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Published online by Cambridge University Press: 09 June 2015
One of the assumptions of our legal system is that when a violation of law has occurred, we (society) should provide a remedy for individuals who were harmed. More specifically, we should provide them with corrective remedies—remedies that place them as nearly as possible in the position they would be in if no wrong had occurred. This principle is not universal. There are legal wrongs, usually statutory, for which only public officials can seek a judicial remedy. And where private remedies do apply, not all the effects of a legal wrong are covered. But in general, individuals who have suffered legal wrongs are entitled to remedies that relieve the effects of the wrong and return them to their “rightful position.”
Thanks to Larry Alexander, Stephen Perry, Maimon Schwarzschild, Steven Walt, and Christopher Wonnell for helpful comments on this article.
1. The primary subject of this essay is compensation for those who are harmed by legal wrongs. Aristotelian corrective justice is concerned with correcting both plaintiffs‘ wrongful losses and defendants’ wrongful gains. See Aristotle, Nicomachean Ethics, bk. V, ch. 4 at 1132, in McKeon, R., ed., The Basic Works of Aristotle, trans. W.D., Ross (New York: Random House, 1941) at 1008–10.Google Scholar (assuming a correspondence between gain and loss). But as others have pointed out, legal wrongs seldom result in matching gains and losses on both sides. See, e.g., Coleman, J., Markets, Morals and the Law (Cambridge, Eng.: Cambridge University Press. 1981) at 186–87;Google Scholar Posner, R., “The Concept of Corrective Justice in Recent Theories of Tort Law” (1981) 10 J. Legal Stud. 187 at 204;Google ScholarSharp, “Aristotle, Justice and Enterprise Liability in the Law of Torts” (1976) 34 U. of Tor. Faculty L. Rev. 84 at 89. In our own system of remedies, once it is determined that a legal wrong occurred, the plaintiff is entitled to compensation without regard to the defendant’s gain.
Moreover, a defendant’s duty to compensate is measured by the extent of the plaintiffs' losses rather than the degree of the defendants' culpability. See, e.g., Calabresi, G., The Costs of Accidents: A Legal and Economic Analysis (New Haven: Yale University Press, 1970) 291–308; Google Scholar Alexander, , “Causation and Corrective Justice: Does Tort Law Make Sense?” (1987) 6 L. & Phil. 1 at 4–5;Google Scholar Coleman, J., “Moral Theories of Torts: Their Scope & Limit: Part I” (1982) 1 L. & Phil. 371 at 374–75;Google Scholar Schroeder, , “Corrective Justice and Liability for Increasing Risks” (1990) 37 U.C.L.A. L. Rev. 439 at 451–60.Google Scholar Cf. Schroeder, “Corrective Justice, Liability for Risks, and Tort Law (1990) 38 U.C.L.A. L. Rev. 143 at 152–55 (distinguishing between culpability and legal responsibility that follows from the ability to predict and control). The question I want to ask in this paper is why we pursue the goal of compensation.
There is a body of literature, under the heading of corrective justice, which explores the conditions under which it is just to hold defendants liable for plaintiffs’ losses. See, e.g., Chapman, J., ed., NOMOS XXXIII: Compensatory Justice (New York: New York University Press, 1991);Google Scholar Coleman, , Markets, Morals and the Law, supra at 184–201;Google Scholar Coleman, J., Risks and Wrongs ch. 15–16 (1992) ms (unpublished);Google Scholar Posner, R., The Problems of Jurisprudence (Cambridge, Mass.: Harvard University Press, 1990) 313–332;Google Scholar Coleman, J., “Moral Theories of Torts: Their Scope and Limits: Part I,” supra;Google Scholar Coleman, J., “Moral Theories of Torts: Their Scope & Limits: Part II,” (1983) 2 L. & Phil. 5;Google Scholar Coleman, J., “Tort Law and the Demands of Justice” (1992) 67 Ind. L.J. 349;Google Scholar Epstein, , “A Theory of Strict Liability” (1973) 2 J. Legal Stud. 151;Google Scholar Epstein, , “Nuisance Law: Corrective Justice and Its Utilitarian Constraints” (1979) 8 J. Legal Stud. 49;Google Scholar Fletcher, , “Fairness and Utility in Tort Theory” (1972) 85 Harv. L. Rev 537;Google Scholar Nickel, , “Justice in Compensation” (1976) 18 Wm & Mary L. Rev. 379;Google Scholar Perry, , “Comment on Coleman: Corrective Justice” (1992) 67 Ind. L.J. 381;Google Scholar Perry, , “The Mixed Conception of Corrective Justice” (forthcoming) Harv. J. of L. & Pub. Pol.;Google Scholar Posner, R., “The Concept of Corrective Justice in Recent Theories of Tort Law” supra;CrossRefGoogle Scholar Schroeder, , “Corrective Justice and Liability for Increasing Risks,” supra;Google Scholar Sharp, supra; Schroeder, , “Corrective Justice, Liability for Risks, and Tort Law,” supra;Google Scholar Simons, , “Corrective Justice and Liability for Risk-Creation: A Comment,” (1990) 38 U.C.L.A. L. Rev. 113;Google Scholar Weinrib, , “Legal Formalism: On the Immanent Rationality of Law,” (1988) 97 Yale L.J. 949 at 977–79;Google Scholar Weinrib, , “Causation and Wrongdoing,” (1983) 63 Chi-Kent L. Rev. 407;Google Scholar Weinrib, , “Toward A Moral Theory of Tort Law” (1983) 2 L. & Phil. 37;Google Scholar Wells, , “Tort law as Corrective Justice: A Pragmatic Justification for Jury Adjudication” (1990) 88 Mich. L. Rev. 2348.Google Scholar In many such theories, however, the justice of the plaintiff’s claim to compensation is simply assumed, or is treated as an incident of the defendant's liability. See Coleman, , “Markets, Morals and the Law” supra, at 187;Google Scholar Coleman, , “Moral Theories of Torts: Their Scope and Limits: Part II” supra at 8’9;Google Scholar Lomasky, , “Compensation and the Bounds of Rights” in NOMOS XXXIII, supra 13 at 26–28;Google Scholar Perry, supra at 393–93; Schroeder, supra at 450,466; Wells, supra at 2351. But cf. Posner, R., “The Problems of Jurisprudence,” supra at 321–32 (linking compensation to an instinct for revenge);Google Scholar Simons, , “Corrective Justice & Liability for Risk-Creation: A Comment,” supra, at 123–24 (questioning the moral basis of compensation);Google Scholar Nickel, , “Justice in Compensation,” supra Google Scholar(discussing the relation between compensation and distributive justice). We might find it easier to assess the conditions of defendants’ liability if we began with a clear idea of why plaintiffs should (or should not) be compensated for the effects of legal wrongs.
2. This term is borrowed from Professor Douglas Laycock. See Laycock, D., Modern American Remedies 14–17 (Boston: Little, Brown & Co., 1985.Google Scholar For a brief history and fervent defense of the principle that rights must have remedies, see Zeigler, Donald H., “Rights Require Remedies: A New Approach to the Enforcement of Rights in the Federal Courts” (1987) 38 Hastings L. J. 665 at 665–81.Google Scholar
3. See Abram Chayes, “The Role of the Judge in Public Law Litigation (1976) 89 Harv. L. Rev. 1281. But cf. Epstein, R., Takings: Private Property and the Power of Eminent Domain (Cambridge, Mass.: Harvard University Press, 1985) at 3–6 Google Scholar(arguing that the legitimate scope of government action is to enforce the sum of private rights).
4. Professor Stephen Perry has rightly pointed out to me that this paper is substantially colored by a positivist view of law as a system of forward-looking rules for guidance of human conduct. In other words, I assume throughout that the primary function of law is to establish standards of behavior in advance of conduct, and that the primary function of the courts is to apply those standards after the fact. The temporal gap between conduct and decision places courts in the paradoxical position I describe in the final sections of this article.
Perry states a strong case for an alternative understanding of law, which he calls an “adjudicativist” theory. See Perry, , “Second Order Reasons, Uncertainty and Legal Theory” (1989) 62 U.S.C. L. Rev. 913 at 957–94.Google ScholarOn an adjudicativist view, law (or at least common law) is not a set of rules but a process of resolving disputes according to morally relevant reasons.” Ibid, at 978, 981–82. As Perry puts it, “the basic function of law is not the guidance of citizens' conduct as such but rather the institutionalized adjudication and social resolution of disputes in accordance with appropriate principles of personal and political morality.” Ibid, at 958.
The adjudicativist theory dictates that judicial decisions should be based on reasons applicable to the dispute before the court. See ibid, at 981–82. Courts may accord some deference to prior decisions, in the interest of moral consistency. See ibid, at 965–74. They also may include among the relevant reasons for decision the future behavioral consequences of expectations generated by the decision. See ibid, at 958–59, 982–83. But the object of decision is to reach the best resolution of a particular dispute, rather than to order future conduct. In effect, remedy drives right.
Perry’s adjudicativist theory of law is an idea to which I will give further thought, for it might provide new answers to the questions raised in this paper. I am inclined to think that at least descriptively, one cannot explain the whole of the common law as a response to the relative moral positions of litigants, because there is too great a disparity between liability and moral desert. See Sherwin, , “Why is Corrective Justice Just?” (1992) Harv. J.L. – Pub. Pol. 839.Google ScholarAt the same time, I admit that some of the considerations that affect judicial decision-making, such as loss-spreading, are much easier to explain in terms of dispute resolution than in terms of prospective conduct regulation. One of the points I wish to make in the final sections of this article is that courts are influenced by both prospective and retrospective objectives, and that the two are sometimes in conflict.
5. These terms are taken from Professor Hart. Hart, H.L.A., The Concept of Law (Oxford: Clarendon Press, 1961) at 27–28.Google ScholarSee Raz, J., The Concept of a Legal System (Oxford: Clarendon Press, 1980) at 156–166 (P-Laws);CrossRefGoogle Scholar Kennedy, , “Form and Substance in Private Law Adjudication” (1976) 89 Harv. L. Rev. 1685 at 1697–98 (legal rules as background for social practice);Google Scholar Rawls, , “Two Concepts of Rules” (1955) 64 Phil. Rev. 3 at 24—29 (the practice conception of rules).Google Scholar
6. See Bentham, J., “Principles of the Civil Code, Part I” ch. VII-VIII, in Ogden, C.K., ed., The Theory of Legislation (London: Kegan Paul, Trench, Trubner, 1931;Google Scholar Hobbes, T., Leviathan, ed. by Tuck, R. (Cambridge, Eng.: Cambridge University Press, 1991) ch. 13 (originally published 1651);Google Scholar Hume, D., An Enquiry Concerning the Principles of Morals, Section III (1777);CrossRefGoogle Scholar Hume, D., A Treatise of Human Nature, 2d ed. by Nidditch, P.H. (Oxford: Clarendon Press, 1978) Bk. Ill, Pan II, Section II (1739–40);Google Scholar Locke, J., “An Essay Concerning the True Original, Extent and End of Civil Government” in Two Treatises on Civil Government (Cambridge, Eng.: Cambridge University Press, 1967) ch. VI–IX (originally published in 1690);Google Scholar Mill, J.S., Utilitarianism ed. by Piest, Oskar (Indianapolis, Ind.: Bobbs-Merril, 1957) at ch. V (originally published 1861).Google Scholar
7. See Laycock, D., supra, note 2 at 7.Google ScholarSee also Feinberg, J., Doing and Deserving (Princeton, N.J.: Princeton University Press, 1970)Google Scholar at ch. 5 (the expressive function of criminal punishment). But cf. Feinberg, J., Harmless Wrongdoing, v. IV at 294–305 (1988) (limits on the extent to which moral standards can be criminalized in a liberal society);Google Scholar Posner, R., The Problems of Jurisprudence, supra, note 1 at 213–25Google Scholar (questioning the expressive function of law). For a range of views on the relation between law and morals, see Posner, R. ibid at 228–44;Google Scholar Dworkin, R., Taking Rights Seriously (London: Duckworth, 1977) at 123–28;Google ScholarPubMed Fuller, , “Positivism & Fidelity to Law—A Reply to Professor Hart” (1958) 71 Harv. L. Rev. 630;Google Scholar Hart, , “Positivism and the Separation of Law and Morals” (1958) 71 Harv. L. Rev. 593.Google Scholar
8. Judge Posner makes this point in his discussion of corrective justice. See Posner, R., The Problems of Jurisprudence, supra note 1 at 316–17,329–30.Google ScholarSee also Calabresi, G., supra note 1 at 113–28 (methods of “specific deterrence” and their drawbacks).Google Scholar
9. A legal system that imposes sanctions on individual defendants must take some position on questions of retributive justice, in the sense of restraints on punishment. But a legal system need not adopt retribution as an affirmative goal. See Hart, H.L.A., Punishment and Responsibility (Oxford: Clarendon Press, 1968) at 9,Google Scholar 11–14, 17–25 (distinguishing between “Retribution as a General Justifying Aim” and “retribution in Distribution” of punishment).
10. See Posner, R., Economic Analysis of Law, 3d ed. (Boston: Little, Brown, 1986) at 212;Google Scholar Posner, R., The Problems of Jurisprudence, supra, note 1 at 316–17,Google Scholar329–30. There are dangers in this view of law. For example, why limit sanctions to wrongdoers? It might be cheaper to select individuals at random for exemplary punishment, whether or not they have violated the law. See Conquest, R., The Great Terror: Stalin–s Purge of the Thirties (New York: Macmillan, 1968) at 276–331;Google Scholar Fletcher, G., Rethinking Criminal Law (Boston: Little, Brown, 1978) at 415;Google ScholarHart, H.L.A. supra, note 5 at 11. In a morally acceptable legal system, the use of sanctions must conform to principles of responsibility, proportionality and evenhandedness. See, G. Fletcher, supra at 416–20; H.L.A. Hart, supra at 11–25.
I am setting aside the question whether bad law can be “law”; for the purpose of this discussion I assume that it can. Compare Fuller, supra note 7 with Hart, supra note 6.
11. See, e.g., Fried, C., Right and Wrong (Cambridge, Mass.: Harvard University Press, 1978) at 81,CrossRefGoogle Scholar 84–85, 132 (rights drawn from Kantian principles); Epstein, R., Takings, supra, note 3 at 58–61,Google Scholar 331–34, 340 (rights stemming from first possession); Nozick, R., Anarchy, State and Utopia (Oxford: Blackwell, 1974) at 29–33,Google Scholar57 (a libertarian system of rights), Epstein, R., “The Utilitarian Foundations of Natural Law” (1989) 12 Harv. J. L. & Publ. Pol. 713 Google Scholar(convergence of natural law and utility). See also Hart, , “Between Utility and Rights” (1979) 79 Colum. L. Rev. 828 Google Scholar(a critique of two rights theories).
12. See, e.g., G. Calabresi, supra, note 1 at 133–161 (cheapest cost avoider); R. Posner, supra, note 10 at 42–47,91–96, 147–50 (incompatible uses of property, risk allocation in contract law, accident prevention).
13. In fact, corrective remedies often are assigned an important role in both rights theories and theories that seek to channel conduct toward desirable ends. See, e.g., C. Fried, Right and Wrong, supra, note 11 at 106; R. Nozick, supra, note 11 at 57,152; R. Posner, supra, note 10 at 176; Epstein, R., “Nuisance Law: Corrective Justice and Its Utilitarian Constraints,” supra,CrossRefGoogle Scholarnote 1 at 49–50; Lomasky, supra, note 1 at 26–29. My point is only that corrective remedies are not a logically necessary incident of legal rights.
14. Professor Jules Coleman’s early writing on corrective justice is particularly useful for its insights on this point. Coleman drew a distinction between the grounds of recovery and the grounds of liability, and proposed that plaintiffs' rights to recover rests on wrongful loss, while defendants' liability rests on wrongful gain. He also distinguished between grounds of liability and recovery, which are dictated by corrective justice, and modes of rectification, which are not. In other words, corrective justice does not specify how the legal system should compensate losses and take away gains. These two distinctions lead to the proposition that plaintiffs should be compensated, but not necessarily by defendants. Thus, traditional tort law might be replaced by an insurance system with violating the principle of corrective justice. See Coleman, J.,“Corrective Justice and Wrongful Gain” (1973) 11 J. Legal Stud. 421 at 423–27,Google Scholarreprinted in Coleman, supra, note 1,184, 184–89.
I want to take this analysis a step further and ask, if we can separate (at least conceptually) plaintiffs’ claims to compensation and defendants’ liability, what independent reasons are there to compensate plaintiffs? If there are none, plaintiffs’ claims are justified only to the extent they are the best means of imposing liability on defendants.
15. See, e.g., Calabresi, supra, note 1 at 1–13; Coleman, supra, note 1 at 187–88; Schroeder, , “Corrective Justice and Liability for Increasing Risks,” supra, note 1 at 466–69.Google Scholar
16. See, supra, note 8.
17. At least, I do not believe private compensatory remedies are morally required in all cases, without regard to the particular rights they enforce. The relation between corrective remedies and various theories of rights is discussed in Section IIA below.
18. For instrumental explanations of defendants’ liability, see, e.g., G. Calabresi, supra, note 1 at 26-27 (primary accident cost reduction through general deterrence); Holmes, O.W., The Common Law, ed. by Howe, M. (Cambridge, Mass.: Belknap Press, 1963) at 88,Google Scholar 118–129 (law as objective rules of conduct for prevention of harm to persons and property); R. Posner, supra, note 10 at 147–49 (incentives for optimal precaution). In some cases, liability might also be defended on moral grounds, based on an affirmative principle of retributive justice. See Morris, H., On Guilt and Innocence (Berkeley, University of California Press, 1976) at 34–36Google Scholar(punishment as a means of restoring the “equilibrium of benefits and burdens” when a wrongdoer has accepted the benefits of law but renounced the burden of obedience). Retribution, however, is appropriate only when the wrongdoer is capable of complying with law, and only in proportion to the wrongdoer’s lapse from duty. See ibid, at 35, 39–40. Civil liability frequently exceeds these conditions (as in cases of strict liability or objectively determined negligence or liability for unanticipated consequences), and so is difficult to justify on retributive grounds. See Alexander, supra, note 1 at 4–5.
19. See R. Posner, supra, note 10 at 176. Posner also suggests that without compensation, potential victims may take excessive (inefficient) measures to protect themselves against harm. Ibid.
20. A number of writers have explained tort law in terms of a special moral relation that arises from the causal relation between one person’s action and another’s loss. See e.g., Coleman, Risks and Wrongs, supra, note 1 ch. 16; Thomson, J., Rights, Restitution and Risks (Cambridge, Mass.: Harvard University Press, 1986) at 200–03;Google Scholar Perry, , “Comment on Coleman: Corrective Justice,” supra, note 1 at 399, 407–08;Google Scholar Weinrib, , “Causation and Wrongdoing,” supra, note 1 at 429–30, 434, 444–50;Google Scholar Weinrib, , “Toward A Moral Theory of Negligence Law,” supra, note 1 at 38;Google Scholar Weinrib, , “Legal Formalism: On the Immanent Rationality of Law,” supra, note 1 at 977–79.Google ScholarSee also Epstein, R., “A Theory of Strict Liability,” supra, note 1 at 158 Google Scholar (one whose actions injure another should bear the cost, as he would bear the cost of an injury to himself).
21. See Perry, , “Comment on Coleman: Corrective Justice,” supra, note 1 at 399–40,408.Google ScholarSee also Thomson, supra, note 20 at 199–207; Epstein, , “A Theory of trict Liability,” supra, note 1 at 158;Google Scholar Weinrib, , “Causation and Wrongdoing,” supra, note 1 at 425–31;Google Scholar Weinrib, , “Legal Formalism: On the Immanent Rationality of Law,” supra, note 1 at 996–99;Google Scholar Weinrib, , “Toward a Moral Theory of Negligence Law,” supra, note 1 at 49–60.Google Scholar
Professor Perry begins with the notion of “outcome-responsibility”, which holds that individuals are morally responsible for the consequences of their voluntary acts. Perry, supra at 399. See Honoré, T., “Responsibility and Luck,” (1988) 104 L.Q. Rev. 530 at 539–45.Google ScholarOutcome-responsibility may not be enough to impose a duty on the actor to repair losses he causes to others. But when causation is combined with fault (understood as a lapse from objective standards) or “fault-like” conduct (understood as intentional, though perhaps justifiable, invasion of another’s rights), the moral comparison between plaintiff and defendant dictates that the defendant should compensate the plaintiff. Perry, supra, at 402–04,407.
Professor Weinrib refers to Kantian moral philosophy to defend compensation under a standard of negligence. According to Weinrib, individuals must give equal respect to the ends of others. Thus when one person acts in a way that affects the property of another, she must apply the same cost benefit analysis she would apply if the property affected were her own. If she fails to do so, compensation is necessary to restore equality between the parties. See Weinrib, , Causation and Wrongdoing, supra, note 1 at 425–31;Google Scholar Weinrib, , “Legal Formalism: On the Immanent Rationality of Law,” supra, note 1 at 996–99;Google Scholar Weinrib, , “Toward a Moral Theory of Negligence Law,” supra, note 1 at 49–60.Google Scholar
Professor Thomson begins her defense of tort remedies with “the value we place on freedom of action.” Thomson, supra, at 199. Consistent with this principle, a plaintiff’s loss can be shifted to a defendant if but only if some fact about the defendant differentiates the plaintiff's loss from a self inflicted or random loss. Ibid, at 199–200. For Thomson, the two elements necessary (and sufficient) to connect the loss to the defendant are causation and fault. Ibid, at 202–03.
Professor Epstein, in his early writing on corrective justice, employed a related line of reasoning in support of compensation under a standard of strict liability. One who damages his own property must bear the loss; and the fact that he damages the property of another rather than his own should not shift the burden of his action to the victim. The result is strict liability for the causal effects of one's action (within a particular understanding of causation). See Epstein, R., “A Theory of Strict Liability,” supra at 158 (liability), 160–89Google Scholar (causation). Initially, Epstein’s argument appeared to be one of moral responsibility. As the theory evolved, he placed more emphasis on property rights. See Epstein, R., “Nuisance Law and Its Utilitarian Constraints,” supra, note 1 at 50–53;Google Scholar Posner, R., “Epstein’s Tort Theory: A Critique,” (1979) 8 J. Legal Stud. 457, 458–59Google Scholar, 465–68. Recently, he has suggested that the underlying justification for property rights is their contribution to utility. See R. Epstein, supra, note 11. Ultimately, then, his argument is utilitarian rather than deontological.
22. There are many causes of any event, and the selection of any one of them as the responsible cause is inescapably normative. See Hart, & Honoré, , “Causation and Responsibility,” in Hart, H. & Honoré, T., eds, Causation in the Law, 2d ed. (Oxford: Clarendon, 1985) 62 at 62–83.CrossRefGoogle ScholarEpstein’s writing on corrective justice shows the difficulty of working out an adequate concept of causation within a theory of corrective justice. See Epstein, R., “A Theory of Strict Liability,” supra, note 1 at 160–89;Google Scholar Borgo, , “Causal Paradigms in Tort Law,” (1979) 8 J. Legal Stud. 419;Google Scholar Epstein, R., “Causation and Corrective Justice: A Reply to Two Critics,” (1979) 8 J. Legal Stud. 477 at 478–87Google Scholar. Cf. O.W. Holmes, supra, note 18 at 68–78.
23. In existing law, the relations that generate rights and duties of compensation are not limited to those in which the defendant has acted culpably. Nor do they encompass all cases in which the defendant’s action has caused the plaintiff harm. Thus the proponent of a theory of comparative responsibility must explain the moral significance of an intermediate (and elastic) standard of liability, beyond simple causation but short of deliberate or knowing harm.
Several writers have tried to work out definitions of wrongdoing that fit existing tort doctrine into a theory of corrective justice. See, e.g., Coleman, Risks and Wrongs, supra, note 1, ch. 15 (15.4–15.8) and 17 (17.1, 17.9) (unjustified harm to legitimate interests and justified or unjustified impairment of rights); Perry, , “The Mixed Conception of Corrective Justice,” supra, note 1 at 18–21,Google Scholar 29–33 (fault or “fault-like” invasion of right); Weinrib, , “Causation and Wrongdoing,” supra, note 1 at 425–29Google Scholar(negligence determined by an objective standard); Weinrib, , “Toward A Moral Theory of Negligence Law,” supra, note 1 at 49–54 Google Scholar(same). Cf. Posner, R., supra, note 1 at 189–91Google Scholar, 201–06 (efficiency as the criterion of wrongfulness in a theory of corrective justice).
24. I have made this argument in another article, written in response to a recent version of Professor Jules Coleman’s theory of corrective justice. Sherwin, E., “Why is Corrective Justice Just?,” supra, note 4.Google Scholar
25. A theory of “outcome-responsibility” is ably defended in Honore, supra, note 21 at 539–45 (autonomous choice as a bet). But see Feinberg, , “Problematic Responsibility in Law and Morals,” in Feinberg, J., ed., Doing and Deserving (Princeton: Princeton University Press, 1970) at 15,Google Scholar 30–32 (ideally, moral responsibility excludes luck).
In defense of a stricter standard of moral responsibility, limited to conscious, "ex ante" choice,see Schroeder, , “Corrective Justice and Liability for Increased Risks,” supra, note 1 at 451–60.Google Scholar
On the difficulty of separating the conscious will from its antecedents and consequences, see Feinberg, , supra at 32–27;Google Scholar Nagel, T., “Moral Luck,” in Nagel, T., ed., Mortal Questions (Cambridge, eng.: Cambridge University Press, 1979) at 24,Google Scholar 24–38; Williams, B., “Mortal Luck,” in Williams, B., Moral Luck: Philosophical Papers (Cambridge, Eng.: Cambridge University Press, 1981) 20 at 20–39.CrossRefGoogle Scholar
26. Perry appears to recognize this, but he assumes that one who suffers a wrongful loss has a “right” to compensation. See “Comment on Coleman: Corrective Justice”, supra, note 1 at 393–94.
27. See Thomson, supra, note 20 at 199–206; Weinrib, , “Causation and Wrongdoing,” supra, note 1 at 428,Google Scholar 449–50, 452. Cf. Honoré, , supra, note 21 at 541–42Google Scholar(suggesting that in the absence of conscious fault, consequentialist arguments are necessary to support a duty of compensation).
28. See Bentham, supra, note 6, ch. VIII-X; Hume, D., An Enquiry Concerning the Principles of Morals, supra, note 6, section III, part I at §145–49;Google Scholar Hume, D., A Treatise of Human Nature, supra, note 6, bk. Ill, section II, part II at §484–85;Google Scholar Epstein, R., supra, note 10 at 73237;Google Scholar Michelman, , “Property, Utility, and Fairness: Comments on the Ethical Foundations of ‘Just Compensation’ Law” (1967) 80 Harv. L. Rev. 1165 at 1208–13.Google ScholarSeveral variations of a utilitarian general defense of property rights are discussed in Becker, L., Property Rights: Philosophical Foundations (London: Routledge & Kegan, 1977) at 57–67.Google Scholar
29. See Bentham, supra, note 6, ch. X; J.S. Mill, supra, note 5, ch. II; Michelman, supra, note 28 at 1213.
30. Bentham seems to have made this assumption. See Bentham, supra, note 6, Principles of the Penal Code, Part II, ch. VI1-XI.
31. Some set of entitlements is necessary, to reduce the costs of using scarce resources and to facilitate efficient exchange. See R. Posner, supra, note 10 at 30–33; Demsetz, , “Toward a Theory of Property Rights, (1967) 57 Am. Econ. Rev.,Google ScholarProceedings and Papers 347. See also L. Becker, supra, note 28 at 67–74 (summary and critique). As far as possible, initial entitlements should track what rational parties would agree to between themselves, in order to minimize transaction costs in the move toward an efficient allocation. See R. Posner, supra at 42–48,82. For a helpful general discussion of economic analysis of law, see Coleman, , “Markets, Morals and Law,” supra,CrossRefGoogle Scholar note 1, ch. 3 & 4.
32. See G. Calabresi, supra, note 1 at 135–73; R. Posner, supra, note 10 at 147–51, 160–67; Calabresi, & Melamed, , “Property Rules, Liability Rules & Alienability Rules: One View of the Cathedral,” (1972) 85 Harv. L. Rev. 1089, 1095–96Google Scholar
33. See Calabresi & Melamed, supra, note 32 at 1092–93, 1106–10.
34. See G. Calabresi, supra, note 1 at 119–28; R. Posner, supra, note 1 at 316–17,329–30; R. Posner, supra, note 1 at 203. Even a “property rule” can be enforced by a set of deterrent penalties rather than by private injunctive remedies. See Calabresi & Melamed, supra, note 32 at 1124–27.
35. See R. Posner, supra, note 10 at 176. For an economic defense of compensation in the context of government takings of property, see Michelman, supra, note 28 at 1214–18.
36. See, e.g., Radin, M., “Property and Personhood,” (1982) 34 Stan. L. Rev. 957 at 957–78.CrossRefGoogle ScholarThe core of Hegel’s explanation of property rights is set out in G. Hegel, Philosophy of Right, trans. Knox, T. (Chicago: Encyclopaedia Britannica, 1952)Google Scholarpara. 34–71. For an analysis of Hegel, see L Becker, supra, note 28 at 28–30; Berry, , “Property & Possession: Two Replies to Locke—Hume and Hegel” in Pennock, R. & Chapman, J., eds, NOMOS XXII: Property (New York: New York University Press, 1980) 89 at 95–99;Google Scholar Stillman, , “Property, Freedom and Individuality in Hegel’s and Marx’s Political Thought” in NOMOS XXII, supra, 130 at 131–48.Google Scholar
37. Professor Radin suggests that when particular property is important to “personhood”, the holder’s right to it should be protected by property rules (punitive or injunctive remedies) as well as by compensation. See M. Radin, supra, note 36 at 988.
38. See G. Hegel, supra, note 36, para. 51,71; Berry, supra, note 36 at 96–97; Stillman, supra, note 36 at 142–44.
39. See Fried, C., Contract as Promise (Cambridge, Mass.: Harvard University Press, 1981) at 7–17.Google ScholarSee also Barnett, , “A Consent Theory of Contract” (1986) 86 Colum. L. Rev. 269 at 296–309 Google Scholar(a theory of contract obligation based on the relation of consent to autonomy). For a more general statement of Professor Fried’s theory of rights, see C. Fried, supra, note 11, particularly at pages 8–13 and 28–29.
40. See C. Fried, supra, note 39 at 8, 12–14, 16; Barnett, supra, note 39 at 296–300, 306–09.
41. Anything less would “not take him seriously as a person.” C. Fried, supra, note 39 at 21. See also C. Fried, supra, note 11 at 106–07 (assuming a moral requirement of compensation, at least for intentional harms and possibly for careless injuries as well).
42. See J. Locke, supra, note 6, ch. V. See also R. Epstein, supra, note 3 at 10–15, 61; R. Nozick, supra, note 11 at 174–82. For analysis of Locke’s theory of property, see L. Becker, supra, note 28 at 32–48.
43. See R. Epstein, supra, note 3 at 39–41; Locke, supra, note 6 at 10; R. Nozick, supra, note 11 at 10, 57–78 (assuming that entitlements imply, at minimum, a right of compensation); Epstein, supra, note 11 at 48.
44. For discussions of these and other issues raised by a theory of natural right based on labor, see L. Becker, supra, note 28 at 33–34,40–47; R. Epstein, supra, note 3 at 11; R. Nozick supra, note 11 at 174–82; R. Epstein, supra note 11 at 731; Epstein, R., “Possession as the Root of Title” (1979) 13 Georgia.L. Rev. 1221 at 1226–30.Google Scholar
45. Epstein has argued that natural rights converge with utility. See R. Epstein, supra note 3 at 61, 217, 336–38; Epstein, supra, note 11 at 730–37; R. Epstein, supra, note 44 at 1238–43.
46. See R. Epstein, supra, note 3 at 229–31; Epstein, R., “Nuisance Law and Its Utilitarian Constraints,” supra, note 1 at 74–79;Google Scholar sources cited in supra, note 28.
47. The term “patterned” is taken from R. Nozick, supra, note 11 at 155.
48. Theories of this type are mentioned in L. Becker, supra, note 28 at 81–86 and R. Nozick, supra, note 11 at 156. For an excellent discussion of the concept of merit and the values it serves, see Fallon, , “To Each According to His Ability, From None According to His Race: The Concept of Merit in Antidiscrimination Law,” (1980) 60 B.U. L.Rev. 815 at 815–43.Google Scholar
49. See Schroeder, , “Corrective Justice and Liability for Increasing Risks,” supra, note 1 at 460–69Google Scholar(a system in which recovery is based on loss and liability is based on risk). See also Coleman, , Markets, Morals and Law, supra, note 1 at 184–89Google Scholar(distinguishing among grounds of liability, grounds of recovery and modes of rectification). Professor Perry argues that a proposal of this sort must be founded on distributive rather than corrective justice, because it creates “agent-neutral” reasons for action. See Perry, , “Comment on Coleman: Corrective Justice,” supra, note 1 at 395–98;Google Scholar Coleman Risks and Wrongs, supra, note 1 at 16.2.
50. See Alexander, supra, note 1 at 6–7.
51 Ibid. Perhaps a remedy could be worked out in which B compensated A to the extent of B ’s gain (which in the example is none), and then all parties contributed to A’s compensation up to the point atwhich their positions and A’s were equal (9 units each). But this takes us very far from the current systemof legal remedies.
52 See D. Hume, An Enquiry Concerning the Principles of Morals, supra, note 6, Section III, part II, at § 155; R. Nozick, supra,note 11 at 160–64; Baechler, “Liberty, Property, and Equality” in NOMOS XXII, supra, note 36 at 269,278–80; Chapman, “Justice, Freedom and Property” in NOMOS XXII, supra, note 36 at 289,310, 317.
53 Professor Radin expressly limits the scope of property necessary for “personhood.” See M. Radin, supra, note 36 at 968-70 (fetishes), 986-88 (personal and fungible property). See also C. Fried, supra, note 39 at 58–63,69–73 (issues that fall outside the scope of an autonomy-based theory of contract); C. Fried, supra, note 11 at 132-39 (a limited set of moral rights, leaving other legal issues to be settled initially by reference to utility or efficiency).
54 The materials in supra, note 6 above set out some of the classic defenses of law.
55 See R. Posner, The Problems of Jurisprudence, supra, note 1 at 313–32. For an earlier analysis, see Posner, “The Conceptof Corrective Justice in Recent Theories of Tort Law”, supra, note 1.
56 See Posner, R., The Problems of Jurisprudence, supra, note 1 at 316, 321-22.Google Scholar
57 Ibid, at 322.
58 It is not clear whether Posner intends to equate corrective justice with compensation. Initially, he states that corrective justice calls for compensation of the victim, if compensation is possible. Ibid, at 322. Later, he suggests that “correction” can be accomplished by punishing the wrongdoer in proportion to the loss he caused, without attending to the position of the victim. Ibid, at 323. Posner’s tendency to run together compensation and punishment is consistent with his view that corrective justice is closely related to retribution and the instinct for revenge. See ibid, at 322–23, 330–32.
59 Ibid, at 322–23, 330–32.
60 Ibid, at 330.
61 The argument I am presenting is much influenced by Mill’s discussion of justice. See J.S. Mill, supra, note 6, ch. V.
62 See Hart, H.L.A., The Concept of Law, supra, note 4 at 38–39,55–56,86–88.Google Scholar In Professor Hart’s words, the internal aspect of rules means “that there should be a critical reflective attitude to certain patterns of behavior as a common standard, and that this should display itself in criticism (including self-criticism), demands for conformity, and in acknowledgements that such criticism and demands are justified.” Ibid, at 56. Those who take this view of law “accept and voluntarily co-operate in maintaining the rules, and so see their own and other persons’ behavior in terms of the rules.” Ibid, at 88. In any legal system there will be some individuals who do not take an internal view of law, and these will comply only from fear of sanctions. But the system is on solid footing ifa strong majority internalizes its rules.
63 Similarly, there is a general willingness to obey traffic rules such as “drive on the right” or “one way street.” Of course, traffic rules also illustrate the limits of public willingness to accept prescribed rules: speed limits, especially the speed limit of 55 miles per hour on interstate highways, are habitually flouted because drivers believe them to be irrational.
64 On the authority of law and the power of legal rules to exclude other reasons for action from consideration, see Raz, J., The Authority of Law (Oxford: Clarendon Press, 1979) at 16–33;Google Scholar Alexander, , “Law and Exclusionary Reasons” (1991) 18 Phil. Topics 5;Google Scholar Hurd, , “Challenging Authority” (1991) 100 Yale LJ. 1611.CrossRefGoogle Scholar
65 See Hume, D., An Enquiry Concerning the Principles of Morals, supra, note 6, app. III at §256–67;Google Scholar Schauer, F., Playing By the Rules (Oxford: Clarendon Press, 1991) at 94–99 (“rule-sensitive particularism”)Google Scholar; Schauer, F., “Rules and the Rule of Law” (1991) 14 Harv. J. L. & Publ. Pol. 645 at 649-50.Google Scholar On the utilities and disutilities of obedience to rules, see Powers, , “Structural Aspects of the Impact of Law on Moral Duty Within Utilitarianism and Social Contract Theory” (1979) 26 U.C.L.A. L. Rev. 1263 at 1270–93Google Scholar. On the nature and problems of indirect consequentialism, see Alexander, , “Pursuing the Good—Indirectly” (1985) 95 Ethics 315 CrossRefGoogle Scholar; Wonnell, , “Four Challenges Facing a Compatabilist Philosophy” (1989) 12 Harv. J. L. & Publ. Pol. 837.Google Scholar
66 See Powers, supra, note 65 at 1271–1272 (the problem of “contagion”).
67 This argument assumes that self-interest is an important part of individual motivation. For strong statements of individual self-interest, see, e.g., Becker, G., The Economic Approach to Human Behavior (Chicago: University of Chicago Press, 1976) at 3–14 Google Scholar; Bentham, supra, note 6 at 2; T. Hobbes, supra, note 6, ch. 13. For more generous views of human nature, see J.S. Mill, supra, note 6, ch. V (enlightened self-interest); Nagel, T., Equality and Partiality (Princeton: Princeton University Press, 1991) at 3–5,8, 14–20Google Scholar (arguing that political theory must take account of two distinct aspects of individual character—the personal and the impersonal). See also R. Nozick, supra, note 11 at 118–19 (on the transition from’individual to state).
68 See Behtham, supra, note 6, ch. VII, X; J.S. Mill,supra, note 6, ch. V.
69 For a conception of human nature that admits both self-interest andan impersonal concern for the welfare of others, see T. Nagel, supra, note 67 at 3–20. See also J.S. Mill, supra, note 6, ch. V. Mill describes “the sentiment of justice” as “the animal desire to repel or retaliate a hurt or damage to one’s self or to those with whom one sympathizes, widened so as to include all persons, by the human capacity of enlarged sympathy, and the human conception of intelligent self-interest.” Ibid.
70 These facts are taken from Borer v. American Airlines Inc., (1977) 19 Cal. 3d 441 at 563 [P.2d 858], in which the victim’s children sued (unsuccessfully) for loss of consortium.
71 For an excellent description of this dual function of legal rules, see Dan-Cohen, , “Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law” (1984) 97 Harv. L. Rev. 625 at 625-34CrossRefGoogle Scholar. See also Postema, G., Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986) at 403–08,448-52Google Scholar (on Bentham’s dual system of law and adjudication); Raz, supra, note 5 at 147-56 (dutyimposing laws and sanction-imposing laws).
72 For arguments that legal rules can and do govern private conduct and official decisions in many cases, see, e.g., H.L.A. Hart, supra, note 5 at 122–38; Greenawalt, , “How Law Can Be Determinate” (1990) 38 U.C.L.A. 1;Google Scholar Schauer, , “Formalism” (1988) 97 Yale L.J. 509 at 520–32;CrossRefGoogle Scholar Schauer, supra, note 65 at 657–63. See also Raz, supra, note 64 at 37–52 (sources thesis). For critical views, see, e.g., Kennedy, supra, note 5 at 1698–1700; Singer, , “The Player and the Cards, Nihilism and Legal Theory” (1984) 94 Yale L.J. 1 at 9–25.CrossRefGoogle Scholar
73 Dan-Cohen, supra, note 71 at 630–36. Dan-Cohen suggests conditions of partial acoustic separation do exist in some areas of law, and that judgestake advantage of them by a process he calls “selective transmission” of decision rules and conduct rules. See ibid, at 634–48.
74 For more details on this point, see Sherwin, , “Law and Equity in Contract Enforcement” (1991) 50 Md.L. Rev. 253 at 300–314.Google Scholar
75 The term “particularistic” is taken from Professor Frederick Schauer. See Schauer, F., “Playing By the Rules”, supra, note 65 at 77–78, 86–87;Google Scholar Schauer, F., “Rules and the Rule of Law”, supra, note 65 at 648, 665–71Google Scholar. Schauer describes rules as “prescriptive generalizations.” Schauer, F., “Playing By the Rules”, supra at 25–27;Google Scholar Schauer, F., “Rules and The Rules of Law”, supra at 648.Google Scholar A “rule-based” decision is one “in which a generalization provides a reason for decision even in the area of its under-or over-inclusion.” Schauer, F., “Rules and the Rule of Law”, supra at 646 Google Scholar. A particularistic decision is one in which “[t]he rules are but rules of thumb“ and the decisionmaker attempts to reach the best overall result, all things considered.” Ibid, at 648,667.
76 A rule directs that when certain elementary facts are present, a given result should follow. The rule presumably is designed to promote some normative end, but the individuals or officials to whom it is addressed are instructed to apply the rule without further consideration of underlying norms. See Schauer, F., “Playing By the Rules”, supra, note 65, Prospectus at 15–16, 77–78, 86–87;Google Scholar Ehrlich & Posner, , “An Economic Analysis of Legal Rulemaking”, (1974) 3 J. Legal Stud. 257 at 266–67;CrossRefGoogle Scholar Kennedy, supra, note 5 at 1687–88; Powers, supra, note 66 at 1277–78; F. Schauer, “Formalism”, supra, note 72 at 510; Schlag, , “Rules and Standards” (1985) 33 U.C.L.A. L. Rev. 379 at 382–83Google Scholar. A standard (as I am using the term) states a normative end and instructs the decision maker to assess whatever facts are presented to her in light of that end. See Ehrlich & Posner, supra at 358; Kennedy, supra at 1688; Schlag, supra at 382–83. The broadest form of standard, resulting in the most particularistic decision, would be “do the right thing.” See Heriot, , A Study in the Choice of Form: Statutes of Limitation and the Doctrine of Laches, forthcoming in 1993 B.Y.U.L. Rev., MS at 84n.l40.Google Scholar
Rules (when known and followed) have advantages of certainty coordination and restraint on official decision-making. But they do not reach the best result in every case—they are, by definition, overinclusive and underinclusive. See Schauer, F., “Playing By the Rules”, supra at 31–37,47–52, 100–02Google Scholar. For good statements of the arguments for and against rules, see ibid, at 135–66; Ehrlich & Posner, supra at 261–71; Kennedy, supra at 1695–1701; Powers, supra at 1270–93; Schauer, , ”Formalism”, supra at 5339–42;Google Scholar Schauer, , “Rules and the Rules of Law”, supra, note 65 at 684–91;Google Scholar Schlag, supra at 384–89.
77 See Ehrlich & Posner, supra, note 76 at 262; Schlag, supra, note 76 at 384. On the other hand, actors may respond to standards by staying well clear of prohibited conduct. See Kennedy, supra, note 5 at 1695–96; Schlag, supra at 384–85.
78 See Schauer, F., “Playing By the Rules”, supra, note 65 at 149–55, 158–66;Google Scholar Alexander, supra, note 65 at 316–18; Powers, supra, note 65 at 1273; Schauer, , “Rules and the Rules of Law”, supra, note 65 at 685–86.Google Scholar
79 But cf. Wonnell, , “The Abstract Character of Contract Law” (1990) 22 Conn. L. Rev.437 at 480 Google Scholar (on the difficulties of central planning).
80 Professor Schauer refers to the difference between the perspective of individual citizens and the perspective of the authority as the “asymmetry of authority.” Schauer, F., “Playing By the Rules”, supra, note 65 at 128–33;Google Scholar Schauer, F., “Rules and the Rule of Law”, supra, note 65 at 692–93.Google Scholar
Assuming the authority has good reason to require its citizens to follow rules, even when the rules go against the citizens’ own best judgment, the next question is how the authority can accomplish this. The problem of securing obedience to rules is discussed in Alexander, , “The Gap” (1991) 14 Harv.J. L. & Publ. Pol. 695;Google ScholarPubMed Alexander, supra, note 65 at 324–25; Schauer, F., “Playing By the Rules”, supra, note 65 at 133–34;Google Scholar Schauer, F., “Rules and the Rule of Law”, supra, note 65 at 693–94;Google Scholar Schauer, F., “The Rules of Jurisprudence: A Reply” (1991) 14 Harv. J. L. & Publ. Pol. 839 at 849–50.Google Scholar See also Altman, , “Beyond Candor” (1990) 89 Mich. 296 (on judicial obedience to rules);CrossRefGoogle Scholar Heriot, , “Way Beyond Candor” (1991) 89 Mich. 1945 (a reply.)CrossRefGoogle Scholar
81. In some areas of law, a standard such as “reasonable” conduct may be easier for citizens to follow than a set of technical rules. Lawmakers also might prefer a broad normative direction to a set of fixed rules when they enter a new field of regulation, in which the range of potential disputes is unknown. See H.L.A. Hart, supra, note 5 at 121–23. Or they might prefer to use standards in the regulation of long term relations. MacNeil, I., The New Social Contract: An Inquiry into Modern Contractual Relations (New Haven: Yale University Press, 1980) at 59–70.Google Scholar
82. There remains a problem of restraint on judicial decision, but this may not require as rule-like a formulation of the governing law. See Fuller, L., The Morality of Law (New Haven: Yale University Press, 1963) at 34, 46–47, 81–82 (on the necessity of decision according to law);Google Scholar Greenawalt, supra, note 72 at 56–65 (on the constraining effect of broad standards).
83. See, e.g., Ferrone v. Rossi, (1942) 42 N.E.2d 564 at 566 (Mass.); Restatement (Second) of Torts §§158, 161 (1965); Casner, VIA J., American Law of Property §28.1 at 3–4 (1954).Google Scholar
84. See Restatement (Second) of Torts §§941,942 (1977); Dobbs, D., Handbook on the Law of Remedies St. Paul: West, 1973) at 52–54, 355–57;Google Scholar Laycock, D. The Death of the Irreparable Injury Rule (New York: Oxford University Press, 1991) at 160–64;Google Scholar D. Laycock, supra, note 2 at 919–21.
85. See, e.g., Golden Press v. Rylands, (1951) 235 P.3d 592 at 594–96 (Col.); Brewer v. Hibbard,(1983) 424 So.2d 988 at 989 (Fla. App.); Restatement (Second) of Torts §941 comment c (1977).
86. See Restatement (Second) of Torts §939 (1977); Heriot, supra, note 76.
87. See, e.g., Restatement (Second) of Contracts §§344, 347 (1981); Calamari, J. & Perillo, J., The Law of Contracts, 3d ed. (St. Paul, Minn.: West Publishing, 1987) §24–4;Google Scholar E. Farnsworth, Contracts §12.1 at 840–42. For a variety of possible justifications for the expectancy measure of damages, see C. Fried, supra, note 39 at 17–19; Eisenberg, , “The Bargain Principle and Its Limits” (1982) 95 Harv. L. Rev. 741 at 744–48;CrossRefGoogle Scholar Fuller, , & Perdue, “The Reliance Interest in Contract Damages (pt. 1)” (1936) 46 Yale L.J. 54, 47–66;Google Scholar Goetz, , & Scott, “Liquidated Damages, Penalties and the Just Compensation Principle: Some Notes on an Enforcement Model and a Theory of Efficient Breach” (1977) 77 Colum. L. Rev. 554, 558–78.Google Scholar
88. See Restatement (Second) of Contracts §359(1) (1981); D. Dobbs, supra, note 84 at 57–58. Professor Douglas Laycock has argued persuasively that the “adequacy” rule has no place in modern law, except as a misleading shorthand reference to the process of balance costs and benefits of different remedies. See D. Laycock, supra, note 84 at 3–7.
89. See, e.g., McAllister v. Schettler, (1988) 521 A.2d 617 at 623–24 (Del. Ch.), aff’d (1988) 547 A2d 634 (Del.); Panco v. Rogers, (1952) 19 N.J. Super 12,29–20, 87 A.2d 770,773–74 (Ch. Div.); Hodge v.Shea, (1969) 252 S.C. 601 at 606, 168 S.E.2d 82 at 84–87; Restatement (Second) of Contracts §364 & comment a (1981); D. Dobbs, supra, note 84 at 45,47–49,705–06; Pomeroy, J. Specific Performance of Contracts §40 (3d ed. 1926);Google Scholar Yorio, E., Contract Enforcement: Specific Performance and Injunctions (Boston: Little, Brown, 1989) c.4.Google Scholar 4.1 have discussed equitable defenses to contract enforcement at length in a previous article. See E. Sherwin, supra, note 74.
90. See IIAustin, J., Lectures on Jurisprudence (London: J. Murray, 1885) different edition at §§1035–38 (1875) (“it is impossible to extricate the right of action itself from those subsidiary rights by which it is enforced”);Google Scholar Kelsen, H., General Theory of Law and State, trans. Wedberg, A. (New York: Russell & Russell, 1961) at 62–64 (“it is only by means of the sanction that the command is obligation”).Google Scholar
91. See supra, notes 71–74 and accompanying text.
92. Something of this kind may have occurred in Boomer v. Atlantic Cement Company, a nuisance case in which the court refused to issue an injunction that would close down a factory and idle many workers. The affected homeowner was awarded damages for loss of property value; but a damage remedy (for which the plaintiff bears the burden of proof) may not cover the full effect of the wrong. See Boomer v. Atlantic Cement Co., (1970) 26 N.Y.2d 219 at 257 N.E.2d 870. Another example is Patel v. Ali, in which a court refused to grant specific performance of a land sale contract against a woman who encountered an extraordinary run of bad luck before the closing of the sale and needed to keep her home. See Patel v. Ali, [1984] 1 Ch. 283.
93. For example, a theory of contract enforcement such as Professor Fried’s, in which rules of contract law serve to define moral obligations between individuals rather than to order future conduct, seems to rule out any discrepancy between prospective right and retrospective remedy. See C. Fried, supra, note 39 at 7–17.
94. For criticism of Professor Dan-Cohen’s concepts of “acoustic separation” and “selective transmission” Singer, , “On Classism and Dissonance in the Criminal Law: a Reply to Professor Meir Dan-Cohen” (1986) 77 J. Crim. L. & Criminology 69.Google Scholar Dan-Cohen himself expressed serious concerns over the morality of selective transmission and its relation to the ideal of a rule of law. See Dan-Cohen, supra, note 71 at 665–77. See also L. Fuller, supra, note 82 at 81–82 (on the necessity of congruence between rule and decision); G. Postema, supra, note 71 at 453-64 (discussing Bentham); Heriot, supra, note 76; Shapiro, , “In Defense of Judicial Candor” (1987) 100 Harv. L. Rev. 731 at 744–47.Google Scholar
95. See G. Postema, supra, note 71 at 453–57; Singer, supra, note 94 at 85–86.