ALI, and the project was subsequently abandoned by the ALI Council."
    • See generally 1 REPORTERS' STUDY, ENTERPRISE LIABILITY FOR PERSONAL INJURY (1991). The study "never received the imprimatur of the ALI, and the project was subsequently abandoned by the ALI Council."
    • (1991) Reporters' Study, Enterprise Liability For Personal Injury , vol.1
  • 103
    • 78649352660 scopus 로고
    • Comments on the reporters' study of enterprise responsibility for personal injury
    • 241
    • Jerry J. Phillips, Comments on the Reporters' Study of Enterprise Responsibility for Personal Injury, 30 SAN DIEGO L. REV. 241, 241 (1993).
    • (1993) San Diego L. Rev. , vol.30 , pp. 241
    • Phillips, J.J.1
  • 104
    • 78649387745 scopus 로고    scopus 로고
    • See supra notes 45-56 and accompanying text
    • See supra notes 45-56 and accompanying text.
  • 105
    • 0004255702 scopus 로고
    • See generally, Hackett Publ'g Co, defining laws to include only rules passed "by persons exercising supreme and subordinate government" and placing norms set only by public opinion in a separate category of "positive morality"
    • See generally JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 11-13 (Hackett Publ'g Co. 1998) (1832) (defining laws to include only rules passed "by persons exercising supreme and subordinate government" and placing norms set only by public opinion in a separate category of "positive morality").
    • (1832) The Province of Jurisprudence Determined , pp. 11-13
    • John, A.1
  • 106
    • 78649346600 scopus 로고
    • Of course, Austin himself thought that his jurisprudence could account for the common law. See, Robert Campbell ed., 5th ed, "Now when judges transmute a custom into a legal rule or make a legal rule not suggested by custom, the legal rule which they establish is established by the sovereign legislature. A subordinate or subject judge is merely a minister. The portion of the sovereign power which lies at his disposition is merely delegated."
    • Of course, Austin himself thought that his jurisprudence could account for the common law. See 1 JOHN AUSTIN, LECTURES ON JURISPRUDENCE, OR, THE PHILOSOPHY OF POSITIVE LAW 102 (Robert Campbell ed., 5th ed. 1885) ("Now when judges transmute a custom into a legal rule (or make a legal rule not suggested by custom), the legal rule which they establish is established by the sovereign legislature. A subordinate or subject judge is merely a minister. The portion of the sovereign power which lies at his disposition is merely delegated.").
    • (1885) Lectures on Jurisprudence, or, the Philosophy of Positive Law , vol.1 , pp. 102
    • John, A.1
  • 107
    • 38949206324 scopus 로고
    • Vaughan v. Menlove, C. P. U. K.
    • Vaughan v. Menlove, (1837) 132 Eng. Rep. 490 (C. P.) (U. K.).
    • (1837) Eng. Rep. , vol.132 , pp. 490
  • 108
    • 33947428007 scopus 로고
    • MacPherson v. Buick Motor Co., N. Y
    • MacPherson v. Buick Motor Co., 111 N. E. 1050 (N. Y. 1915).
    • (1915) N. E. , vol.111 , pp. 1050
  • 109
    • 78649382753 scopus 로고
    • See, e.g., §, stating that an intentional physical invasion of another's land is a trespass even if made in the reasonably mistaken belief that the land was not owned by the other
    • See, e.g., RESTATEMENT (SECOND) OF TORTS § 164 (1965) (stating that an intentional physical invasion of another's land is a trespass even if made in the reasonably mistaken belief that the land was not owned by the other).
    • (1965) Restatement (Second) of Torts , pp. 164
  • 110
    • 78649352354 scopus 로고    scopus 로고
    • See supra notes 48-52 and accompanying text
    • See supra notes 48-52 and accompanying text.
  • 111
    • 78649362917 scopus 로고    scopus 로고
    • See supra notes 53-54
    • See supra notes 53-54.
  • 112
    • 78649378475 scopus 로고    scopus 로고
    • Coleman, supra note 48, at 325
    • Coleman, supra note 48, at 325.
  • 113
    • 78649359945 scopus 로고    scopus 로고
    • Id
    • Id.
  • 114
    • 78649345382 scopus 로고    scopus 로고
    • See supra text accompanying notes 49-53
    • See supra text accompanying notes 49-53.
  • 115
    • 38849107881 scopus 로고    scopus 로고
    • On the relationship between corrective and distributive justice
    • See, in, Jeremy Horder ed., 4th ed, characterizing corrective justice, which is concerned with the moral duty of repair, as the foundation of tort law
    • See Stephen R. Perry, On the Relationship Between Corrective and Distributive Justice, in OXFORD ESSAYS IN JURISPRUDENCE 237, 237-38 (Jeremy Horder ed., 4th ed. 2000) (characterizing corrective justice, which is concerned with the moral duty of repair, as the foundation of tort law).
    • (2000) Oxford Essays in Jurisprudence , vol.237 , pp. 237-238
    • Perry, S.R.1
  • 116
    • 78649339426 scopus 로고    scopus 로고
    • Id
    • Id. at 479-80.
  • 117
    • 78649388321 scopus 로고    scopus 로고
    • See id, "Weinrib's version of the volitionist argument for fault liability claims that accompanying the primary duty not to act wrongfully... is a secondary duty to compensate for harm that results from one's wrongful conduct."
    • See id. at 479 ("Weinrib's version [of the volitionist argument for fault liability] claims that accompanying the primary duty not to act wrongfully... is a secondary duty to compensate for harm that results from one's wrongful conduct.").
  • 118
    • 78649354378 scopus 로고    scopus 로고
    • Id, 483
    • Id. at 480, 483.
  • 119
    • 78649340926 scopus 로고    scopus 로고
    • Id
    • Id. at 484.
  • 120
    • 0346315693 scopus 로고    scopus 로고
    • Corrective justice in an age of mass torts
    • See, &, in, Gerald J. Postema ed., explaining that a tort plaintiff seeks recourse for the breach of a duty of noninjury
    • See Arthur Ripstein & Benjamin C. Zipursky, Corrective Justice in an Age of Mass Torts, in PHILOSOPHY AND THE LAW OF TORTS 214, 222-23 (Gerald J. Postema ed., 2001) (explaining that a tort plaintiff seeks recourse for the breach of a duty of noninjury).
    • (2001) Philosophy and the Law of Torts , vol.214 , pp. 222-223
    • Ripstein, A.1    Zipursky, B.C.2
  • 121
    • 78649375581 scopus 로고    scopus 로고
    • See, e.g., id, outlining the views of scholars who argue that holding defendants responsible only when they breach a duty of noninjury is morally arbitrary
    • See, e.g., id. at 221-22 (outlining the views of scholars who argue that holding defendants responsible only when they breach a duty of noninjury is morally arbitrary).
  • 122
    • 78649352661 scopus 로고    scopus 로고
    • Such was Holmes's view: All the rules that the law can lay down beforehand are rules for determining the conduct which will be followed by liability if it is followed by harm,-that is, the conduct which a man pursues at his peril.... If he escapes liability, it is simply because by good fortune no harm comes of his conduct in the particular event
    • Such was Holmes's view: All the rules that the law can lay down beforehand are rules for determining the conduct which will be followed by liability if it is followed by harm,-that is, the conduct which a man pursues at his peril.... [I]f he escapes liability, it is simply because by good fortune no harm comes of his conduct in the particular event.
  • 123
    • 78649338920 scopus 로고    scopus 로고
    • Holmes, supra note 17, at 64
    • Holmes, supra note 17, at 64.
  • 124
    • 84925910025 scopus 로고
    • The intellectual origins of torts in America
    • See, 678-83, explaining the factors contributing to the demise of the writ system, including dissatisfaction with its emphasis on remedies and procedure over substantive wrongs
    • See G. EDWARD WHITE, The Intellectual Origins of Torts in America, 86 YALE L. J. 671, 678-83 (1977) (explaining the factors contributing to the demise of the writ system, including dissatisfaction with its emphasis on remedies and procedure over substantive wrongs).
    • (1977) Yale L. J. , vol.86 , pp. 671
    • Edward, G.W.1
  • 125
    • 0004573623 scopus 로고
    • The theory of torts
    • 659
    • OLIVER W. HOLMES, Jr., The Theory of Torts, 7 AM. L. REV. 652, 659 (1873)
    • (1873) Am. L. Rev. , vol.7 , pp. 652
    • Holmes Jr., O.W.1
  • 126
    • 78649356574 scopus 로고
    • reprinted in 1 The Collected Works of Justice Holmes, Sheldon M. Novick ed.
    • reprinted in 1 The Collected Works of Justice Holmes 326, 331 (Sheldon M. Novick ed., 1995).
    • (1995) , vol.326 , pp. 331
  • 128
    • 78649349168 scopus 로고    scopus 로고
    • See id. discussing tort law's "gallery of wrongs"
    • See id. (discussing tort law's "gallery of wrongs").
  • 129
    • 78649370405 scopus 로고    scopus 로고
    • See Keeton et al., supra note 12, § 90, at 643-46 discussing examples of public nuisance and the available remedies
    • See Keeton et al., supra note 12, § 90, at 643-46 (discussing examples of public nuisance and the available remedies).
  • 131
    • 78649365406 scopus 로고    scopus 로고
    • Id. § 281
    • Id. § 281.
  • 134
    • 78649375291 scopus 로고
    • see also id. cmts. j, l citing examples of trespass to land from the
    • see also id. cmts. j, l (citing examples of trespass to land from the 1800s).
    • (1800)
  • 135
    • 78649380099 scopus 로고    scopus 로고
    • Id. §
    • Id. § 222A;
  • 136
    • 78649382153 scopus 로고    scopus 로고
    • see also id. cmt. d, illus. 1 citing case examples of the tort of conversion from the 1800s
    • see also id. cmt. d, illus. 1 (citing case examples of the tort of conversion from the 1800s).
  • 137
    • 78649356569 scopus 로고    scopus 로고
    • Id. §§
    • Id. §§ 217-218;
  • 138
    • 78649342230 scopus 로고    scopus 로고
    • see also id. §, cmts. d, e citing case examples from the 1800s
    • see also id. § 218, cmts. d, e (citing case examples from the 1800s).
  • 140
    • 78649381556 scopus 로고    scopus 로고
    • see also id. cmt. f citing case examples of nuisance from the 1800s
    • see also id. cmt. f (citing case examples of nuisance from the 1800s).
  • 141
    • 78649388317 scopus 로고    scopus 로고
    • See GOLDBERG & ZIPURSKY, supra note 92 discussing intellectual property torts
    • See GOLDBERG & ZIPURSKY, supra note 92 (discussing intellectual property torts).
  • 142
    • 78649360237 scopus 로고    scopus 로고
    • See, §, defining a property tort and providing examples
    • See RESTATEMENT (SECOND) OF TORTS § 871 (defining a property tort and providing examples).
    • Restatement (Second) of Torts , pp. 871
  • 143
    • 0038260135 scopus 로고
    • See, § 15 cmt. a, "A contact which causes no bodily harm may be actionable as a violation of the right to freedom from the intentional infliction of offensive bodily contacts."
    • See RESTATEMENT (SECOND) OF TORTS § 15 cmt. a (1965) ("A contact which causes no bodily harm may be actionable as a violation of the right to freedom from the intentional infliction of offensive bodily contacts.");
    • (1965) Restatement (Second) of Torts
  • 144
    • 78649352953 scopus 로고    scopus 로고
    • id. §, defining the tort of battery to include "offensive contact with the person of the other"
    • id. § 18 (defining the tort of battery to include "offensive contact with the person of the other").
  • 145
    • 78649350058 scopus 로고    scopus 로고
    • See KEETON ET AL., supra note 12, § 10, at 43 observing that assault protects the individual's interest in being free of threats of touchings
    • See KEETON ET AL., supra note 12, § 10, at 43 (observing that assault protects the individual's interest in being free of threats of touchings);
  • 146
    • 78649350060 scopus 로고    scopus 로고
    • id. §, observing that false imprisonment protects the interest in being free of restraints on bodily movements imposed by others
    • id. § 11, at 47 (observing that false imprisonment protects the interest in being free of restraints on bodily movements imposed by others).
    • , vol.11 , pp. 47
  • 147
    • 78649383035 scopus 로고    scopus 로고
    • See, §, requiring that the emotional distress inflicted by reckless or intentional outrageous conduct must be "severe"
    • See RESTATEMENT (SECOND) OF TORTS § 46 (requiring that the emotional distress inflicted by reckless or intentional outrageous conduct must be "severe");
    • Restatement (Second) of Torts , pp. 46
  • 148
    • 78649382459 scopus 로고    scopus 로고
    • id. §, & cmt. d noting that negligent infliction of emotional distress is actionable only if it is serious enough to result in illness or bodily harm
    • id. § 312 & cmt. d (noting that negligent infliction of emotional distress is actionable only if it is serious enough to result in illness or bodily harm).
  • 150
    • 0003856789 scopus 로고
    • See, "Sexual touching that women do not want has historically been considered tortious under a variety of doctrines...."
    • See CATHARINE A. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION 165 (1979) ("Sexual touching that women do not want has historically been considered tortious under a variety of doctrines....").
    • (1979) Sexual Harassment of Working Women: A Case of Sex Discrimination , pp. 165
    • Catharine, A.M.1
  • 151
    • 78649381558 scopus 로고    scopus 로고
    • See, 2d ed, "Constitutional torts are actions brought against governments and their officials and employees seeking damages for the violation of federal constitutional rights, particularly those arising under the Fourteenth Amendment and the Bill of Rights."
    • See SHELDON H. NAHMOD ET AL., CONSTITUTIONAL TORTS 1 (2d ed. 2004) ("Constitutional torts are actions brought against governments and their officials and employees seeking damages for the violation of federal constitutional rights, particularly those arising under the Fourteenth Amendment and the Bill of Rights.").
    • (2004) Constitutional Torts , pp. 1
    • Sheldon, H.N.1
  • 152
    • 78649364542 scopus 로고    scopus 로고
    • See, §, explaining that liability for fraud results from misrepresentations of fact that induce others to rely on that misrepresentation
    • See RESTATEMENT (SECOND) OF TORTS § 525 (explaining that liability for fraud results from misrepresentations of fact that induce others to rely on that misrepresentation);
    • Restatement (Second) of Torts , pp. 525
  • 153
    • 78649373038 scopus 로고    scopus 로고
    • Apportionment, victim reliance, and fraud: A comment
    • see also, 1036, arguing that the tort of fraud protects a person's transactional decision-making interests
    • see also Michael D. Green, Apportionment, Victim Reliance, and Fraud: A Comment, 48 ARIZ. L. REV. 1027, 1036 (2006) (arguing that the tort of fraud protects a person's transactional decision-making interests).
    • (2006) Ariz. L. Rev. , vol.48 , pp. 1027
    • Green, M.D.1
  • 154
    • 84866341650 scopus 로고
    • See Superintendent of Ins. of N. Y. v. Bankers Life & Cas. Co., 13, "It is now established that a private right of action is implied under § 10 b."
    • See Superintendent of Ins. of N. Y. v. Bankers Life & Cas. Co., 404 U. S. 6, 13 n. 9 (1971) ("It is now established that a private right of action is implied under § 10 (b).").
    • (1971) U. S. , vol.404 , Issue.9 , pp. 6
  • 155
    • 78649372475 scopus 로고    scopus 로고
    • See, § 12.4, 6th ed, "Rule 10b-5 has had a tremendous impact on a broad spectrum of securities litigation. This general antifraud rule is the most commonly used basis for private suits charging fraud in connection with the purchase or sale of securities."
    • See 3 THOMAS LEE HAZEN, THE LAW OF SECURITIES REGULATION § 12.4, at 531 (6th ed. 2006) ("Rule 10b-5 has had a tremendous impact on a broad spectrum of securities litigation. This general antifraud rule is the most commonly used basis for private suits charging fraud in connection with the purchase or sale of securities.").
    • (2006) The Law of Securities Regulation , vol.3 , pp. 531
    • Thomas, L.H.1
  • 156
    • 77955872052 scopus 로고
    • See Basic, Inc. v. Levinson, 253, concurring in part and dissenting in part "In general, the case law developed in this Court with respect to § 10 b and Rule 10b-5 has been based on doctrines with which we, as judges, are familiar: common-law doctrines of fraud and deceit."
    • See Basic, Inc. v. Levinson, 485 U. S. 224, 253 (1988) (White, J., concurring in part and dissenting in part) ("In general, the case law developed in this Court with respect to § 10 (b) and Rule 10b-5 has been based on doctrines with which we, as judges, are familiar: common-law doctrines of fraud and deceit.").
    • (1988) U. S. , vol.485 , pp. 224
    • White, J.1
  • 157
    • 78649360234 scopus 로고
    • See Lumley v. Gye, Q. B. U. K. establishing liability for inducing the breach of a contract
    • See Lumley v. Gye, (1853) 118 Eng. Rep. 749 (Q. B.) (U. K.) (establishing liability for inducing the breach of a contract);
    • (1853) Eng. Rep. , vol.118 , pp. 749
  • 158
    • 1542703841 scopus 로고
    • Interference with contract relations
    • Carpenter, 728, arguing that the tort of interfering with contract relations extends beyond mere inducement of breach
    • Charles E. Carpenter, Interference with Contract Relations, 41 HARV. L. REV. 728, 728 (1928) (arguing that the tort of interfering with contract relations extends beyond mere inducement of breach).
    • (1928) Harv. L. Rev. , vol.41 , pp. 728
    • Charles, E.1
  • 159
    • 78649355383 scopus 로고
    • See Gale v. Ryan, 734, N. Y. App. Div, recognizing the tort of publishing injurious falsehoods, distinct from libel and analogous to slander of title
    • See Gale v. Ryan, 31 N. Y. S.2d 732, 734 (N. Y. App. Div. 1941) (recognizing the tort of publishing injurious falsehoods, distinct from libel and analogous to slander of title);
    • (1941) N. Y. S.2d , vol.31 , pp. 732
  • 160
    • 26444445904 scopus 로고
    • Injurious falsehood: The basis of liability
    • 425, "There is a tort which passes by many names. It consists of the publication, or communication to a third person, of false statements concerning the plaintiff, his property, or his business, which cause him pecuniary loss."
    • William L. Prosser, Injurious Falsehood: The Basis of Liability, 59 COLUM. L. REV. 425, 425 (1959) ("There is a tort which passes by many names.... It consists of the publication, or communication to a third person, of false statements concerning the plaintiff, his property, or his business, which cause him pecuniary loss.").
    • (1959) Colum. L. Rev. , vol.59 , pp. 425
    • Prosser, W.L.1
  • 161
    • 78649356571 scopus 로고
    • See Wilson v. Dubois, 68 Minn, "False and malicious statements, disparaging an article of property, when followed, as a natural, reasonable, and proximate result, by special damage to the owner, are actionable."
    • See Wilson v. Dubois, 29 Nw. 68, 68 (Minn. 1886) ("False and malicious statements, disparaging an article of property, when followed, as a natural, reasonable, and proximate result, by special damage to the owner, are actionable.").
    • (1886) NW , vol.29 , pp. 68
  • 162
    • 0039131955 scopus 로고
    • See, § 1 a, reporting that one may be liable for unfair competition by causing harm to the commercial interests of another by engaging in practices determined to be actionable
    • See RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 1 (a) (1993) (reporting that one may be liable for unfair competition by causing harm to the commercial interests of another by engaging in practices determined to be actionable).
    • (1993) Restatement (Third) of Unfair Competition
  • 164
    • 78649339425 scopus 로고    scopus 로고
    • Id. §
    • Id. § 652D.
  • 165
    • 78649388608 scopus 로고    scopus 로고
    • Id. §
    • Id. § 652C.
  • 166
    • 78649344669 scopus 로고    scopus 로고
    • See Holmes, supra note 17, at 106-10 arguing that it is sufficient for the tort of deceit that the defendant made a misrepresentation under circumstances where it could be expected to mislead another
    • See Holmes, supra note 17, at 106-10 (arguing that it is sufficient for the tort of deceit that the defendant made a misrepresentation under circumstances where it could be expected to mislead another).
  • 167
    • 35549001869 scopus 로고    scopus 로고
    • Tort law and moral luck
    • See, &, 1126, briefly describing Nagel's and William's views
    • See John C. P. Goldberg & Benjamin C. Zipursky, Tort Law and Moral Luck, 92 CORNELL L. REV. 1123, 1126 n. 8 (2007) (briefly describing Nagel's and William's views).
    • (2007) Cornell L. Rev. , vol.92 , Issue.8 , pp. 1123
    • Goldberg, J.C.P.1    Zipursky, B.C.2
  • 168
    • 78649368729 scopus 로고    scopus 로고
    • See generally id
    • See generally id.
  • 169
    • 78649390412 scopus 로고    scopus 로고
    • Id
    • Id. at 1128-29.
  • 170
    • 78649381557 scopus 로고    scopus 로고
    • distinction between these two dimensions of retrospective examination is explored at greater length in Benjamin
    • The distinction between these two dimensions of retrospective examination is explored at greater length in Benjamin
  • 171
    • 85046912774 scopus 로고    scopus 로고
    • Two dimensions of responsibility in crime, tort, and moral luck
    • C. Zipursky, Two Dimensions of Responsibility in Crime, Tort, and Moral Luck, 9 Theoretical Inquiries L. 97 (2008).
    • (2008) Theoretical Inquiries L , vol.9 , pp. 97
    • Zipursky, C.1
  • 172
    • 78649353539 scopus 로고    scopus 로고
    • See supra note 33 and accompanying text
    • See supra note 33 and accompanying text.
  • 173
    • 78649348580 scopus 로고    scopus 로고
    • See supra subpart III C
    • See supra subpart III (C).
  • 174
    • 78649340014 scopus 로고    scopus 로고
    • See supra subpart IV A
    • See supra subpart IV (A).
  • 175
    • 78649376743 scopus 로고    scopus 로고
    • See Goldberg & Zipursky, supra note 122, at 1154 "Victims of these norm violations are likely to regard themselves as having been wronged and tend to have concomitant feelings of resentment and blame in response."
    • See Goldberg & Zipursky, supra note 122, at 1154 ("[V]ictims of these norm violations are likely to regard themselves as having been wronged and tend to have concomitant feelings of resentment and blame in response.").
  • 176
    • 78649359943 scopus 로고    scopus 로고
    • Id
    • Id. at 1153-54.
  • 177
    • 78649354525 scopus 로고    scopus 로고
    • Id
    • Id. at 1156-59.
  • 178
    • 78649349766 scopus 로고    scopus 로고
    • Id
    • Id. at 1160.
  • 179
    • 78649380381 scopus 로고    scopus 로고
    • E.g., supra notes 27-33 and accompanying text
    • E.g., supra notes 27-33 and accompanying text.
  • 181
    • 78649337484 scopus 로고    scopus 로고
    • Id
    • Id.
  • 182
    • 78649368730 scopus 로고    scopus 로고
    • See supra notes 48-50 and accompanying text
    • See supra notes 48-50 and accompanying text.
  • 183
    • 78649365706 scopus 로고    scopus 로고
    • See supra notes 53-54 and accompanying text
    • See supra notes 53-54 and accompanying text.
  • 184
    • 78649360791 scopus 로고    scopus 로고
    • See Zipursky, supra note 8, at 59-63 providing an overview of the concept of relational wrongs
    • See Zipursky, supra note 8, at 59-63 (providing an overview of the concept of relational wrongs).
  • 185
    • 78649356573 scopus 로고    scopus 로고
    • Id
    • Id. at 59-60.
  • 186
    • 78649345698 scopus 로고    scopus 로고
    • Id, Some relational legal wrongs are defined in a way that requires the first relatum to be a member of a less-than-universal group e.g., the class of physicians, not the class of persons or requires the second relatum to be a member of a less-than-universal group e.g., the class of patients, not the class of persons, or requires both, or requires that one of the relata be connected in some way e.g., for all physicians, and all persons who are patients of that physician, the physician shall not injure the patient by failing to take the care she owes him; for all attorneys, and all clients of that attorney, the attorney shall not divulge information provided to him by that client to any other person
    • Id. at 59. Some relational legal wrongs are defined in a way that requires the first relatum to be a member of a less-than-universal group (e.g., the class of physicians, not the class of persons) or requires the second relatum to be a member of a less-than-universal group (e.g., the class of patients, not the class of persons), or requires both, or requires that one of the relata be connected in some way (e.g., for all physicians, and all persons who are patients of that physician, the physician shall not injure the patient by failing to take the care she owes him; for all attorneys, and all clients of that attorney, the attorney shall not divulge information provided to him by that client to any other person).
  • 188
    • 78649367906 scopus 로고    scopus 로고
    • Id. §
    • Id. § 18.
  • 189
    • 78649363192 scopus 로고    scopus 로고
    • Id. §
    • Id. § 299A.
  • 191
    • 78649365405 scopus 로고    scopus 로고
    • Id. §
    • Id. § 525.
  • 193
    • 78649377044 scopus 로고
    • See, §, establishing liability from one person to another for libel, thereby creating a duty not to libel and a right not to be libeled
    • See RESTATEMENT (SECOND) OF TORTS § 558 (1977) (establishing liability from one person to another for libel, thereby creating a duty not to libel and a right not to be libeled).
    • (1977) Restatement (Second) of Torts , pp. 558
  • 194
    • 78649388947 scopus 로고    scopus 로고
    • See id. §, establishing liability from one person to another for fraud, thereby creating a duty not to defraud and a right not to be defrauded
    • See id. § 525 (establishing liability from one person to another for fraud, thereby creating a duty not to defraud and a right not to be defrauded).
  • 195
    • 1542467410 scopus 로고
    • See, §, establishing liability from one person to another for negligence, thereby creating a duty not to injure negligently and a right not to be injured negligently
    • See RESTATEMENT (SECOND) OF TORTS § 281 (1965) (establishing liability from one person to another for negligence, thereby creating a duty not to injure negligently and a right not to be injured negligently).
    • (1965) Restatement (Second) of Torts , pp. 281
  • 196
    • 84857803622 scopus 로고
    • See, §, explaining how damages are awarded in tort law
    • See RESTATEMENT (SECOND) OF TORTS § 901 (1979) (explaining how damages are awarded in tort law);
    • (1979) Restatement (Second) of Torts , pp. 901
  • 197
    • 78649360236 scopus 로고    scopus 로고
    • id. §, defining damages as a monetary payment
    • id. § 902 (defining damages as a monetary payment).
  • 198
    • 85036761934 scopus 로고    scopus 로고
    • See, e.g., §, authorizing punishment by the state against anyone who commits a crime
    • See, e.g., 18 U. S. C. § 2 (2006) (authorizing punishment by the state against anyone who commits a crime).
    • (2006) U. S. C. , vol.18 , pp. 2
  • 199
    • 78649390731 scopus 로고    scopus 로고
    • See Zipursky, supra note 8, at 82-93 discussing the link between torts understood as relational wrongs and the asserting of claims by victims against alleged wrongdoers
    • See Zipursky, supra note 8, at 82-93 (discussing the link between torts understood as relational wrongs and the asserting of claims by victims against alleged wrongdoers).
  • 200
    • 0347609003 scopus 로고    scopus 로고
    • The trouble with negligence
    • See, 1188, describing the centrality of negligence to modern tort law
    • See Kenneth S. Abraham, The Trouble with Negligence, 54 VAND. L. REV. 1187, 1188 (2001) (describing the centrality of negligence to modern tort law).
    • (2001) Vand. L. Rev. , vol.54 , pp. 1187
    • Abraham, K.S.1
  • 201
    • 78649376131 scopus 로고    scopus 로고
    • See, §, describing tort victims' default entitlement to "make-whole" compensation
    • See RESTATEMENT (SECOND) OF TORTS § 910 (describing tort victims' default entitlement to "make-whole" compensation).
    • Restatement (Second) of Torts , pp. 910
  • 202
    • 78649351787 scopus 로고    scopus 로고
    • See, &, 2d ed, comparing "extra-compensatory" damages that are only available to victims of certain "'aggravated' forms of mistreatment" with "compensatory damages", commonly described as efforts to make "the plaintiff whole", which are available to nearly any tort plaintiff
    • See JOHN C. P. GOLDBERG, ANTHONY J. SEBOK & BENJAMIN C. ZIPURSKY, TORT LAW: RESPONSIBILITIES AND REDRESS 476, 484 (2d ed. 2008) (comparing "[e]xtra-compensatory" damages that are only available to victims of certain "'aggravated' forms of mistreatment" with "compensatory damage[s]", commonly described as efforts to make "the plaintiff whole", which are available to nearly any tort plaintiff).
    • (2008) Tort Law: Responsibilities and Redress , vol.476 , pp. 484
    • Goldbert, J.C.P.1    Anthony, J.S.2    Benjamin, C.Z.3
  • 203
    • 78649340308 scopus 로고    scopus 로고
    • We have previously analyzed Hart's thought as it bears on tort law
    • We have previously analyzed Hart's thought as it bears on tort law.
  • 204
    • 33846591830 scopus 로고    scopus 로고
    • Seeing tort law from the internal point of view: Holmes and hart on legal duties
    • See, &, 1572-81, applying Hart's framework to tort law to develop a "duty-accepting" concept of tort
    • See John C. P. Goldberg & Benjamin C. Zipursky, Seeing Tort Law from the Internal Point of View: Holmes and Hart on Legal Duties, 75 FORDHAM L. REV. 1563, 1572-81 (2006) (applying Hart's framework to tort law to develop a "duty-accepting" concept of tort);
    • (2006) Fordham L. Rev. , vol.75 , pp. 1563
    • Goldberg, J.C.P.1    Zipursky, B.C.2
  • 205
    • 78649380101 scopus 로고    scopus 로고
    • see also Zipursky, supra note 8, at 58 discussing Hart's influence on modern views of legal rules
    • see also Zipursky, supra note 8, at 58 (discussing Hart's influence on modern views of legal rules).
  • 206
    • 0004220262 scopus 로고
    • See, 2d ed, arguing that rules are conceived of as "imposing obligations when the general demand for conformity is insistent and the social pressure brought to bear upon those who deviate or threaten to deviate is great"
    • See H. L. A. HART, THE CONCEPT OF LAW 86 (2d ed. 1994) (arguing that rules are conceived of as "imposing obligations when the general demand for conformity is insistent and the social pressure brought to bear upon those who deviate or threaten to deviate is great").
    • (1994) The Concept of Law , pp. 86
    • Hart, H.L.A.1
  • 207
    • 78649338653 scopus 로고    scopus 로고
    • See id, explaining that for social rules it is not necessary to use imperatival words such as "must", "should", and "ought to", and that using those words for "mere convergent behaviour" would be confusing
    • See id. at 9-10 (explaining that for social rules it is not necessary to use imperatival words such as "must", "should", and "ought to", and that using those words for "mere convergent behaviour" would be confusing).
  • 208
    • 78649386859 scopus 로고    scopus 로고
    • Id
    • Id. at 86.
  • 209
    • 78649389218 scopus 로고    scopus 로고
    • See id, explaining that there may be social pressure to conform both indirectly by appealing to the individual's feelings, as is common for rules of morality, and directly through physical sanction, as is common for legal rules. Despite our reliance on a Hartian framework for thinking about the place of rules within a legal system, we need not and do not accept a social-facts based form of legal positivism. For an articulation of this "mixed" jurisprudential position
    • See id. at 86-87 (explaining that there may be social pressure to conform both indirectly by appealing to the individual's feelings, as is common for rules of morality, and directly through physical sanction, as is common for legal rules). Despite our reliance on a Hartian framework for thinking about the place of rules within a legal system, we need not and do not accept a social-facts based form of legal positivism. For an articulation of this "mixed" jurisprudential position
  • 210
    • 78649343192 scopus 로고    scopus 로고
    • The model of social facts
    • see, in, Jules Coleman ed., accepting certain aspects of Dworkin's critique of the social-facts thesis but also salvaging aspects of Hart's analytic framework
    • see Benjamin C. Zipursky, The Model of Social Facts, in HART'S POSTSCRIPT 219, 268-70 (Jules Coleman ed., 2001), accepting certain aspects of Dworkin's critique of the social-facts thesis but also salvaging aspects of Hart's analytic framework
    • (2001) Hart's Postscript , vol.219 , pp. 268-270
    • Zipursky, B.C.1
  • 211
    • 78649358478 scopus 로고    scopus 로고
    • Pragmatism, positivism, and the conventionalistic fallacy
    • Joseph K. Campbell et al. eds., rejecting Coleman's inclusive positivism for relying on the social-facts thesis
    • and Benjamin C. Zipursky, Pragmatism, Positivism, and the Conventionalistic Fallacy, in LAW AND SOCIAL JUSTICE 285, 308 (Joseph K. Campbell et al. eds., 2005), rejecting Coleman's inclusive positivism for relying on the social-facts thesis.
    • (2005) Law and Social Justice , vol.285 , pp. 308
    • Zipursky, B.C.1
  • 212
    • 78649355382 scopus 로고    scopus 로고
    • Hart, supra note 157, at 81
    • Hart, supra note 157, at 81.
  • 213
    • 78649363495 scopus 로고    scopus 로고
    • Id
    • Id. at 86-87.
  • 214
    • 33947428007 scopus 로고
    • 1053 N. Y
    • 111 N. E. 1050, 1053 (N. Y. 1916).
    • (1916) N. E. , vol.111 , pp. 1050
  • 215
    • 78649371580 scopus 로고    scopus 로고
    • See id. "If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully."
    • See id. ("If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully.").
  • 216
    • 78649363968 scopus 로고    scopus 로고
    • Id
    • Id.
  • 217
    • 78649369916 scopus 로고    scopus 로고
    • Id
    • Id.
  • 218
    • 78649339707 scopus 로고    scopus 로고
    • Id
    • Id.
  • 219
    • 78649355671 scopus 로고    scopus 로고
    • For a methodological and jurisprudential approach that aims to sidestep debates between positivism and its critics but nevertheless takes both moral and nonmoral concepts to be central to the content of the common law of torts
    • For a methodological and jurisprudential approach that aims to sidestep debates between positivism and its critics but nevertheless takes both moral and nonmoral concepts to be central to the content of the common law of torts
  • 220
    • 85009446942 scopus 로고    scopus 로고
    • Pragmatic conceptualism
    • see, 477-78
    • see Benjamin C. Zipursky, Pragmatic Conceptualism, 6 LEGAL THEORY 457, 477-78 (2000).
    • (2000) Legal Theory , vol.6 , pp. 457
    • Zipursky, B.C.1
  • 221
    • 84874743893 scopus 로고    scopus 로고
    • See, e.g., McDonald v. Village of Winnetka, 1009 7th Cir, noting that "tortious conduct is by nature a departure from some norm"
    • See, e.g., McDonald v. Village of Winnetka, 371 F.3d 992, 1009 (7th Cir. 2004) (noting that "tortious conduct is by nature a departure from some norm").
    • (2004) F.3d , vol.371 , pp. 992
  • 222
    • 78649378474 scopus 로고    scopus 로고
    • See supra notes 74
    • See supra notes 74, 100.
  • 223
    • 78649383331 scopus 로고    scopus 로고
    • See, &, supra note 122, explaining how and why moral blameworthiness is often not a factor in determining tort liability
    • See Goldberg & Zipursky, supra note 122, at 1143-63 (explaining how and why moral blameworthiness is often not a factor in determining tort liability).
    • Goldberg1    Zipursky2
  • 224
    • 84897875821 scopus 로고
    • appeal taken from Eng. U. K.
    • (1868) 3 L. R. E. & I. App. 330 (appeal taken from Eng.) (U. K.).
    • (1868) L. R. E. & I. App. , vol.3 , pp. 330
  • 225
    • 26444458983 scopus 로고
    • See, §, articulating a test for when an activity is "abnormally dangerous" so as to generate strict liability for injuries caused by it
    • See RESTATEMENT (SECOND) OF TORTS § 520 (1977) (articulating a test for when an activity is "abnormally dangerous" so as to generate strict liability for injuries caused by it).
    • (1977) Restatement (Second) of Torts , pp. 520
  • 226
    • 78649350357 scopus 로고    scopus 로고
    • Rylands
    • See, e.g., "If a person accumulates lawfully anything on his land which does escape, and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage."
    • See, e.g., Rylands, 3 L. R. E. & I. App. at 340 ("If [a person accumulates lawfully anything on his land which] does escape, and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage.").
    • L. R. E. & I. App. , vol.3 , pp. 340
  • 227
    • 78649386858 scopus 로고    scopus 로고
    • Gilmore's argument for the "death of contract"-a manifestation of many of the same intellectual forces we are canvassing here-was of the same form
    • Gilmore's argument for the "death of contract"-a manifestation of many of the same intellectual forces we are canvassing here-was of the same form.
  • 228
    • 78649356271 scopus 로고    scopus 로고
    • See, 1974, arguing that the continued adoption of the promissoryestoppel doctrine could allow contract law to ignore the requirement of consideration in the form of reciprocal obligations. He inferred from what he took to be a trend toward greater judicial reliance on expansive forms of promissory estoppel that it no longer made sense if it ever did to think of contract law as being fundamentally about agreed-upon obligations
    • See GRANT GILMORE, THE DEATH OF CONTRACT 97-100 (1974) (arguing that the continued adoption of the promissoryestoppel doctrine could allow contract law to ignore the requirement of consideration in the form of reciprocal obligations). He inferred from what he took to be a trend toward greater judicial reliance on expansive forms of promissory estoppel that it no longer made sense (if it ever did) to think of contract law as being fundamentally about agreed-upon obligations.
    • The Death of Contract , pp. 97-100
    • Grant, G.1
  • 229
    • 78649354376 scopus 로고    scopus 로고
    • Id. Our sense is that Gilmore's argument was no less overstated than arguments alleging that the presence of certain forms of "strict" liability spell the "death" of torts qua wrongs
    • Id. Our sense is that Gilmore's argument was no less overstated than arguments alleging that the presence of certain forms of "strict" liability spell the "death" of torts qua wrongs.
  • 230
    • 78649350361 scopus 로고    scopus 로고
    • See, §, reporters' note, at 296-328, Proposed Final Draft No. 1, identifying numerous instances in which courts have declined to apply the rule of strict liability for abnormally dangerous activities
    • See RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM § 20 reporters' note, at 296-328 (Proposed Final Draft No. 1, 2005) (identifying numerous instances in which courts have declined to apply the rule of strict liability for abnormally dangerous activities).
    • (2005) Restatement (Third) of Torts: Liab. For Physical & Emotional Harm , pp. 20
  • 231
    • 78649367033 scopus 로고    scopus 로고
    • Likewise, we think it is erroneous to see in doctrines such as respondeat superior and "strict" products liability a judicial embrace of tort liability without regard to wrongdoing
    • Likewise, we think it is erroneous to see in doctrines such as respondeat superior and "strict" products liability a judicial embrace of tort liability without regard to wrongdoing.
  • 232
    • 0004213898 scopus 로고
    • See, arguing for the fusion of constitutional law and moral philosophy
    • See RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 149 (1978) (arguing for the fusion of constitutional law and moral philosophy).
    • (1978) Taking Rights Seriously , pp. 149
    • Ronald, D.1
  • 233
    • 78649375290 scopus 로고    scopus 로고
    • See, &, supra note 156, illustrating how Hart's concepts of duty within tort law have analogues outside the field of law within the realm of general social expectations
    • See Goldberg & Zipursky, supra note 156, at 1575-77 (illustrating how Hart's concepts of duty within tort law have analogues outside the field of law within the realm of general social expectations).
    • Goldberg1    Zipursky2
  • 234
    • 78649369327 scopus 로고    scopus 로고
    • note
    • Our approach to tort law and law generally recognizes, as do almost all other approaches, that many of the acts categorized as "wrongs" by the law have been conceived as wrongs under the positive morality of the community and that their having been so conceived helps explain how and why they became part of the law of torts. Again like virtually everyone, we think that some wrongs of tort law are not necessarily wrongs of morality or of positive morality, and vice versa. Moreover, those which are often do not have exactly the same contours that they have in positive morality, or that would be appropriately identified as morally wrongful apart from positive morality. Finally, like virtually everyone, we believe that many of the wrongs of tort law are acts that merit description as wrongful quite apart from their entrenchment in a legal system that categorizes them as impermissible or wrongful; intentional physical assaults, injuring someone through careless driving, and deceiving someone out of a thing of value all fit this description.
  • 235
    • 78649371297 scopus 로고
    • See, e.g., &, supra note, explaining Vincent v. Lake Erie Transp. Co., 221, Minn, without relying on the ad hoc incomplete privilege of private necessity
    • See, e.g., GOLDBERG, SEBOK & ZIPURSKY, supra note 155, at 783-90 (explaining Vincent v. Lake Erie Transp. Co., 124 N. W. 221 (Minn. 1910), without relying on the ad hoc incomplete privilege of private necessity);
    • (1910) N. W. , vol.124-155 , pp. 783-790
    • Goldberg, S.1    Zipursky2
  • 236
    • 0036997270 scopus 로고    scopus 로고
    • Unrealized torts
    • 1631-33, 1705-07
    • John C. P. Goldberg & Benjamin C. Zipursky, Unrealized Torts, 88 VA. L. REV. 1625, 1631-33, 1705-07 (2002)
    • (2002) Va. L. Rev. , vol.88 , pp. 1625
    • Goldberg, J.C.P.1    Zipursky, B.C.2
  • 237
    • 73049118566 scopus 로고    scopus 로고
    • reconciling the facially puzzling twin holdings of Metro-N. Commuter R. R. v. Buckley
    • (reconciling the facially puzzling twin holdings of Metro-N. Commuter R. R. v. Buckley, 521 U. S. 424 (1997));
    • (1997) U. S. , vol.521 , pp. 424
  • 238
    • 29744470058 scopus 로고    scopus 로고
    • A theory of punitive damages
    • 105-07, 149-50
    • Benjamin C. Zipursky, A Theory of Punitive Damages, 84 TEXAS L. REV. 105, 105-07, 149-50 (2005)
    • (2005) Texas L. Rev. , vol.84 , pp. 105
    • Zipursky, B.C.1
  • 239
    • 77951747660 scopus 로고    scopus 로고
    • interpreting BMW of N. Am., Inc. v. Gore, as articulating a line between punitive damages imposed as redress for egregious wrongs and punitive damages imposed for regulatory purposes
    • (interpreting BMW of N. Am., Inc. v. Gore, 517 U. S. 559 (1996), as articulating a line between punitive damages imposed as redress for egregious wrongs and punitive damages imposed for regulatory purposes);
    • (1996) U. S. , vol.517 , pp. 559
  • 240
    • 78649344667 scopus 로고
    • supra note 8, at 13 demonstrating the centrality of Palsgraf v. Long Island R. R., N. Y, to tort law, understood as a law of wrongs
    • Zipursky, supra note 8, at 13 (demonstrating the centrality of Palsgraf v. Long Island R. R., 162 N. E. 99 (N. Y. 1928), to tort law, understood as a law of wrongs).
    • (1928) N. E. , vol.162 , pp. 99
    • Zipursky1
  • 241
    • 0142138821 scopus 로고    scopus 로고
    • Civil recourse, not corrective justice
    • See generally, arguing that neither the corrective-justice model nor the law-and-economics model capture the structure of tort law, a system based on legal rights and wrongs
    • See generally Benjamin C. Zipursky, Civil Recourse, Not Corrective Justice, 91 GEO. L. J. 695 (2003) (arguing that neither the corrective-justice model nor the law-and-economics model capture the structure of tort law, a system based on legal rights and wrongs).
    • (2003) Geo. L. J. , vol.91 , pp. 695
    • Zipursky, B.C.1
  • 242
    • 29044449535 scopus 로고    scopus 로고
    • The constitutional status of tort law: Due process and the right to a law for the redress of wrongs
    • See generally, arguing for recognition of an individual's right to seek redress for wrongs as a means of limiting legislative tort reform
    • See generally John C. P. Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs, 115 YALE L. J. 524 (2005) (arguing for recognition of an individual's right to seek redress for wrongs as a means of limiting legislative tort reform);
    • (2005) Yale L. J. , vol.115 , pp. 524
    • Goldberg, J.C.P.1
  • 243
    • 78649376129 scopus 로고    scopus 로고
    • Intervening wrongdoing in tort: The third restatement's unfortunate embrace of negligent enabling
    • applying the same framework to the question of negligence claims against remote actors
    • John C. P. Goldberg & Benjamin C. Zipursky, Intervening Wrongdoing in Tort: The Third Restatement's Unfortunate Embrace of Negligent Enabling, 44 WAKE FOREST L. REV. 1211 (2009) (applying the same framework to the question of negligence claims against remote actors).
    • (2009) Wake Forest L. Rev. , vol.44 , pp. 1211
    • Goldberg, J.C.P.1    Zipursky, B.C.2
  • 244
    • 78649357611 scopus 로고    scopus 로고
    • E.g., Goldberg, supra note 183, at 582
    • E.g., Goldberg, supra note 183, at 582.
  • 245
    • 78649361406 scopus 로고    scopus 로고
    • Assault, libel, and slander per se also are defined so as not to require loss as a condition of recovery
    • Assault, libel, and slander per se also are defined so as not to require loss as a condition of recovery.
  • 246
    • 78649373868 scopus 로고
    • See, §§ 3, 21, 35, 158, & 1979 specifying conditions of liability for, respectively, battery, assault, false imprisonment, trespass, libel, slander, and nuisance
    • See RESTATEMENT (SECOND) OF TORTS §§ 3, 21, 35, 158, 569-570, 822 (1965, 1977 & 1979) (specifying conditions of liability for, respectively, battery, assault, false imprisonment, trespass, libel, slander, and nuisance).
    • (1965) Restatement (Second) of Torts , vol.569-570 , pp. 822
  • 247
    • 78649336029 scopus 로고    scopus 로고
    • Id. §
    • Id. § 158.
  • 248
    • 78649355669 scopus 로고    scopus 로고
    • Id. §
    • Id. § 822.
  • 249
    • 84864053438 scopus 로고    scopus 로고
    • Wis
    • 563 N. W.2d 154 (Wis. 1997).
    • (1997) N. W.2d , vol.563 , pp. 154
  • 250
    • 78649391028 scopus 로고    scopus 로고
    • Id
    • Id. at 160.
  • 252
    • 78649357612 scopus 로고    scopus 로고
    • Id
    • Id.
  • 253
    • 78649362003 scopus 로고    scopus 로고
    • Id. §
    • Id. § 35.
  • 254
    • 84861377497 scopus 로고
    • C. P. U. K.
    • [1763] 95 Eng. Rep. 768 (C. P.) (U. K.).
    • (1763) Eng. Rep. , vol.95 , pp. 768
  • 255
    • 78649347779 scopus 로고    scopus 로고
    • Id
    • Id. at 769.
  • 256
    • 78649354117 scopus 로고
    • See, e.g., Neal v. Miller, 387 W. D. Mich, granting the plaintiff compensatory damages for the physical consequences of a battery
    • See, e.g., Neal v. Miller, 778 F. Supp. 378, 387 (W. D. Mich. 1991) (granting the plaintiff compensatory damages for the physical consequences of a battery);
    • (1991) F. Supp. , vol.778 , pp. 378
  • 257
    • 78649361408 scopus 로고
    • Miller v. Cudahy Co., 1005 D. Kan, compensating plaintiffs for damages to crops caused by the defendant's continuing nuisance
    • Miller v. Cudahy Co., 592 F. Supp. 976, 1005 (D. Kan. 1984) (compensating plaintiffs for damages to crops caused by the defendant's continuing nuisance);
    • (1984) F. Supp. , vol.592 , pp. 976
  • 258
    • 78649349769 scopus 로고    scopus 로고
    • Wilen v. Falkenstein, 799 Tex. App.-Fort Worth, pet. denied upholding actual damages based upon diminution in the value of land due to trespass
    • Wilen v. Falkenstein, 191 S. W.3d 791, 799 (Tex. App.-Fort Worth 2006, pet. denied) (upholding actual damages based upon diminution in the value of land due to trespass).
    • (2006) S. W.3d , vol.191 , pp. 791
  • 259
    • 78649357614 scopus 로고    scopus 로고
    • See, §, cmt. d suggesting that only nominal damages may be available for some trespasses
    • See RESTATEMENT (SECOND) OF TORTS § 218, cmt. d (suggesting that only nominal damages may be available for some trespasses).
    • Restatement (Second) of Torts , pp. 218
  • 260
    • 78649347202 scopus 로고    scopus 로고
    • See Jacque, "We conclude that both the private landowner and society have much more than a nominal interest in excluding others from private land. Intentional trespass to land causes actual harm to the individual, regardless of whether that harm can be measured in mere dollars.... Accordingly,... we hold that nominal damages may support a punitive damage award in an action for intentional trespass to land."
    • See Jacque, 563 N. W.2d at 161 ("We conclude that both the private landowner and society have much more than a nominal interest in excluding others from private land. Intentional trespass to land causes actual harm to the individual, regardless of whether that harm can be measured in mere dollars.... Accordingly,... we hold that nominal damages may support a punitive damage award in an action for intentional trespass to land.");
    • N. W.2d , vol.563 , pp. 161
  • 261
    • 78649352352 scopus 로고    scopus 로고
    • Huckle, upholding an award of "exemplary damages" by the jury for an unlawful detainment by the government, despite no evidence of physical harm
    • Huckle, 95 Eng. Rep. at 769 (upholding an award of "exemplary damages" by the jury for an unlawful detainment by the government, despite no evidence of physical harm).
    • Eng. Rep. , vol.95 , pp. 769
  • 262
    • 78649346896 scopus 로고    scopus 로고
    • See, e.g., §, setting forth the criteria for enjoining a nuisance
    • See, e.g., RESTATEMENT (SECOND) OF TORTS § 933 (setting forth the criteria for enjoining a nuisance).
    • Restatement (Second) of Torts , pp. 933
  • 263
    • 78649391626 scopus 로고    scopus 로고
    • Of course it is open to a purely prescriptive theorist to argue that there should be no torts without losses, but that is a different question
    • Of course it is open to a purely prescriptive theorist to argue that there should be no torts without losses, but that is a different question.
  • 264
    • 80053927402 scopus 로고    scopus 로고
    • See In re Simon II Litig., 96 E. D. N. Y, Weinstein, J. certifying a punitive-damages-only class action for plaintiffs unable to prove that they had suffered losses by virtue of certain tobacco-company misrepresentations
    • See In re Simon II Litig., 211 F. R. D. 86, 96 (E. D. N. Y. 2002) (Weinstein, J.) (certifying a punitive-damages-only class action for plaintiffs unable to prove that they had suffered losses by virtue of certain tobacco-company misrepresentations)
    • (2002) F. R. D. , vol.211 , pp. 86
  • 265
    • 79951911131 scopus 로고    scopus 로고
    • vacated, 2d Cir
    • vacated 407 F.3d 125 (2d Cir. 2005).
    • (2005) F.3d , vol.407 , pp. 125
  • 266
    • 78649366578 scopus 로고    scopus 로고
    • supra note
    • Goldberg, Two Conceptions, supra note 67, at 438-45.
    • Two Conceptions , vol.67 , pp. 438-445
    • Goldberg1
  • 267
    • 77957127317 scopus 로고    scopus 로고
    • See generally, 3d ed, arguing that the basic principle for damages is to restore the plaintiff to "the position he rightfully would have come to but for defendant's wrong"
    • See generally DOUGLAS LAYCOCK, MODERN AMERICAN REMEDIES 16 (3d ed. 2002) (arguing that the basic principle for damages is to restore the plaintiff to "the position he rightfully would have come to but for defendant's wrong").
    • (2002) Modern American Remedies , pp. 16
    • Douglas, L.1
  • 268
    • 78649362001 scopus 로고    scopus 로고
    • This is Zipursky's original label for this concept. Zipursky, supra note 8, at 3-5
    • This is Zipursky's original label for this concept. Zipursky, supra note 8, at 3-5.
  • 269
    • 78649362002 scopus 로고    scopus 로고
    • See id, showing that "in defining the contours of the right of exclusive possession, the courts are in fact defining who has substantive standing to sue for wrongs incurred through trespass"
    • See id. at 25 (showing that "in defining the contours of the right of exclusive possession, the courts are in fact defining who has substantive standing to sue for wrongs incurred through trespass").
  • 270
    • 78649390730 scopus 로고    scopus 로고
    • See id. expounding the rule that "only those who have a right of possession in the property trespassed upon have a cause of action for trespass". Suppose D knowingly drives his car across A's land without permission but for a good reason. In doing so, D is mindful that he has seen hikers on A's land, and thus drives carefully. Now suppose that P is a hiker who, while conscientiously following a trail map that she reasonably believes is accurate, unintentionally strays onto A's land. Even if D were to run down and injure P while both are on A's property, P will not have a trespass claim against D. And this is not because P can instead sue for negligence. We have assumed D was acting reasonably. Although P was a perfectly foreseeable victim of D's trespass, P has no claim because D's conduct was not a trespass with respect to property that P owned, leased, etc
    • See id. (expounding the rule that "[o]nly those who have a right of possession in the property trespassed upon have a cause of action for trespass"). Suppose D knowingly drives his car across A's land without permission but for a good reason. In doing so, D is mindful that he has seen hikers on A's land, and thus drives carefully. Now suppose that P is a hiker who, while conscientiously following a trail map that she reasonably believes is accurate, unintentionally strays onto A's land. Even if D were to run down and injure P while both are on A's property, P will not have a trespass claim against D. (And this is not because P can instead sue for negligence. We have assumed D was acting reasonably.) Although P was a perfectly foreseeable victim of D's trespass, P has no claim because D's conduct was not a trespass with respect to property that P owned, leased, etc.
  • 271
    • 78649353238 scopus 로고    scopus 로고
    • Id
    • Id. at 18.
  • 272
    • 78649370122 scopus 로고    scopus 로고
    • Id
    • Id. at 17.
  • 273
    • 78649389804 scopus 로고    scopus 로고
    • Id
    • Id. at 8.
  • 274
    • 78649386245 scopus 로고    scopus 로고
    • Id
    • Id.
  • 275
    • 77952402508 scopus 로고
    • Palsgraf v. Long Island R. R., 100 N. Y
    • Palsgraf v. Long Island R. R., 162 N. E. 99, 100 (N. Y. 1928).
    • (1928) N. E. , vol.162 , pp. 99
  • 276
    • 78649340013 scopus 로고    scopus 로고
    • Id
    • Id.
  • 277
    • 78649386857 scopus 로고    scopus 로고
    • See, supra note 8, "Proponents of the most prominent theoretical approaches to tort law, law and economics and corrective justice theory, have generally neglected the substantive standing rule."
    • See Zipursky, supra note 8, at 4 ("Proponents of the most prominent theoretical approaches to tort law, law and economics and corrective justice theory, have generally neglected the substantive standing rule.").
    • Zipursky1
  • 278
    • 77955674279 scopus 로고    scopus 로고
    • Putting "duty" in its place: A reply to professors goldberg and zipursky
    • See, e.g., &, 1253-54, criticizing Palsgraf's relationality requirement on conceptual and pragmatic grounds
    • See, e.g., Dilan A. Esper & Gregory C. Keating, Putting "Duty" in Its Place: A Reply to Professors Goldberg and Zipursky, 41 Loy. L. A. L. Rev. 1225, 1253-54 (2008) (criticizing Palsgraf's relationality requirement on conceptual and pragmatic grounds).
    • (2008) Loy. L. A. L. Rev. , vol.41 , pp. 1225
    • Esper, D.A.1    Keating, G.C.2
  • 279
    • 78649338652 scopus 로고    scopus 로고
    • Some courts would on these facts permit a claim for tortious interference with expectancy
    • Some courts would on these facts permit a claim for tortious interference with expectancy.
  • 280
    • 84874418686 scopus 로고    scopus 로고
    • "Go west, disappointed heir": Tortious interference with expectation of inheritance-a survey with analysis of state approaches in the Pacific States
    • See generally, 209
    • See generally Diane J. Klein, "Go West, Disappointed Heir": Tortious Interference with Expectation of Inheritance-A Survey with Analysis of State Approaches in the Pacific States, 13 LEWIS & CLARK L. REV. 209, 210-11 (2009).
    • (2009) Lewis & Clark L. Rev. , vol.13 , pp. 210-211
    • Klein, D.J.1
  • 281
    • 78649343762 scopus 로고    scopus 로고
    • See Zipursky, supra note 8, at 53 outlining the argument that "defendants will face crushing liability and courts will be flooded with cases" unless a tortious defendant's liability is limited and "recovery is denied... where substantive standing is lacking"
    • See Zipursky, supra note 8, at 53 (outlining the argument that "defendants will face crushing liability and courts will be flooded with cases" unless a tortious defendant's liability is limited and "recovery is denied... where substantive standing is lacking").
  • 282
    • 85109681891 scopus 로고
    • See, e.g., Pruitt v. Allied Chem. Corp., 979-80 E. D. Va, "Perhaps because of the large set of potential plaintiffs, even the commentators most critical of the general rule on indirect damages have acknowledged that some limitation to liability, even when damages are foreseeable, is advisable. Rather than allowing plaintiffs to risk a failure of proof as damages become increasingly remote and diffuse, courts have, in many cases, raised an absolute bar to recovery. The Court thus finds itself with a perceived need to limit liability, without any articulable reason for excluding any particular set of plaintiffs."
    • See, e.g., Pruitt v. Allied Chem. Corp., 523 F. Supp. 975, 979-80 (E. D. Va. 1981) ("Perhaps because of the large set of potential plaintiffs, even the commentators most critical of the general rule on indirect damages have acknowledged that some limitation to liability, even when damages are foreseeable, is advisable. Rather than allowing plaintiffs to risk a failure of proof as damages become increasingly remote and diffuse, courts have, in many cases, raised an absolute bar to recovery. The Court thus finds itself with a perceived need to limit liability, without any articulable reason for excluding any particular set of plaintiffs.");
    • (1981) F. Supp. , vol.523 , pp. 975
  • 283
    • 84878221218 scopus 로고
    • Strauss v. Belle Realty Co., 38 N. Y, declining to impose liability on the defendant for the plaintiff's injuries on the basis that finding that the defendant owed the plaintiff a duty of care would "violate the court's responsibility to define an orbit of duty that places controllable limits on liability"
    • Strauss v. Belle Realty Co., 482 N. E.2d 34, 38 (N. Y. 1985) (declining to impose liability on the defendant for the plaintiff's injuries on the basis that finding that the defendant owed the plaintiff a duty of care would "violate the court's responsibility to define an orbit of duty that places controllable limits on liability").
    • (1985) N. E.2d , vol.482 , pp. 34
  • 284
    • 78649336031 scopus 로고    scopus 로고
    • See supra notes 110-21, 140, 143 and accompanying text
    • See supra notes 110-21, 140, 143 and accompanying text.
  • 285
    • 78649378794 scopus 로고    scopus 로고
    • See Zipursky, supra note 8, at 88 "The availability of compensatory damages to one who can establish a rights invasion does not necessarily indicate that harm is the basis of a right to recourse. Rather, it merely reflects acceptance of the view that compensation for the harm caused is typically an appropriate form of recourse for those whose rights have been invaded."
    • See Zipursky, supra note 8, at 88 ("The availability of compensatory damages to one who can establish a rights invasion does not necessarily indicate that harm is the basis of a right to recourse. Rather, it merely reflects acceptance of the view that compensation for the harm caused is typically an appropriate form of recourse for those whose rights have been invaded.").
  • 286
    • 78649342105 scopus 로고    scopus 로고
    • See supra notes 155, 202 and accompanying text
    • See supra notes 155, 202 and accompanying text.
  • 287
    • 84878249396 scopus 로고    scopus 로고
    • See Mathias v. Accor Econ. Lodging, Inc., 677 7th Cir, Posner, J. suggesting that punitive damages are awarded to induce plaintiffs with modest compensatory claims to sue, and to encourage litigants to uncover hidden wrongs, thereby promoting the private prosecution of conduct that would otherwise go unsanctioned. On this theory, one should never see an award of punitive damages in cases of tortious conduct causing substantial harms, nor should courts permit punitive damages in cases of open and obvious misconduct. The law allows punitive awards in both kinds of cases
    • See Mathias v. Accor Econ. Lodging, Inc., 347 F.3d 672, 677 (7th Cir. 2003) (Posner, J.) (suggesting that punitive damages are awarded to induce plaintiffs with modest compensatory claims to sue, and to encourage litigants to uncover hidden wrongs, thereby promoting the private prosecution of conduct that would otherwise go unsanctioned). On this theory, one should never see an award of punitive damages in cases of tortious conduct causing substantial harms, nor should courts permit punitive damages in cases of open and obvious misconduct. The law allows punitive awards in both kinds of cases.
    • (2003) F.3d , vol.347 , pp. 672
  • 288
    • 78649346015 scopus 로고    scopus 로고
    • See generally, supra note 181, criticizing allocative theories of punitive damages
    • See generally Zipursky, supra note 181, at 106-07 (criticizing allocative theories of punitive damages).
    • Zipursky1
  • 289
    • 22744447898 scopus 로고    scopus 로고
    • Punitive damages as societal damages
    • See, 392, suggesting that punitive damages can help compensate persons injured by the defendant's conduct but not before the court. If this sort of approach were true to the law, courts would not insist on grave misconduct as a threshold for a punitive award. After all, merely careless conduct that causes harm to others who are not pursuing a claim creates a basis for awarding extracompensatory damages
    • See Catherine M. Sharkey, Punitive Damages as Societal Damages, 113 YALE1 L. J. 347, 392 (2003) (suggesting that punitive damages can help compensate persons injured by the defendant's conduct but not before the court). If this sort of approach were true to the law, courts would not insist on grave misconduct as a threshold for a punitive award. After all, merely careless conduct that causes harm to others who are not pursuing a claim creates a basis for awarding extracompensatory damages.
    • (2003) Yale1 L. J. , vol.113 , pp. 347
    • Sharkey, C.M.1
  • 290
    • 84864049327 scopus 로고
    • See, e.g., Pardee v. Camden Lumber Co., 85 W. Va, granting an injunction against the defendant's trespass
    • See, e.g., Pardee v. Camden Lumber Co., 73 S. E. 82, 85 (W. Va. 1911) (granting an injunction against the defendant's trespass).
    • (1911) S. E. , vol.73 , pp. 82
  • 291
    • 78649391025 scopus 로고    scopus 로고
    • See supra note 150 and accompanying text. One could conjure up a different default conception of recourse. For example, the law might allow successful tort plaintiffs to demand prison time for tortfeasors even in the absence of a criminal prosecution. On the other hand, it is not difficult to see why the law has tended to favor recourse in the form of monetary compensation. Among other things, it better suits the generally lower threshold for wrongdoing found in tort as compared to criminal law. It also lowers the stakes as compared to more visceral forms of punishment associated with the provision of recourse, thereby discouraging further cycles of dispute among tortfeasor and victim
    • See supra note 150 and accompanying text. One could conjure up a different default conception of recourse. For example, the law might allow successful tort plaintiffs to demand prison time for tortfeasors even in the absence of a criminal prosecution. On the other hand, it is not difficult to see why the law has tended to favor recourse in the form of monetary compensation. Among other things, it better suits the generally lower threshold for wrongdoing found in tort as compared to criminal law. It also lowers the stakes (as compared to more visceral forms of punishment) associated with the provision of recourse, thereby discouraging further cycles of dispute among tortfeasor and victim.
  • 292
    • 78649346016 scopus 로고    scopus 로고
    • See supra note 155 and accompanying text
    • See supra note 155 and accompanying text.
  • 293
    • 78649355113 scopus 로고    scopus 로고
    • supra note 122
    • Goldberg & Zipursky, supra note 122, at 1140-41.
    • Goldberg1    Zipursky2
  • 294
    • 0003499871 scopus 로고
    • See, e.g., 2d ed, naming "vindictive damages" as one of several variants of "punitive damages"
    • See, e.g., BRYAN A. GARNER, A DICTIONARY OF MODERN LEGAL USAGE 718 (2d ed. 1995) (naming "vindictive damages" as one of several variants of "punitive damages").
    • (1995) A Dictionary of Modern Legal Usage , pp. 718
    • Bryan, A.G.1
  • 295
    • 84864053438 scopus 로고    scopus 로고
    • Jacque v. Steenberg Homes, Inc., 160-61 Wis
    • Jacque v. Steenberg Homes, Inc., 563 N. W.2d 154, 160-61 (Wis. 1997);
    • (1997) N. W.2d , vol.563 , pp. 154
  • 296
    • 84861377497 scopus 로고
    • Huckle v. Money, 768-69 C. P. U. K.
    • Huckle v. Money, (1763) 95 1Eng. Rep. 768, 768-69 (C. P.) (U. K.).
    • (1763) 1Eng. Rep. , vol.95 , pp. 768
  • 297
    • 78649367903 scopus 로고
    • See, 80, 166-67, describing courts' increasing openness to equitable remedies and listing areas of the law where this trend is noticeable
    • See DOUGLAS LAYCOCK, THE DEATH OF THE IRREPARABLE INJURY RULE 4-5, 38, 80, 166-67 (1991) (describing courts' increasing openness to equitable remedies and listing areas of the law where this trend is noticeable).
    • (1991) The Death of the Irreparable Injury Rule , vol.4-5 , pp. 38
    • Douglas, L.1
  • 298
    • 78649372188 scopus 로고    scopus 로고
    • supra note 12, § 89
    • KEETON ET AL., supra note 12, § 89, at 640-41.
    • Keeton1
  • 299
    • 73049118566 scopus 로고    scopus 로고
    • Metro-N. Commuter R. R. v. Buckley
    • Metro-N. Commuter R. R. v. Buckley, 521 U. S. 424 (1997).
    • (1997) U. S. , vol.521 , pp. 424
  • 300
    • 77951267842 scopus 로고    scopus 로고
    • Norfolk & W. Ry. v. Ayers, Of course Buckley and Ayers are applications of a statute-the Federal Employers Liability Act FELA-rather than the common law of tort. But the Supreme Court has long emphasized that common law rules inform its interpretation of FELA, and in fact both decisions sit comfortably with state court decisions
    • Norfolk & W. Ry. v. Ayers, 538 U. S. 135 (2003). Of course Buckley and Ayers are applications of a statute-the Federal Employers Liability Act (FELA)-rather than the common law of tort. But the Supreme Court has long emphasized that common law rules inform its interpretation of FELA, and in fact both decisions sit comfortably with state court decisions.
    • (2003) U. S. , vol.538 , pp. 135
  • 301
    • 78649358185 scopus 로고
    • See, e.g., Topeka & Santa Fe Ry. v. Buell, 1, 568, "Assuming, as we have in prior cases, that FELA jurisprudence gleans guidance from common-law developments...."
    • See, e.g., Atchison, Topeka & Santa Fe Ry. v. Buell, 480 U. S. 557, 568 1 (1987) ("Assuming, as we have [in prior cases], that FELA jurisprudence gleans guidance from common-law developments....").
    • (1987) U. S. , vol.480 , pp. 557
    • Atchison1
  • 302
    • 78649352658 scopus 로고    scopus 로고
    • Ayers
    • Ayers, 538 U. S. at 158.
    • U. S. , vol.538 , pp. 158
  • 303
    • 78649380662 scopus 로고    scopus 로고
    • Buckley
    • Buckley, 521 U. S. at 436.
    • U. S. , vol.521 , pp. 436
  • 304
    • 78649391330 scopus 로고    scopus 로고
    • Ayers
    • Ayers, 538 U. S. at 135.
    • U. S. , vol.538 , pp. 135
  • 305
    • 78649372736 scopus 로고    scopus 로고
    • See Buckley, explaining that FELA does not recognize a general duty to avoid causing emotional distress, only a limited duty associated with the common law zone-ofdanger rule
    • See Buckley, 521 U. S. at 428-30 (explaining that FELA does not recognize a general duty to avoid causing emotional distress, only a limited duty associated with the common law zone-ofdanger rule).
    • U. S. , vol.521 , pp. 428-430
  • 306
    • 78649383980 scopus 로고    scopus 로고
    • Ayers
    • Ayers, 538 U. S. at 148-49.
    • U. S. , vol.538 , pp. 148-149
  • 307
    • 84873902039 scopus 로고
    • same distinction is at work in tort law's embrace of the "eggshell skull rule." If an actor commits an offensive contact battery against a victim, he is potentially on the hook for all the harms that flow from the battery, even those that could not have been foreseen. Vosburg v. Putney, 404 Wis, By contrast, a touching that does not amount to a battery-say, an ordinary tap on the shoulder that happens to cause catastrophic harm-is entirely nonactionable, being neither an offensive-contact battery nor an instance of negligence
    • The same distinction is at work in tort law's embrace of the "eggshell skull rule." If an actor commits an offensive contact battery against a victim, he is potentially on the hook for all the harms that flow from the battery, even those that could not have been foreseen. Vosburg v. Putney, 50 N. W. 403, 404 (Wis. 1891). By contrast, a touching that does not amount to a battery-say, an ordinary tap on the shoulder that happens to cause catastrophic harm-is entirely nonactionable, being neither an offensive-contact battery nor an instance of negligence.
    • (1891) N. W. , vol.50 , pp. 403
  • 308
    • 78649355995 scopus 로고    scopus 로고
    • See KEETON ET AL., supra note 12, § 9, at 39-42 "Absent expression to the contrary, consent is assumed to all those ordinary contacts which are customary and reasonably necessary to the common intercourse of life, such as a tap on the shoulder to attract attention....". Why does a loss that is too unexpected to be one for which an actor can be held responsible suddenly become appropriate for transfer because it is connected with a distinct and actionable loss? None of the principles or policies that determine which losses should be shifted to defendants-compensation, deterrence, or justice-seems to carry with it grounds for different treatment based on the linkage of an unexpected harm to a less unexpected one
    • See KEETON ET AL., supra note 12, § 9, at 39-42 ("Absent expression to the contrary, consent is assumed to all those ordinary contacts which are customary and reasonably necessary to the common intercourse of life, such as a tap on the shoulder to attract attention...."). Why does a loss that is too unexpected to be one for which an actor can be held responsible suddenly become appropriate for transfer because it is connected with a distinct and actionable loss? None of the principles or policies that determine which losses should be shifted to defendants-compensation, deterrence, or justice-seems to carry with it grounds for different treatment based on the linkage of an unexpected harm to a less unexpected one.
  • 309
    • 78649385679 scopus 로고    scopus 로고
    • See Buckley, suggesting that a different outcome could, given "the large number of those exposed and the uncertainties that may surround recovery", lead to "unlimited and unpredictable liability"
    • See Buckley, 521 U. S. at 435 (suggesting that a different outcome could, given "the large number of those exposed and the uncertainties that may surround recovery", lead to "unlimited and unpredictable liability").
    • U. S. , vol.521 , pp. 435
  • 310
    • 78649339424 scopus 로고    scopus 로고
    • See id, "We do not raise these questions to answer them for we do not have the answers, but rather to show that general policy concerns of a kind that have led common-law courts to deny recovery for certain classes of negligently caused harms are present in this case as well."
    • See id. at 435-36 ("We do not raise these questions to answer them (for we do not have the answers), but rather to show that general policy concerns of a kind that have led common-law courts to deny recovery for certain classes of negligently caused harms are present in this case as well.").
  • 311
    • 78649390098 scopus 로고    scopus 로고
    • supra note 50
    • RIPSTEIN, supra note 50, at 53-58.
    • Ripstein1
  • 312
    • 78649363971 scopus 로고    scopus 로고
    • See id, "A focus on primary goods gives priority to protecting the capacities for exercising important liberties. It also demarcates risks that are taken from those that merely arise, by determining which risks are always to be held in common. "
    • See id. at 273 ("[A] focus on primary goods gives priority to protecting the capacities for exercising important liberties. It also demarcates risks that are taken from those that merely arise, by determining which risks are always to be held in common. ").
  • 313
    • 78649369329 scopus 로고    scopus 로고
    • See id, "Unreasonable risks belong to those who create them; as a result, the injuries that result from unreasonable risk imposition belong to the injurers. Since they are the injurer's problem, the injurer must make them up. "
    • See id. at 53-58 ("Unreasonable risks belong to those who create them; as a result, the injuries that result from unreasonable risk imposition belong to the injurers. Since they are the injurer's problem, the injurer must make them up. ").
  • 314
    • 78649388319 scopus 로고    scopus 로고
    • See Goldberg & Zipursky, supra note 181, at 1676-85 defending limited duty rules in part on the ground that victims can be expected to handle ordinary stresses without "falling apart". The eggshell skull rule admits of a similar explanation. So long as the defendant has committed an actionable wrong against the plaintiff, a right of action exists. The extent of damages may go far beyond what was necessary to generate an actionable wrong, but that is because there is a remedial rule calling for victims of completed wrongs to be made whole. The causing of this additional increment of losses is not itself a wrong
    • See Goldberg & Zipursky, supra note 181, at 1676-85 (defending limited duty rules in part on the ground that victims can be expected to handle ordinary stresses without "falling apart"). The eggshell skull rule admits of a similar explanation. So long as the defendant has committed an actionable wrong against the plaintiff, a right of action exists. The extent of damages may go far beyond what was necessary to generate an actionable wrong, but that is because there is a remedial rule calling for victims of completed wrongs to be made whole. The causing of this additional increment of losses is not itself a wrong.
  • 315
    • 78649344665 scopus 로고    scopus 로고
    • See, e.g., supra note 12, "The law has not recognized any general duty to aid a person who is in peril."
    • See, e.g., PROSSER, supra note 12, at 190 ("The law has not recognized any general duty to aid a person who is in peril.").
    • Prosser1
  • 316
    • 84875580024 scopus 로고
    • See, e.g., Affiliated Ute Citizens v. United States, 153-54, holding that in a suit for breach of an affirmative duty to disclose information, it can be presumed that the plaintiff would have relied on the information had it been disclosed
    • See, e.g., Affiliated Ute Citizens v. United States, 406 U. S. 128, 153-54 (1972) (holding that in a suit for breach of an affirmative duty to disclose information, it can be presumed that the plaintiff would have relied on the information had it been disclosed);
    • (1972) U. S. , vol.406 , pp. 128
  • 317
    • 4243284799 scopus 로고
    • §, cmt. j, adopting a rebuttable presumption that a consumer suing for a failure to warn would have heeded the warning had it been given
    • RESTATEMENT (SECOND) OF TORTS § 402A cmt. j (1965) (adopting a rebuttable presumption that a consumer suing for a failure to warn would have heeded the warning had it been given).
    • (1965) Restatement (Second) of Torts
  • 319
    • 84883536044 scopus 로고    scopus 로고
    • See, § 1 reporters' notes, at, describing the majority rule. But see id. arguing for a departure from the majority rule
    • See RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIAB. § 1 reporters' notes, at 13 (2000) (describing the majority rule). But see id. (arguing for a departure from the majority rule);
    • (2000) Restatement (Third) of Torts: Apportionment of Liab , pp. 13
  • 320
    • 78649388607 scopus 로고    scopus 로고
    • id. § 3 reporters' notes, treating the question of whether to recognize comparative fault as a defense to intentional torts as a "policy" question for courts to decide on a case-by-case basis
    • id. § 3 reporters' notes, at 43 (treating the question of whether to recognize comparative fault as a defense to intentional torts as a "policy" question for courts to decide on a case-by-case basis).
  • 321
    • 78649391897 scopus 로고
    • See, §, requiring conduct that is "outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others"
    • See RESTATEMENT (SECOND) OF TORTS § 908 (2) (1977) (requiring conduct that is "outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others");
    • (1977) Restatement (Second) of Torts , vol.908 , Issue.2
  • 322
    • 78649385186 scopus 로고    scopus 로고
    • id. §, cmt. b acknowledging no punitive damages for mere inadvertence
    • id. § 908 cmt. b (acknowledging no punitive damages for mere inadvertence).
  • 323
    • 84881127652 scopus 로고
    • See, e.g., Ultramares Corp. v. Touche, 447 N. Y, holding that accountant malpractice causing economic loss is not actionable absent privity or near-privity between plaintiff and defendant, whereas fraud would be actionable without privity or near-privity
    • See, e.g., Ultramares Corp. v. Touche, 174 N. E. 441, 447 (N. Y. 1931) (holding that accountant malpractice causing economic loss is not actionable absent privity or near-privity between plaintiff and defendant, whereas fraud would be actionable without privity or near-privity).
    • (1931) N. E. , vol.174 , pp. 441
  • 324
    • 78649354798 scopus 로고    scopus 로고
    • See, §, asserting no right of contribution for intentional tortfeasors
    • See RESTATEMENT (SECOND) OF TORTS § 886A (3) (asserting no right of contribution for intentional tortfeasors).
    • Restatement (Second) of Torts , vol.886 A , Issue.3
  • 325
    • 78649343471 scopus 로고    scopus 로고
    • See, supra note 12, recognizing that under the law of joint tortfeasors, multiple wrongdoers may be held jointly liable for injuring a victim
    • See KEETON ET AL., supra note 12, at 268 (recognizing that under the law of joint tortfeasors, multiple wrongdoers may be held jointly liable for injuring a victim).
    • Keeton1
  • 326
    • 78649388320 scopus 로고    scopus 로고
    • See id, explaining that a defendant may be relieved of responsibility if his tortious conduct is superseded by the subsequent misconduct of an independent actor
    • See id. at 302 (explaining that a defendant may be relieved of responsibility if his tortious conduct is superseded by the subsequent misconduct of an independent actor).
  • 327
    • 78649371300 scopus 로고    scopus 로고
    • supra note 12
    • KEETON ET AL., supra note 12, at 301-02;
    • Keeton1
  • 328
    • 78649365403 scopus 로고    scopus 로고
    • see also infra notes 259-62 and accompanying text
    • see also infra notes 259-62 and accompanying text.
  • 329
    • 78649364541 scopus 로고    scopus 로고
    • See Goldberg & Zipursky, supra note 183, at 1211-12 explaining and criticizing the Restatement's position
    • See Goldberg & Zipursky, supra note 183, at 1211-12 (explaining and criticizing the Restatement's position).
  • 330
    • 78649337481 scopus 로고
    • Union Pump Co. v. Allbritton, Tex
    • Union Pump Co. v. Allbritton, 898 S. W.2d 773 (Tex. 1995)
    • (1995) S. W.2d , vol.898 , pp. 773
  • 331
    • 78649350648 scopus 로고    scopus 로고
    • abrogated in part by Ford Motor Co. v. Ledesma, Tex
    • abrogated in part by Ford Motor Co. v. Ledesma, 242 S. W.3d 32 (Tex. 2007).
    • (2007) S. W.3d , vol.242 , pp. 32
  • 332
    • 78649350948 scopus 로고    scopus 로고
    • Id
    • Id. at 774.
  • 333
    • 78649337480 scopus 로고    scopus 로고
    • Id
    • Id. at 776.
  • 334
    • 78649340012 scopus 로고    scopus 로고
    • See id. "The forces generated by the fire had come to rest when she Allbritton fell off the pipe rack. The fire had been extinguished, and Allbritton was walking away from the scene.... The pump fire did no more than create the condition that made Allbritton's injuries possible. We conclude that the circumstances surrounding her injuries are too remotely connected with Union Pump's conduct or pump to constitute a legal cause of her injuries."
    • See id. ("[T]he forces generated by the fire had come to rest when she [Allbritton] fell off the pipe rack. The fire had been extinguished, and Allbritton was walking away from the scene.... [T]he pump fire did no more than create the condition that made Allbritton's injuries possible. We conclude that the circumstances surrounding her injuries are too remotely connected with Union Pump's conduct or pump to constitute a legal cause of her injuries.").
  • 335
    • 78649350360 scopus 로고    scopus 로고
    • Even one who agrees with the Allbritton dissent that the defendant's carelessness was a proximate cause of the plaintiff's injury
    • Even one who agrees with the Allbritton dissent that the defendant's carelessness was a proximate cause of the plaintiff's injury
  • 336
    • 78649371884 scopus 로고    scopus 로고
    • see id, dissenting, presumably would allow that some weaker causal linkage of carelessness to injury would defeat the notion that the defendant had done wrong to the plaintiff. Such might be the case, for example, if the plaintiff had safely returned from the attempt to fix the valve to a staff break room, then, because she was tired from fighting the fire, accidentally burned her hand on a hot plate
    • see id. at 785 (Spector, J., dissenting), presumably would allow that some weaker causal linkage of carelessness to injury would defeat the notion that the defendant had done wrong to the plaintiff. Such might be the case, for example, if the plaintiff had safely returned from the attempt to fix the valve to a staff break room, then, because she was tired from fighting the fire, accidentally burned her hand on a hot plate.
    • Spector, J.1
  • 337
    • 78649345695 scopus 로고    scopus 로고
    • See, e.g., GOLDBERG, SEBOK & ZIPURSKY, supra note 155, at 296-97 explaining the doctrine of superseding cause and giving examples of situations "in which third-party misconduct intervenes as a necessary step in the sequence of events leading from the defendant's breach to plaintiff's injury"
    • See, e.g., GOLDBERG, SEBOK & ZIPURSKY, supra note 155, at 296-97 (explaining the doctrine of superseding cause and giving examples of situations "in which third-party misconduct intervenes as a necessary step in the sequence of events leading from the defendant's breach to plaintiff's injury").
  • 338
    • 78649373580 scopus 로고    scopus 로고
    • Port Authority of N. Y. & N. J. v. Arcadian Corp., 3d Cir
    • Port Authority of N. Y. & N. J. v. Arcadian Corp., 189 F.3d 305 (3d Cir. 1999).
    • (1999) F.3d , vol.189 , pp. 305
  • 339
    • 78649342104 scopus 로고    scopus 로고
    • See id, "The raw ammonium nitrate and urea sold by defendants were not explosive until the terrorists purposefully manipulated and adulterated them by mixing them together with additional chemicals such that they were transformed into energized materials that could be incorporated into an explosive charge. The danger to plaintiff was presented not by the raw materials, but by a bomb that incorporated the raw materials after they had been substantially altered."
    • See id. at 314 ("[T]he raw ammonium nitrate and urea sold by defendants were not explosive until the terrorists purposefully manipulated and adulterated them by mixing them together with additional chemicals such that they were transformed into energized materials that could be incorporated into an explosive charge. The danger to plaintiff was presented not by the raw materials, but by a bomb that incorporated the raw materials after they had been substantially altered.").
  • 340
    • 0042919893 scopus 로고
    • See In re Kinsman Transit Co., 726-27 2d Cir, applying comparative-fault principles in attributing liability to multiple defendants
    • See In re Kinsman Transit Co., 338 F.2d 708, 726-27 (2d Cir. 1964) (applying comparative-fault principles in attributing liability to multiple defendants).
    • (1964) F.2d , vol.338 , pp. 708
  • 341
    • 78649377605 scopus 로고    scopus 로고
    • See Goldberg & Zipursky, supra note 183, at 1236-37 explaining the distinctive nature of "concurrent negligence" cases
    • See Goldberg & Zipursky, supra note 183, at 1236-37 (explaining the distinctive nature of "concurrent negligence" cases).
  • 342
    • 78649352955 scopus 로고    scopus 로고
    • Compensation and revenge
    • See, e.g., 1400, articulating this view
    • See, e.g., Emily Sherwin, Compensation and Revenge, 40 SAN DIEGO L. REV. 1387, 1400 (2003) (articulating this view).
    • (2003) San Diego L. Rev. , vol.40 , pp. 1387
    • Sherwin, E.1
  • 343
    • 78649377888 scopus 로고    scopus 로고
    • E.g., supra note 51
    • E.g., WEINRIB, supra note 51, at 45.
    • Weinrib1
  • 344
    • 78649338649 scopus 로고    scopus 로고
    • Id
    • Id. at 45-46.
  • 345
    • 84937280357 scopus 로고    scopus 로고
    • Law for law's sake
    • See, e.g., 2263
    • See, e.g., Robert L. Rabin, Law for Law's Sake, 105 YALE L. J. 2261, 2263 (1996)
    • (1996) Yale L. J. , vol.105 , pp. 2261
    • Rabin, R.L.1
  • 346
    • 0004106103 scopus 로고
    • reviewing, dismissing Weinrib's treatment of tort law because of its formalism
    • (reviewing ERNEST J. WEINRIB, THE IDEA OF PRIVATE LAW (1995)) (dismissing Weinrib's treatment of tort law because of its formalism).
    • (1995) The Idea of Private Law
    • Ernest, J.W.1
  • 347
    • 78649370986 scopus 로고    scopus 로고
    • See supra text accompanying notes 125-29
    • See supra text accompanying notes 125-29.
  • 348
    • 78649350947 scopus 로고    scopus 로고
    • See supra note 7 and accompanying text
    • See supra note 7 and accompanying text.
  • 349
    • 78649298798 scopus 로고    scopus 로고
    • How remedies became a field: A history
    • See, e.g., 168
    • See, e.g., Douglas Laycock, How Remedies Became a Field: A History, 27 REV. LITIG. 161, 168 (2008).
    • (2008) Rev. Litig , vol.27 , pp. 161
    • Laycock, D.1
  • 350
    • 78649344989 scopus 로고
    • Self-help: Extrajudicial rights, privileges and remedies in contemporary american society
    • See, 853, "Modern courts generally are dubious of or hostile to self-help. "
    • See Douglas I. Brandon et al., Self-Help: Extrajudicial Rights, Privileges and Remedies in Contemporary American Society, 37 VAND. L. REV. 845, 853 (1984) ("Modern courts generally are dubious of or hostile to self-help. ").
    • (1984) Vand. L. Rev. , vol.37 , pp. 845
    • Brandon, D.I.1
  • 351
    • 31544470175 scopus 로고
    • See Goldberg, supra note 183, at 563 connecting Justice Marshall's invocation of the ubi jus maxim in Marbury v. Madison, 1 Cranch, 163, to the longstanding notion that a constitutional government is under a duty to afford its citizens the protection of the laws, including laws that provide recourse for wrongs done to them
    • See Goldberg, supra note 183, at 563 (connecting Justice Marshall's invocation of the ubi jus maxim in Marbury v. Madison, 5 U. S. (1 Cranch) 137, 163 (1803), to the longstanding notion that a constitutional government is under a duty to afford its citizens the protection of the laws, including laws that provide recourse for wrongs done to them).
    • (1803) U. S. , vol.5 , pp. 137
  • 352
    • 33750196544 scopus 로고    scopus 로고
    • Accidents of the great society
    • See, &, 395-98
    • See John C. P. Goldberg & Benjamin C. Zipursky, Accidents of the Great Society, 64 MD. L. REV. 364, 395-98 (2005)
    • (2005) Md. L. Rev. , vol.64 , pp. 364
    • Goldberg, J.C.P.1    Zipursky, B.C.2
  • 353
    • 78649386560 scopus 로고    scopus 로고
    • hereinafter, &, arguing that deterrence models that fail to recognize the influence of social norms and institutions are inadequate
    • [hereinafter Goldberg & Zipursky, Accidents of the Great Society] (arguing that deterrence models that fail to recognize the influence of social norms and institutions are inadequate);
    • Accidents of the Great Society
    • Goldberg1    Zipursky2
  • 354
    • 0348194818 scopus 로고    scopus 로고
    • The moral of macpherson
    • 1841-42
    • John C. P. Goldberg & Benjamin C. Zipursky, The Moral of MacPherson, 146 U. PA. L. REV. 1733, 1841-42 (1998)
    • (1998) U. Pa. L. Rev. , vol.146 , pp. 1733
    • Goldberg, J.C.P.1    Zipursky, B.C.2
  • 355
    • 78649352657 scopus 로고    scopus 로고
    • hereinafter, &, arguing that a relational conception of duty-one that incorporates an actor's moral responsibilities and legal duties-will permit law to build on and reinforce ordinary judgments about obligations of care
    • [hereinafter Goldberg & Zipursky, The Moral of MacPherson] (arguing that a relational conception of duty-one that incorporates an actor's moral responsibilities and legal duties-will permit law to build on and reinforce ordinary judgments about obligations of care).
    • The Moral of Macpherson
    • Goldberg1    Zipursky2
  • 358
    • 56049090127 scopus 로고    scopus 로고
    • Practical positivism versus practical perfectionism: The hart-fuller debate at fifty
    • See, e.g., 1211, "The conclusion that more just results can be reached... by practical perfectionism suffers from an artificial limitation of vision; an advocate of practical perfectionism must be willing to take what he... regards as the bad results along with what he... regards as the good ones, and must be willing to accept the corresponding alterations in judicial and nonjudicial power."
    • See, e.g., Benjamin C. Zipursky, Practical Positivism Versus Practical Perfectionism: The Hart-Fuller Debate at Fifty, 83 N. Y. U. L. REV. 1170, 1211 (2008) ("[T]he conclusion that more just results can be reached... by practical perfectionism suffers from an artificial limitation of vision; an advocate of practical perfectionism must be willing to take what he... regards as the bad results along with what he... regards as the good ones, and must be willing to accept the corresponding alterations in judicial and nonjudicial power.").
    • (2008) N. Y. U. L. Rev. , vol.83 , pp. 1170
    • Zipursky, B.C.1
  • 359
    • 78649350059 scopus 로고    scopus 로고
    • See, &, supra note, contending that social norms and institutions play a role in an actors' behavior and expectations
    • See Goldberg & Zipursky, Accidents of the Great Society, supra note 273, at 395-96 (contending that social norms and institutions play a role in an actors' behavior and expectations).
    • Accidents of the Great Society , vol.273 , pp. 395-396
    • Goldberg1    Zipursky2
  • 360
    • 78649344334 scopus 로고    scopus 로고
    • See COLEMAN, supra note 48, at 334 explaining that tort law concerns wrongdoing as defined by the relevant and appropriate norms of conduct
    • See COLEMAN, supra note 48, at 334 (explaining that tort law concerns wrongdoing as defined by the relevant and appropriate norms of conduct).
  • 361
    • 78649390729 scopus 로고    scopus 로고
    • See WEINRIB, supra note 51, at 14-15 arguing that all private law, including Torts, can only be understood internally
    • See WEINRIB, supra note 51, at 14-15 (arguing that all private law, including Torts, can only be understood internally).
  • 362
    • 78649343761 scopus 로고    scopus 로고
    • See, e.g., supra note 50
    • See, e.g., RIPSTEIN, supra note 50, at 48-64;
    • Ripstein1
  • 363
    • 0346675339 scopus 로고    scopus 로고
    • Reasonableness and rationality in negligence theory
    • 311-28
    • Gregory C. Keating, Reasonableness and Rationality in Negligence Theory, 48 STAN. L. REV. 311, 311-28 (1996);
    • (1996) Stan. L. Rev. , vol.48 , pp. 311
    • Keating, G.C.1
  • 364
    • 78649380379 scopus 로고    scopus 로고
    • Posner, supra note 60, at 29-44 all discussing negligence through analysis of "reasonable care" with discussion of activities posing risks to physical injury and property damage
    • Posner, supra note 60, at 29-44 (all discussing negligence through analysis of "reasonable care" with discussion of activities posing risks to physical injury and property damage).
  • 365
    • 78649342543 scopus 로고    scopus 로고
    • See, e.g., LANDES & POSNER, supra note 57, at 312 asserting that tort law provides incentives that generally promote economically efficient behavior
    • See, e.g., LANDES & POSNER, supra note 57, at 312 (asserting that tort law provides incentives that generally promote economically efficient behavior).
  • 366
    • 78649344990 scopus 로고    scopus 로고
    • See, e.g., explaining the inefficiencies of tort compensation compared to first-party insurance in the context of products liability and that the problem of underinsurance does not justify an expansion of tort liability
    • See, e.g., MARK A. GEISTFELD, PRINCIPLES OF PRODUCTS LIABILITY 53-58 (2006) (explaining the inefficiencies of tort compensation compared to first-party insurance in the context of products liability and that the problem of underinsurance does not justify an expansion of tort liability).
    • (2006) Principles of Products Liability , pp. 53-58
    • Mark, A.G.1
  • 367
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    • See Escola v. Coca-Cola Bottling Co., 441 Cal, concurring contending that victims suffering injuries from defective products are typically illprepared to meet the consequences of injury, while manufacturers are best positioned to prevent and absorb those risks and costs
    • See Escola v. Coca-Cola Bottling Co., 150 P.2d 436, 441 (Cal. 1944) (Traynor, J., concurring) (contending that victims suffering injuries from defective products are typically illprepared to meet the consequences of injury, while manufacturers are best positioned to prevent and absorb those risks and costs).
    • (1944) P.2d , vol.150 , pp. 436
    • Traynor, J.1
  • 368
    • 78649363493 scopus 로고
    • See, noting the argument that the manufacturers can pass premium costs of insurance on to purchasers as part of their general cost of doing business
    • See RICHARD A. EPSTEIN, MODERN PRODUCTS LIABILITY LAW: A LEGAL REVOLUTION 46 (1980) (noting the argument that the manufacturers can pass premium costs of insurance on to purchasers as part of their general cost of doing business).
    • (1980) Modern Products Liability Law: A Legal Revolution , pp. 46
    • Richard, A.E.1
  • 369
    • 78649391625 scopus 로고    scopus 로고
    • See LANDES & POSNER, supra note 57, at 57-58 asserting that the tort system functions as an "exceedingly costly insurance mechanism" with substantial administrative costs imposed by the time and money spent on litigation
    • See LANDES & POSNER, supra note 57, at 57-58 (asserting that the tort system functions as an "exceedingly costly insurance mechanism" with substantial administrative costs imposed by the time and money spent on litigation).
  • 370
    • 78649363970 scopus 로고    scopus 로고
    • See EPSTEIN, supra note 284, at 87-88 arguing that the judicial process involving layperson jurors provides a particularly poor forum for making the difficult choices of appropriate product design and regulations to protect consumers
    • See EPSTEIN, supra note 284, at 87-88 (arguing that the judicial process involving layperson jurors provides a particularly poor forum for making the difficult choices of appropriate product design and regulations to protect consumers).
  • 371
    • 58149356864 scopus 로고    scopus 로고
    • Tort reforms' winners and losers: The competing effects of care and activity levels
    • See, summarizing tort-reform proponents' arguments in favor of reform
    • See Joanna M. Shepherd, Tort Reforms' Winners and Losers: The Competing Effects of Care and Activity Levels, 55 UCLA L. Rev. 905, 914-19 (2008) (summarizing tort-reform proponents' arguments in favor of reform).
    • (2008) Ucla L. Rev. , vol.55-905 , pp. 914-919
    • Shepherd, J.M.1
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    • Id
    • Id.
  • 373
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    • The hidden victims of tort reform: Women, children, and the elderly
    • See, e.g., 1270-71, arguing that medical litigation has not caused an increase in medical-malpractice-insurance costs
    • See, e.g., Lucinda M. Finley, The Hidden Victims of Tort Reform: Women, Children, and the Elderly, 53 EMORY L. J. 1263, 1270-71 (2004) (arguing that medical litigation has not caused an increase in medical-malpractice-insurance costs).
    • (2004) Emory L. J. , vol.53 , pp. 1263
    • Finley, L.M.1
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    • 78649375858 scopus 로고    scopus 로고
    • Id
    • Id. at 1313-14.
  • 375
    • 78649358184 scopus 로고    scopus 로고
    • See Goldberg, supra note 183, at 535 "The common lawyers argued that each of these complexities was vital to the health of the polity, just as the health of each organ in a complex organism ensures its well-being."
    • See Goldberg, supra note 183, at 535 ("The common lawyers argued that each of these complexities was vital to the health of the polity, just as the health of each organ in a complex organism ensures its well-being.").
  • 376
    • 78649346598 scopus 로고    scopus 로고
    • See id, summarizing the common lawyers' arguments in favor of maintaining a complex legal system and refraining from consolidating authority in the executive
    • See id. at 538-39 (summarizing the common lawyers' arguments in favor of maintaining a complex legal system and refraining from consolidating authority in the executive).
  • 377
    • 78649360554 scopus 로고    scopus 로고
    • See id, discussing the empowerment of a litigant who sues for the redress of a wrong
    • See id. at 601-02 (discussing the empowerment of a litigant who sues for the redress of a wrong).
  • 378
    • 78649365401 scopus 로고    scopus 로고
    • See id, conceptualizing tort law as conferring a right against injury and a corresponding duty not to injure
    • See id. at 607-08 (conceptualizing tort law as conferring a right against injury and a corresponding duty not to injure).
  • 379
    • 78649342862 scopus 로고    scopus 로고
    • Id, 541, 545-46
    • Id. at 534-35, 541, 545-46.
  • 380
    • 78649362914 scopus 로고    scopus 로고
    • Id
    • Id. at 602.
  • 381
    • 78649354526 scopus 로고    scopus 로고
    • §
    • Mich. Comp. Laws § 600. 2912a (2000).
    • (2000) Mich. Comp. Laws , vol.600
  • 382
    • 0034350302 scopus 로고    scopus 로고
    • Reassessing regulatory compliance
    • See, e.g., 2061, discussing current controversy over the functioning of the tort system
    • See, e.g., Robert L. Rabin, Reassessing Regulatory Compliance, 88 GEO. L. J. 2049, 2061 (2000) (discussing current controversy over the functioning of the tort system).
    • (2000) Geo. L. J. , vol.88 , pp. 2049
    • Rabin, R.L.1
  • 383
    • 78649347504 scopus 로고    scopus 로고
    • See generally id. discussing current controversies involving the role of judges and juries and of tort law's approach to the defense of regulatory compliance
    • See generally id. (discussing current controversies involving the role of judges and juries and of tort law's approach to the defense of regulatory compliance).
  • 384
    • 0347334605 scopus 로고    scopus 로고
    • Law and economics discovers social norms
    • See, 540-43, discussing the recent move in law and economics from studying hypothesized rational actors to studying individuals guided by social norms
    • See Robert C. Ellickson, Law and Economics Discovers Social Norms, 27 J. LEGAL STUD. 537, 540-43 (1998) (discussing the recent move in law and economics from studying hypothesized rational actors to studying individuals guided by social norms);
    • (1998) J. Legal Stud. , vol.27 , pp. 537
    • Ellickson, R.C.1
  • 385
    • 0348246071 scopus 로고    scopus 로고
    • A Behavioral Approach to Law and Economics
    • Christine Jolls et al., A Behavioral Approach to Law and Economics, 50 STAN. L. REV. 1471, 1471 (1998) ("Empirical evidence gives much reason to doubt [the] assumptions [of neo-classical economics]; (Pubitemid 128421723)
    • (1998) Stanford Law Review , vol.50 , Issue.5 , pp. 1471
    • Jolls, C.1    Sunstein, C.R.2    Thaler, R.3
  • 386
    • 78649388945 scopus 로고    scopus 로고
    • people exhibit bounded rationality, bounded self-interest, and bounded willpower. This article offers a broad vision of how law and economics analysis may be improved by increased attention to insights about actual human behavior."
    • people exhibit bounded rationality, bounded self-interest, and bounded willpower. This article offers a broad vision of how law and economics analysis may be improved by increased attention to insights about actual human behavior.").
  • 387
    • 1542467410 scopus 로고
    • §§, 463-464, defining the cause of action for negligence and the standards for negligence and contributory negligence
    • RESTATEMENT (SECOND) OF TORTS §§ 281-283, 463-464 (1965) (defining the cause of action for negligence and the standards for negligence and contributory negligence).
    • (1965) Restatement (Second) of Torts , pp. 281-283
  • 388
    • 0040903966 scopus 로고    scopus 로고
    • § 2 cmt. c, "More distinctly than any other type of defect, manufacturing defects disappoint consumer expectations."
    • RESTATEMENT (THIRD) OF TORTS: PRODS. LIAB. § 2 cmt. c (1997) ("More distinctly than any other type of defect, manufacturing defects disappoint consumer expectations.").
    • (1997) Restatement (Third) of Torts: Prods. Liab
  • 390
    • 78649336332 scopus 로고    scopus 로고
    • Id. §
    • Id. § 46.
  • 391
    • 78649369621 scopus 로고    scopus 로고
    • Id. §§
    • Id. §§ 519-520.
  • 392
    • 78649364540 scopus 로고    scopus 로고
    • See, "The reasonable person standard's 'failure' to capture only blameworthy behaviour is actually posited as its distinctive strength.... In part this is because this 'failure' to attend to blame is seen as crucial to maintaining the core of the objective standard. In this way, the reasonable person's rigidity in the face of the intellectual shortcomings of the defendant is taken to exemplify its distinctively egalitarian conception of fault."
    • See MAYO MORAN, RETHINKING THE REASONABLE PERSON: AN EGALITARIAN RECONSTRUCTION OF THE OBJECTIVE STANDARD 58 (2003) ("[T]he reasonable person standard's 'failure' to capture only blameworthy behaviour is actually posited as its distinctive strength.... [I]n part this is because this 'failure' to attend to blame is seen as crucial to maintaining the core of the objective standard. In this way, the reasonable person's rigidity in the face of the intellectual shortcomings of the defendant is taken to exemplify its distinctively egalitarian conception of fault.").
    • (2003) Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard , pp. 58
    • Mayo, M.1
  • 393
    • 78649378158 scopus 로고
    • Civil Rights Act of 1964, Pub. L. No. 88-352, tit. 7, sec. 703, 78 Stat
    • Civil Rights Act of 1964, Pub. L. No. 88-352, tit. 7, sec. 703, 78 Stat. 241, 255-57 (1964)
    • (1964) , vol.241 , pp. 255-257
  • 394
    • 78649370987 scopus 로고    scopus 로고
    • codified as amended at, § 2000e-2
    • (codified as amended at 42 U. S. C. § 2000e-2 (2006));
    • (2006) U. S. C. , vol.42
  • 395
    • 33744755177 scopus 로고
    • see also Meritor Sav. Bank v. Vinson, holding that sexual harassment is a form of sex discrimination actionable under Title VII
    • see also Meritor Sav. Bank v. Vinson, 477 U. S. 57 (1986) (holding that sexual harassment is a form of sex discrimination actionable under Title VII).
    • (1986) U. S. , vol.477 , pp. 57
  • 396
    • 78649342233 scopus 로고    scopus 로고
    • See Veeder v. Kennedy, 614 nn. 3-4 S. D, surveying the status of a cause of action for alienation of affection, which the majority of states have judicially or statutorily abolished
    • See Veeder v. Kennedy, 589 N. W.2d 610, 614 nn. 3-4 (S. D. 1999) (surveying the status of a cause of action for alienation of affection, which the majority of states have judicially or statutorily abolished).
    • (1999) N. W.2d , vol.589 , pp. 610
  • 397
    • 33847333539 scopus 로고
    • See, e.g., Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, constitutional torts
    • See, e.g., Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U. S. 388 (1971) (constitutional torts);
    • (1971) U. S. , vol.403 , pp. 388
  • 398
    • 76049123981 scopus 로고
    • Co. v. Partridge, 5th Cir, securities fraud
    • G. A. Thompson & Co. v. Partridge, 636 F.2d 945 (5th Cir. 1981) (securities fraud);
    • (1981) F.2d , vol.636 , pp. 945
    • Thompson, G.A.1
  • 399
    • 15744401810 scopus 로고
    • Filartiga v. Pena-Irala, 2d Cir, international human rights
    • Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) (international human rights);
    • (1980) F.2d , vol.630 , pp. 876
  • 400
    • 84871549208 scopus 로고
    • Williams v. Saxbe, D. D. C, sexual harassment
    • Williams v. Saxbe, 413 F. Supp. 654 (D. D. C. 1976) (sexual harassment);
    • (1976) F. Supp. , vol.413 , pp. 654
  • 401
    • 78649374429 scopus 로고
    • Escola v. Coca-Cola Bottling Co., 562 Cal, Traynor, J., concurring products liability
    • Escola v. Coca-Cola Bottling Co., 24 Cal. 2d 453, 562 (Cal. 1944) (Traynor, J., concurring) (products liability).
    • (1944) Cal. 2d , vol.24 , pp. 453
  • 402
    • 77954703889 scopus 로고    scopus 로고
    • The place of reliance in fraud
    • See, &, 1015-18, outlining the development of a private right of action for consumer fraud
    • See John C. P. Goldberg, Anthony J. Sebok & Benjamin C. Zipursky, The Place of Reliance in Fraud, 48 ARIZ. L. REV. 1001, 1015-18 (2006) (outlining the development of a private right of action for consumer fraud).
    • (2006) Ariz. L. Rev. , vol.48 , pp. 1001
    • Goldberg, J.C.P.1    Sebok, A.J.2    Zipursky, B.C.3


* 이 정보는 Elsevier사의 SCOPUS DB에서 KISTI가 분석하여 추출한 것입니다.