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THE FAILURE OF UNIVERSAL THEORIES OF TORT LAW

Published online by Cambridge University Press:  13 September 2016

James Goudkamp  and
John Murphy
James Goudkamp
Affiliation:
Keble College, Oxford, Law Faculty, University of Oxford, the Honorable Society of the Inner Temple, University of Western Australia, and University of Wollongong, [email protected]
John Murphy
Affiliation:
Law School, Lancaster University and Chinese University of Hong Kong, [email protected]
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Abstract

Many scholars have offered theories that purport to explain the whole of the law of torts. At least some of these theories do not seem to be specific to a single jurisdiction. Several appear to endeavor to account for tort law in at least the major common law jurisdictions or even throughout the common law world. These include Ernest Weinrib's corrective justice theory, Robert Stevens's rights theory, and Richard Posner's economic theory. This article begins by explaining why it is appropriate to understand these three theories as universal theories of tort law and why it is important that they be so understood. This explanation draws upon various overt claims (or other strong intimations) made by the theorists themselves to the effect that this is how their respective accounts should be understood. The article then proceeds to test these theories, all of which are leading accounts of tort law, against the evidence in Australia, Canada, the United Kingdom, and the United States. The parts of tort law on which we focus are (1) the breach element of the action in negligence, (2) the law that determines when a duty of care will be owed in respect of pure economic loss, (3) the law that governs the availability of punitive damages, (4) the defense of illegality, and (5) the rule in Rylands v. Fletcher and its descendants. The article concludes that none of the theories is a satisfactory universal account of tort law. All of them suffer from significant problems of fit in that they cannot accommodate (often even approximately) the areas of law that we discuss. Although each of the theories contains a great many valuable insights, they all nonetheless fall well short of accomplishing that which they are held out as providing. In the course of this analysis, the article explains why this is an appropriate line of criticism and identifies the degree of lack of fit that we regard as being “significant.”

Type
Research Article
Information
Legal Theory , Volume 21 , Issue 2 , June 2015 , pp. 47 - 85
Copyright
Copyright © Cambridge University Press 2016 

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References

1. Ernest J. Weinrib, The Idea of Private Law (1995).

2. Id. at 20.

3. Id. at 3.

4. Id. at 134.

5. Id. at 171.

6. Id. at 146.

7. See Section II.E.2.

8. Weinrib, supra note 1, at 172.

9. Robert Stevens, Torts and Rights (2007).

10. Id. at 2 (footnote omitted).

11. Id. at 3.

12. Id. at 306.

13. Richard A. Posner, Economic Analysis of Law (7th ed. 2007), at 25.

14. William M. Landes & Richard A. Posner, The Economic Structure of Tort Law (1987), at 1.

15. See, especially, Posner, Richard A., A Theory of Negligence , 1 J. Legal Stud. 29 (1972)Google Scholar; Posner, Richard A., An Economic Theory of Intentional Torts , 1 Int'l Rev. L. & Econ. 127 (1981)Google Scholar; Landes, William M. & Posner, Richard A., The Positive Economic Theory of Tort Law , 15 Ga. L. Rev . 851 (1980)Google Scholar; Landes, William M. & Posner, Richard A., Causation in Tort Law , 12 J. Legal Stud . 109 (1983)Google Scholar; Posner, Richard A., Wealth Maximization and Tort Law: A Philosophical Inquiry , in Philosophical Foundations of Tort Law 99–112 (Owen, David G. ed., 1995)Google Scholar; Posner, Richard A., Instrumental and Noninstrumental Theories of Tort Law , 88 Ind. L.J. 469 (2013)Google Scholar.

16. Stevens, supra note 9, at vii (emphasis added).

17. See Stevens, Robert, The Divergence of the Australian and English Law of Torts , in Torts in Commercial Law 37–62 (Degeling, Simone, Edelman, James & Goudkamp, James eds., 2011)Google Scholar.

18. The same can also be said of Allan Beever, Rediscovering the Law of Negligence (2007), which offers an important elaboration of Weinrib's theory of tort law as applied to the tort of negligence.

19. Weinrib, Ernest J., Civil Recourse and Corrective Justice , 39 Fla. St. U. L. Rev. 273, 291 (2011)Google Scholar.

20. For an illustration of Posner drawing on English authorities, see Landes and Posner, Positive Economic Theory, supra note 15, where the landmark cases of Rylands v. Fletcher, [1865] 3 H. & C. 774; 159 Eng. Rep. 737 (Ex. Ch.), aff'd, [1868] L.R. 3 H.L. 330 (H.L.); Bolton v. Stone, [1951] A.C. 850 (H.L.); Blyth v. Birmingham Waterworks Co., [1856] 11 Ex. Ch. 781, [1856] 156 Eng. Rep. 1047 (Ex. Ch.); and Paris v. Stepney Borough Council, [1951] A.C. 367 (H.L.) are cited.

21. Richard A. Posner, Law and Legal Theory in the UK and USA (1996), at viii.

22. See, especially, id. at 39–67. We are not alone in reading Posner in this way: see, e.g., Stevens, Torts, supra note 9, at 92.

23. It is axiomatic that none of these theorists is concerned with, for instance, just one tort or a handful of torts. Their accounts are addressed to tort law generally.

24. Some of these theorists may go further still by claiming that they can account for tort law not merely as it presently exists but for all of its history. Consider, e.g., Stevens, Divergence, supra note 17, at 39, where he asserts that the rights model of tort law has a longer history in the law than other models. Weinrib's claims seem not to be limited to common law jurisdictions: see the text accompanying supra note 19.

25. It would be worth investigating the theories as universal theories even if Weinrib, Stevens, and Posner confined their theories to just a single jurisdiction.

26. See, e.g., Andrew Burrows, Damages and Rights, in Rights and Private Law 435–458 (Andrew Robertson & Donal Nolan eds., 2012); and Murphy, John, Rights, Reductionism and Tort Law , 28 Oxford J. Legal Stud. 393 (2008)Google Scholar (testing Stevens's rights theory against English law); Cane, Peter, Corrective Justice and Correlativity in Private Law , 16 Oxford J. Legal Stud. 471 (1996)Google Scholar (tackling Weinrib's corrective justice theory in the context of English law); Stapleton, Jane, Evaluating Goldberg and Zipursky's Civil Recourse Theory , 75 Fordham L. Rev. 1529 (2006)Google Scholar (arguing that the descriptive claims of Goldberg and Zipursky's theory are problematic when assessed against tort law in the United States).

27. See citations supra note 26.

28. Weinrib, perhaps to a greater degree than the other theorists considered here, has changed his tune in relation to his model of tort law in certain important respects. This is not surprising given the length of time over which Weinrib has been writing. However, for the purposes of this article we look mainly to his seminal work, The Idea of Private Law (Weinrib, supra note 1), although we take account in various places of certain of his other writings. We have chosen to proceed in this way for two main reasons. First, this is Weinrib's most sustained defense of his corrective justice model by a considerable margin. Second, it is important to ascertain whether the analysis advanced in this work is valid despite the fact that Weinrib may have retreated from or modified certain of the claims that he made in it. Simply because Weinrib has changed his position in relation to certain points does not mean that he is correct to have done so.

29. Jules Coleman, for example, has offered several versions of his corrective justice theory of tort law, all of which differ in certain respects from that of Weinrib; see Jules Coleman, Risks and Wrongs (1992), at 303–385.

30. Although Posner's scholarship belongs to what is often called the “first wave” of law-and-economics analysis, and although later generations of economic analysis have been predominantly concerned to supply prescriptive rather than explanatory accounts of the law, there is little or nothing of Posner's pioneering work that is now considered by law-and-economics scholars to be obsolete or wrongheaded. Rather, it is generally taken to be foundational and in this sense retains current appeal. For a detailed account of the various “waves” of North American law-and-economics scholarship, see Neil Duxbury, Patterns of American Jurisprudence (1995), at 301–419.

31. Weinrib's work on corrective justice has been the subject of at least one symposium: Formalism, Corrective Justice and Tort Law Symposium: Corrective Justice and Formalism: The Care One Owes One's Neighbors, 77 Iowa L. Rev. i (1992). Stevens's rights theory is the main focus of Rights and Private Law (Donal Nolan & Andrew Robertson eds., 2012). Some of the articles in which Posner developed his economic theory of tort law (see the sources mentioned in supra note 15) are, of course, among the most cited law journal articles in the world.

32. For example, Weinrib's writings have raised the consciousness of private lawyers generally to some major shortcomings of functionalist (or, more specifically, law-and-economics) accounts of tort law. In a similar vein, Stevens's theory has done much to expose the inexplicability of torts that are actionable per se on a loss-based view of the law of torts.

33. Their writings are voluminous. Their main contributions (writing separately or together) include Zipursky, Benjamin C., Rights, Wrongs, and Recourse in the Law Torts , 51 Vand. L. Rev. 1 (1998)Google Scholar; Goldberg, John C.P. & Zipursky, Benjamin C., Unrealized Torts , 88 Va. L. Rev. 1625 (2002)Google Scholar; Zipursky, Benjamin C., Civil Recourse, Not Corrective Justice , 91 Geo. L.J. 695 (2003)Google Scholar; Goldberg, John C.P. & Zipursky, Benjamin C., Tort Law and Moral Luck , 92 Cornell L. Rev. 1123 (2007)Google Scholar. A reasonable conspectus of their work to date on civil recourse theory can be found in Goldberg, John C.P. & Zipursky, Benjamin C., Torts as Wrongs , 88 Tex. L. Rev. 917 (2010)Google Scholar.

34. Goldberg and Zipursky are much less clear than one would hope on the issue of which system or systems of tort law they are endeavoring to explain. (We are not alone in thinking this; see, e.g., Gardner, John, Torts and Other Wrongs , 39 Fla. St. U. L. Rev. 43 (2011), at 43Google Scholar.) At a minimum, they are endeavoring to explain tort law in the United States since they cite materials from a wide range of jurisdictions in that country. But they also frequently reference English decisions and, with use of the phrase “Anglo-American tort law”, seem to suggest that English tort law and United States tort law are siblings rather than distant cousins; see, e.g., Goldberg & Zipursky, Torts as Wrongs, supra note 33, at 968. When they speak at gatherings of Commonwealth lawyers, they do not modify their theory; see, e.g., Goldberg, John C.P. & Zipursky, Benjamin C., Rights and Responsibility in the Law of Torts , in Rights and Private Law 251–274 (Nolan, Donal & Robertson, Andrew eds., 2012)Google Scholar, which is based on a lecture that they delivered in England. The same can be said of articles that they publish in Commonwealth law journals; see, e.g., Benjamin Zipursky, C., Civil Recourse and the Plurality of Wrongs: Why Torts Are Different , N.Z. L. Rev. 145 (2014)Google Scholar. It is reasonable to infer, therefore, that they too consider that their theory holds true throughout the common law world.

35. Some writers also see a strong connection between the work of Goldberg and Zipursky and Weinrib's corrective justice theory. See, e.g., Hershovitz, Scott, Corrective Justice for Civil Recourse Theorists , 39 Fla. St. U. L. Rev. 107 (2011)Google Scholar; Weinrib, Civil Recourse, supra note 19. Cf. Zipursky, Civil Recourse, Not Corrective, supra note 33. We do not deny that these theories have much in common. However, we see the link between Stevens and Goldberg and Zipursky as being the closer one. And, either way, it is possible to bracket, at least in a rough-and-ready way, the work of Goldberg and Zipursky with that of other scholars.

36. Goldberg & Zipursky, Torts as Wrongs, supra note 33, at 920 (emphasis added).

37. See, e.g., the sources mentioned supra note 26.

38. United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir., 1947).

39. Restatement (Third) of Torts: Liability for Physical and Emotional Harm §3 (2010). Wright describes this section as “explicitly adopt[ing] an almost totally unconstrained, reductionist, cost-benefit test of reasonableness in negligence law”: Wright, Richard W., Justice and Reasonable Care in Negligence Law , 47 Am. J. Juris. 143 (2002), at 161CrossRefGoogle Scholar.

40. See, e.g., Prosser and Keeton on Torts 173 (David Owen et al. eds., 5th ed. 1984); Dan Dobbs, The Law of Torts (2000), at 340–348.

41. See, e.g., Wright, Richard W., Hand, Posner, and the Myth of the “Hand Formula,” 4 Theoretical Inquiries in L. 1 (2003)Google Scholar; Benjamin C. Zipursky, Sleight of Hand, 48 Wm. & Mary L. Rev. 1999 (2007).

42. See, e.g., Landes & Posner, Economic Structure, supra note 14, at 85–88.

43. Posner is correct that the formula is rarely mentioned by English judges. Indeed, it is mentioned only exceptionally in Commonwealth jurisdictions more generally. We searched high and low for references to the Hand formula by Commonwealth judges. We were able to unearth only a handful of occasions on which it was mentioned. Instances when it was referred to include Western Suburbs Hosp. v Currie [1987] 9 NSWLR 511, 523–524 (C.A.) (Austl.); Rentway Can. Ltd./Ltée v. Laidlaw Transp. Ltd., [1989] 49 C.C.L.T. 150, para 46 (H.C.J.) (Can.); Cekan v Haines [1990] 21 NSWLR 296, 306 (C.A.) (Austl.); Ultramar Can. Inc. v. Ship Czantoria, [1994] 84 F.T.R. 241, para 125 (Can.); Opron Constr. Co. v. Alta., [1994] 151 A.R. 241, para 702 (Can. Alta. Q.B.); Dovuro Pty Ltd. v Wilkins [2000] F.C.A. 1902, (2000) 182 A.L.R. 481, para 96 (Austl.); Re Commins and Civil Aviation Safety Auth., [2004] AATA 1330, (2004) 86 ALD 637, para 23 (Can.); Twin Cities Mech. & Elec. Inc. v. Progress Homes Inc., [2005] N.L.T.D. 134, [2005] Nfld & PEIR 314, para 41 (Can.); Gemoto v. Calgary Reg'l Health Auth., 2006 ABQB 740, (2007) 2 W.W.R. 243, para 21 (Can.); Blackstrap Hospitality Corp. v. Aztec Amusements, (1992) Ltd., [2009] ABQB 74, para 88 (Can.).

44. Posner, Law and Legal, supra note 21, at 41 (footnote omitted).

45. “Reference to ‘calculus,’ ‘a certain way of performing mathematical investigations and resolutions,’ may wrongly be understood as requiring no more than a comparison between what it would have cost to avoid the particular injury that happened and the consequences of that injury”: N.S.W. v Fahy [2007] HCA 20, (2007) 81 ALJR 1021, para 57 (Austl.) (footnote omitted); “What is involved . . . is not a calculation; it is a judgment”: Mulligan v Coffs Harbour City Council [2005] HCA 63, (2005) 223 CLR 486, para 2 (Austl.).

46. Western Suburbs Hosp., supra note 43. The High Court of Australia has made similar remarks on several occasions: see, e.g., Fahy, supra note 45, at paras 6, 125 (stressing that the question of breach is not resolved by way of a “calculus” and cannot be determined in a scientific or mathematical way).

47. E.g., in Ridge v. Baldwin, [1964] A.C. 40, 65 (H.L.) Lord Reid remarked that “[t]he idea of negligence is . . . insusceptible of exact definition.”

48. E.g., John Fleming, speaking principally about Australian law, noted that “the reasonable person is by no means a caricature cold blooded, calculating Economic Man”: John G. Fleming, Fleming's the Law of Torts (Carolyn Sappideen & Prue Vines eds., 10th ed. 2011), at 140, para 7.130. This passage is materially identical to the corresponding one in the ninth edition, the last edition of this book that Fleming himself authored: John G. Fleming, The Law of Torts (9th ed. 1998), at 132.

49. Weinrib, supra note 1, at 148.

50. Id. at 120–121.

51. Id. at 148.

52. Id. at 148 n 2.

53. Wyong Shire Council v Shirt [1980] 146 CLR 40 (H.C.) (Austl.).

54. Id. at 47–48 (emphasis added). This passage has essentially been put on a statutory footing in many Australian jurisdictions: see, e.g., Civil Liability Act 2002 (NSW) §5B (Austl.).

55. Bolton v. Stone, [1951] A.C. 850 (H.L.).

56. Weinrib, supra note 1, at 148.

57. Bolton, supra note 55, at 867.

58. In Morris v. West Hartlepool Steam Navigation Co., [1956] A.C. 552, 574 (H.L.), Lord Reid said that “the difficulty and expense and any other disadvantage of taking the precaution” must be weighed in deciding whether there is a breach of duty. Also, in the Wagon Mound (No 2) [1967] 1 A.C. 617, 642 (P.C.) (Austl.), he opined that “a reasonable man would only neglect . . . a risk [of very small magnitude] if he had some valid reason for doing so, e.g., that it would involve considerable expense to eliminate the risk.”

59. See, especially, Latimer v. AEC Ltd., [1953] A.C. 643, 653 659, 662–663 (H.L.).

60. See, e.g., Botting v. B.C., [1996] 27 B.C.L.R. (3d) 106, para 30 (Can.).

61. John Fleming, The Economic Factor in Negligence, 108 Law Q. Rev. 9, 9 (1992).

62. Stevens, Torts, supra note 9, at 92–93.

63. One might argue that our rights depend at least in part on how burdensome certain conduct required by those rights would be for others. This is not, however, how Stevens perceives the rights protected by tort law. In his view, the rights protected by the common law “are inevitably derived from moral rights” (id. at 331). He also remarks: “[m]oral rights are capable of justification independently of their utility or consequences. . . . Utilitar ian or consequentialist arguments for their recognition . . . are otiose” (id. at 333).

64. Id. (“it is observably true that in a claim based upon the defendant's negligence, the courts take into account the costs and benefits of a defendant's actions in determining whether he is liable”) (footnote omitted).

65. Id. at 93–97. Stevens's assault on Posner's theory comes from many directions. We do not address whether the assault succeeds because, as we explain, that fact is irrelevant to the success or failure of Stevens's own theory.

66. This point is Peter Cane's; see Peter Cane, Torts and Rights, 71 Mod. L. Rev. 641, 643 (2008).

67. Numerous illustrations are given in id.

68. Perre v Apand Pty Ltd. [1999] HCA 36, (1999) 198 CLR 180 (Austl.); Woolcock St. Invs. Pty Ltd. v CDG Pty Ltd. [2004] HCA 16, (2004) 216 CLR 515 (Austl.).

69. See, e.g., Graham Barclay Oysters Pty Ltd. v Ryan [2002] HCA 54, (2002) 211 CLR 540, paras 84, 149, 321 (Austl.).

70. See, e.g., Perre, supra note 68, at paras 32, 50, 106–113, 298–299, 335–340, 395.

71. See, e.g., Burnie Port Auth. v Gen. Jones Pty Ltd. [1994] 179 CLR 520, 551–552 (H.C.) (Austl.).

72. See, e.g., Crimmins v. Stevedoring Indus. Fin. Comm. [1999] HCA 59, (1999) 200 CLR 1, paras 43, 46, 101–102, 233 (Austl.).

73. See, e.g., Perre, supra note 68, at paras 114–117, 133, 300, 335.

74. Originally developed in Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.).

75. Nielson v. Kamloops (City), [1984] 2 S.C.R. 2 (S.C.C.) (Can.); Hercules Mgmts. Ltd. v. Ernst & Young, [1997] 2 S.C.R. 165 (S.C.C.) (Can.); Can. Nat'l Ry. Co. v. Norsk Pac. S.S. Co., [1992] 1 S.C.R. 1021 (S.C.C.) (Can.).

76. See, e.g., Leigh & Sillavan Ltd. v. Aliakmon Shipping Co. Ltd., [1986] A.C. 785 (H.L.), in respect of relational economic loss; and Murphy v. Brentwood Dist. Council, [1991] 1 A.C. 398 (H.L.), in relation to defective property cases.

77. See, e.g., Hedley Byrne & Co. v. Heller & Partners Ltd., [1964] A.C. 465 (H.L.); Henderson v. Merrett Syndicates Ltd., [1995] 2 A.C. 145 (H.L.); White v. Jones, [1995] 2 A.C. 207 (H.L.).

78. As to which, see Goudkamp, James, A Revolution in Duty of Care? , 131 Law Q. Rev. 519 (2015)Google Scholar.

79. Developed in Caparo Indus. Plc. v. Dickman, [1990] 2 A.C. 605 (H.L.).

80. For a recent application of the assumption of responsibility test at the highest level, albeit not in a pure economic loss case, see Michael v. Chief Constable of South Wales Police, [2015] UKSC 2, [2015] A.C. 1732.

81. Restatement (Third) of Torts: Liability for Economic Harm §5 (Tentative Draft No. 2, 2012).

82. Id., §6.

83. See Johnson, Vincent R., The Boundary-Line Function of the Economic Loss Rule , 66 Wash. & Lee L. Rev. 523, n. 3 (2009)Google Scholar.

84. See also Restatement (Third) of Torts, supra note 81, §7.

85. Regarding this premise, see Barker, Kit, Relational Economic Loss and Indeterminacy: The Search for Rational Limits , in Torts in Commercial Law 171–172 (Degeling, Simone, Edelman, James & Goudkamp, James eds., 2011)Google Scholar.

86. Stevens, Torts, supra note 9, at 21.

87. Stevens, Divergence, supra note 17, at 45–49.

88. Caltex Oil (Austl.) Pty v Dredge Willemstad [1976] 136 CLR 529 (H.C.) (Austl.).

89. Perre, supra note 68.

90. Stevens, Divergence, supra note 17, at 49.

91. Id. at 53.

92. See the text accompanying supra notes 9–12.

93. Stevens, Torts, supra note 9, at 10–11 and 33.

94. Ernest J. Weinrib, Corrective Justice (2012), at 51.

95. See, e.g., Can. Natl Ry., supra note 75, at 1137, 1153, 1160, 1173, 1176–1183; Perre, supra note 68, at paras 32, 50, 106–113, 298–299, 335–340, 395; Customs & Excise Commrs. v. Barclays Bank Plc., [2006] UKHL 28, [2007] 1 A.C. 181, paras 74, 100.

96. Weinrib, supra note 94, at 56–57. Weinrib does not seek to mitigate the difficulty that the law presents for his theory. He simply describes the law governing the recovery of damages for negligently inflicted pure economic loss as having suffered from a “jurisprudential decline”; id. at 57. Even if this claim is correct, it does not insulate his theory from the difficulty presented by the law.

97. Posner, Richard A., Common-Law Economic Torts: An Economic and Legal Analysis , 48 Ariz. L. Rev. 737 (2006)Google Scholar. Much the same analysis is embraced in Bishop, William, Economic Loss in Tort , 2 Oxford J. Legal Stud. 1, 4 (1982)Google Scholar.

98. Posner makes this argument by way of a hypothetical example in which access to A's store is negligently obstructed by B, and A's loss of profits is matched by an equal gain enjoyed by rival store owners. There is no social cost, because no goods are lost (they remain unharmed in A's store), and prices do not rise because of a shortage, because “most retail establishments operate most of the time with a bit of excess capacity in order to handle peak demands”; Posner, Common-Law Economic Torts, supra note 97, at 736–737.

99. “[E]fficiency may be promoted by shifting the legal responsibility for an accident from the injurer to the victim,” Posner writes, because the latter knows clearly what he stands to lose and she is therefore “in a better position to avoid the loss by taking appropriate precautions or by buying insurance”; id. at 739. By contrast, a defendant would face huge problems associated with the ex ante quantification of losses, which would serve to “prevent [her] . . . from determining how much [she] should invest in precautions” and make it “difficult, and indeed probably impossible . . . to buy insurance against liability”; id. at 737.

100. Id. at 739.

101. White v. Jones, [1995] 2 A.C. 207 (H.L.). It might be doubted whether this case is properly understood as an assumption of responsibility case; see, e.g., Benson, Peter, Should White v. Jones Represent Canadian Law: A Return to First Principles , in Emerging Issues in Tort Law 141 (Neyers, Jason W. et al. eds., 2007), at 167 Google Scholar; Nicholas J. McBride & Roderick Bagshaw, Tort Law (4th ed. 2012), at 191. However, scholars frequently treat it in this way; see, e.g., Beever, supra note 18, at 303; Barker, Kit, Wielding Occam's Razor: Pruning Strategies for Economic Loss , 26 Oxford J. Legal Stud. 289 (2006), at 290 Google Scholar; and this is how three of the majority judges in White regarded it, id. at 268, 274, 293–294 (Lords Goff, Browne-Wilkinson, and Nolan, respectively). We proceed on the basis of this understanding.

102. Posner, Law and Legal, supra note 21, at 47.

103. See, e.g., Hill v Van Erp [1997] 188 CLR 159 (H.C.) (Austl.); Earl v. Wilhelm, [2000] SKCA 1, (2000) 189 Sask. R. 71 (Can.); Graham v. Bonnycastle, [2004] ABCA 270, (2004) 354 A.R. 266 (Can.); Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16 (1958).

104. See, e.g., Personal Injuries (Liabilities and Damages) Act 2003 (NT) §19 (Austl.).

105. See, e.g., Civil Liability Act 2002 (NSW) §21 (Austl.); Civil Liability Act 2003 (Qld) §52 (Austl.).

106. XL Petroleum (NSW) Pty Ltd. v Caltex Oil (Austl.) Pty Ltd. [1985] 155 CLR 448, 471 (H.C.) (Austl.).

107. Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, 196 (S.C.C.) (Can.).

108. Rookes v. Barnard [1964] A.C. 1129 (H.L.).

109. Owen, David G., The Moral Foundations of Punitive Damages , 40 Ala. L. Rev. 705, 730 (1989)Google Scholar.

110. For the details, see Dobbs, supra note 40, at 1074–1075.

111. Weinrib, supra note 1, at 135 (footnote omitted).

112. Id. at 135 n 25.

113. Id. Lord Diplock wrote that the second category in Rookes, supra note 108, is “analogous to the civil law concept of enrichessement indue”; id. at 1129.

114. Rookes, supra note 108, was expressly rejected in Australia in Austl. Consol. Press Ltd. v Uren [1969] 1 A.C. 590 (P.C.), affirming (1967) 117 CLR 221 (H.C.) (Austl.); and Canada in Vorvis v. Ins. Corp. of B.C., [1989] 1 S.C.R. 1085 (S.C.C.) (Can.).

115. Even if they were, it is arguable that restitutionary damages are inconsistent with corrective justice. See generally Saprai, Prince, Restitution Without Corrective Justice , 14 Restitution L. Rev. 41 (2006)Google Scholar. We remain silent on this issue for present purposes.

116. “I do not think that the argument that the defendant could not make a profit here defeats the plaintiff's claim”; Archer v. Brown, [1985] 1 Q.B. 405 (Q.B.) 423 (Pain J.).

117. Rookes, supra note 108, at 1227.

118. For an illustration of a case in which the defendant had a profit motive but made no profit yet was nonetheless required to pay punitive damages, see Drane v. Evangelou, [1978] 1 W.L.R. 455 (Ch. D.).

119. Broome v. Cassell & Co. Ltd., [1972] A.C. 1027 (H.L.).

120. Id. at 1130.

121. Andrew Burrows, Remedies for Torts and Breach of Contract 414 (3d ed. 2004).

122. In making these claims, Weinrib's analysis sits uncomfortably with his argument, just discussed, that punitive damages in the second category in Rookes, supra note 108, are actually restitutionary damages.

123. Weinrib, Ernest J., Punishment and Disgorgement as Contract Remedies , 78 Chi.-Kent. L. Rev. 55 (2003), at 84Google Scholar.

124. Id.

125. Id.

126. “Punitive damages [are] a remedy of last resort”; Kuddus v. Chief Constable of Leicestershire Constabulary, [2001] UKHL 29, [2002] 2 A.C. 122, para 63.

127. “[I]n other common law jurisdictions, in particular Australia, New Zealand, Canada and the United States, punitive damages have continued to flourish”; Law Commission, Aggravated, Punitive and Restitutionary Damages, Report No. 247 (1997), 104 n. 567. This remark would now need to be qualified in relation to Australia in light of the later statutory changes in that jurisdiction: see Section II.C.1 supra.

128. Stevens, Torts, supra note 9, at 85.

129. Id.

130. Id.

131. Id. at 86–87.

132. Cf. the position in some jurisdictions in the United States: see Dobbs, supra note 40, at 1075.

133. Stevens, Torts, supra note 9, at 87.

134. See, e.g., John v. MGN Ltd., [1997] Q.B. 586, 625 (C.A.); Restatement (Second) of Torts §908, cmt. e (1965).

135. See, e.g., Broome, supra note 119, at 1073.

136. Rookes, supra note 108.

137. Kuddus, supra note 126.

138. Rookes, supra note 108; Gray v Motor Accident Commission [1998] 196 C.L.R. 1, para 20 (H.C.) (Austl.).

139. Walker v. CFTO Ltd., [1987] 39 C.C.L.T. 121 (O.N.C.A.) (Can.); AB v. Sw. Water Servs., [1993] Q.B. 507 (C.A.); Motor Accident Commission, supra note 138.

140. Riches v. News Grp. Newspapers Ltd., [1986] 1 Q.B. 256 (C.A.).

141. Stevens, Torts, supra note 9, at 87.

142. Beever, Allan, The Structure of Aggravated and Punitive Damages , 23 Oxford J. Legal Stud. 87 (2003), at 99CrossRefGoogle Scholar.

143. Posner, Law and Legal, supra note 21, at 54.

144. Beever, Structure, supra note 140, at 103.

145. See the text accompanying supra notes 137–138.

146. We have in mind here the abuse of process tort, rules such as the loser-pays principle concerning legal costs (which obtains in most of the common law world), Part 36 offers under the Civil Procedure Rules, 1998 (UK) and equivalents in other jurisdictions, and restrictions on the ability of vexatious litigants to commence proceedings.

147. Lancashire Cnty. Council v. Mun. Mut. Ins. Ltd., [1997] Q.B. 897 (C.A.) (holding that it is permissible to insure against liability to pay punitive damages at least where punitive damages are awarded on the basis of vicarious liability); Motor Accident Commission, supra note 138. In some parts of the United States, it is permissible to insure against liability to pay punitive damages while in others it is not: see Dobbs, supra note 40, at 1063 for the details.

148. Miller v Miller [2011] HCA 9 (2011) 242 CLR 446 (Austl.).

149. Civil Liability Act 2002 (N.S.W.) §§54–54A (Austl.); Motor Accidents Compensation Act 1999 (S. Austl.) §47A (Austl.); Criminal Code Act 1899 (Queensl.) §6 (Austl.); Civil Liability Act 2003 (Queensl.) §45 (Austl.); Civil Liability Act 1936 (S. Austl.) §43 (Austl.); Civil Law (Wrongs) Act 2002 (Austl. Cap. Terr.) §94 (Austl.); Personal Injuries (Liabilities and Damages) Act (N. Terr.) §10 (2003) (Austl.); Transport Accident Act 1986 (Vict.) §40 (Austl.); Offenders (Legal Action) Act 2000 (W. Austl.) §5 (Austl.).

150. The details are given in Goudkamp, James, A Revival of the Doctrine of Attainder? The Statutory Illegality Defences to Liability in Tort , 29 Sydney L. Rev. 445 (2007)Google Scholar.

151. Hall v. Hebert, [1993] 2 S.C.R .159 (S.C.C.) (Can.). See also HL v. Canada (AG), [2005] S.C.C. 25, [2005] 1 S.C.R. 401 (Can.); British Columbia v. Zastowny, [2008] S.C.C. 4, [2008] 1 S.C.R. 27 (Can.).

152. This is primarily due to the fact that a flurry of recent decisions at the ultimate appellate level regarding the defense do not really engage with each other: see Gray v. Thames Trains Ltd., [2009] UKHL 33, [2009] 1 A.C. 1339; Hounga v. Allen, [2014] UKSC 47, [2014] I.C.R. 846; Stone & Rolls Ltd. v. Moore Stephens, [2009] UKHL 39, [2009] A.C. 1391; Les Laboratoires Servier v. Apotex Inc., [2014] UKSC 55, [2015] A.C. 430; Bilta (UK) Ltd. (in liq.) v. Nazir, [2015] UKSC 23, [2016] A.C. 1. For an assessment of some of these authorities, see Fisher, James, The ex turpi causa Principle in Hounga and Servier, 78 Mod. L. Rev. 854 (2015)Google Scholar; Goudkamp, James, The Doctrine of Illegality: a Private Law Hydra , 6 UK Supreme Court Yearbook 254 (2015). As this article was going to press, the Supreme Court of the United Kingdom delivered judgment in Patel v. Mirza, [2016] UKSC 42. This decision came too late for it to be addressed in any detailGoogle Scholar.

153. The law in Canada was described in Gray, supra note 152, as adopting the “narrow rule.” It was accepted in Gray that the narrow rule applies also in the United Kingdom. See further regarding Gray in Goudkamp, James, A Long, Hard Look at Gray v. Thames Trains Ltd. , in The Jurisprudence of Lord Hoffmann: A Festschrift for Leonard H. Hoffmann 31–58 (Davies, Paul S. & Pila, J. eds., 2015)Google Scholar.

154. Patel, supra note 152, at para. 120 There is also a statutory illegality defense in the UK Criminal Justice Act, 2003, c. 44, §329. This defense is of fairly limited scope, and we leave it to one side in this article.

155. See Prentice, Robert A., Of Tort Reform and Millionaire Muggers: Should an Obscure Equitable Doctrine Be Revived to Dent the Litigation Crisis? , 32 San Diego L. Rev. 53 (1995)Google Scholar; King, J.H., Outlaws and Outlier Doctrines: The Serious Misconduct Bar in Tort Law , 43 Wm. & Mary L. Rev. 1011 (2002)Google Scholar. The leading hornbooks on tort law in the United States contain no section on illegality as a defense.

156. Weinrib, supra note 1, at 120–121.

157. Id. at 169 n 53.

158. See, especially, id. at 11–16.

159. Id. at 169 n 53.

160. Stevens, Torts, supra note 9, at 304–305.

161. “[The defense] applies across the board”: Vellino v. Chief Constable of Greater Manchester, [2001] EWCA (Civ) 1249, [2002] 1 W.L.R. 218, para 44.

162. Compare, e.g., the principles developed in the unjust-enrichment context in Patel, supra note 152, with those expounded in the negligence case of Gray, supra note 152.

163. See, e.g., the cases mentioned supra note 152 in relation to the United Kingdom.

164. See supra notes 149, 152.

165. Stevens, Robert, Should Contributory Fault Be Analogue or Digital? , in Defences in Tort 243–260 (Dyson, Andrew, Goudkamp, James & Wilmot-Smith, Fred eds., 2015)Google ScholarPubMed.

166. Id. at 253.

167. See, e.g., Joyce v. O'Brien, [2013] EWCA (Civ) 546, [2014] 1 W.L.R. 70, where the plaintiff's illegality prevented the causation element of the action in negligence from being satisfied.

168. The details are given in James Goudkamp, Tort Law Defences (2016), at 126–127.

169. Hall, supra note 151.

170. The illustration is taken from Kenneth Campbell's important paper on conflicts of practical reasons: Campbell, Kenneth, Offence and Defence , in Criminal Law and Justice: Essays from the W.G. Hart Workshop, 1986 83 (Dennis, Ian H. ed., 1987)Google Scholar. See also John Gardner, Offences and Defences: Selected Essays in the Philosophy of Criminal Law (2007), at 91–120, on whose analysis the discussion here also draws.

171. Cf. the view of the Law Commission, which argued that the illegality defense can deter offending: Law Commission, The Illegality Defence: A Consultative Report, Consultation Paper 189 (2009) at 2.19–2.23.

172. Tribe v. Tribe, [1996] Ch 107, 113–114 (C.A.).

173. This point has often been made: see, e.g., Tinsley, supra note 154, at 368.

174. Miller, supra note 148; Joyce, supra note 167.

175. Rylands, supra note 20.

176. In successive Restatements of Tort Law, the rule spawned by Rylands, supra note 20, is referred to as one concerning “ultrahazardous” and “abnormally dangerous” activities: Restatement of Torts §§519–524 (1965); Restatement (Second) of Torts, supra note 134, §520; Restatement (Third) of Torts, supra note 39, §20.

177. See Read v. J. Lyons & Co. Ltd., [1947] A.C. 156, 181–182 (H.L.) (Lord Simons).

178. See, e.g., Tock v. St. John's Metro. Area Bd., [1989] 2 S.C.R. 1181, 1189–1190 (S.C.C.) (Can.); Aldridge v. Van Patter, O.R. 595 (H.C.) (Can.); Smith v. Inco Ltd., [2011] O.N.C.A. 628, (2011) 107 O.R. (3d) 321 (Can.).

179. Burnie Port, supra note 71.

180. Id. at 556 (Mason CJ, Deane J., Dawson J., Toohey J. & Gaudron J.).

181. Weinrib, supra note 1, at 177–179.

182. Id. at 188.

183. Id. (footnote omitted).

184. Id.

185. Id.

186. Id. at 189.

187. Cambridge Water Co. Ltd. v. E. Counties Leather Plc., [1994] 2 A.C. 264, 302 (H.L.)

188. Pierce v. Pac. Gas & Elec. Co., 166 Cal. App. 3d, 68, 85 (Ct. App., 1985) (emphasis added). That liability is strict in respect of the harm caused by abnormally dangerous activities across much of the United States is confirmed in the Restatement (Third) of Torts, supra note 81, §20.

189. Weinrib, supra note 1, at 177–178 (discussing the incompatibility of subjective forms of fault with corrective justice).

190. Jones v. Festiniog Ry. Co., (1867–1868) L.R. 3 Q.B. 733 (Q.B.D.).

191. Id. at 736.

192. Humphries v. Cousins, (1877) 2 C.P.D. 239 (1877) (Common Pleas).

193. See the cases mentioned in the text accompanying supra notes 187–188.

194. Jaffey, Peter, Liabilities in Private Law , 14 Legal Theory 233 (2008), at 240CrossRefGoogle Scholar. Other theorists who support this interpretation of the rule include Goldberg & Zipursky, Torts as Wrongs, supra note 33, at 951; and McBride & Bagshaw, supra note 101, at 468.

195. Stevens, Torts, supra note 9, at 299. The implicit assumption made by Stevens in presenting this claim is that the tort of private nuisance is consistent with his rights theory. Stevens does not offer a sustained account of why he thinks that private nuisance is so explicable; he merely refers to the fact that it centers on proprietary right; id. at 63.

196. If the rule in Rylands, supra note 20, is simply a subset of the law of private nuisance, and the law of private nuisance is consistent with Stevens's theory, then there would be no reason for him to see the rule in Rylands as anomalous.

197. See Section II.B.2 supra.

198. This seems to be how Goldberg and Zipursky understand the rule. They describe the rule as a “sui generis” cause of action: Goldberg & Zipursky, Torts as Wrongs, supra note 33, at 952.

199. In Torts and Rights, Stevens rightly acknowledges that the tort of causing loss by unlawful means and the dependency action created by fatal accidents legislation are incompatible with his account of the law; Stevens, Torts, supra note 9, at 188–190 and 174 respectively. (The former is inconsistent with his theory because a plaintiff has no right good against a defendant to trade or economic welfare, and the latter clashes because dependency claims are parasitic upon the infringement of a right held by the deceased rather than the plaintiff.) Stevens attempts to mitigate the difficulty that these actions pose by offering reasons to tolerate the results that they produce. In relation to the unlawful-means tort, Stevens argues that the action can be justified because it prevents the plaintiff from using third parties as a means to his own ends; id. at 188. In relation to the dependency action provided for by the 1976 Act, he argues that allowing dependents to sue results in a closer approximation to the wrong not having been committed than would be achieved if the award accrued to the estate; id. at 176. Even if these reasons are convincing, in neither case do they have anything to do with the plaintiff's rights. These maneuvers qua attempts to rescue his rights analysis from the difficulties presented by these actions are therefore mere distractions. They do nothing to change the fact that both actions are incompatible with his theory.

200. In relation to the action for inducing breach of contract, Stevens argues—contrary to what the House of Lords held in OBG Ltd. v. Allan, [2007] UKHL 21, [2008] 1 A.C. 1, paras 8, 45–64, 270, 302, 320—that the tortfeasor is liable not on the basis of the accessory liability but rather on the basis of an ex ante “accessory right” that we all have “good against everyone else that they do not induce the infringement of the contractual right[s] we hold”: Stevens, Torts, supra note 9, at 281. So, for Stevens, what the House of Lords was happy to treat as a mere principle of tortious liability is better seen as a tort strictu sensu. This interpretation is contradicted by, and therefore unavailable in the wake of, the decision in OBG.

201. Stevens admits that the Congenital Disabilities (Civil Liability) Act, 1976, c. 28, (UK) confers an action where there is no right. He writes “that the plaintiff had no legal personality and consequently no rights at the time of the tort”; id. at 185. Stevens then discusses the history of the action and its scope. None of this has any relevance to his rights theory and consequently does nothing to explain away the difficulty that this action presents.

202. So far as public nuisance is concerned, Stevens, id. at 186–189, admits, rightly, in our view, that many of the cases in this area are incompatible with his rights account. The major difficulty that Stevens sees with the cases is that they lend support to the rival loss-based view of tort law (in that the plaintiff must suffer loss over and above that incurred by the public generally in order to sue.)

203. See, e.g., Cambridge Water, supra note 187, at 304 (“the rule in Rylands v. Fletcher was essentially concerned with an extension of the law of nuisance to cases of isolated escape”; Lord Goff); Transco Plc. v. Stockport MBC, [2003] UKHL 61, [2004] 2 A.C. 1, para 9, 52, 92.

204. See, e.g., Nolan, Donal, The Distinctiveness of Rylands v. Fletcher , 121 Law Q. Rev. 421 (2005)Google Scholar; Murphy, John, The Merits of Rylands v Fletcher , 24 Oxford J. Legal Stud. 643 (2004)Google Scholar.

205. In Smith, supra note 178, the Ontario Court of Appeal acknowledged the way things had developed in the United Kingdom in Cambridge Water, supra note 187, and Transco, supra note 203. However, it stuck steadfastly to the distinction drawn between the two actions by the Supreme Court of Canada in Tock, supra note 178, paras 13–14. The court in Smith said (at para 68): “In Canada, Rylands v. Fletcher has gone largely unnoticed in appellate courts in recent years. However, in 1989 in Tock, the Supreme Court of Canada unanimously recognized Rylands v. Fletcher as continuing to provide a basis for liability distinct from liability for private nuisance or negligence.”

206. See, e.g., Restatement (Third) of Torts, supra note 39, §20, cmt. c, where private nuisance is contrasted with the strict liability rule for ultrahazardous activities.

207. Another attempt to relocate the rule in Rylands, supra note 20, that might conceivably be invoked in order to rescue Stevens's theory is to contend that the rule is not part of tort law at all and that it falls within another category of civil liability. This is how the rule is classified by, e.g., McBride & Bagshaw, supra note 101, at 470. Their logic would appear to be as follows: (1) torts are wrongs that involve the breach of an ex ante duty; (2) the cause of action minted in Rylands does not fit this pattern because it does not require the breach of an ex ante duty; hence (3) the rule in Rylands is not a tort. Because McBride & Bagshaw are not our target theorists for the purposes of this article, and because their relevant comments are very brief, we do not engage with their analysis.

208. Landes & Posner, Economic Structure, supra note 14, at 107.

209. Id. at 111.

210. Richard A. Posner, Theory of Negligence, supra note 15, at 76.

211. This is a matter upon which he has himself remarked: “The Restatement's definition of ultrahazardous activities . . . coincides with the economic principles that make strict liability the preferred liability rule”: Landes & Posner, Economic Structure, supra note 14, at 112. Certainly, the Restatement (Second) of Torts, supra note 134, §520, states that the relevant factors governing the ultrahazardous activities rule include the very high expected accident costs as well as the opportunity that the defendant had either to relocate or to desist from engaging in the specific activity altogether.

212. See, e.g., Beever, Allan & Rickett, Charles, Interpretive Legal Theory and the Academic Lawyer , 68 Mod. L. Rev. 320 (2005)CrossRefGoogle Scholar (arguing that Weinrib's corrective justice theory should be understood as an interpretive theory).

213. In the case of Weinrib, see the text accompanying supra notes 5–8; in relation to Stevens, see the text accompanying supra note 11; and with respect to Posner, see the text accompanying supra note 15.

214. Dworkin, Ronald, Law's Ambitions for Itself , 71 Va. L. Rev. 173 (1985), at 177CrossRefGoogle Scholar.

215. See, e.g., Weinrib, Civil Recourse, supra note 19, at 291 (suggesting that divergence between tort law and corrective justice presents no difficulty for his corrective justice theory of tort law); Beever, Rediscovering, supra note 18, at 25 (contending that fit is just one of several criteria for judging a theory and thereby suggesting that a lack of fit might not be problematic).