!!Экзамен зачет 2023 год / Mixed theories of tort law

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between tort and crime. See, e.g., Symposium, The Intersection of Tort and Criminal Law, 76 B.U. L. Rev. 1 (1996).

[FN118]. See supra notes 49-50 and accompanying text.

[FN119]. Coleman, supra note 7, at 375.

[FN120]. Joel Feinberg makes a similar point about how the structure of a criminal prosecution inevitably connects the criminal law to retribution:

[T]he criminal process in its very conception is inherently moral (as opposed to non-moral)--a great moral machine, stamping stigmata on its products, painfully "rubbing in" moral judgments on the persons who had entered in one end as "suspects" and emerged from the other end as condemned prisoners.

Joel Feinberg, Some Unswept Debris From the Hart-Devlin Debate, 72 Synthese 249, 260 (1987) (emphasis in original).

[FN121]. This point can be restated with respect to public attitudes. It seems clear to me that the public understands tort law largely in moral terms-- as a device for identifying and remedying moral wrongs. Any effort to reformulate tort law entirely in terms of social policy would run the risk of confusing or estranging this strong base of public support.

[FN122]. See supra notes 49-50 and accompanying text.

[FN123]. Calabresi has suggested that the "language of causation" is "alien" to the economist. Calabresi, Concerning Cause, supra note39, at 105. Landes and Posner, in essence agreeing with this suggestion, propose that causation rules can "largely be dispensed with in an economic analysis of torts." Landes & Posner, supra note 18, at 229. Indeed, Landes and Posner endeavor to interpret "no causation" holdings as really "no negligence" holdings. Id. at 234-35. But this effort is basically unsuccessful. See Richard W.Wright, Actual Causation vs. Probabilistic Linkage: The Bane of Economic Analysis, 14 J. Legal Stud. 435, 452-55 (1985). The core of the problem is that the actual causation test basically calls for an after-the-fact analysis, while the perspective of the economist is necessarily prospective.

[FN124]. Consider, for example, cases in which the defendant has been clearly negligent in failing to adopt a precaution, yet it cannot be affirmed that the precaution probably would have prevented the plaintiff's injury. From a corrective justice perspective, there is inadequate reason for imposing liability. Yet the economist would see things differently. See, e.g., Alan Schwartz, Causation in Private Tort Law: A Comment on Kelman, 63 Chi.-Kent L. Rev. 639, 644 (1987) (utilizing a products liability example). Denying the liability of negligent defendants because of causal uncertainties may end up underdeterring and hence facilitating negligence. Yet imposing liability despite causal uncertainties does not precisely raise any converse problem of overdeterrence; instead, defendants essentially receive additional reasons for abstaining from conduct which the law wants them to avoid. (To be sure, the additional suits do generate administrative overhead, and certain "overdeterrence" scenarios can perhaps be identified.)

[FN125]. See supra note 119 and accompanying text.

[FN126]. Moreover, if the victim (for example, a passenger) chooses to bring suit only against the negligent driver, the driver can seek contribution from the car manufacturer.

If the defendant in no way causes the plaintiff's harm but merely fails to protect or rescue the plaintiff, under established tort doctrine the defendant bears no liability. This no-affirmative-duty rule disturbs many economists. See, e.g., Richard L.Hasen, The Efficient Duty to Rescue, 15 Int'l. Rev. L. & Econ. 141 (1995) (supporting the duty to rescue). Yet the rule troubles a number of corrective justice scholars as well. See, e.g., Wright, supra note 14, at 271-74 (questioning the rule's philosophical justifications). The most one can say is that given the "liberty" and "causation" issues involved, justice scholars might find it easier than economists to develop a rationale supporting the rule.

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[FN127]. For a discussion of victim contributory negligence, assumption of risk, and choice of activities and activity levels, see Landes & Posner, supra note 18, at 69, 76-77, 88-91, 139-42.

[FN128]. Yet I agree with Coleman and Weinrib that the structure of tort law essentially rules out loss distribution as a coherent tort objective. Their position is set forth in Coleman, supra note 7, at 376-82, and Weinrib, supra note 9, at 36-38. Given its negligence liability criterion, tort law can plausibly be seen as seeking to deter all negligent conduct and to provide a corrective justice remedy whenever negligence does occur. But that negligence standard makes no sense if loss-spreading is assumed to be a primary goal of the law: only a small fraction of all injuries whose losses might be advantageously spread are caused by the negligence of any third party (or any product defect). Furthermore, the tort system's insistence on proof of elements such as negligence and defect assures that the tort system will deliver compensation only after substantial delays and considerable contention. These features seem inconsistent with any loss distribution rationale for tort law.

[FN129]. Noteworthy here are recent recommendations on improving the efficiency of the tort system. To better solve the negligence/contributory negligence problem, Susan Rose-Ackerman has proposed that when the foreseeable negligence of one party induces the other party to incur precaution costs to avoid an injury, the party bearing those costs should be allowed to sue the negligent party for reimbursement. Susan Rose-Ackerman, Dikes, Dams, and Vicious Hogs: Entitlement and Efficiency in Tort Law, 18 J. Legal Stud. 25, 46-47 (1989). To maintain deterrence levels while reducing administrative costs, Mitchell Polinsky and Yeon-Koo Che have recommended the "decoupling" of what the defendant pays from what the plaintiff receives. The defendant would pay in damages more than the victim's actual loss, but the victim would recover as compensation less than that loss, with the remainder of the defendant's payment going to the State. A.Mitchell Polinsky & Yeon-Koo Che, Decompling Liability: Optimal Incentives for Care and Litigation, 22 RAND J. of Econ. 562, 562-63 (1991).

Each of these recommendations, in my view, has serious disadvantages. Still, their very presentation shows how many economists lack a commitment to basic tort structure.

[FN130]. See Justice Breyer's swing-vote opinion in Medtronic, Inc. v. Lohr, 116 S.Ct. 2240, 2261, 2259-62 (1996) (Breyer, J., concurring in part and concurring in the judgment) (reasoning that findings of preemption should turn on how "specific" is the federal regulatory requirement).

[FN131]. See supra notes 118-19 and accompanying text.

[FN132]. In supporting consideration of mixed theories, I regard Izhak Englard as a clear ally (just as he similarly regards me). See Izhak Englard, The Philosophy of Tort Law 7-108 & 82 n.173 (1993). Yet though he endorses mixed theories in the abstract, Englard is quite ambiguous about the nature of the mixed theory he has in mind. At times he refers to theories that incorporate corrective justice and social utility and at other times to theories that include corrective justice and distributive justice. See id. at 7-20. Moreover, he supports loss distribution as a proper tort goal, falling under the heading of distributive justice. See id. at 54. My own mixed theory is limited to corrective justice and deterrence. See supra note 128. Still, given the similarity of our interests, I applaud Englard's project.

[FN133]. See United States v. Carroll Towing Co., 159 F.2d 169, 173-74 (2d Cir. 1947).

[FN134]. See, e.g., Adams v. Bullock, 125 N.E. 93, 93-94 (N.Y. 1919) (Cardozo, J.) (finding a trolley company not liable when the risk of injury was small and the burden of protection was great); Smith v. Johnston, 591 P.2d 1260, 1263 (Okla. 1978) (finding the defendant negligent because "[t]hough the likelihood of harm [was small], the gravity was great and, with little appreciable effort, could have been avoided").

[FN135]. See Restatement of Torts §§ 291-293 (1934) (grounding the concept of negligence in the balance between the magnitude of a risk and the utility of the activity creating it).

[FN136]. See Gary T. Schwartz, Contributory and Comparative Negligence: A Reappraisal, 87 Yale L.J. 697, 702-03 (1979).

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[FN137]. See Weinrib, supra note 9, at 53 (reasoning that the Learned Hand formula calls for "equality as between actor and victim" and rules out "self-preference" that would violate Kantian norms). In his recent book, however, Weinrib moves away from the Hand formula as the definition of negligence. See Weinrib, supra note 9, at 147-52 (indicating that the creation of substantial risks is negligent, regardless of prevention burdens). It may be, therefore, that Weinrib no longer accepts the rationale for negligence liability that he earlier offered.

[FN138]. See David G.Owen, Philosophical Foundations of Fault in Tort Law, in Philosophical Foundations, supra note 10, at 201, 225-26; David G.Owen, The Fault Pit, 26 Ga. L. Rev. 703, 722 (1992) (both arguing that Hand's formula requires potential tortfeasors to weigh the interests of others at a value equal to their own).

[FN139]. See Simons, supra note 49, at 280-81.

[FN140]. See Rabin, supra note 58, at 2275.

[FN141]. Restatement (Second) of Torts § 283 cmt.e (1965).

For an interesting recent argument that ethical principles permit a person in choosing his conduct to give somewhat more attention to his own interests than to the interests of others, see Samuel Scheffler, The Rejection of Consequentialism 14-79 (rev. ed. 1994).

[FN142]. This formula applies most easily in those negligence cases in which the defendant has knowingly engaged in risky conduct. In many other cases, however, the defendant's negligence consists essentially of his failure to advert to the risks in the action he is undertaking. The shift from deliberate to inadvertent negligence complicates both an economic and an ethical analysis of negligence liability. Still, this liability is probably appropriate. On the issue of deterrence, see Gary T.Schwartz, Reality In the Economic Analysis of Tort Law: Does Tort Law Really Deter?, 42 UCLA L. Rev. 377, 385-86 (1994) [hereinafter Schwartz, Reality]. On the issue of ethics, see Gary T.Schwartz, The Vitality of Negligence and the Ethics of Strict Liability, 15 Ga. L. Rev. 963, 1003 (1981) [hereinafter Schwartz, Vitality] ("Ethically regarded, the idea of liability for harm caused by one's unexcused errors and mistakes is both straightforward and intuitive.").

[FN143]. See also infra text accompanying notes 184-87 and 203-21, suggesting how efficiency and corrective justice might blend together.

[FN144]. See Schwartz, Vitality, supra note 142, at 971-72 (discussing the status of the abnormally dangerous rule).

[FN145]. See id. at 993-97.

[FN146]. See, e.g., Shavell, supra note 41, at 21-26.

[FN147]. See Gary T. Schwartz, The Hidden and Fundamental Issue of Vicarious Liability, 69 S. Cal. L. Rev. 1739 (1996). The discussion that follows draws on this article.

[FN148]. See id. at 1754. The justifications typically rest on some variation of the idea that the employer should bear liability because the employee's tortious conduct is "characteristic" of the employer's business operations. One problem here is that given the breadth of the modern "scope of employment" rule, many instances of employee negligence for which the employer is held vicariously liable are hardly "characteristic" of the employer's activity in any meaningful sense. A more basic problem is that tort law has never accepted any general standard rendering companies liable for all "characteristic" harms. Thus, a drug manufacturer is not automatically liable for all the side effects of drugs, nor is a railroad strictly liable for all accidents at highway crossings. See id. at 1749-50.

[FN149]. See id. at 1754-64. This argument concerns an employer's failure to adopt cost-justified safety measures such as properly determining the size of its workforce, properly screening prospective employees, properly training and supervising existing employees, and properly reassigning, disciplining, or discharging employees

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whose safety practices are substandard. To be sure, these failures could technically give rise to negligence claims against the employer. But the failures will commonly lurk so far in the background of the employer's operations as to elude the attention of both plaintiffs and courts. A prophylactic rule of vicarious liability thus seems advisable to ensure that employers have adequate incentives to consider and adopt these reasonable safety measures.

[FN150]. See supra notes 123-24 and accompanying text.

[FN151]. See, e.g., Tantimonico v. Allendale Mutual Ins. Co., 637 A.2d 1056 (R.I. 1994) (returning to a traditional analysis).

[FN152]. See, e.g., Restatement (Second) of Torts § 333 illus.1-3 (1965) (providing examples of landowners not liable for trespasser injuries).

Jurisdictions are now divided on the extent of landowners' liability to licensees. S1ee Carter v. Kinney, 896 S.W.2d 926, 929 nn.3-4 (Mo. 1995).

[FN153]. See Landes & Posner, supra note 18, at 93 n.14.

[FN154]. See id. at 95.

[FN155]. If the trespasser does know of this risk, then quite apart from landowner rules the defense of assumption of risk should knock out his claim. If the trespasser should know of this risk, the defense of contributory or comparative negligence would apply. The no-liability-to-trespasser rule seems to express a logic of its own. See William L.Prosser & W.Page Keeton, The Law of Torts 394-395 (5th ed. 1984) (discussing possible rationales for this rule). Of course, if the relevant defense were only comparative negligence, trespassers could often secure a partial recovery.

[FN156]. See Wright, supra note 14, at 265-66. The corrective justice argument against liability would be especially strong if the trespasser were in fact a burglar: no matter how clear the landowner's negligence, imposing liability on the landowner would be offensive. Similarly, it would be wrong if a car thief, injured by a undeniable defect in the car, could bring suit against the product manufacturer. See Schwartz, supra note 63, at 811.

[FN157]. See John L. Diamond et al., Understanding Torts 173-75 (1996).

[FN158]. See Landes & Posner, supra note 18, at 186-89, 314.

[FN159]. Of course, the common law, in its pure early-nineteenth-century form, denied wrongful death liability altogether; but wrongful death statutes compensating family members have long since become a routine feature in the tort system. See Diamond et al., supra note 157.

[FN160]. A somewhat similar problem arises in the suit for loss of life's enjoyments brought by the victim who is rendered comatose by the defendant's negligence. Despite the presence of a living plaintiff, some courts have denied liability, focusing on the victim's unawareness of his loss and the impossibility of meaningfully compensating him for that loss. See, e.g., McDougald v. Garber, 536 N.E.2d 372 (N.Y. 1989). From a corrective justice perspective, this result is certainly plausible. Yet from the perspective of deterrence, the result is plainly and seriously mistaken.

[FN161]. Take the (perhaps unmarried) victim who, had he survived, would have enjoyed his own life at the level of $3million. If, for deterrence reasons, the Landes-Posner recommendation were implemented, who would receive the defendant's $3million liability payment? The difficulty in satisfactorily answering this ques- tion--a question that Landes and Posner fail to address-- highlights the extent to which the corrective justice structure of tort suits provides an explanation for current wrongful-death practices.

[FN162]. As for tort law's causation requirement, see supra notes123-26 and accompanying text.

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[FN163]. See supra notes 133-46 and accompanying text.

[FN164]. See supra notes 147-49 and accompanying text.

[FN165]. See supra notes 151-56 and accompanying text.

[FN166]. See supra notes 157-61 and accompanying text.

[FN167]. See supra notes 102-04 and accompanying text. Relying on Hart, Tony Honoré suggests that the "general aim[ ] justify[ing] the state in maintaining a system of tort law" is deterrence. Tony Honoré, The Morality of Tort Law--Questions and Answers, in Philosophical Foundations, supra note 10, at 73, 76. But again citing Hart, Honoré then considers the actual "[d] istribution of [t] ort [l]iability"--that is, conferring on certain plaintiffs the right to sue certain defendants. Id. at 78 (emphasis omitted). In justifying both plaintiffs' claims and defendants' liabilities, Honoré relies mainly on the principle of corrective justice (as he interprets it). Id. at 78-84, 94.

One problem with this adaptation of Hart's mixed theory is that corrective justice turns out to do essentially all of the work. If corrective justice really authorizes both the claims of injured plaintiffs and the liabilities of tortious defendants, then as an effective matter the tort system's rules seem to be driven by corrective justice all the way. Hence, it is unclear what significance attaches to deterrence as the "general aim" of tort. Id. at 76. (At one point Honoré does suggest that corrective justice, while identifying which defendants should bear liability, may leave open the form of that liability: an apology might suffice--unless deterrence requires full compensation. Id. at 82. Elsewhere, however, Honoré seems to say that when the victim seeks compensatory damages, the corrective justice standard requires the defendant to provide (or at least arrange for) that compensation. See id. at 79-80.)

[FN168]. See supra notes 133-46 and accompanying text; see also William K.Jones, Strict Liability for Hazardous Enterprise, 92 Colum. L. Rev. 1705, 1775 (1992) (essentially accepting this formulation).

[FN169]. See supra notes 151-56 and accompanying text.

[FN170]. See supra notes 157-61 and accompanying text.

[FN171]. See supra notes 148-49 and accompanying text.

[FN172]. See supra notes 136-42 and accompanying text.

[FN173]. Compare Norval Morris's mixed-theory position on criminal sentences, which indicates that a range of sentences are sufficiently just; this enables the choice among them to be rendered on deterrence grounds. See supra note 109 and accompanying text.

[FN174]. Admittedly, the formulation places much weight on the concept of "compatible," and this Paper has only gone part way in explaining and developing this concept.

[FN175]. In choosing between comparative negligence and contributory negligence as a full defense, an economic analysis seems indeterminate; but corrective justice points strongly toward comparative negligence. See Schwartz, supra note 136, at 721-27. Consider next the tort suit brought by the rape victim, discussed supra note 64. From a corrective justice perspective, this suit is an obvious winner. From an economic perspective, it is a likely winner--but everything depends on real-world data that probably are not available.

Take also the government that launches a Skylab, knowing it is almost certain at some point to return to earth and possibly cause harm. The cost the government would bear in either canceling the launching or endeavoring to significantly improve the Skylab design would in all likelihood completely overwhelm the cost of the government's expected liability (especially taking into account the probability that the Skylab will come down on water or undeveloped land). Since the threat of liability would not affect the government's choices, a concern for proper incentives cannot easily explain any desire to impose liability on the government. Yet an ethical approach--

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focusing on the government's launch as the exclusive cause of whatever harm occurs--makes the government's liability seem very attractive. See Schwartz, Vitality, supra note 142, at 1003-04.

[FN176]. Note that criminal law scholars have not yet reached consensus as to a proper mixed theory for all of the criminal law. See supra notes113-16 and accompanying text.

[FN177]. See supra notes 133-46 and accompanying text.

[FN178]. On the obvious relevance of costs to an economic analysis, see Calabresi, supra note 15, at 26-31. Weinrib explains the tort system in corrective justice terms, and Rabin faults Weinrib for failing to consider the system's high costs. Rabin, supra note 58, at 2280-81.

[FN179]. See generally Schwartz, Reality, supra note 142.

[FN180]. See Daniel W.Shuman, The Psychology of Compensation in Tort Law, 43 U. Kan. L. Rev. 39, 64 (1994) (indicating that many tort plaintiffs are frustrated by "mass-production techniques"). For one claimant's description of her miserable experience, see Sandra M.Gilbert, Wrongful Death: A Medical Tragedy (1995).

[FN181]. Of course, corrective justice is in a sense an abstract principle that cannot be fully equated with the actual experiences of accident victims. Still, a corrective justice assessment that ignores these experiences would plainly be unsatisfactory.

[FN182]. To be sure, a number of corrective justice scholars favor supplementing negligence liability with particular rules of strict liability. Obviously, my text's observations apply to these scholars only in part.

[FN183]. See Schwartz, Reality, supra note 142, at 393, 397-99, 405-07 (providing information on motorist, medical, and manufacturer negligence).

[FN184]. This point will be discussed further below. See infra notes 203-21 and accompanying text.

[FN185]. Posner, supra note 16, at 33.

[FN186]. See supra text accompanying note 163.

[FN187]. See Izhak Englard, The Idea of Complementarity as a Philosophical Basis for Pluralism in Tort Law, in Philosophical Foundations, supra note 10, at 183, 194. Though Englard places a concept of "complementarity" at the heart of his mixed theory proposals, this concept seems to refer to a rather arbitrary compromise between objectives which themselves stand in basic conflict with each other.

[FN188]. See supra notes 15-41 and accompanying text.

[FN189]. See, e.g., Don Dewees & Michael Trebilcock, The Efficacy of the Tort System and Its Alternatives: A Review of Empirical Evidence, 30 Osgoode Hall L.J. 57, 60 (1992) ("Law and economics scholars, drawing on concepts of economic efficiency, tend to stress the deterrent objectives of the tort system.").

[FN190]. Claybrook has recently been the head of Public Citizen, a public-interest advocacy group founded by Nader. Her career is described in Jerry L.Mashaw & David L.Harfst, The Struggle for Auto Safety 14, 58, 148, 166, 194201 (1990).

[FN191]. See Joan Claybrook, Products Liability: Serving All Americans, Trial, Oct. 1990, at 26, 27.

[FN192]. See id. at 26 (arguing that the tort system "deters misconduct" by irresponsible manufacturers).

[FN193]. Richard L. Abel, A Socialist Approach to Risk, 41 Md. L. Rev. 695, 695 (1982).

[FN194]. Richard L. Abel, A Critique of Torts, 37 UCLA L. Rev. 785, 785 (1990).

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[FN195]. See, e.g., id. at 826, 825-28 (emphasizing "the role of tort liability in deterring unsafe behavior" in his proposal for replacing negligence liability with strict liability).

[FN196]. See Howard Latin, Activity Levels, Due Care, and Selective Realism in Economic Analysis of Tort Law, 39 Rutgers L. Rev. 487, 487 (1987) [[[hereinafter Latin, Activity Levels] (arguing that economic analysis rests on completely "unrealistic assumptions about human and institutional behavior" and hence is not "legally useful" (emphasis in original)); see also Howard Latin, "Good" Warnings, Bad Products, and Cognitive Limitations, 41 UCLA L. Rev. 1193, 1249-55 (1994) [hereinafter Latin, Warnings] (denying that consumers act rationally in the way economic analysis suggests).

[FN197]. Howard A.Latin, Problem-Solving Behavior and Theories of Tort Liability, 73 Cal. L. Rev. 677, 679, 682 (1985).

[FN198]. See, e.g., id. at 697 (recommending strict liability whenever "high attention" injurers encounter "low attention" victims).

[FN199]. Special Comm. on the Tort Liab. Sys., Towards a Jurisprudence of Injury: The Continuing Creation of a System of Substantive Justice in American Tort Law 4-8, 4-13 (1984). Shapo was the reporter to this ABA Special Committee and the principal author of its report.

[FN200]. Shapo has refered to the "potential for harsh application" in the "efficiency approach." Id. at 4-17. In listing the policies that influence judges, Shapo places first on his list a "judicial commitment to increased safety without precise calculations of costs." Id. at 4-3. And Shapo makes clear that he approved of this policy. See id. at 4-1 (indicating that the committee "substantially approv[es] of the way courts have gone about" deciding tort cases). Shapo's most recent book on products liability indicates that

deterrence is not only a technical economic concept. It has moral properties. Courts hold it proper to announce rules aimed at making sellers behave more safely than they do, even when it might be technically inefficient for them to do so.... [M]ost economists have one craft-oriented focus, and that is on efficiency. But lawyers [and courts] have a broader aim, and that is to secure justice.

Marshall S. Shapo, Products Liability and the Search for Justice 194 (1993). The "justice" to which Shapo refers seems to entail some intuition of "social justice."

[FN201]. Stewart M. Speiser, Lawyers and the American Dream 317 (1993).

[FN202]. See id. at 300-01.

[FN203]. To illustrate this general point, consider attitudes toward contractual disclaimers of liability. The economic analyst typically reasons that agreed-to disclaimers prima facie minimize the aggregate of costs the two parties encounter, and hence should be enforced. See, e.g., Peter W. Huber, Liability: The Legal Revolution and Its Consequences 20-25, 27-32 (1990) (supporting freedom of contract). Yet for Abel, disclaimers are plainly offensive; they are a prime example of tort law's nasty tendency to "blame the victim." Abel, supra note 194, at 820. A populist like Claybrook and a plaintiffs' lawyer like Speiser would almost certainly perceive that there is no meaningful "bargaining power" between large corporations and ordinary consumers and therefore would denounce liability disclaimers. At least in products cases, Shapo has opposed disclaimers, based on his perception that product advertising, by creating powerful images of product reliability and safety, should be the dominant factor influencing products liability doctrine. See Shapo, supra note 200, at 150-52. Latin would evidently disallow disclaimers accepted by ordinary consumers, whom he would deem to be lacking in both the knowledge of risks and the ability to process the relevant information. (Note that his assessment of consumer attributes leads him to reject warnings as a limitation on manufacturers' design liability. See Latin, Warnings, supra note 196.)

[FN204]. See, e.g., Shapo, supra note 200, at 196 (citing Calabresi); Speiser, supra note 201, at 317-19 (citing Posner); Abel, supra note 194, at 787, 795 (citing Posner and Calabresi); Latin, Activity Levels, supra note 196, at 487-88 (citing both Posner and Calabresi).

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[FN205]. See generally Nader, supra note 26.

[FN206]. If, for example, the claim is made that a proposed constitutional rule will inefficiently impose costs on society, the scholar will likely respond by saying that the whole point of constitutional law is to identify public values that subordinate the significance of a variety of costs. See, e.g., Shapiro v. Thompson, 394 U.S. 618, 633-34 (1969) (rejecting a reduction in administrative costs as an acceptable reason for limiting the right to travel).

[FN207]. Both Coleman and Weinrib believe that harms negligently caused are wrongfully caused, and both regard negligence as the proper general basis for tort liability. See Coleman, supra note 7, at 233; Weinrib, supra note 9, at 145-52.

[FN208]. Note that my deterrence-as-justice rationale is limited to rules of negligence liability. It would not fully apply to the tort system's rules of strict liability, which cover cases in which the act of the defendant that results in injury is not necessarily improper.

[FN209]. See, e.g., Englard, supra note 187, at 183.

[FN210]. My discussion of deterrence for the sake of justice in tort law can be compared to Charles Fried's project on the ethics of contracts. See Charles Fried, Contract as Promise: A Theory of Contractual Obligation 11-17 (1981). In considering whether there is an ethical obligation to honor one's promise, Fried is led to recognize the relevance not so much of the promise itself but the promise against the backdrop of a legal convention that makes contractual promises enforceable. See id. at 11-12. What, then, is the purpose of this convention? Here Fried emphasizes the desirable results the convention brings about. In identifying these results, he disregards any mere increase in "utility." Id. at 16. Instead he focuses on the "trust" and "individual autonomy" made possible by this background convention. Id. Fried understands these to be non-economic values, "deeper than and independent of" mere utility. Id. at 17.

Fried's account of contract law thus sees that law as instrumental or consequential. However, the "consequences" he emphasizes are the achievement of moral values.

[FN211]. Take note of Nagel's reminder that "consequentialist values need not be utilitarian." Thomas Nagel, Mortal Questions 85 (1979). Nagel observes, for example, that a "consequentialist assessment of social institutions can be strongly egalitarian." Id. For a valuable discussion of teleological elements in moral theory, see William Powers, Jr., Structural Aspects of the Impact of Law on Moral Duty Within Utilitarianism and Social Contract Theory, 26 UCLA L. Rev. 1263 (1979).

[FN212]. Ken Simons is willing to use "corrective justice" language in discussing injunctions that instruct particular defendants to avoid future wrongdoing. Kenneth W.Simons, Jules Coleman and Corrective Justice in Tort Law: A Critique and Reformulation, 15 Harv. J.L. & Pub. Pol'y 849, 872-73 (1992). Admittedly, an injunction differs from general deterrence insofar as it focuses on a particular defendant deemed likely to behave improperly.

[FN213]. Keating, supra note 13, at 341-42. "Security" is described by Keating as "freedom from accidental injury and death." Id. at 322.

[FN214]. Bentham, supra note 78, at 158.

[FN215]. See, e.g., Alasdair MacIntyre, After Virtue 62-63 (2d ed. Univ. of Notre Dame Press 1984) (1981) (assessing Bentham).

[FN216]. Packer, supra note 83, at 11.

[FN217]. For example, Ernest VandenHaag, in defending criminal punishment as a deterrence measure, refers to the goals of deterrence as both "material" and "moral." VandenHaag, supra note 106, at 26. He finds that the

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criminal law deters for the sake of social welfare. See id. at 60-61. He also suggests that criminal law is designed to protect fundamental, essentially natural human rights. See id. at 3.

[FN218]. See Joel Feinberg, Harm to Others 20 (1984) ("[T]he whole purpose of the criminal prohibition is to discourage the particular antisocial behavior that is forbidden.").

[FN219]. Feinberg, supra note 120, at 257; see also id. at 258 (suggesting that "the protection of moral rights" is the "only legitimate ground" for making conduct criminal).

[FN220]. See Alan H. Goldman, The Paradox of Punishment, 9 Phil. & Pub. Aff. 42, 51-52 (1979).

[FN221]. Jules Coleman approaches the point, but then backs away. Coleman, supra note 7, at 239-40 (noting that the "faulty behavior" that tort law seeks to deter might be deemed faulty because it "violates norms of fairness").

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