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

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Consider the actor who behaves carelessly and ends up harming his own interests. People might well react by criticizing the actor's conduct as unwise or dumb, but there would be no "moral *1828 disapproval" or "indignation." Yet these attitudes do enter in when the actor's negligence causes injury to an innocent third party. Given the point that the squandering of resources provokes "moral disapproval" because one person has squandered another person's resources, this judgment of disapproval incorporates a distinct element of corrective justice. Properly clarified, then, the Posner observation points to or implicates a corrective justice understanding of the negligence suit that should be congenial to economic analysts.

In light of these various appraisals, it seems sensible to invite both camps of scholars to join in assessing negligence law as a practice which, at stage one, seeks to deter negligence generally, yet which then, at stage two, acknowledges the incomplete success of its stage-one effort and accordingly recognizes the corrective justice rights of those who have been victimized by negligence. This Paper's language has previously suggested that deterrence and corrective justice identify "concurrent rationales" for the rule of negligence liability. [FN186] Given the sequential assessment set forth just above, deterrence and corrective justice can be understood as complementary [FN187] rather than concurrent goals: for chronological purposes, corrective justice begins where deterrence leaves off.

Working out the sequence of deterrence and corrective justice certainly improves the coherence of this mixed theory. Still, the theory remains apparently mixed in that it includes two objectives that are seemingly quite distinctive. Yet the next Part of this Paper, which begins with a clarification of the diverse reasons why deterrence might be supported as a tort objective, ends up suggesting how deterrence can itself be acknowledged as an objective that achieves some integration of economics and justice.

IV. Varieties of Deterrence

As described in Part I, [FN188] a deterrence rationale for tort liability has been developed by prominent economists such as Posner. Accordingly, a "deterrence" approach to tort law is commonly identified as or equated with an "economic" approach. [FN189] Indeed, this Paper has itself sometimes used "deterrence" and "economics" in an interchangeable fashion.

*1829 Yet in further considering the coherence of a mixed theory, this assumption of interchangeability can be questioned. Indeed, especially since 1980, a deterrence rationale for tort law has been supported by a number of analysts who can hardly be regarded as economists. These include Joan Claybrook, Richard Abel, Howard Latin, Marshall Shapo, and Stewart Speiser. Joan Claybrook, as a long-time associate of Ralph Nader, can be called a populist. [FN190] Claybrook is anything but an economist; she would predictably find appalling both the style and substance of typical economic articles, especially articles concerning the economics of safety regulation. Yet Claybrook has justified tort law in terms of deterrence. [FN191] As a populist, she perceives tort defendants as big businesses who are likely to impose inappropriate harms on the ordinary citizenry; by deterring such defendants, tort law can reduce the harm they are able to inflict. [FN192] Richard Abel has set forth an "approach to risk" that is avowedly "socialist" [FN193] and delivered a "critique of torts" that condemned much of the economists' basic tort analysis. [FN194] Yet Abel's writings on tort law themselves emphasize deterrence as a worthy goal. [FN195] As a socialist, he evidently appraises tort defendants as capitalists who are likely to impose inappropriate injuries; tort law can then function as a deterrent to reduce the evils that these capitalists would otherwise inflict.

Howard Latin has written derisively of the "law-and-economics" approach to torts. [FN196] Yet he presents himself as a practitioner of "social engineering"; [FN197] in this role, he is eager to utilize the tort system in order to achieve deterrence, especially in cases involving corporate or institutional defendants. [FN198] Marshall Shapo has drawn a clear distinction between the goal of economically "[o]ptimizing . . . the level of risky *1830 activity" and "a general, independent goal of risk reduction within rather broad economic margins"; [FN199] moreover, Shapo indicates that of these goals he himself clearly prefers the latter of the two. [FN200] Stewart Speiser, a leading plaintiffs' lawyer, seems to sympathize with the view that the "Chicago School" of law-

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and-economics too frequently "equat[es] efficiency with justice" in a way that makes "its attitudes on personal rights less than humanitarian." [FN201] Even so, Speiser has praised tort law for its ability to achieve appropriate deterrence. [FN202]

These various analysts are emphatic in endorsing many non-economic (and even anti-economic) ideas. [FN203] Nevertheless, the analysts' positions have obviously been "caused" by the economic literature of the last twentyfive years, inasmuch as that literature has brought dramatic attention to the deterrence possibilities of tort law (possibilities that previously had been neglected). Thus, Abel, Latin, Shapo, and Speiser all cite and rely on *1831 either Posner or Calabresi; [FN204] and the invocation on deterrence by Joan Claybrook, a Ralph Nader associate, is utterly lacking in the defensiveness that characterized Nader's own reliance of deterrence twenty-sev- en years before. [FN205]

All of this suggests a distinctive feature about economic analysis in the particular field of tort law. In certain areas of law--including constitutional law--economics often seems to be in fundamental conflict with what are understood as the primary goals or values of the law itself. [FN206] When economists encounter tort law, they favor deterrence because it is frequently efficient. But if accident prevention is an economic goal, it is also a generous, warm-hearted, compassionate, and humane goal. As such, it is a goal that can be and is in fact supported by a broad range of scholars.

Recognizing this paves the way for an additional perception that is quite relevant to one version of the mixed theory I have proposed. Assume--along with many corrective justice scholars--that it is unjust or unfair for defendants to inflict harm on plaintiffs through their negligence. [FN207] Relying on this perception, those scholars can explain why the goal of corrective justice is achieved by allowing the plaintiff to secure compensation after-the-fact from the defendant. But acknowledge now that negligence law, by requiring potential defendants to consider the prospect of liability, can deter those defendants from engaging in negligence and hence in bringing about an unjust result. Negligence law would here be serving as an instrument producing a result that can strongly be supported for reasons of justice rather than utility. [FN208] It is common to say that "justice" or "rights" approaches to tort liability necessarily see tort liability in "noninstrumentalist" terms. [FN209] Yet the deterrence that negligence law provides can itself be understood not just as a maximizer of utility but also as a device for achieving justice [FN210] (or at least as a device for reducing *1832 the amount of injustice). [FN211] Perhaps the language of "corrective" justice is no longer appropriate, because when tort law succeeds in deterring negligence, no harm occurs that will later require "correction." Yet the language of "protective justice" would be quite appropriate. [FN212] Moreover, since preventing injustice from occurring seems clearly more desirable--more "just"--than merely calling for compensation after the fact, this justice dimension in tort law's deterrence function seems especially worthy of respect. Gregory Keating, a leading justice-oriented scholar, indicates that the goal of tort law is to strike a proper balance between the defendant's moral right to "freedom" and the plaintiff's moral right to "security." [FN213] Certainly preventing accidents from happening does a better job in affording "security" than merely offering compensation once an injury has occurred.

With this analysis in mind, one can return to the discussion within criminal law scholarship as to the relevant roles of retributive justice and deterrence. In considering those that defend the criminal sanction as a deterrence measure, one can ask why they find the deterrence objective attractive. The deterrence theory for criminal law has long been associated with Jeremy Bentham, who advocated use of the criminal sanction in order to "augment the total happiness of the community." [FN214] This language seems primarily concerned with maximizing utility, and Bentham is commonly seen as the father of utilitarianism. [FN215] Herbert Packer's influential 1968 book, which relies on a deterrence rationale for the criminal law, *1833 frequently refers to criminal conduct as "antisocial" and justifies the criminal sanction as discouraging such "antisocial" conduct. [FN216] "Antisocial" certainly incorporates the notion that criminal conduct imposes a variety of social costs.

Because criminal conduct is extraordinary in the costs it can produce, it is natural that scholars who discuss the deterrence capacity of the criminal law will emphasize the value of deterrence as a device for cost reduction. Nevertheless, because crimes like battery and robbery obviously violate important individual rights, it is not sur-

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prising that several criminal law scholars who look at deterrence appreciate that by deterring crimes the criminal law can also prevent injustice. For many writers this appreciation is somewhat ambiguous. [FN217] Yet for other analysts, the point becomes quite explicit. In identifying deterrence as a primary objective of the criminal law, [FN218] Joel Feinberg eagerly emphasizes that deterrence is a highly moral objective. The goal of deterrence is "not merely to minimize harms" but rather to "prevent those harms . . . that are also wrongs: those that are unconsented to, involuntarily suffered, and neither justified nor excused." [FN219] Similarly, Alan Goldman recognizes that the deterrence provided by the criminal law does more than guard against disutility; it also seeks to protect the moral rights of potential crime victims. [FN220]

In criminal law scholarship, then, several scholars have highlighted the point that deterrence protects against invasions of moral right. Within tort law, scholars--until now--have not picked up on the analogous point. [FN221] Yet the point merits recognition: by deterring negligent conduct, negligence law--while no doubt promoting economic values--serves as a protector of justice. Deterrence can hence be understood as a tort objective that includes and reconciles economic and ethical approaches to negligence law.

V. Conclusion

The discussions within criminal law scholarship of the goals of deterrence and retributive justice in many ways parallel the debate among tort *1834 scholars as to the goals of deterrence and corrective justice. Yet this parallel has gone largely unnoticed. In particular, the strong interest in mixed theories displayed by most criminal law analysts has largely been neglected by tort scholars, who generally align themselves with either the deterrence or the corrective justice camp.

Mixed theories of tort law hold promise. Admittedly, efforts to develop a mixed theory applicable to all of tort law do not immediately pay off. Possibly, as tort law has developed over time, it has drawn on deterrence and corrective justice in a rather haphazard and eclectic way. Still, several important tort doctrines seem firmly grounded in both corrective justice and deterrence. As tort objectives, then, corrective justice and deterrence can be recognized as collaborators rather than competitors. This collaboration makes it more likely that the tort system provides advantages that enable it to justify all its costs.

For that matter, the deterrence objective, while explainable in economic terms, can also appeal to those whose interests in tort law are humane and compassionate rather than narrowly utility-maximizing. Furthermore, the notion that a "justice" approach necessarily sees tort law in "non-instrumental" terms is simplistic. In light of the ethical basis for negligence liability, tort law, when it deters negligence, prevents the occurrence of injustice. To this extent the deterrence objective itself includes an important justice component.

[FNa]. William D. Warren Professor, UCLA School of Law. Thanks to Peter Arenella, Michael Green, David Dolinko, Ken Kress, Herbert Morris, Bob Ragin, Steven Shavell, Ken Simons, the Brooklyn Law School faculty, and those attending the Texas conference. I salutePage Keeton for the model he has set of a scholarly career.

[FN1]. See, e.g., Fowler VincentHarper, A Treatise on the Law of Torts 2-9 (1933) (discussing tort law's "basic postulates" and "basic principles of policy").

[FN2]. See, e.g., William L.Prosser, Handbook of the Law of Torts 14-22 (3d ed. 1964) [hereinafter Prosser, 1964] (discussing "Social Engineering" and "Factors Affecting Tort Liability"). Holmes, of course, is a special case and continues to prompt reinterpretations, most recently David Rosenberg, The Hidden Holmes (1995).

[FN3]. See, e.g., James Barr Ames, Law and Morals, 22 Harv. L. Rev. 97, 109 (1908) (discussing vicarious liability in terms of "one's sense of fairness"); see also id. at 101 (relying on "the moral sense of the community").

[FN4]. The most interesting of the traditional articles was Robert E.Keeton, Conditional Fault in the Law of Torts, 72 Harv. L. Rev. 401 (1959).

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[FN5]. For Aristotle, distributive justice concerned the basic pattern of wealth holdings within society. Corrective justice concerned the problem of temporary disturbances in this basic pattern due to one person's action that causes injury to another. This, at least, is a standard explanation of Aristotle's basic distinction as set forth, for example, in George P.Fletcher, Basic Concepts of Legal Thought 80 (1996). The explanation may neglect certain complicating factors, but these seem irrelevant to this Paper's purposes.

[FN6]. See George P. Fletcher, Fairness and Utility in Tort Theory, 85 Harv. L. Rev. 537 (1972) (developing an account of corrective justice that emphasizes reciprocity).

[FN7]. See Richard A.Epstein, Defenses and Subsequent Pleas in a System of Strict Liability, 3 J.Legal Stud. 165, 165 (1974); Richard A.Epstein, A Theory of Strict Liability, 2 J. Legal Stud. 151, 152 (1973) [hereinafter Epstein, Theory] (both defending an account of corrective justice that emphasizes causation).

In the intervening decades Epstein has converted to a utilitarian view of the law (including tort law). See Richard A.Epstein, The Tort/Crime Distinction: A Generation Later, 76 B.U. L. Rev. 1, 4 (1996) (describing his "current view"). But his early tort articles are still taken very seriously in the corrective justice literature. See, e.g., Jules L.Coleman, Risks and Wrongs 270-79, 315-18 (1992).

[FN8]. His first major article was Jules L.Coleman, Moral Theories of Torts: Their Scope and Limits (pt. 1), 1 Law & Phil. 371 (1982).

[FN9]. See Ernest J.Weinrib, Toward a Moral Theory of Negligence Law, 2 Law & Phil. 37 (1983). Weinrib's recent book is Ernest J. Weinrib, The Idea of Private Law (1995).

[FN10]. The leading scholars are represented in Philosophical Foundations of Tort Law (David G. Owen ed., 1995) [hereinafter Philosophical Foundations] and Symposium, Corrective Justice and Formalism: The Care One Owes One's Neighbors, 77 Iowa L. Rev. 403 (1992).

[FN11]. Fletcher, supra note 6, at 547 n.40, 550, 552.

[FN12]. For one footnote quoting rather general language of Rawls, see Epstein, Theory, supra note 7, at 198 n.110.

[FN13]. See, e.g., Symposium, supra note 10. In a recent article, Gregory Keating relies on Kant, but sees Kant as an exponent of social contract theory rather than corrective justice. See Gregory C.Keating, Reasonableness and Rationality in Negligence Theory, 48 Stan. L. Rev. 311, 317 (1996). The significance of this conceptual shift is unclear.

[FN14]. See, e.g., Richard W. Wright, The Standards of Care in Negligence Law, in Philosophical Foundations, supra note 10, at 249 (finding support in corrective justice for many tort doctrines).

[FN15]. See Guido Calabresi, The Costs of Accidents (1970).

[FN16]. See Richard A.Posner, A Theory of Negligence, 1 J. Legal Stud. 29 (1972).

[FN17]. A number of leading articles are excerpted in Foundations of Tort Law (Saul Levmore ed., 1994).

[FN18]. See, e.g., William M.Landes & Richard A.Posner, The Economic Structure of Tort Law (1987).

[FN19]. Id. at 4 (citing Oliver Wendell Holmes, Jr., The Common Law 9496 (Little, Brown, & Co. reprint) (Mark D. Howe ed., Harvard Univ. Press 1963) (1st ed. 1881); Ames, supra note 3, at 100; Henry T. Terry, Negligence, 29 Harv. L. Rev. 40 (1915)). The only article Landes and Posner could identify that explicitly affirmed deterrence as a tort goal was William Schofield, Davies v. Mann: Theory of Contributory Negligence, 3 Harv. L. Rev. 263, 269 (1890) ("The really important matter is to adjust the dispute ... by a rule of conduct which shall

... tend to prevent like accidents from happening in the future."). Who, one might ask, is Schofield? He lived in

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Cambridge, Massachusetts. Id. at 277. This was his only torts article. In any event, Schofield advocated a mixed theory of tort law that, although emphasizing deterrence, also placed some weight on "do[ing] justice ... in the particular case." Id. at 269.

[FN20]. William L.Prosser, Handbook of the Law of Torts 28 (1st ed. 1941).

[FN21]. Prosser, 1964, supra note 2, at 444.

[FN22]. See, e.g., Virginia E.Nolan & Edmund Ursin, Understanding Enterprise Liability: Rethinking Tort Reform for the Twenty-First Century 6-10 (1995) (discussing the evolution of enterprise liability theory); see also Gary T. Schwartz, The Beginning and the Possible End of the Rise of Modern American Tort Law, 26 Ga. L. Rev. 601, 634-37 (1992) (reviewing 1950s torts scholarship).

[FN23]. See Charles O. Gregory, Trespass to Negligence to Absolute Liability, 37 Va. L. Rev. 359, 383-84 (1951) (remarking that liability is justifiable because industries could absorb enterprises' loss by raising prices or purchasing liability insurance).

[FN24]. See Albert A. Ehrenzweig, Negligence Without Fault (1951), reprinted in 54 Cal. L. Rev. 1422, 1427-28 (1966) (contrasting the law of negligence with ancient notions that all law contemplated deterrence).

[FN25]. See 2 Fowler V.Harper & Fleming James,Jr., The Law of Torts 762, 759-64 (1956) (arguing that "[t]he best and most efficient way to deal with accident loss [is] to distribute the losses involved over society as a whole or some very large segment of it"). While the treatise identified certain deterrent advantages in expanded liability rules, deterrence remained a decidedly secondary consideration--so secondary that the treatise evidently supported replacing the entire tort system with a program of social insurance for accident victims. See id. at 759-64.

[FN26]. Ralph Nader, Automobile Design: Evidence Catching Up With the Law, 42 Denver L. Center J. 32, 39 (1965).

My own torts course was at Harvard during 1962-63; from what I can recall, deterrence played no part whatsoever in my own professor's repertoire.

[FN27]. See, e.g., Guido Calabresi, Transaction Costs, Resource Allocation and Liability Rules--A Comment, 11 J.L. & Econ. 67 (1968); Guido Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 Yale L.J. 499 (1961).

[FN28]. See Calabresi, supra note 15.

[FN29]. See id. at 24-33 (identifying "goals" of accident law).

[FN30]. See id. at 309-18 (recommending a "New System of Accident Law").

[FN31]. See id. at 239-308.

[FN32]. See id. at 286-87.

[FN33]. Id. at 276.

[FN34]. See United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947).

[FN35]. See Calabresi, supra note 15, at 263 ("There may be other, quite complex reasons why a cheapest cost avoider can often be found even between two faultless parties, even viewing fault in terms of its best definition (Learned Hand's classic negligence calculus), and even leaving aside externalization, best briber and so on." (footnote omitted)).

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[FN36]. Richard A. Posner, The Cost of Accidents--A Legal and Economic Analysis, 37 U. Chi. L. Rev. 636, 636 (1970) (book review).

[FN37]. Posner, supra note16; Richard A.Posner, Killing or Wounding to Protect a Property Interest, 14 J.L. & Econ. 201 (1971).

[FN38]. See Posner, supra note 16, at 73, 36-73 (stating that liability rules are "broadly designed to bring about the efficient ... level of ... safety, or, more likely, an approximation thereto").

[FN39]. In doing so, Posner exerted a considerable influence on Calabresi. Calabresi has never endorsed Posner's positive theory. Yet Posner's approach seems to have persuaded Calabresi to take actual tort doctrine far more seriously than he had in his Costs book. Most of his subsequent writings reveal him as an analyst who is clearly interested in the common law of torts and who regards that law as rich with implications for an economic analysis. See, e.g., Guido Calabresi, Concerning Cause and the Law of Torts: An Essay for Harry Kalven, Jr., 43 U. Chi. L. Rev. 69 (1975) [hereinafter Calabresi, Concerning Cause]; Guido Calabresi & Jon T. Hirschoff, Toward a Test for Strict Liability in Torts, 81 Yale L.J. 1055 (1972). In 1970, Calabresi's evaluation of the tort system had been unremittingly negative: that system "has become totally inadequate for any of our mixed goals, even justice." Calabresi, supra note 15, at 308 (emphasis in original). Yet by 1978, his attitude toward the tort system had mellowed considerably. Characterizing existing tort law as a "mixed system" that rests on a "mixed ideology," he ended up predicting that "the next century will be the century not of contracts nor of criminal law

... but of torts and of the rule of liability." Guido Calabresi, Torts--The Law of the Mixed Society, 56 Texas L. Rev. 519, 528, 534 (1978).

[FN40]. See, e.g. Saul Levmore, Probabilistic Recoveries, Restitution, and Recurring Wrongs, 19 J. Legal Stud. 691 (1990); Gordon Tullock, Negligence Again, 1 Int'l Rev. L. & Econ. 51 (1981).

[FN41]. Steve Shavell, for example, is Posner-like in carefully reviewing particular tort doctrines, yet is cautious in considering Posner's full positive theory. See Steve Shavell, Economic Analysis of Accident Law 293-95 (1987).

[FN42]. A relevant point here is that it is hard to identify scholars who have significantly contributed to both the corrective justice literature and the deterrence literature.

[FN43]. Fletcher, supra note 6, at 537.

[FN44]. Epstein, Theory, supra note7, at 151.

[FN45]. See Richard W.Wright, The Efficiency Theory of Causation and Responsibility: Unscientific Formal- ism and False Semantics, 63 Chi.-Kent L. Rev. 553, 578 (1987) ("[T]ort law, which is an expression of individual rights and individual responsibility, has no room for efficiency theory.").

[FN46]. See id. at 567.

[FN47]. See Fletcher, supra note 5, at 87-93 (explaining and defending Aristotle's corrective-justice conception of tort law).

[FN48]. See id. at 155-71.

[FN49]. See Coleman, supra note 7, at 374-82; Weinrib, supra note 9, at 2255. For agreement, see Kenneth W.Simons, Deontology, Negligence, Tort, and Crime, 76 B.U. L. Rev. 273, 276 (1996) ("[T]ort law embodies basic structural features that are more consistent with a deontological or corrective justice perspective than with a consequentialist perspective ...."). For the details of this structural argument, see infra notes 118-19 and accompanying text.

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[FN50]. Coleman, however, excludes products liability from his general evaluation. According to Coleman, "even if the economic or rational bargaining approaches miss something essentially about tort law generally, either might capture the essence of product liability. That is my view." Coleman, supra note 7, at 418. He then develops a contract approach to products liability that relies heavily on economics. See id. at 418-29.

This chapter in the Coleman book is a puzzle. First of all, Coleman fails to see how an ethical approach to tort law can itself incorporate the contract relation between the plaintiff and the defendant. See, e.g., Wright, supra note 14, at 267-68. Second, Coleman seems not to appreciate that his contract approach to products liability might also apply to other areas of tort liability (for example, medical malpractice and commercial landowner-invit- ee) in which there is a contract relationship between the plaintiff and the defendant. Third, in working out the contract implications of products liability, Coleman accepts in a rather uncritical way the analyses provided by his Yale colleagues. See, e.g., Coleman, supra note 7, at 413-15 (accepting both George Priest's views on the relationship of liability and insurance and Alan Schwartz's condemnation of modern liability doctrines and damage rules). Their views are set forth in George L. Priest, The Current Insurance Crisis and Modern Tort Law, 96 Yale L.J. 1521 (1987) and Alan Schwartz, Proposals for Products Liability Reform: A Theoretical Synthesis, 97 Yale L.J. 353 (1988).

[FN51]. Alan Calnan, Justice and Tort Law 5 (1997).

[FN52]. Stephen Perry, for example, leaves open the possibility that tort law might seek both justice and deterrence; yet he indicates that he himself has no interest in pursuing this possibility, and he advances liability theories that rest on corrective justice alone. Stephen R. Perry, The Moral Foundations of Tort Law, 77 Iowa L. Rev. 449, 450 (1992).

[FN53]. Calabresi makes clear his lack of sympathy for corrective justice reasoning in Calabresi & Hirschoff, supra note 39, at 1079, 1081 (finding that society does not accept any particular theory of "just desert[s]" and rejecting Fletcher's reciprocity theory as "philosophically very meager"). To be sure, Calabresi feels strongly about distributive justice. See id. ("One cannot write off distributional considerations ... with a reference to Aristotle and a comment that taxation is for legislatures and not for courts.").

[FN54]. "Because we do not like to see resources squandered, a judgment of negligence has inescapable overtones of moral disapproval .... [I]ndignation has its roots in inefficiency ...." Posner, supra note 16, at 33. For a characterization of this analysis, see infra text accompanying note 185.

[FN55]. Richard A. Posner, The Economic Approach to Law, 53 Texas L. Rev. 757, 764 (1975). Posner's recent work displays a somewhat broader interest in justice issues, but still concludes that the economic goal of wealth maximization is quite consistent with relevant moral theories. See, e.g., Richard A.Posner, Wealth Maximization and Tort Law, A Philosophical Inquiry, in Philosophical Foundations, supra note 10, at 99-103 [hereinafter Posner, Wealth Maximization].

[FN56]. Priest, supra note 50, at 1537.

[FN57]. 1 American Law Institute, Reporters' Study: Enterprise Responsibility for Personal Injury 24-25 (1991). Corrective justice rarely serves as a relevant factor in this two-volume study.

[FN58]. Robert L. Rabin, Law for Law's Sake, 105 Yale L.J. 2261, 2279 (1996). It should be noted, however, that Rabin's torts reader gives roughly equal time to economics and corrective justice. See Robert L. Rabin, Perspectives on Tort Law 184-303 (4th ed. 1995).

[FN59]. See supra notes 49-50 and accompanying text.

[FN60]. Efficiency is linked with utilitarianism, and utilitarian ethics are now in disrepute insofar as such ethical theories fail to recognize solid individual rights. See Utilitarianism and Beyond 1, 6-7 (Amartya Sen & Bernard Williams eds., 1982).

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[FN61]. Still, the inability of corrective justice scholars to appreciate the humane and rights-protecting aspects of deterrence, see infra PartIV, is perhaps disappointing.

[FN62]. See, e.g., A. Mitchell Polinsky, An Introduction to Law & Economics 7-10 (2d ed. 1989).

[FN63]. See Fletcher, supra note 5, at 169; Gary T.Schwartz, Economics, Wealth Distribution, and Justice, 1979 Wis. L. Rev. 799, 800.

[FN64]. I expressed my own annoyance in Schwartz, supra note 63. This article discusses the tort suit brought by the rape victim against the rapist. This suit, I argued, does not really depend on any general assessment of the overall wealth distribution between men and women. Rather, the suit rests on corrective justice since rape is an act that undeniably is morally wrong. Indeed, its wrongness does not depend on any efficiency comparison of the victim's distress and the rapist's satisfaction; from a moral perspective, the latter is simply illegitimate.

I submitted an early draft of this article to a law-and-economics journal. The response of the journal's reviewer was completely negative. The reviewer suggested that my draft offered no explanation whatsoever as to why society would want to disadvantage rapists or benefit rape victims. The review continued that even if society wanted to achieve this pair of results, the tort suit need not be the appropriate mechanism.

Admittedly it is difficult to imagine taxing rapists without some adjudicatory proceeding to enable identification. But absolute accuracy is not obviously the appropriate standard. The society might tax all single men of a certain age, all customers of certain types of pornographic supplies, all men violating a curfew in the presence of women, all one-time rapists regardless of future findings of guilt.

Letter from the Journal of Legal Studies to Gary Schwartz (1978) (on file with the Texas Law Review). Needless to say, this review sharpened my sense that economic analysis can be obtuse to claims of corrective justice.

[FN65]. See, e.g., Tai-Yeong Chung, Efficiency of Comparative Negligence: A Game Theoretic Analysis, 22 J. Legal Stud. 395 (1993).

[FN66]. See supra note 55 and accompanying text.

[FN67]. See supra notes 5-7 and accompanying text.

[FN68]. See supra text accompanying notes 43-44.

[FN69]. Consider, for example, the virtual exclusion of corrective justice from the ALI Reporters' Study, with its semi-official status. See supra note 57 and accompanying text.

[FN70]. See supra text accompanying notes 5-12.

[FN71]. See, e.g., Richard A.Posner, Strict Liability: A Comment, 2 J. Legal Stud. 205, 215-20 (1973) (discussing Fletcher and Epstein).

[FN72]. See, e.g., Weinrib, supra note 9.

[FN73]. See, e.g., Coleman, supra note 7.

[FN74]. See, e.g., Richard W. Wright, Substantive Corrective Justice, 77 Iowa L. Rev. 625 (1992).

[FN75]. See, e.g., Perry, supra note 52.

[FN76]. See Symposium, supra note 10.

[FN77]. Thus Posner is able to put down the symposium by indicating that all its contents "add rather little" to the original Aristotle. Posner, Wealth Maximization, supra note 55, at 108 n.21.

Jules Coleman, addressing an audience of torts professors, recently stated that there are "five [scholars] who believe in corrective justice and eighteen different analyses of what corrective justice is; and I am responsible for

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about ten of them, because I've changed my mind so many times." Audio tape of Conference on Torts, held by the Association of American Law Schools (June 6, 1996) (on file with author). Even conceding Coleman's exaggeration for comic effect, the basic accuracy of his underlying assessment encourages deterrence analysts to regard corrective justice scholarship as long on rhetoric and short on rigor.

[FN78]. See Jeremy Bentham, An Introduction to the Principles of Morals and Legislation 145, 156-300 (J.H.Burns & H.L.A.Hart eds., 1970).

[FN79]. See G.W.F.Hegel, Philosophy of Right 70-73 (T.M.Knox trans., Oxford Univ. Press 1967) (1821); Immanuel Kant, The Metaphysical Elements of Justice 99-107 (J. Ladd trans., MacMillan Publishing 1965) (1797).

[FN80]. See Johannes Andenaes, Deterrence, in 2 Encyclopedia of Crime and Justice 591, 592 (Sanford H.Kadish ed., 1983) [hereinafter Encyclopedia] ("The idea of deterrence was often ridiculed as fictitious, outmoded, and the cause of much unnecessary suffering.").

[FN81]. See R.A.Duff & David Garland, Introduction to A Reader on Punishment 1, 9 (R.A.Duff & David Garland eds., 1994).

[FN82]. See generally Karl Menninger, The Crime of Punishment (1968).

[FN83]. See Herbert L.Packer, The Limits of the Criminal Sanction 12 (1968) ("The behavioral view has gained substantial ascendency in recent years ....").

[FN84]. See The Twentieth Century Fund Task Force on Criminal Sentencing, Fair and Certain Punishment 11-15 (1976).

[FN85]. See, e.g., Packer, supra note 83, at 55 ("[V]ery simply ... we do not know how to rehabilitate offenders

....").

[FN86]. See, e.g., Norval Morris, The Future of Imprisonment: Toward a Punitive Philosophy, 72 Mich. L. Rev. 1161, 1177 (1974).

[FN87]. See, e.g., Andenaes, supra note 80, at 592.

[FN88]. See Gary S.Becker, Crime and Punishment: An Economic Approach, 76 J. Pol. Econ. 169 (1968).

[FN89]. Andenaes, supra note 80, at 594-96. For a recent survey, see Isaac Ehrlich, Crime, Punishment, and the Market for Offenses, 10 J. Econ. Persp. 43 (1996).

[FN90]. Hugo Adam Bedau, Concessions to Retribution in Punishment, in Justice and Punishment 51, 51 (J.B.Cederblom & William L.Blizek eds., 1977).

[FN91]. See Herbert Morris, Persons and Punishment, 52 Monist 475, 475-79 (1968) (justifying punishment as a way of offsetting the criminal's wrongful gain).

[FN92]. See Michael S.Moore, The Moral Worth of Retribution, in Responsibility, Character, and the Emotions 179 (FerdinandSchoeman ed., 1987) (explaining and defending retributive punishment).

[FN93]. See Jeffrie G. Murphy, Retributivism, Moral Education, and the Liberal States, 4 Crim. Just. Ethics 3, 7 (1985) (indicating that retributivism is the most appropriate penal policy).

[FN94]. Becker, supra note 88.

[FN95]. Morris, supra note 91.

[FN96]. Posner, supra note 16.

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(Cite as: 75 Tex. L. Rev. 1801)

[FN97]. Fletcher, supra note 6.

[FN98]. Of course, the themes of incapacitation and rehabilitation that loom large in the criminal law have no counterparts in tort law.

[FN99]. See supra notes 78-79 and accompanying text.

[FN100]. See supra notes 15-25 and accompanying text.

[FN101]. See, e.g., John Kaplan et al., Criminal Law: Cases and Materials 33-96 (3d ed. 1996) (considering also incapacitation and rehabilitation).

[FN102]. H.L.A.Hart, Punishment and Responsibility 1-12 (1968).

[FN103]. See id. at 11-13.

[FN104]. Id. at 233.

[FN105]. See Lloyd L. Weinrib, Desert, Punishment, and Criminal Responsibility, L. & Cont. Prob., Summer 1986, at 47, 49. Weinrib, by the way, speaks the language of "composite theory" rather than "mixed theory." Id.

[FN106]. Kent Greenawalt, Punishment, in 4 Encyclopedia, supra note 80, at 1336, 13441-45 (suggesting that "since people naturally think in retributive terms, they will be disenchanted and eventually less law-abiding if the law does not recognize that offenders should receive the punishment they ' deserve"'); see also Ernest van denHaag, Punishing Criminals 63-64 (1975) (arguing that public stigmatization acts as a deterrent).

[FN107]. See Andrew vonHirsch, Censure and Sanctions 6-17 (1993). In a recent conversation, Herbert Morris has advised me that he finds a subtext of deterrence in his important 1968 article. See Morris, supra note 91, at 477 (discussing persons' "disposition to comply" with legal rules).

[FN108]. See Greenawalt, supra note 106, at 1345.

[FN109]. See Norval Morris, Madness and the Criminal Law 179-209 (1982).

[FN110]. Paul H. Robinson, Hybrid Principles for the Distribution of Criminal Sanctions, 82 Nw. U. L. Rev. 19 (1987).

[FN111]. Id. at 38. Yet even this penalty would be prohibited if it were "intolerably unjust." Id.

[FN112]. See supra text accompanying note 102.

[FN113]. See, e.g., Michael S.Moore, Law and Psychiatry 240-42 (1984) (utilizing a "thought experiment" to display the inadequacy of Hart's mixed theory of punishment).

[FN114]. See supra text accompanying note 109.

[FN115]. See, e.g., Stephen J.Morse, Justice, Mercy, and Craziness, 36 Stan. L. Rev. 1485, 1491-1503 (1984) ("Professor Morris provides insufficient justification for ... the general mixed theory of sentencing that leads to unequal sentences for defendants convicted of the same crime, [resulting in] arbitrary exercises of discretion.").

[FN116]. See Franklin E.Zimring, Principles of Criminal Sentencing, Plain and Fancy, 82 Nw. U. L. Rev. 73 (1987).

[FN117]. Jules Coleman warns that "[t]he differences between torts and the criminal law are so fundamental that the net result of applying one's understanding of the criminal law to torts is bad philosophy and total confusion." Coleman, supra note 7, at 222. Yet many scholars are eager to consider the relationship and possible overlap

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