No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 16 January 2009
Alan Brudner recently observed that a significant tendency within contemporary legal scholarship has been “the movement toward comprehending private law in terms of non-legal ‘perspectives’ that reduce to surface rhetoric the discourse by which private law articulates and understands itself”. This is most obviously true of the economic analysis of law, and not simply in so far as it introduces a vocabulary that is unfamiliar to the lawyer. For the perspective which has informed the most influential currents within that movement is fundamentally aggregative in orientation, so that legal doctrines developed within a bilateral adjudicative framework, focusing on justice between two parties, are inevitably cast in a subordinate and instrumental role. Economic approaches seek to explain the law from a standpoint outside of the law's own framework, and to reveal a deep rationale for particular legal doctrines which would not be transparent to the lawyers and judges who developed those doctrines.
1 Brudner, , “Hegel and the Crisis of Private Law” (1989) 10 Cardozo Law Review 949.Google Scholar
2 I have sketched the decline of that tradition in The Decline of Juridical Reason (Manchester 1984). See also Simpson, A.W.B. “The Rise and Fall of the Legal Treatise” in Simpson, Legal Theory and Legal History (London 1987).Google Scholar
3 See Simmonds op. cit. note 2 above, pp. 92–93.
4 Fried, Charles “Jurisprudential Responses to Legal Realism” (1988) 73 Cornell Law Review 331 at pp. 333–334.Google Scholar
5 Posner, RichardThe Problems of Jurisprudence (Harvard 1990), p. 2.Google Scholar
6 Dworkin, RonaldLaw's Empire (London 1986), ch. 8.Google Scholar
7 Posner, RichardThe Economics of Justice (Harvard 1981), chs. 3 & 4.Google Scholar
8 It also seems to me that the application of such abstract theories would require information which is not available to any single individual or government. For example, Posner's economic approach must answer the question of how much X would have been prepared to sell his entitlement for if the transaction costs had been low. Dworkin's theory must decide how far differences in income are the result of differing preferences and how far they result from differing abilities. One cannot legitimately propose proxies for these questions because (since the questions are unanswerable) we have no way of knowing whether the proxies are sufficiently proximate. In this way, the theories would encounter many of the problems of ignorance explored in Hayek's work. See, for his most recent statement, Hayek, F.A.The Fatal Conceit (London 1988).CrossRefGoogle Scholar See also Leoni, BrunoFreedom and the Law (Princeton 1961) pp. 21–22;Google Scholar and Dasgupta, Partha “Positive Freedom, Markets and the Welfare State” Oxford Review of Economic Policy vol 2, p. 1.Google Scholar
9 See Simmonds, , The Decline of Juridical Reason (Manchester 1984), ch. 9.Google Scholar To some extent I agree with Izhak Englard's view that such theories as that of Epstein represent “a desperate scholarly rearguard action to preserve a traditional system of individualism in a changing world”. See Englard, “The System Builders: A Critical Appraisal of Modern American Tort Theory” (1980) 9 Journal of Legal Studies 27.CrossRefGoogle Scholar But it would be a tragedy if lawyers were to casually dismiss or pre-judge these important debates.
10 See also Brudner, op. cit. note 1 above.
11 Epstein, , “The Classical Legal Tradition” (1988) 73 Cornell Law Review 292 at p. 298.Google Scholar
12 See Epstein, , Takings: Private Property and the Power of Eminent Domain (Harvard 1985).Google Scholar
13 Epstein, op. cit. note 11 above, pp. 295–298.
14 Rizzo, Mario “Foreword” to Richard Epstein, A Theory of Strict Liability (San Francisco 1980), p. ix.Google Scholar The book originally appeared in the form of two articles, in (1973) Journal of Legal Studies vol. 2, and (1974) Journal of Legal Studies vol. 3. Page references are to the book.
15 Epstein, op. cit. note 14 above, p. 5.
16 See Epstein, “Pleadings and Presumptions” (1973) 40 University of Chicago Law Review 556.Google Scholar For similar regrets, see Baker, J.H.An Introduction to English Legal History, 3rd ed. (London 1990), p. 110.Google Scholar
17 Particularly in view of the cursory way in which Epstein is dismissed in a popular English textbook: see Williams, Glanville & Hepple, B.A.Foundations of the Law of Tort, 2nd ed. (London 1984), pp. 198–200.Google Scholar Williams & Hepple make the following criticisms of Epstein: i. his account of causation itself “implies a moral judgment of blameworthiness”; ii. negligence incorporates elements of strict liability in the doctrine of res ipsa loquitur; iii. the theory would exclude many cases of economic loss which are actionable at present; iv. “The most serious objection to the theory is that Epstein ignores the actual world of loss distribution, through private and social insurance, of which tort law is only a part” (op. cit. p. 200). Of these criticisms, only the first is relevant to Epstein's project. The second could even be treated as supporting his theory by indicating that the rise of negligence and the departure from strict liability has never been thoroughgoing. The third is irrelevant in so far as Epstein is not seeking to describe the existing law, and our intuitions about recovery of economic loss are scarcely of the depth and stability that might support rejection of a prescriptive theory. The fourth and “most serious objection” I find puzzling. Epstein's concerns are neither with economic efficiency nor with purely compensatory objectives; nor is he seeking to describe the present law. He sees the proper role of tort law as the demarcation of property rights or spheres of liberty. The bearing of insurance on that issue is (to me) less than obvious.
18 Epstein, op. cit. note 14 above, p. 3.
19 Coase, R.H.“The Problem of Social Cost” (1960) 3 Journal of Law and Economics 1.CrossRefGoogle Scholar
20 See Sturges v. Bridgman (1879) 11 Ch. D. 852.
21 Coase, op. cit. note 19 above, p. 2.
22 Kelman, MarkA Guide to Critical Legal Studies (Harvard 1987), p. 23.Google Scholar Kelman goes on to say (p. 24) that one can reject his argument only by embracing “premodern views of objective causation”. But ordinary causal judgments, of the type explained by Hart and Honore, form the basis of our everyday grasp on the world and our notions of identity and responsibility. The description of such judgments as “premodern” seems no more than empty rhetoric. See generally, Hart, H.L.A. and Honore, TonyCausation in the Law, 2nd ed. (Oxford 1985).CrossRefGoogle Scholar
23 Epstein, op. cit. note 14 above, p. 21.
24 Which is not to say that Epstein analyses these judgments adequately: his discussion of causation is probably the least satisfactory part of his theory.
25 This way of putting the point is aimed at the Posnerian version of EAL. But the argument could be re-formulated to accommodate other variants.
26 Epstein, “Intentional Harms” (1975) 4 Journal of Legal Studies 391 at p. 398.Google Scholar
27 Epstein, op. cit. note 14 above, p. 6. See also Jules Coleman, “Moral Theories of Tort: Their Scope and Limits. Part I” (1982) 1 Law and Philosophy 371 at p. 377/378.
28 159 F.2d 169 (2d Cir. 1947).
29 Ibid, at 173.
30 See Posner, Richard A.Economic Analysis of Law, 3rd ed. (Boston & Toronto 1986), pp. 146–151;Google ScholarLandes, William M. and Posner, Richard A.The Economic Structure of Tort Law (Harvard 1987), pp. 85–88;CrossRefGoogle ScholarCooter, Robert and Ulen, ThomasLaw and Economics (Glenview & London 1988), pp. 354–362.Google Scholar
31 (1910) 109 Minn. 456, 124 N.W. 221.
32 Epstein, op. cit. note 14 above, p. 12.
33 Bohlcn, “Incomplete Privilege to Inflict Intentional Invasions of Property and Personality” (1926) 39 Harvard Law Review 307.Google Scholar See also Landes and Posner, op. cit. note 30 above, ch. 6.
34 81 Vt. 471; 71 Atl. 188 (1908).
35 Thomson, Judith JarvisRights, Restitution and Risk (Harvard 1986), pp. 206–207.Google Scholar
36 Op. cit., p. 205. Does not this hypothetical differ from Vincent v. Lake Erie only in the degree of probability of harm? If so, no difference in principle from Vincent has been established.
37 See, e.g., Landes and Posner, op. cit. note 30 above, at p. 149.
38 See, e.g., Watt v. Hertfordshire C. C. [1954] 2 All E.R. 368.
39 See, e.g., Fried, CharlesRight & Wrong (Harvard 1978).CrossRefGoogle Scholar
40 It is so employed by Coleman, Jules “Moral Theories of Torts: Part I” (1982) 1 Law and Philosophy 371 at p. 382.Google Scholar
41 See Epstein, “Nuisance Law: Corrective Justice and its Utilitarian Constraints” (1979) 8 Journal of Legal Studies 49 at pp. 50–51;Google Scholar“Intentional Harms” (1975) 4 Journal of Legal Studies 391, pp. 423–442;Google Scholar“Causation and Corrective Justice: A Reply to Two Critics” (1979) 8 Journal of Legal Studies 477 at pp. 501–502.Google Scholar
42 Epstein, op. cit. note 14 above, p. 68.
43 Ibid., p . 63.
44 Moisan v. Loftus, 178 F.2d 148, 149 (2d Cir. 1949). Posner, Richard in his judicial capacity, has made a similar admission, saying that “the exactness which economic analysis rigorously pursued appears to offer is, at least in the litigation setting, somewhat delusive”: O'Shea v. Riverway Towing Co., 677 F.2d 1194 at 1201 (1982)Google Scholar (quoted in Hutchinson, and Morgan, “The Canengusian Connection: the Kaleidoscope of Tort Theory” (1984) 22 Osgoode Hall Law Journal 69 at p. 88).Google Scholar
45 [1951] A.C . 850.
46 Epstein, op. cil. note 14 above, pp. 28–29.
47 See Epstein, , “Nuisance Law: Corrective Justice and its Utilitarian Constraints” (1979) 8 Journal of Legal Studies 48 at pp. 74–75.Google Scholar Epstein has called for “new accounts of property and contract” that “will have to be functional and utilitarian”. See “The Classical Legal Tradition” (1988) 73 Cornell Law Review 292 at p. 299. I suspect that Epstein may underestimate the difficulties involved in marrying his theory of corrective justice, and clearly demarcated rights, to a utilitarian framework. In a recent article, Epstein rightly points out that natural law theories exhibit strongly utilitarian features, and argues for a fusion of the natural law and utilitarian traditions. See “The Utilitarian Foundations of Natural Law” (1989) 12 Harvard Journal of Law and Public Policy 713. Epstein fails to explain, however, how he overcomes the argument that a stable system of rules is not sustainable once their utilitarian foundation is fully understood. Within traditional natural law theory, the collapse into a purely maximising structure was prevented by the belief in the divine will as the source of obligatory force. I have discussed this matter in my book The Decline of Juridical Reason (Manchester 1984), ch. 4. Epstein cites my work but has not, I think, fully grasped the difference that the removal of God from the picture could make to any argument about the foundation of rules in utility. For the general problem see Hodgson, D.H.Consequences of Utilitarianism (Oxford 1967);Google ScholarParfit, DerekReasons and Persons (Oxford 1984), Part I.Google Scholar
48 Epstein, op. cit. note 14 above, pp. 9–10.
49 See Brown, John Prather“Toward an Economic Theory of Liability” (1973) 2 Journal of Legal Studies 323.CrossRefGoogle Scholar
50 Calabresi, Guido and Hirschoff, Jon T.“Toward a Test for Strict Liability in Torts” (1972) 81 Yale Law Journal 1055.CrossRefGoogle Scholar
51 Epstein argues that such a third party, intervening altruistically, should nevertheless have to pay for damage caused: see Epstein, op. cit. note 14 above, p. 14, n. 22 (arguing against Bohlen, op. cit. note 33 above).
52 Horwitz, Morton J.The Transformation of American Law 1780–1860 (Harvard 1977), pp. 85–101.Google Scholar
53 See Epstein, “The Social Consequences of Common Law Rules” (1982) 95 Harvard Law Review 1717.Google Scholar
54 Op. cit. note 53 above at p. 1742. See also Rizzo, Mario“Law Amid Flux: The Economics of Negligence and Strict Liability in Tort” (1980) 9 Journal of Legal Studies 291.CrossRefGoogle Scholar
55 Hart, H.L.A.The Concept of Law (Oxford 1961), p. 136.Google Scholar
56 Ross, W.D.The Right and the Good (Oxford 1930).Google Scholar
57 Epstein, “Pleadings & Presumptions” (1973) 40 University of Chicago Law Review 556.Google Scholar Sir Jack Jacob criticises the English rule that at the outset of the case “the plaintiff must state all the material facts on which he relies which in the aggregate and read as an integral whole would show that he has a legal right or claim entitling him to relief or remedy from the court”. He points out that, at that stage, the plaintiff may not know what facts he will need to rely upon. But Sir Jack then proposes that this rule should be replaced by the American Federal rule which requires only a short and plain statement of the basis of the claim and a demand for relief. He goes on to criticise the classical common law system of pleadings for its artificiality and formalism, without asking whether these were necessary features of such a system, and without considering whether the abandonment of the system might not have exacted a price in terms of the intellectual coherence of the law: Sir Jacob, JackThe Fabric of English Civil Justice (London 1987), pp. 85–90.Google Scholar
58 Fletcher, George P. “The Right and the Reasonable” (1985) 98 Harvard Law Review 949;Google Scholar see also Fletcher, “Two Modes of Legal Thought” (1981) 90 Yale Law Journal 970.CrossRefGoogle Scholar
59 “Structured legal discourse proceeds in two stages: first an absolute norm is asserted; and second, qualifications enter to restrict the scope of the supposedly dispositive norm”: Fletcher, “The Right and the Reasonable” (note 58 above), p. 951. Fletcher's formulation is not ideal, since there may be more than two stages, and the norm asserted at the first stage is “absolute” only in appearance, not in reality. The contrasts and comparisons between Fletcher and Epstein are interesting. Fletcher sees the flat/structured contrast as a contrast between common law approaches (relying on “syntactically mobile modifiers like ‘reasonable’ and ‘substantial’”, op. cit. p. 953) and the Kantian approaches characteristic of German legal thought (op. cit. p. 965). Epstein sees it as a contrast between the modern law and the classical common law, prior to the rise of negligence.
60 Epstein, “Intentional Harms” (1975) 4 Journal of Legal Studies 391.CrossRefGoogle Scholar Epstein fails to see that intentional torts do not always require harm. This actually points to a more fundamental defect in his theory, which I will discuss later. See below note 66.
61 Epstein, “Nuisance Law: Corrective Justice and its Utilitarian Constraints” (1979) 8 Journal of Legal Studies 49 at pp. 50–51.Google Scholar
62 501 F.2d 558 (9th. Cir. 1974).
63 Borgo, John“Causal Paradigms in Tort Law” (1979) 8 Journal of Legal Studies 419.CrossRefGoogle Scholar
64 “[W]e have transformed the basic intuition against causing harm into the more limited prohibition against the use of force (as explicated under the causal paradigms) against the person or property of another. While there are many things that might count as making others worse off, not all of these will count as an invasion within the narrower sense.” Epstein, “Causation and Corrective Justice: A Reply to Two Critics” (1979) 8 Journal of Legal Studies 477 at p. 481.Google Scholar
65 See Epstein, op. dt. note 12 above, and also Epstein, “Possession as the Root of Title” (1979) 13 Georgia Law Review 1221.Google Scholar Unlike Locke and Nozick, Epstein would offer a theory of rights with utilitarian foundations. See above note 47. In his Georgia Law Review article, Epstein rejects the Locke/Nozick labour theory of acquisition on the ground that “The labor theory is called upon to aid the theory that possession is the root of title; yet it depends for its own success upon the proposition that the possession of self is the root of title to self”: op. cit. p. 1227. Hume got there first, observing of the labour theory that it “accounts for the matter by means of accession: which is taking a needless circuit”. David Hume, Treatise of Human Nature (1739), Book HI, Section III, second footnote.
66 It might not be necessary either. Although Epstein is inclined to speak of trespass as requiring harm, it does not require harmi in the present law. It would seem odd for Epstein to impose a requirement of harmi, since his theory views tort law as concerned with the demarcation and protection of spheres of liberty rather than with pure compensatory goals. It therefore seems best to conclude that Epstein's theory requires harrm but not necessarily harmi. A mere touching without consent may infringe rights, but does not cause harm1.
67 Epstein himself notes that some features of Learned Hand's judgment in U.S. v. Carroll Towing suggest that he did not have an economic test of negligence in mind. See Epstein, op. cit. note 14 above, pp. 8–9.
68 Cf. Dworkin, RonaldTaking Rights Seriously, rev. ed. (London 1977), pp. 294–331.Google Scholar See also Weinrib, Ernest “Causation and Wrongdoing” (1987) 63 Chicago—Kent Law Review 407 at pp. 425–429.Google Scholar
69 Steiner, Hillel“The Structure of a Set of Compossible Rights” (1977) Journal of Philosophy 767.CrossRefGoogle Scholar
70 Steiner, op. cit.,p. 769.
71 Epstein, RichardTakings: Private Property and the Power of Eminent Domain (Harvard 1985), pp. 97–98.Google Scholar
72 Epstein, “Intentional Harms” (1975) 4 Journal of Legal Studies 391.CrossRefGoogle Scholar
73 See Hohfeld, W.N.Fundamental Legal Conceptions (Yale 1919).Google Scholar
74 See, e.g., his views on Union Oilv. Oppen above.
75 See MacCormick, NeilLegal Right and Social Democracy (Oxford 1982), pp. 217–218.Google Scholar