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January 1996
The Vital Common Law: Its Role in a Statutory Age
M. Stuart Madden
Pace Law School
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THE VITAL COMMON LAW: ITS ROLE IN A STATUTORY AGE
M. Stuart
add en*
"[Tlhe common law is not static; its life and heart is its dynamiswits
ability to keep pace with the world while constantly searching for just
and fair solutions to pressing societal problems."'
This article discusses the common law, the judge-made law of property,
contracts, torts and beyond. Common law observers and commentators have
been rightly jarred by the claim of professional, academic and judicial
authors who state that the common law is dead, or at least in retreat;* that
*
James D. Hopkins Professor of Law, Pace University School of Law. The author
expresses his appreciation to Professor David G. Owen for his beneficial comments, and to
Matthew Ross and Kemberly Weston for their valuable research assistance.
1. Hamson v. Montgomery County Bd. of Educ., 456 A.2d 894, 903 (Md. 1983)
(citing Felder v. Butler, 438 A.2d 494 (Md. App. 1981)), quoted with approval in Kelley v.
R.G. Indus., Inc., 497 A.2d 1143, 1150 (Md. 1985).
2. Academic authors periodically announce the death, or at least the paralysis, of one
THEDEATHOF CONTRACT
or another common law doctrines. See, e.g., GRANTGILMORE,
(1974); Conference: Is the Common Law Dead? University of Maine School of Law (1977)
[hereinafter Maine Conference]; Victor Brudney, Association, Advocacy and the First
Amendment, 4 WM. & MARYBILLOF RIGHTS
L.J. 1, 85 (1995) ("The consequence of [the
described electoral] regulation has been substantially to diminish the parties' 'nearly
autonomous common law status."'(citation omitted)); Calvin R. Dexter & Teresa J.
Schwarzenbart, Note, City of Milwaukee v. Illinois: The Demise of the Federal Common Law
of Water Pollution, 1982 WIS. L. REV. 627; Richard E. Levy, Escaping Lochner's Shadow:
Toward a Coherent Jurisprudence of Economic Rights, 73 N.C. L. REV. 329, 391 (1995)
("When the liberal Court rejected Lochner, it implicitly rejected the view that property rights
are natural rights that exist independently of government action in favor of the recognition
that property rights are created by the common law, which is merely one of many possible
regulatory system regimes. The resulting erosion of the common-law constitutional baseline
was consistent with liberal ideology.")
CJ, Gary T. Schwartz, The Beginning and the Possible End of the Rise of Modem
American Tort Law, 26 GA. L. REV. 601 (1992). As to the statutory impetus for these
phenomena, see e.g., Martha Middleton, A Changing Landscape, 81 A.B.A. J. 56, 57 (Aug.
1995), quoting Prof. David G. Owen as observing that "tort law has been changed in a
variety of significant ways in many states," and noting particularly "substantial alteration"
to the basic doctrines of products liability and medical malpractice. The author states further
that "[mlany reformers claim that federal legislation is the only way to bring uniformity to
the patchwork structure of 50 different state tort systems." Id. at 58.
H e i n o n l i n e - - 1 8 UALR L. J. 5 5 5 1 9 9 5 - 1 9 9 6
556
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we live in a "statutory era";3and that the "orgy of ~tatutemaking,'~
state and
federal, since 1960 effectively occludes the common law h o r i ~ o n . ~
This pessimistic vision is that of a common law marginalized,
relegated to the desuetude of a secondary role in American jurisprudence;
the common law as a test track for eventual statutory solutions6 or a lexicon
for statutory terms;' the common law as background music for a modem
statutory lyric.
Most would describe this as an ignominious path for the once dominant
common law tradition, one that for 800 years has alternately woven and
cobbled together the custom and morality of English speaking nations into
the fairest dispute resolution mechanism ever devised. Even so, advocates
of the robust common law role must concede that (1) the common law, with
its "principles . . . embedded in masses of report[ed] cases, [and] not always
does not rise to the level of a rudimentary
to be reconciled with an~ther,"~
or even proto-science; (2) the system of common law judging vests
enormous power in presiding judges, a power that can lead to unseemly
subjectivity in interpreting law to apply that may be at quite a remove from,
although frequently more progressive than, contemporary societal percep~ (3) a jury's prerogatives on such important issues as
tions of j u ~ t i c e ; and
damages can lead to results not easily squared with proven loss, and can
occasionally be openly hostile to business."
There is no substantial dispute that common law adjudication has
experienced a "revolution" in the twentieth century." The issue is whether
3. Daniel A. Farber & Phillip P. Frickey, In the Shadow of the Legislature: The
Common Law in the Age of the New Public Law, 89 MICH.L. REV. 875 (1991).
4. GUIDOCALABRESI,
A COMMON
LAWFOR THE AGEOF STATUTES.169 (Harvard
1982) [hereinafter CALABRESI,
AGE OF STATUTES]
(citing GRANTGILMORE,
THEAGESOF
AMERICAN
LAW95 (1977)).
5. The vigor of statutory development is not exclusively a twentieth century
phenomenon. At least as early as the late nineteenth century, "utilitarian" jurists
"concentrate[d] on codification as the instrument of legal reform." RICHARD
A. COSGROVE,
OUR LADYTHE COMMON
LAW:AN ANGLO-AMERICAN
COMMUNITY
1870-1930, 39
(1987) [hereinafter COSGROVE,
OUR LADY].
6. E.g., OHIOADMIN.
CODE3745-15-07(A)(1995)(public nuisance).
7. E.g., Comprehensive Environmental Response, Compensation and Liability Act of
1980 (CERCLA), 42 U.S.C. 5 9601, 9607(b)(3) (1994) (due care standard for third-party
defenses regarding hazardous waste disposal).
OURLADY,supra note 5, at 39.
8. COSGROVE,
9. CJ, Mary J. Davis, Individual and Institutional Responsibility: A Vision of
Comparative Fault in Products Liability, 39 VILL.L. REV. 281, 330 (1994) (judge's decisions
may be "subject to influence by his or her own personal predilections").
10. See, e.g., Charles Allen, Lawsuit Fight Over More Than Spilled Coffee, PHOENIX
GAZETTE,
March 29, 1995, at B-9.
11. Justice Ellen Ash Peters, Common Law Judging in a Statutory World: An Address,
43 U . PIIT. L. REV.995 (1982). Justice Peters estimated that only ten percent of the cases
H e i n o n l i n e - - 1 8 UALR L. J. 5 5 6 1 9 9 5 - 1 9 9 6
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THE VITAL COMMON LAW
557
that revolution has been prudent and progressive, or nihilistic. Has the
common law itself become more scientific, or are efforts to assign a science
to it, as one critic put it, "crude Baconianism at best,"I2 a supernal ipse
dixit? Has the common law of the latter twentieth century ratified or
repudiated Roscoe Pound's admission that "[a] composite of the law of
[then] forty-eight American states cannot, in the nature of things, be the
logical unity in which Langdell believed"?I3
This article, developed from the 1996 James D. Hopkins Lecture, will
open by summarizing the antecedents and historical role of the common law,
and in so doing describe the accepted common law doctrinal g o a l ~ o m e
moral, some economic, but each in its way pragmatic. The discussion will
not attempt to assign ascendancy, much less victory, to one or more of the
common law objectives, as each, and all together, are essential to gaining
an integrated understanding to the common law's modern contribution.14
The article continues by giving some detail to the common law decision
making, a process the author describes as one of enlightened gradualism,
resourcefulness and adaptability. Specific examples of this process at work
will be drawn from the common law of contract, domestic relations, torts,
criminal law and evidence.
Critical to this analysis will be a development of the distinctions
between common law and statutory approaches, including their respective
strengths and the weakness, in policy objectives and in application. The
article will conclude with my prognosis of the health of the common law as
we enter the twenty-first century.
before her Connecticut Supreme Court were "purely common law," with statutes being
"relevant [to] if not determinative" of the balance. Id. at 996.
12. "[Tlhe Baconian scientists of the first part of the nineteenth century believed that
their research revealed truth. Indeed, their work was revelation. The principles they
adumbrated were real and true because, in the end, they were expressions of the Creator."
P. LAPIANA,
THEORIGIN
OF AMERICAN
LEGALEDUCATION
32 (Oxford 1994).
WILLIAM
13. COSGROVE,
OURLADY,supra note 5, at 37 (quoting Roscoe Pound to Pollack (May
23, 1934), in ROSCOEPOUND PAPERS,Haward Law School Library).
14. See, e.g., James A. Henderson, Jr., Process Constraints in Tort, 67 CORNELL
L. REV.
901 (1982) ("Fierce debates have raged in recent years over the objectives reflected in the
tort-law system. A growing nuinber of observers insist that tort law reflects efforts to
achieve allocative efficiency and wealth maximization. A somewhat smaller, but no less
intensely committed number insist that tort law primarily reflects fairness concerns."
(citations omitted)). Id. at 901.
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558
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11. THEMODERNINTERFACE OF STATUTORY
AND COMMON
LAW
A.
Generally
Let us define our subject. What is the common law? It represents the
largest proportion of the law of property, contract^'^ and torts.16 The
common law is often called "judge-made" law, to distinguish it from
statutes, regulations and ordinances, which are enacted by state and federal
legislatures, agencies and political subdivisions. Richard Posner describes
common law broadly as "any body of law created primarily through judges
by their decisions rather than by the framers of statutes or constitutions,""
and "the body of English and American judge-made rules, many of great
antiquity, governing torts (civil wrongs that result in personal injury or
property damage), contracts, property, crimes, and many other fields of
private c ~ n d u c t . " ' ~ In 1821, Maryland's Chief Judge Chase described it
more elegantly as "a system of jurisprudence founded on the immutable
principles of justice, and denominated by the great luminary of the law of
England, the perfection of reas~n.'"~Lastly and functionally, Arthur Corbin
suggests that the common law is not so grand, luminescent or sacred as
15. This observation depends in part upon acceptance of the characterization of the
Uniform Commercial Code as a crystallization of the common law of sales, negotiable
instruments, secured interests, and the like.
See discussion of Charles Fried's "moral institution" theory of contract doctrine as
"based on the moral obligation to keep one's promises . . . and that contract's doctrines
reflect that obligation[,]" in Vincent A. Wellman, Conceptions of the Common Law:
Reflections on a Theory of Contract, 41 U . MIAMIL. REV. 925, 926 & n.9, 970 (1987); see
also CHARLES
FRIED,CONTRACT
AS PROMISE:A THEORY OF CONTRACTUAL
OBLIGATION
(1981).
16. Of the relationship between American common law and its forebear, English
common law, the New Jersey Supreme Court wrote:
The common law consists of judicial opinions and as such they are only 'evidence
of what is common law;' the law and the opinions of the judges are not always
convertible terms (Jones' Blackstone, p. 122). Our [New Jersey] Constitution
does not obligate the courts of this state to follow or adopt the reasoning and
decisions of the English common law courts. It is the principles of the common
law which we in common with most of the states have adopted generally, and not
necessarily the decisions of the English courts in exposition of the common law.
New Jersey v. Culver, 129 A.2d 715, 720 (N.J. 1957) (quoting Heise v. Earle, 35 A.2d 880,
885 (N.J. 1943)).
OF JURISPRUDENCE
247 (1990) [hereinafter
17. RICHARDA. POSNER,THEPROBLEMS
POSNER,PROBLEMS].
18. WILLIAM
M. LANDES& RICHARD
A. POSNER,
THEECONOMICSTRUCTURE
OF TORT
LAWvii (1987) [hereinafter LANDES& POSNER,ECONOMIC
STRUCTURE].
19. Allen v. State, 605 A.2d 960, 966 (Md. App. 1992), (quoting State v. Buchanan, 5
H.& J. 317, 362 (1821)(Chase, C.J., separate opinion)).
H e i n o n l i n e - - 1 8 UALR L. J. 5 5 8 1 9 9 5 - 1 9 9 6
19961
THE VITAL COMMON LAW
559
some state. To Corbin, "[tlhe common law is not a body of rules; it is a
method. It is the creation of law by the inductive process."20
Whatever individual or aggregate definition you accept, today you
cannot understand American law regarding a broad subject, be it privacy,
employment relations or environmental harm, by looking solely at statutes,
or solely at the common law. The symbiosis between common law doctrine
and statutory law pervades our jurisprudence. In most circumstances, the
state or federal statute is concerned only with enforcement of state public
policy, civil or criminal, and leaves individual pursuit of monetary or
injunctive relief to existing common law.2' In many settings, such as
privacy,22 products liability,23or public nuisance,24state statutes essay to
codify common law causes of action, conserving them, either conservatively
or progressively, as the vehicle for personal actions for money damages or
injunctive relief. In still other matters, a defendant's conformity with a
statutory standard may either hinder or preclude a plaintiffs common law
claim;25 while noncompliance with a statutory standard may all but
vouchsafe a plaintiffs suit for damages.26
20. COSGROVE,
OURLADY,supra note 5, at 33 (quoting ARTHURL. CORBIN,WHATIS
COMMON
LAW?75).
21. E.g., Clean Water Act of 1972, 33 U.S.C. $ 1319(c)(l)(B) (1994).
22. E.g., N. Y. Clv. RIGHTS LAW $$ 50, 51 (McKimey 1995) (statutory right of
privacy) discussed in Haelan Lab., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir.
1953) (involving defendant's alleged invasion of "plaintiffs exclusive right" to use
photographs of baseball players).
23. For example, state statutes in Delaware, Idaho, Iowa, Kansas, Kentucky, Maryland,
Minnesota, Missouri, North Carolina, North Dakota, Ohio, Tennessee and Washington "bar
an action for strict [products] liability depending on whether jurisdiction may be obtained
against the manufacturer and whether the manufacturer is able to satisfy a judgment."
OF THE LAW(THIRD)TORTS:PRODUCTS
LIABILITY$ I crnt. e, Reporters'
RESTATEMENT
Note (Tentative Draft No. 2, 1995) [hereinafter Tentative Draft No.21.
24. E.g., ARIZ.REV.STAT.ANN. $ 36-601(A) (1995) (setting forth "conditions" that
constitute 'public nuisances dangerous to the public health";) OHIOADMIN.
CODE3745-1507-(A)(1995), stating as follows:
[Tlhe emission or escape into the open air from any source or sources whatsoever,
of smoke, ashes, dust, dirt, grime, acids, fumes, vapors, odors, or any other
substances, or combination of substances, in such a manner or in such amounts
as to endanger the health, safety or welfare of the public, or cause unreasonable
injury or damage to the health, safety or welfare of the public, is hereby found
and declared to be a public nuisance.
Id.
25. Tentative Draft No. 2, supra note 23, $ 7(b) ("Effects of Compliance and Noncompliance with Applicable Products Safety Statutes or Regulations").
26. Tentative Draft No. 2, supra note 23, $ 7a.
THE
H e i n o n l i n e - - 1 8 UALR L. J. 5 5 9 1 9 9 5 - 1 9 9 6
560
B.
UALR LAW JOURNAL
[Vol. 18
Distinctions Between Statutory and Common Law
For their frequent coalescence, there exist important distinctions
between statutory law and common law. I will describe some of the
prominent discriminating markers.
From the beginning, customary law or common law operated
independently of the development of political rights, which give rise to
"public law." In the nineteenth century, the "jurisprudential roots"
distinguishing the common law from statutory law, a conceptual segregation
of so called "private law" from "public law," permitted the conclusion that
common law pertained to protection of pre-political rights, such as those
involving property or autonomy interests, against personal injury or property
10~s.~'
Public law, in turn, "consisted of government compulsions restricting
private freedom[,]"28while the common law identified and protected private
freedom and autonomy. Over time, we will see preservation of individual
freedom and autonomy as the pole star of the developing common law.
Accordingly, although in application statutory and common law
approaches sometimes converge, blurring the distinctions between the
the roles of statutory and common law are differentiable. Conventionally,
legislatures have been considered responsible for effecting public policy
through the passage of ex ante rules, while courts have occupied themselves
with entry of ex post justice between private litigank3' By ex ante
legislative rules is meant rules of prospective application, such as a statute
requiring a manufacturer to report a product that creates or may create a
substantial product h a ~ a r d . ~ 'Ex post rules of law entered by judges
applying the common law typically evaluate disputes, injuries or losses
already suffered, and resolve the issue of where the loss should finally
rest-with the injured party or the actor. In common law matters, prior to
acting it may not be crystal clear to individuals whether their actions will
incur liability, for example, whether their statements are defamatory, whether
they may peaceably repossess property, or whether they may erect a fence
that obscures their neighbor's view. This uncertainty has given rise to
acerbic observations like that of Jeremy Bentham, who wrote: "Common
law judges make law as a man makes laws for his dog. When a dog does
27. Indeed, aspects of common law tort are thought to antedate not only early statutes
STRUCTURE,
supra note 18, at 1 .
but even the modem state. LANDES& POSNER,ECONOMIC
28. Farber & Frickey, supra note 3, at 886 (emphasis added).
29. Id. at 876. The authors comment upon the increased and confessed policy making
pursuits and ex ante approaches of common law courts.
30. Id.
31. Consumer Product Safety Act $ 15, 15 U.S.C. 8 2064 (1994).
H e i n o n l i n e - - 1 8 UALR L. J. 5 6 0 1 9 9 5 - 1 9 9 6
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THE VITAL COMMON LAW
56 1
anything you want to break him of, you wait till he does it, and then you
beat him for it."32
Another distinguishing characteristic of common law is that it is
conceptual, while statutory law can be described as textuaLJ3This distinction
is played out in the markedly different tasks before the court applying
statutory law as opposed to applying common law. In Posner's words,
"tilust as statutory concepts must be justified by demonstrating their
provenance in statutory texts, so common law concepts must be justified by
demonstrating their provenance in sound public policy."34
Accordingly, unlike a statute, the common law permits a contextual
evaluation of conduct. This is to say that the judge's inquiry does not end
at reaching an answer as to whether the defendant's conduct was prohibited,
or permitted, by the state. Rather, the inquiry involves evaluation of
whether the conduct conformed with, or exceeded, the developed and
normative standards of the common law. In property law the contextual
inquiry might be whether a landowner's use of her property is compatible
with customary neighboring uses. In tort law the question might be whether
the defendant acted as we would expect a reasonable man, or whether the
injured plaintiff took ordinary precautions to protect himself from harm.
To hypothesize, if we were to have a statute, or a regulation pursuant
to a statute, defining the proper method of taking one's seat when operating
ride-on farm equipment, an operator injured after falling off equipment
while operating it from a standing position would, we can suppose, find any
potential tort recovery reduced or eliminated because of this departure from
the statutory standard of care. Under the common law of torts, however, the
evaluation of the operator's conduct would be ~ o n t e x t u a l .A
~ ~contextual
32. Jeremy Bentham, quoted in LAWRENCE M. FRIEDMAN,
AMERICAN LAW93 (1983).
supra note 17, at 247.
33. POSNER,PROBLEMS,
34. POSNER,PROBLEMS,
supra note 17, at 249. By way of example, there are salient
differences between the structure and workings of the common law system pertaining to
environmental torts and the structure of statutory environmental laws. As summarized by
Professor Gerald W. Boston and the author:
The law of nuisance consists of general, broad and abstract principles of
unreasonable interferences, applicable to any activity. The regulatory structure,
in contrast, is highly particularized, detailed and expected to govern well-defined
kinds of activity. 1n nuisance, plaintiffs rights are exclusively determined by
courts of general jurisdiction. To be contrasted, the regulatory structure is drafted,
enforced and adjudicated within regulatory agencies and under the supervision of
officials commanding technical expertise in particular, and often quite specialized,
areas of regulation.
W. BOSTON& M. STUARTMADDEN,THELAWOF ENVIRONMENTAL
AND TOXIC
GERALD
TORTS: CASES,MATERIALS AND PROBLEMS
2 13-2 14 (West 1994).
35. "The question what a prudent man would do under given circumstances is then
equivalent to the question what are the teachings of experience to the dangers of this or that
Heinonline - - 18 UALR L. J. 561 1995-1996
562
UALR LAW JOURNAL
[Vol. 18
approach would permit, though not require, a fact finder to conclude that it
was unreasonable for a middle-aged Brookfield, Connecticut ophthalmologist
to operate a rider-mower in a standing position, but perhaps reasonable for
an experienced thirty-year-old Iowa farm employee to do so on a thresher.
An additional distinction between common law and statutory regimes
is their respective responsiveness to development, amendment, or withdrawal. A trial court's entry of an improvident common law interpretation
is subject to one or often two tiers of appellate review. A judge's unwarranted constriction or enlargement of rules can be corrected. Where a state's
high court has countenanced a new rule, the political process,provides for
a legislative veto.36 Because of their prerogatives to turn aside rules whose
former utility cannot be demonstrated in a modem setting, common law
judges can discard outdated rules with far greater ease than outdated
legislation can be set aside.37
111. STATUTORY
AND COMMON
LAWFOIBLES
A.
Statutory Shortcomings
There are demonstrable limitations to both statutory and common law
approaches. I begin with observations about the limitations of statutory
approaches.
Statutes do not readily distinguish hues. As a general proposition, a
statutory solution is confined by the four corners of the statute's language.
As the British authority, Craies, put it in Statute Law, "a statute may not be
extended to meet a case for which provision has clearly and undoubtedly not
conduct under these or those circumstances; and as the teachings of experience are matters
of fact, it is easy to see why the jury should be consulted with regard to them." OLIVER
WENDELL
HOLMES,JR.,THECOMMON
LAW 150 (1923) [hereinafter HOLMES,THECOMMON
LAW].
36. Kelley v. R.G. Indus., Inc., 497 A.2d 1143 (Md. 1985).
37. As Wheeler, J., concurring, wrote in Dwy v. Connecticut Co., 92 A. 883, 891
(Conn. 1915):
The court best serves the law which recognizes that the rules of law which grew
up in a remote generation may in the fbllness of experience be found to serve
another generation badly, and which discards the old rule when it finds that
another rule of law represents what should be according to the established and
settled judgment of society, and considerable property rights have become vested
in reliance upon the old rule. It is thus great writers upon the common law have
discovered the source and method of its growth, and in its growth found its health
and life. It is not and should not be stationary. Change of this character should
not be left to the Legislature.
Id.
H e i n o n l i n e - - 1 8 UALR L. J. 5 6 2 1 9 9 5 - 1 9 9 6
19961
THE VITAL COMMON LAW
563
been made."38 As conduct is either approved or forbidden, generally there
is no opportunity for equitable adjustment of the conflicting interests, or for
consideration of the comparative responsibility of opposing parties for the
harm or inequity.
A concomitant limitation is that where a statute specifically describes
an approach or remedy to be taken by the court, it will admit of no
departure from it. The problems with the inflexibility of such an approach
have been manifest in the recent application of the Federal Sentencing
~ u i d e l i n e srequiring
,~~
sentences of definite ranges to be given defendants
filling certainbright line criteria. The appalling inappropriateness of some
of the required sentencing, and the incapacity of the sentencing judge to
consider the exigencies of particular cases in fashioning a sentence, have led
at least one federal trial judge to deflect statutory sentencing restriction^.^^
Statutory responses to societal problems are also vulnerable to what
and the invariable fellow
Locke called "the dangers of enthu~iasm,'~'
traveller of enthusiasm, haste.42 In contemporary terms, what better example
38. P. S. Atiyah, Common Law and Statute Law, 48 MOD.L. REV. 1, 8 (1985) (quoting
CRAIESON STATUTE
LAW 102) [hereinafter Atiyah, Common Law].
39. See The Comprehensive Federal Crime Control Act of 1984, 18 U.S.C. $$ 35513693 (1994), 28 U.S.C. $5 991-998 (1994). The underlying Senate Report stated the goal
of the statute as the elimination of "unwarranted dispar[ities]] and uncertainty" in sentencing.
S. Rep. No. 225, 98th Congress, 1st Sess. 49 (1983) (discussed in Symposium, The Tennessee
Supreme Court: Judicial Activists?, 24 MEM. ST. U. L. REV. 297 & n.2 (1994).
Dec. 3, 1994, at A-26 ("Utilizing
40. Peter Bowles, Judge Ignores Ruling, NEWSDAY.
a loophole in the law, U.S. District Court Judge Jack Weinstein this week ignored a highercourt mandate to sentence an admitted heroin addict to 10 years in prison and instead
imposed the 26 months she already had served."). Id.
In a June 4, 1994 column, journalist Nat Henthoff quotes District Court Judge Jack
Weinstein as stating that the sentencing guidelines "require, in the main, cruel imposition of
excessive sentences." Nat Henthoff, Judge Breyer: Lots of Room for Dissent, THE
WASHINGTON
POST,June 4, 1994, at A-19.
41. Locke wrote:
Enthusiasm, though founded neither on reason nor divine revelation, but rising
from the conceits of a warmed or over-weening brain, works yet, where it once
gets footing, more powerfully on the persuasions and actions of men than either
of those two, or both together, men being most forwardly obedient to the impulses
they receive from themselves; and the whole man is sure to act more vigorously,
where the whole man is carried by a natural motion. For strong conceit, like a
new principle, canies all easily with it, when got above common sense, and freed
of all restraint of reason, and check of reflection, it is heightened into a divine
authority, in concurrence with our own temper and imagination."
JOHNLOCKE,LOCKESELECTIONS
17 (Sterling P. Lamprecht ed., 1956).
42. In THE EDUCATION OF HENRY ADAMS, in the chapter titled "A Law of
Acceleration," Adams writes, "In every age man has bitterly and justly complained that
nature hurried and hustled him[.]" HENRYBROOKSADAMS,THE EDUCATION
OF HENRY
ADAMS493 (1946) [hereinafter EDUCATION
OF HENRY
ADAMS].
A corollary of haste is inattention to detail. Richard Posner writes:
H e i n o n l i n e - - 1 8 UALR L. J. 563 1 9 9 5 - 1 9 9 6
UALR LAW JOURNAL
[Vol. 18
of the perilous "enthusiasm" described by Locke is available than in the
realm of recent hastily-considered and unseasoned limitations upon the
government's ability to promulgate land use restrictions in the public
interest? A growing number of states have passed legislation requiring that
the state or governmental subdivision provide compensation to landowners
for restrictions on their use of land, in many settings where the landowner's
use historically has been proscribable under the doctrine of public
nuisance.43 Representative is the Florida statute, entitled the "Private
Property Rights Protection Act," providing sweepingly that "[wlhen a
specific action of a governmental entity has inordinately burdened an
existing use of real property * * * the property owner * * * is entitled to
relief, which may include compensation for the actual loss to the fair market
value of the real property caused by the action of
Such statutes provide an alarming example of the risks of the
sometimes hasty legislative and political process, as they hobble the
effectiveness of land use regulation by levying upon the state a monetary
cost to what was previously a simpler public interest predicate for such
restrictions. Let us imagine a Maryland state environmental agency contemplating a public nuisance initiative against a Chesapeake Bay marina
operator whose jet ski rentals cause shore erosion, damage oyster beds, and
disturb the serenity of migratory fowl. Regulations pursuant to historical
public nuisance authority would not require compensation to the marina
operator.
If, in contrast, Maryland had a law such as Florida's, the agency could
no longer be guided solely by considerations of whether requiring the
marina operator to moderate this land use will serve the public interest, or
is in furtherance of state public nuisance authority to enjoin activities
corrosive to the public health, welfare and safety, a conventional zoning and
The basic reason why statutes are so frequently ambiguous in application is not
that they are poorly drafted- though many a r ~ n not
d that the legislators failed
to agree on just what they wanted to accomplish in the statutdhough often they
do fail-but that a statue necessarily is drafted in advance of, and with imperfect
appreciation for the problems that will be encountered in, its application.
Richard A. Posner, Statutory Interpretationin the Classroom and in the Courtroom, 50 U .
C H I L.
. REV. 800, 81 1 (1983).
43. E.g., ARIZ.REV. STAT.ANN.$$ 9-500.12, 9-500.13, 11-810, 11-81 1 (1995); COLO.
REV.STAT.ANN.$ 24-68-105(1)(1995); FLA.STAT.ch. 163.3184 (1995); IDAHOCODE$ 678001 - 8003 (1995); 1995 Kan. Sess. Laws 2015; LA. REV.STAT.ANN.$ 3:3621-3624
(1995); N.D.CENT.
CODE $ 42-01-06 (1995); TEX.GOV'TCODEANN. $ 2007 (West 1995);
VA. CODEANN. $ 9-6.14:7 (Michie 1995); WYO. STAT.$ 9-5-301 to 9-5-305 (1995).
44. H.B.863, 1995, Reg. Sess., 1995 Fla. H.B. 863, available in LEXIS Legis Library,
Sttext File. The statute defines "existing use" as including "reasonably foreseeable" uses.
Id. at $ (2)(b).
H e i n o n l i n e - - 1 8 UALR L. J. 564 1 9 9 5 - 1 9 9 6
19961
THE VITAL COMMON LAW
565
public nuisance balancing of individual hardship and public interest. Under
such new land use regulations, the regulator's pragmatic concern will be
largely financial, for example, whether the state of Maryland is prepared to
pay the marina operator the $1 million or more her attorneys will demand
in just compensation. It requires no elaboration to recognize that such
legislation acts as a strong disincentive to those charged with protecting the
environment.
What are the legislative enthusiasms that pennit such laws to be passed,
and how is it that they prevail over widespread public commitment to
environmental protection? The answer is found in simple principles of
political economy. In the Florida setting, a large proportion of Florida
residents own or aspire to own property. They can readily imagine land use
initiatives, by the law of public nuisance, a clean water act or otherwise, that
will trammel their prerogatives to use their land as they wish. In contrast
to this sprawling, politically alert, and anxious proportion of the electorate,
only a small and politically inefficient number of Florida residents have
reflected deliberately upon the predicament such compensation statutes
create for this generation and the next.
Another example of improvident legislative enthusiasm might be the
push during the 104th Congress for a so-called "loser pays" approach to
civil litigation. For years tort reform proponents have discussed various
"loser pays" approaches, whereby a losing plaintiff, or one who rejects a
settlement offer that turns out to be more generous than his ultimate reward,
if any, would be liable for some measure of the opposing party's marginal
counsel fees. H.R. 10, the Common Sense Legal Reform Act of 1995, had
such a provision, applicable to suits brought in state courts and alleging
violation of state liability laws. Apart from the gross overinclusiveness of
such approaches, in that they would deter frivolous litigation only by means
of discouraging much meritorious litigation, a loser pays protocol represents
a "fee shifting" approach which has been demonstrated repeatedly to be
ineffective, inefficient, and unfair in working its purported goal.45
-
-
-
45. See Keith N. Hylton, Fee Shifting and Incentives to Comply With the Law, 46
V A N DL.
. REV.1069 (1993); Judith L. Maute, Peevyhouse v. Garland Coal and Mining Co.
Revisited: The Ballad of Willie and Lucille, 89 Nw.U . L. REV.134 1 , 1439 (1995); Peter
Charles Coharis, A Comprehensive Market Strategy for Tort Reform, 12 YALEJ . ON REG.
435, 525 & n.142 (1995); Clinton F. Beckner, I11 & Averly Katz, The Incentive Effects of
Litigation Fee Shifting When Legal Standards are Uncertain, 15 INT'L REV.L. & ECON.205
(1995) ("Our analysis shows that when legal standards are administered imperfectly, the
efficiency of fee shifting is a problem of the second best. . . . We conclude that just as there
is no reason to believe that the British rule generally reduces the procedural costs of
litigation, there is also no good reason to think that it generally promotes efficient substantive
behavior.").
H e i n o n l i n e - - 1 8 UALR L. J. 5 6 5 1 9 9 5 - 1 9 9 6
566
UALR LAW JOURNAL
[Vol. 18
While statutory solutions may be improvidently hasty, they may also
arrive too late in the day. A statutory answer is not normally sought until
a problem has erupted in the public consciousness, when a societal dilemma
has achieved such a level of gravity and tenacity that "social convention"
demands "community voting."46 As Benjamin Cardozo observed, "[alll
history demonstrates that legislation intervenes only when a definite abuse
has disclosed itself, through the excess of which public feeling has finally
been aroused.'*' In contrast, the common law judge is not encumbered by
any political need that a critical mass of public concern have been reached
before justice can be entered in an individual case: The common law judge
must consider and resolve a societal conflict when presented early in its
maturation. With neither a governing statute nor a controlling common law
rule, the judge can nevertheless enter a judgment illuminated by the
refracted light of parallel or related common law principles. In so doing, in
Professor Marshall Shapo7swords, the common law judge "semiconsciously
capture[s] society's ideas about justice in legal issues framed by specific
disp~tes.'*~
A related shortcoming of the statutory approach is that statutes typically
have no provision for the subtle and particularized application of accepted
principles to individual circumstances, a model Professor John Siliciano
describes as one of "individualized justice.ldg Dean John Wade wrote that
unlike common law tort decisions, which "requir[e] a careful and judicious
balancing of the conflicting interests of the various parties," legislation
typically involves "tradeoffs" which "can produce varying results that may
combine to establish a reasonably fair average, but the average often comes
from many specific instances in which one or the other party is treated
~nfairly."'~Accepting the necessity of such tradeoffs, statutes are notorious
for omitting to state clearly their rationale, and thus attorneys and judges are
often left adrift in determining a statute's applicability."
46. Marshall S. Shapo, In the Looking Glass: What Torts Scholarship Can Teach Us
About the American Experience, 89 Nw. U . L. REV.1567, 1569 (1995).
47. BENJAMIN
N. CARDOZO,
THENATURE
OF THE JUDICIAL PROCESS
144 (Yale 1921)
JUDICIAL PROCESS].
[hereinafter CARDOZO,
48. Shapo, supra note 46, at 1569.
49. John A. Siliciano, Corporate Behavior and the Social Efficiency of Tort Law, 85
MICH.L. REV. 1820 (1987) [hereinafter Siliciano].
50. John J. Wade, Book Review, 47 LA. L. REV. 691 (1987) (reviewing WEX S.
MALONE,
ESSAYSON TORTS(1987)). In Washington v. Davis, 426 U.S. 229, 253 (1976)
(Stevens, J., concumng), Justice Stevens corroborated Dean Wades's assessment of the
legislative process, describing "governmental action" as "frequently the product of
compromise, of collective decision making, and . . . of mixed motivation."
51. McNollgast, Legislative Intent: The Use of Political Theory in Statutory
Interpretation, 57 L. & CONTEMP.
PROBS.3, 13 (1994).
H e i n o n l i n e - - 1 8 UALR L. J. 5 6 6 1 9 9 5 - 1 9 9 6
THE VITAL COMMON LAW
Finally, and with particular reference to the current state and congressional emphasis on statutory alteration of common law liability rules, it is
not by any stretch clear that increased codification of the common law gains
the commonality, uniformity or predictability that its proponents d e ~ i r e . ' ~
In the words of tort observer Victor E. Schwartz: "The fact is that over the
past twenty years state tort law has grown further apart, not closer together.
The advent of so-called 'tort reform' has augmented this trend. This year
alone, approximately one dozen states have enacted tort reform statutes; yet
none of them are the same. A nuance in any one of them could be major
and outcome determinati~e."'~
In the end, as Professor Lawrence M. Friedman writes, "the legislative
process is neither as good at accommodating everybody as some have
thought, nor as elitist and undemocratic as the worst of the cynics has
described it. Rather, it is rough, complex and imperfe~t."'~
B.
Common Law Shortcomings
What is a clear-eyed look at the inherent limitations of common law
jurisprudence? A primary objection to modem common law development,
and an impetus for current statutory modification, is that, in crafting a
remedy, the common law judge has no meaningful disincentive to the
temptation to subtly gratify his or her own philosophical or social predilections. An element of this is unassailably true,s5 and it may be that in the
52. Cj, Saul Levmore, Rethinking Comparative Fault: Variety and Uniformity in
Ancient and Modern Tort Law, 61 TUL.L. REV.235 (1986).
53. Victor E. Schwartz, 'Class Action' Reform: Endless Clashes of Values of
Constructive Results?, MASSTORTLITIG.REP., Aug. 1995, *3. Schwartz states:
As someone who has studied the law of torts for a while, I am troubled by
generalizations about tort law being 'in common' throughout the United States.
The pressure to more litigation forward for the 'round-up' tend to lead even the
most thoughtfbl of judges to see American tort law as somehow capable of being
placed in a Cuisinart(TM), where differences of law are lost in a blended product
that somehow represents both plaintiff and defendant interests.
Id. at *3.
M. FRIEDMAN,
AMERICAN
LAW 106 (1984). Professor Friedman
54. LAWRENCE
continues: "Blacks and consumers have, for example, a much greater chance to win the ear
of legislators than was true some fifty years ago."
55. As Cardozo wrote:
There is in each of us a stream of tendency, whether you choose to call it
philosophy or not, which gives coherence and direction to thought and action.
Judges cannot escape that current any more than other mortals. All their lives,
forces which they do not recognize and cannot name, have been tugging at
them--inherited instincts, traditional beliefs, acquired convictions; and the
resultant is an outlook on life, a conception of social needs, a sense in James'
phrase of 'the total push and pressure of the cosmos,' which, when reasons are
H e i n o n l i n e - - 1 8 UALR L. J. 5 6 7 1 9 9 5 - 1 9 9 6
568
UALR LAW JOURNAL
[Vol. 18
natural law foundation of the common law we will find the basis for the
modem criticism that judicial tinkering with common law principles invites,
or even requires, manipulation of policy objectives, rules, and outcomes in
order to harmonize results with the views of individual judges. After all,
what could be more problematic than the question of what rights and
obligations are the original and inalienable of modem men and women?
As has been suggested, the common law is ideally suited to resolving
claims arising at the borders of societal and business dynamics, whether the
issue is promissory- estoppel or damages for emotional distress. Ironically,
it is just this role of deciding cases at the margins of modem experience that
enlarges the vulnerability of common law adjudication to the individual
views of the sitting judge. A judge's own ideological gloss, the argument
goes, is most likely to be detected where "preexisting doctrinal propositions
do not provide a clear answer."56 Examples of modem causes of action in
which unsettled doctrine has stimulated and will continue to stimulate the
normative orientations of sitting judges are the developing law affecting the
old, but now eroding, doctrine of employment at will, and the gestational
rights of children in ~ t e r o . ' ~
Common law courts are also criticized for the sometimes seemingly
cavalier approach taken to the doctrine of stare decisis, i.e., the rule that
courts should ordinarily follow the substantive rule of law recognized to that
point by previous holdings of equal or higher courts in that jurisdiction. For
its seemingly plain and overarching imperative, implementation of stare
decisis has perplexed the finest legal .minds in common law history.
Considering the role of stare decisis, Benjamin Cardozo ruminated:
What is it that I do when I decide a case? To what sources of information do I appeal for guidance? In what proportions do I permit them to
contribute to the result? If a precedent is applicable, when do I refuse
to follow it? If no precedent is applicable, how do I reach the rule that
will make a precedent for the future? If I am seeking logical consistency, the symmetry of the legal structure, how far shall I seek it? At
what point shall the quest be halted by some discrepant custom, by some
consideration of the social welfare, by my own or the common standards
of justice or morals?'"
--
nicely balanced, must determine where choice shall fall.
CARDOZO,
JUDICIAL
PROCESS,
supra note 47, at 12.
56. Stephen M. Bainbridge, Social Propositions and Common Law Adjudication, 1990
U.ILL.L. REV. 23 1, 232 (reviewing MELVINA. EISENBERG,
THENATUREOF THE COMMON
LAW(1988)).
57. See infra notes 230-244 and accompanying text. See also TERRENCE
F . KIELY,
MODERNTORT LIABILITY:
RECOVERY
IN THE '90's $ 6.6 (1990).
58. CARDOZO,
JUDICIAL
PROCESS,supra note 47, at 10. Jurists have long recognized
H e i n o n l i n e - - 1 8 UALR L. J. 5 6 8 1 9 9 5 - 1 9 9 6
19961
THE VITAL COMMON LAW
569
Consistent with Cardozo's implicit thesis that common law decisions
bear the stamp of judicial individualism, much of the modem common law
vulnerability to statutory "correction" can be attributed to common law rules
that are arguably, to use a baseball metaphor, "ahead of the curve" of the
"community's sense of justice."59 For example, Professor Martin Kotler
characterized recent and ongoing state and federal products liability reform
as a statutory rebuff to so-called "strict" products liability, with the reform
statutes showing a consistent commitment to returning liability rules to the
older predicate finding of fault.60
Further developing Professor Kotler's point, common law approaches
may also be subject to statutory correction where there is neither public nor
legislative consensus that the common law rule satisfies an instrumentalist
objectivean objective either to encourage worthy conduct, or to deter
harmful or wasteful conduct. An example of a common law rule with a
precarious instrumentalist basis might be the widespread common law rule
that nonmanufacturing sellers are subject to liability without fault, or strict
products liability, even though most wholesalers and retailers are not parties
to the design process or the crafting of warnings or instructions for products,
t
and thus are not in a position to efficiently remove unsafe p r o d u c t ~ least
not prior to an accident-r
to influence better behavior on the part of their
manufacturing suppliers. One cannot, therefore, be surprised that recent
that precedent is a necessary, but not sufficient, source of the law. Cardozo wrote:
I do not mean that precedents are ultimate sources of the law, supplying the sole
equipment that is needed for the legal armory, the sole tools, to borrow
Maitland's phrase, "in the legal smithy." Back of precedents are the basic
juridical conceptions which are the postulates of judicial reasoning, and farther
back are the habits of life, the institutions of society, in which these conceptions
had their origin.
Id. at 19.
59. Martin A. Kotler, Utility, Autonomy and Motive: A Descriptive Model of the
Development of Tort Doctrine, 58 U . CIN.L. REV.1231, 1240 (1990) (citations omitted).
60. Id. at 1239. Using the example of statutory abrogation of strict liability rules in
products liability, Kotler explains:
Given that there probably has never been a social consensus in favor of the
instrumentalist values underlying strict liability in tort for defective products, the
wave of product liability reform legislation proposed or enacted within the past
few years was probably inevitable. Although some features of this body of
legislation appear to be solely a product of industry lobbying, it is worth noting
that the most important features serve to immunize defendants from liability
where the harm caused cannot fairly be said to have been their fault. This
legislative insistence on the existence of fault as a condition for the imposition of
liability is serving to bring tort doctrine back into line with the community's sense
of justice.
Id. at 1239-40.
H e i n o n l i n e - - 1 8 UALR L. J. 5 6 9 1 9 9 5 - 1 9 9 6
570
UALR LAW JOURNAL
[Vol. 18
proposed products liability reform legislation would in most circumstances
return the negligence standard to products liability for nonmanufacturing
seller^.^' The bills recently before both the House of Representatives and
the Senate recognize the unfairness and illogic of imposing "strict" liability
upon retailers and wholesalers who neither participate in the design process
for products they sell, nor create warnings or instructions for a product.
Noteworthy is the parallel readjustment occumng in the American Law
Institute's draft Restatement (Third) of Torts: Products Liability, a
reinterpretation taking place a mere thirty years following publication of its
strict products liability provision, Restatement (Second) of Torts $ 402A.
The proposed Restatement tethers a finding of design or informational
(warnings) defects to a risk-utility analysis that hlly examines the prudence,
foresight, and vigor of a manufacturer's conduct.62 In all settings but the
primitive manufacturing defect, liability will no longer be "strict" in any
important sense, but rather tied to a manufacturer's failure to conform to
society's expectation of a manufacturer's professionalism, or conversely the
manufacturer's substandard, 'blameworthy or culpable conduct.
While common law responses may have been ahead of the curve in a
doctrine such as strict products liability, elsewhere the common law has
been behind the curve, or tardy, in its incremental response to changing
conditions. Professor David R. Hodas provides the illustration of the special
61. S. 565, Product Liability Fairness Act of 1995 $ 5(a)(2), 104th Cong., 2d Sess. 1995
[hereinafter Fairness Act]. The Fairness Act adopts three liability standards for nonmanufacturing sellers. There is liability where the claimant proves that: (1) the product
causing the harm was sold by the defendant; (2) the defendant failed to exercise reasonable
care; and (3) this failure to exercise reasonable care was a proximate cause of the claimant's
harm. There may also be liability if the seller has given an express warranty, and, far less
frequently, if the seller has engaged in intentional wrongdoing.
The Fairness Act states that liability cannot be based solely upon "an alleged failure
to inspect a product if the product seller had no reasonable opportunity to inspect the product
that allegedly caused harm to the claimant." See generally Products Liability: Hearings on
S. 565 Before the Senate Comm. on Commerce, Science and Transportation, 104th Cong.,
2d Sess., 1995 WL 152027 (1995) (testimony of M. Stuart Madden).
These observations are not intended to address potential liability issues raised by
private labelers, such as Sears, who engage manufacturers to produce products under the
Sears trademark or other trademarks proprietary to Sears.
62. Reporters James A. Henderson, Jr. and Aaron D. Twerski explain the adoption of
a risk-utility analysis for design defects and for warnings defects in $$ 2(a) & (b) in a Note
comment reading in part:
Scholarly commentary agrees overwhelmingly with the . . . risk-utility approach
PRODUCTS
LIABILITY
vol. 1 at 299 (2d ed.
adopted. . . . See, e.g., MADDEN,
1988)("[T]he majority rule posits that plaintiff cannot establish a prima facie case
of defective design without evidence of a technologically feasible, and practicable,
alternative to defendant's product that was available at the time of manufacture.")
Tentative Draft No. 2, supra note 23, $ 2, commentary at 83.
H e i n o n l i n e - - 1 8 UALR L. J. 5 7 0 1 9 9 5 - 1 9 9 6
19961
THE VITAL COMMON LAW
57 1
injury rule for bringing a claim in public nuisance. Describing the public
nuisance private claimant's obligation to show a harm qualitatively different
Hodas states the while the
from that suffered by the public at
special injury rule "may have made sense in an era when misuse of existing
technology affected only people in the immediate vicinity," such concerns
"pale in comparison to modem worries about an accident at a chemical
plant . . . , [or] an oil
These modem risks, which can cause severe
and sprawling damages and which "prompted a revolution in statutory
environmental law," Hodas notes, have spurred no similar reexamination of
the restrictive special injury req~irement,~~
which indeed has been adopted
in numerous state statutes treating public nuisance.66
This review would not be complete without mention that while the
common law has sometimes developed a right or a remedy that has yet to
command significant public approval, it has also sometimes worked in
seeming conflict with the development of progressive jurisprudence. Indeed,
common law doctrine has often "worked . . . as a tool for those with
sufficient resources to influence the legal ~ystem."~'During the 1950s and
the early 1960s, the common law was employed by certain states "to
sanction . . . discriminatory treatment.'y68Moreover, many twentieth century
statutory modifications of the common law were motivated by a desire to
ameliorate the harshness of common law rules perceived as unfair to
plaintiffs. An example is the Federal Employer's Liability Act of 1 9 0 8 , ~ ~
which eliminated such common law bamers to railworker claims as
63. See RESTATEMENT
(SECOND)
OF TORTS$ 821C(1) (1979), which provides that "[iln
order to recover damages in an individual action for a public nuisance, one must have
suffered harm of a kind different from that suffered by other members of the public
exercising the right common to the general public that was the subject of interference."
64. David R. Hodas, Private Actions for Public Nuisance: Common Law Citizen Suits
for Relief From Environmental Harm, 15 ECOLOGYL.Q. 833, 884 (1989).
65. Id. at 884-85.
66. E.g., CAL. CIV. CODE4 3493 (West 1993) ("A private person may maintain an
action for public nuisance if it is specially injurious to himself, but not otherwise."); ALA.
CODE$ 6-5-123 (1993) ("If a public nuisance causes a special damage to an individual in
which the public does not participate, such special damage gives a right of action.").
The tendency towards stasis of judge-made common law may also stem from the
processes in which judges are appointed, a process in which "the normal criteria of judicial
fitness have been an eager acceptance of the American past rather than an eager interest in
the American future." HAROLD
J. LASKI, THEAMERICAN
DEMOCRACY:A COMMENTARY
AND AN INTERPRETATION 31 (1949) [hereinafter LASKI,AMERICAN DEMOCRACY].
67. Abner J. Mikva, The Shifting Sands of Legal Topography, 96 HARV.L. REV. 534,
A COMMONLAWFOR THE AGE OF STATUTES
540 (1982) (reviewing GUIDOCALABRESI,
(1982)).
68. Bell v. Maryland, 378 U.S. 226, 308 (1964).
69. 35 Stat. 65 (1908) (current version at 45 U.S.C. $ 51-60).
572
UALR LAW JOURNAL
[Vol. 18
assumption of the risk, contributory negligence, and the fellow servant
rule.70
AND HISTORICAL
ROLEOF THE COMMON
LAW
111. ANTECEDENTS
A.
Natural Law and Custom
The origins of the common law can be traced at least from Aristotle7'
It is generally supposed that
and ~ i c e r through
o ~ ~ the Book of
much of the animating basis for early common law derived from an innate,
elemental, and sometimes theocratic concept of justice often termed "natural
law."74
What is "natural law"? Conceding the lack of a single and generally
agreed to d e f i n i t i ~ n ,Benjamin
~~
Fletcher Wright, Jr. offered three alternative definitions: (I) "rules which are statements of the basic laws of the
universe, or of man's constitution, or of social and political relationship^";^^
(2) "principles of right, principles which are established or which should be
established if justice is to prevail";77 and (3) "either a set of standards or
ideals, [or] a set of limitations imposed upon men by some superhuman
power."78
70. Peter L. Strauss, On Resegregating the Worlds of Statute and Common Law, 1994
SUP.CT. REV.429, at 430.
71. ARISTOTLE, THENICHOMACHEAN
ETHICS,Book V (1947).
72. Cicero wrote in DE LEGIBUS
11:
Of all these things about which learned men dispute there is none more important
than clearly to understand that we are born for justice, and that right is founded
not upon opinion but in nature. There is indeed a true law, right reason, agieeing
with nature and diffused among all, unchanging, everlasting, which calls to duty
by commanding, deters from wrong by forbidding. . . It is not allowed to alter
this law nor to deviate from it. Nor can it be abrogated. Not can we be released
from this law either by the senate or by the people. Nor is any person required
to explain or interpret it.
LAW: A STUDY
BENJAMIN FLETCHER
WRIGHT,JR., AMERICAN
INTERPRETATIONS OF NATURAL
IN THE HISTORY
OF POLITICAL
THOUGHT 5 (1931) [hereinafter WRIGHT,INTERPRETATIONS]
(quoting CICERO,DE LEGIBUS
11, 4, 10).
73. See, e.g., James J. Restivo, Jr., Insuring Punitive Damages, NAT'L L.J., July 24,
1995, at C-1 ("[Iln Exodus 22:9 . . . it is prescribed that one found guilty of taking another's
property be required to pay back double what was taken.").
supra note 72, at 33-35. See also SURYAPRAKASH
74. WRIGHT,
INTERPRETATIONS,
SINHA,WHATIS LAW?: THEDIFFERING
THEORIES
OF JURISPRUDENCE
92-106 (1989).
supra note 72, at 3.
75. WRIGHT,INTERPRETATIONS,
76. WRIGHT,INTERPRETATIONS,
supra note 72, at 3.
77. WRIGHT,INTERPRETATIONS,
supra note 72, at 3.
supra note 72, at 3.
78. WRIGHT,
INTERPRETATIONS,
H e i n o n l i n e - - 1 8 UALR L. J. 5 7 2 1 9 9 5 - 1 9 9 6
19961
THE VITAL COMMON LAW
573
For those persons ascribing to a power greater than themselves as the
giver of natural law, Thomas Aquinas offered this theocratic description:
[Glranted that the world is ruled by Divine Providence, . . . that the
whole community of the universe is governed by Divine Reason.
Wherefore the very Idea of the government of things in God the Ruler
of the universe, has the nature of a law. And since the Divine Reason's
conception of things is not subject to time but is eternal, according to
Prov. viii. 23, therefore it is that this kind of law must be called eternal.79
With expected succinctness, Richard Posner, in turn, has offered the
secular observation that equates natural law to "basic political morality."80
Such rights as were recognized as "natural" to man, and thus cognizable to English common law, were not limited by those recognized by Roman
law or English Royal law. As explained by the thirteenth century British
jurist, Brackton, a nuisance imposes a servitude upon the land of another.
It is "an attack upon the ordinary amenities of land-holding, or, in the now
established if optimistic phrase, upon 'natural rights."'"
Of course what an age has considered to be a right "natural" to society
is doubtless affected by custom. Custom too has long been considered a
building block of the common law.82 In modem common law, the role of
custom is recognized not as a reference principally to custom of the
community, as it was in earlier times, but rather to the doctrinal custom of
hundreds of years of common law, developed by accretion like a coral reef.
Nevertheless, societal and professional customs still play a recognizable
role in the development of common law doctrine. For example, the custom
of an industry may be referred to for determination of whether a brewery
owner would, in the exercise of ordinary care, place mats upon slippery
floors, even though such evidence would not preclude a finding of
negligence if the laissez faire approach, even if generally countenanced, of
no mats were concluded to be negligent.83Likewise, such concepts as the
79. St. Thomas Aquinas, The Suma 77zeologica. Part II, in READINGSIN JURISPRUDENCE
IN JURISPRUDENCE].
29 (Jerome Hall ed., 1938) [hereinafter READINGS
80. POSNER, PROBLEMS,
supra note 17, at 230.
81. C. H. S. FIFOOT,HISTORY
AND SOURCES
OF THE COMMON
LAW: TORTAND
CONTRACT
8 & n. 26 (1970) [hereinafter FIFOOT,
HISTORY](citing HOLDSWORTH,
HISTORY
Of ENGLISH
LAWVII 328-33).
82. RICHARD
A. POSNER,
THE ECONOMICS OF JUSTICE 25-26 (1981).
83. See The T.J. Hooper, 60 F.2d 737, 740 (2d Cir. 1932) (Hand, J., dictum), cert.
denied, 287 U.S. 662 ("[A] whole calling may have unduly lagged in the adoption of new
and available devices."); Richard A. Epstein, The Path to the T.J. Hooper: The Theory and
Histoiy of Custom in the Law of Torts, 21 J. LEGAL
STUD.1, 38 (1992) ("There are many
competitors for this questionable honor, but Hand's famous bon mot is perhaps the most
influential, and mischievous, sentence in the history of the law of torts.").
H e i n o n l i n e - - 1 8 UALR L. J. 573 1 9 9 5 - 1 9 9 6
574
UALR LAW JOURNAL
[Vol. 18
prudent man standard for evaluating the conduct of a fiduciary is, of course,
pregnant with consideration of customary investment and related practice^.^“
B.
Early Environmental Torts
Long before the modem rapture with comprehensive statutory schemes,
common law courts weighed costs and benefits, and mediated disputes
between private interest and societal goals. Not surprisingly, much early
common law rights balancing concerned the reconciliation of competing
property interests. The societal commitment to a freeholder's liberty to
develop his land was early limited to development that did not impair the
rights of neighboring landowners to quietly or profitably enjoy their own
property. As Bracton wrote:
If a servitude is imposed upon a man's land by the law, though not by
the grant of a man, whereby he is forbidden to do on his own land what
may harm his neighbor, as if he should raise the level of a pond on his
own land or make a new one whereby his neighbor is harmed, as for
example if his neighbor's land is thus flooded, this will be an injurious
nuisance of his neighbor's freehold unless his neighbor has given him
permission to do it.""
Solicitude for the rights of the ordinary landholder as against development by more economically powerful neighbors continued into this century.
In the early New York decision of Whalen v. Union Bag & Paper C O . , the
~~
court reinstated an injunction against a pulp mill, employing hundreds of
persons and representing a then substantial $ 1 million investment, that was
polluting the waters of a downstream neighbor whose actual annual damages
the jury calculated at $312 per year. Rejecting defendant's claim that the
injunction should not stand in that plaintiffs alleged actual injury was
"small as compared with the great loss which will be caused by the issuance
of the injun~tion."~'the Court of Appeals stated:
See also Clarence Moms, Custom and Negligence, 42 COLUM.
L. REV.1147 (1941);
Mayhew v. Sullivan Mining Co., 76 Me. 100, 112 (1884) ("If the defendants had proved that
in every mining establishment that has existed since the days of Tubal-Cain, it has been the
practice to cut ladder-holes in their platforms, . . . without guarding or lighting them, and
without notice to contractors or workmen, it would have no tendency to show that the act
was consistent with ordinary prudence.")
84. Salem v. Central Trust Co., No. C-930932, 1995 WL 238936, at *3 (Ohio Ct. App.
1995).
85. FIFOOT,' HISTORY,
supra note 81, at 8 (citations omitted).
86. 101 N.E. 805 (1913).
87. Id. at 805-06.
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19961
THE VITAL COMMON LAW
575
Although the damage to the plaintiff may be slight as compared with the
defendant's expense of abating the condition, that is not a good reason
for refusing an injunction. Neither courts of equity nor law can be
guided by such a rule, for if followed to its logical conclusion it would
deprive the poor litigant of his little property by giving it to those already
LAWIN THE TWENTIETH
CENTURY
IV. THE COMMON
A.
Modem Common Law Goals
1.
Social Utility; Wealth Maximization
From the earliest jurisprudential writings through and including modem
law and economic theorists, there has existed consensus that a proper goal
of law, common law and statutory law alike, is the reconciliation of the
public welfare with private rights. In modem terms, this measurement has
been termed alternately as one of social utility and wealth rnaximi~ation.~~
This inclusive analysis of the role of law measures a law's justice by the
answer to this question: "Has the law worked the greatest good for the
greatest number?"
a. Social Utility
Essentially, a social utility or utilitarian approach posits that conduct is
acceptable, if not salutary, if its expected benefits to the actor and to society
together outweigh its expected hardship upon another in particular or society
more generally.90 Demonstration of this principle is found in the legal
disputes following the death of Elvis Presley, involving the issue of whether
the designees of Presley's estate could control the singer's "right of
88. Id. at 806.
89. Although complementary, the two concepts enjoy an important distinction.
According to Richard A. Posner, the utilitarian analysis may essay to calculate the benefit
to society of a general good, such as equality of economic opportunity, or preservation of
green space in urban areas, without reference to the presence or absence of the proponents'
willingness to pay for such objectives. A "wealth maximization" efficiency approach, on the
other hand, counts only those "preferences backed by a willingness to pay." Richard A.
Posner, The Ethical and Political Basis of the Eficiency Norm in Common Law Adjudication,
8 HOFSTRAL. REV.487, 499 (1980) [hereinafter Posner, Ethical and Political Basis].
90. Cf: David C . Owen, The Moral Foundation of Product Liability Law: Toward First
Principles, 68 NOTREDAMEL. REV.427 (1993), discussed in Tentative Draft No. 2, supra
note 23, at 48; David G. Owen, Products Liability: Principles of Justice f i r the 2lst
Century, l l PACEL. REV. 63 (1990).
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576
UALR LAW JOURNAL
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publicity" as against all others-or, more prosaically, could the estate's
designees forever profit from others' use of his ~ikeness.~'The Sixth Circuit
decided to leave undisturbed the traditional common law rule that heirs may
not retain exclusive control over an ancestor's name or likeness, commenting in words redolent of economic concerns:
It does not seem reasonable to expect that [changing the common law
rule] would enlarge the stock or quality of the goods, services, artistic
creativity, information, invention or entertainment available. Nor will it
enhance the fairness of our political and economic system. It seems
fairer and more efficient for the commercial, aesthetic, and political use
of the name, memory and image of the famous to be open to all rather
than to be monopolized by a few.92
The rest is history. As readily as if they had set up a card table with Elvis
paraphernalia on Manhattan's Lexington Avenue, the Sixth Circuit anointed
the modem Elvis industry, an American apotheosis of wealth maximization.
Such litigation illustrates that a guiding principle of modem economic
analysis of the law is that the public good is enhanced when the expected
benefits derived by a rule---benefits to the actor together with benefits to
society more broadly-utweigh
the expected costs, both monetary and
social. A rule of law achieving this goal is termed "efficient." The
economic analysis of law to evaluate its efficiency is often called
"~tilitarian."~~
What is meant by social utility, or a utilitarian role of law?94 In a
general sense, it may be described as law's role in promoting what is just,
with the implicit expectation that what is just promotes the general welfare.
Aquinas states the idyllic proposition that "we call those legal matters just,
which are adapted to produce and preserve happiness and its parts for the
body politic; since the state is a perfect community[.]"9s James Barr Ames
expressed the apogee of the utilitarian ethos in these words: "The law is
utilitarian. It exists for the realization of the reasonable needs of the
91. Memphis Dev. Found. v. Factors Etc., Inc., 616 F.2d 956 (6th Cir. 1980), cert.
denied 449 U.S. 953 (1980).
92. Id. at 959-60.
93. See generally James Barr Ames, Law and Morals, 22 HARV.L. REV.97, 110
L. REV. 40 (1915).
(1908); Henry T. Terry, Negligence, 29 HARV.
94. CJ, John C. Goodman, An Economic Theory of the Evolution of Common Law, 7
J. LEGALSTUD.
393 (1978).
95. READINGS
IN JURISPRUDENCE,
supra note 79, at 28. See generally DAVIDG . OWEN,
PHILOSOPHICAL
FOUNDATIONS
OF TORTLAW (1995). Early "scientific" utilitarian analyses
"drew upon several trends in Victorian intellectual history for [their] roots." COSGROVE,
OUR
LADY,supra note 5, at 39.
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19961
THE VITAL COMMON LAW
577
community. If the interest of an individual runs counter to this chief object
of the law, it must be s a ~ r i f i c e d . " ~ ~
Writing that law is "forward looking," a "servant of human needs,""
Richard Posner and others call for a scientific ethic of wealth maximization,
a so-called "efficiency norm."98 Many have responded to this call, with one
influential commentator concluding that "much (though by no means all) of
modem tort law is at least roughly consistent with a Posnerian economic
analysis."99
Arguing the point, Posner enlists the law of battery---the common law
rule concerning liability for harmful or offensive touching. Quite apart from
the corrective justice, moral, and fairness attributes of the doctrine of
tortious battery, the law and economics argument states that an efficient
doctrine should "dete[r] persons from engaging in activities that a reasonable
Thus in ~ a r r a t tv. ~ a i l e ~ , ' ~ '
person would view . . . socially
remembered as the case in which the nearly six-year-old Dailey pulled away
the lawn chair as his, until that point, affectionate aunt was sitting down,
tort liability in battery would serve efficiency principles irrespective of
whether Dailey received any psychic or material benefit from the act. If
the harm to the aunt exceeded any benefits to Dailey, a simple utilitarian
analysis would support imposition of liability. If, on the other hand, Dailey
derived benefits that exceeded any physical or psychological injury to his
aunt, pulling out the chair was wasteful or inefficient. Why wasteful?
Because the transaction (the act and the harm) without the aunt's consent
would, and did, generate a laborious lawsuit in which great expense, or
transaction costs, were unnecessarily devoted to determining liability. In
Posner's words:
[Tlorts like simple battery . . . involve a . . . coerced transfer of wealth
to the defendant occurring in a setting of low transaction costs. Such
conduct is inefficient because it violates the principle . . . that where
market transaction costs are low, people should be required to use the
market if they can and to desist from the conduct if they can't. [I]t is
inefficient to permit the market to be bypassed in this way.'02
96. Ames, supra note 93, at 110.
97. POSNER, Problems, supra note 17, at 29.
98. See, e.g., Posner, Ethical and Political Basis, supra note 89.
99. Gary T. Schwartz, Reality in Economic Analysis of Tort Law: Does Tort Law Really
Deter?, 42 UCLA L. REV. 377, 381 (1994).
100. JAMESA. HENDERSON,
JR. ET AL., THETORTSPROCESS(4th ed. 1994) (discussing
RICHARD
A. POSNER,ECONOMIC
ANALYSIS
OF LAW 191-195 (3d ed. 1986)).
101. 279 P.2d 1091 (Wash. 1955).
102. RICHARDA. POSNER,
ECONOMICANALYSIS OF LAW 192-193 (2d ed. 1977)
[hereinafter POSNER,ECONOMIC ANALYSIS].
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Numerous analysts have identified a common law tropism towards
efficiency.lo3 Importantly, scholars have also concluded that efficient rules
of law actually predict efficient litigation strategies, including settlement
strategies. As stated by Ramona L. Paetzold and Steven L. Willbom,
"[wlhere both parties to a dispute have a continuing interest in precedent,
the parties will settle if the existing precedent is efficient, but litigate if the
precedent is ineffi~ient."~~"Wes Parsons, even while disputing these
premises, collected scholarship revealing, in fact, the broad range of cost
internalization achievements of evolving common law doctrine.Io5 Included
in Parsons's review was scholarly attribution to the common law of
accidents as promoting "efficient resource allo~ation;"'~~
the efficiencies of
the common law of rescue, salvage, and Good Samaritan assi~tance;'~'the
efficiency of the common law damages rule for anticipatory repudiation of
a c~ntract;'~'
and the efficiency of the economic loss rule in tort. Io9
A primitive but greatly persuasive, evaluative standard was offered in
a negligence context by Judge Learned Hand in the opinions in United
States v. Carroll Towing Co."O and Conway v. OJBrien."' In those two
cases, the court stated that "the degree of care appropriate to a situation is
the result of the calculus using three factors: the likelihood that the conduct
will injure others, multiplied by the seriousness of the risk if it happens,
balanced against the burden of taking precautions against the risk." In
formula, the calculation is known to many as B (Burden) < P (Probability
of Harm) x L (Magnitude of Loss Should It O c c ~ r ) . " ~
The Learned Hand
103. E.g., George L. Priest, The Common Law Process and the Selection of Efficient
Rules, 6 J . LEGALSTUD.65 (1977); Ramona L. Paetzold & Steven L. Willbom, The
Efficiency of the Common Law Reconsidered, 14 GEO.MASON.U. L. REV. 157 (1991).
104. Paetzold & Willbom, supra note 103, at 157.
105. Wes Parsons, Note, The Inefficient Common Law, 92 YALEL.J. 862 (1983).
106. William M. Landes & Richard A. Posner, The Positive Economic Theory of Tort
Law, 15 GA. L. REV.851, 852 (1981).
107. William A. Landes & Richard A. Posner, Salvors, Finders, Good Samaritans and
Other Rescuers: An Economic Study of Law and Altruism, 7 J. LEGALSTUD.83, 128 (1977).
108. Thomas H. Jackson, 'Anticipatory Repudiation' and the Temporal Element of
Contract Law: An Economic Inquiry into Contract Damages in Cases of Prospective
Nonperformance, 31 STAN.L. REV.69, (1978) ("Compensating the aggrieved party for its
entire expectation loss, without overcompensating it, is an economically sound principle in
that it facilitates the movement of goods and services to their higher value user.")
J. LEGALSTUD.1, 2-3 (1982).
109. W. Bishop, Economic Loss in Tort, 2 OXFORD
110. 159 F.2d 173 (2d Cir. 1947).
111. 111 F.2d 611, 612 (2d Cir. 1940), rev'd 312 U.S. 492 (1941).
112. Of Hand's formula, Posner writes:
This is an economic test. The burden of precautions is the cost of avoiding the
accident. The loss multiplied by the probability of the accident is the expected
accident cost, i.e., the cost that the precautions would have averted. If a larger
cost could have been avoided by incuning a smaller cost, efficiency requires that
H e i n o n l i n e - - 1 8 UALR L. J. 5 7 8 1 9 9 5 - 1 9 9 6
THE VITAL COMMON LAW
approach can be conformed to more modern utilitarian analysis by
visualizing B, or the Burden upon the actor, as encompassing not only the
particular burden of precautionary measures upon the actor, but also the
burden upon society if the conduct must either be eliminated due to liability
rules, or made more expensive, and therefore beyond the economic reach of
many, and then asking would the precautionary measures be undertaken.'13
A leading exponent of the efficiency role of the common law of tort
was Professor, now Judge, Guido Calabresi, who argued persuasively that
in matters of compensation for accidents, civil liability should ordinarily be
laid at the door of the "cheapest cost avoider," the actor who could most
easily discover and inexpensively remediate the hazard. Together with A.
Douglas Melamed, Calebresi states persuasively that, particularly in the
setting of environmental harm, considerations of economic efficiency dictate
placing the cost of accidents "on the party or activity which can most
cheaply avoid them."'14 Validation of this approach came in the Ninth
Circuit decision in Union Oil Co. v. Oppe~z,"~a California coastal oil spill
case in which the court allowed commercial fishermen to recover their
business losses caused by lost fishing opportunity during a period of
pollution. The court followed Calabresi's suggestion that it "exclude as
potential cost-avoiders those groups\acf vities which could avoid accident
costs only at extremely high expense,"lI6 a consideration militating against
the conclusion that the cost of preventing or repositioning the loss be borne
directly by consumers (fishermen or seafood purchasers) in the form of
precautionary measures (whatever they might hypothetically be), or by first
party insurance. Rather, the court found justice and efficiency were served
by placing responsibility for the loss on the "best cost avoider," in this
setting the defendant oil company, reasoning:
[Tlhe loss should be allocated to that party who can best correct any
error in allocation, if such there be, by acquiring the activity to which the
the smaller cost be incurred.
POSNER,ECONOMIC
ANALYSIS,
supra note 102, at 122 (citations omitted).
113. Likewise in keeping with a utilitarian view that transcends the concerns of the
individual plaintiff and defendant, consideration of the factors P (Probability of Harm) and
L (Magnitude of the Loss should it occur) would be enlarged to contemplate the likelihood
of harm to others, and the magnitude of the potential harm, not only in terms of the
individual plaintiff but also to the population exposed to the risk.
114. Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and
Inalienability: One View at the Cathedral, 85 HARV.L. REV. 1089, 1096-97 (1972). See
also MARKC. RUDERT,COVERING ACCIDENT COSTS:INSURANCE, LIABILITY
AND TORT
REFORM 29, 32-33 (1995).
115. 501 F.2d 558 (9th Cir. 1974).
1 16. Id. at 569.
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580
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UALR LAW JOURNAL
party has been made liable. The capacity "to buy out" the plaintiffs if
the burden is too great is, in essence, the real focus of Calabresi's
approach. On this basis, there is no contest--the defendants' capacity is
superior.' I'
A utilitarian analysis also influences modem rules governing issuance
of injunctions, but here the accepted standards have in effect forced a
mamage of utilitarian principles with those of corrective justice. Again in
the setting of environmental harm, notions of corrective justice and
utilitarianism have coexisted uneasily for decades. Put most simply, courts
then and today must wrestle with choices between (1) corrective justice
(putting remediation of plaintiffs wrongfully-caused harm as the most
prominent objective); or (2) utilitarian justice, pursuant to which the court
may permit defendant to continue all or part of the injurious conduct, most
often accompanied by a requirement that plaintiffs be indemnified for their
involuntary hardship.
Originally, and due in some measure to the sanctity in which the
common law of property held interests in land, even the most economically
powerless landholder could seek and secure an injunction against a neighboring activity that interfered substantially with the plaintiff s use of his
property. Against a defendant's argument that its smelter, or its pulp mill,
employed hundreds of people and brought great wealth to the community,
in deciding whether or not to issue an injunction an early court responded
that it was unwilling to "balance" injuries. The court would not weigh the
defendant's cost and the community hardship in losing the industry, against
the often modest provable harm to plaintiffs ordinarily small and noncommercial property. As the New York Court of Appeals stated in W h ~ l e n , " ~
to fail to grant the small landowner an injunction solely because the loss to
him, in absolute terms, is less than would be the investment-backed loss to
the nuisance-creating business and lost employment of the community,
would "deprive the poor litigant of his little property by giving it to those
already r i ~ h . " " ~ By "giving it," the court of course means "requiring
plaintiff to endure ongoing environmental servitudes imposed by
defendant."'*'
- -
117. Id. at 570 (citing GUIDO
CALABRESI,
THECOSTOF ACCIDENTS
(1970)).
118. 101 N.E. 805 (1913).
119. Id. at 806.
120. Id. See also McCleery v. Highland Boy Gold Mining Co., 140 F. 951 (D. Utah
1904) (reaching a comparable corrective justice conclusion, and granting the injunction
against defendant's mine and smelter).
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19961
THE VITAL COMMON LAW
581
Wh~len,'~'
together with Madison v. Ducktown Sulphur Copper & Iron
C O . , ' ~in~a mirror image judicial response, pose the dilemma presented by
a plaintiffs environmental claim against the conduct of an entity enjoying
economic influence in the community. Contrasted with the Whalen court's
unabashedly populist sentiment, the modern rule of environmental injunctions might seem coldly utilitarian. The Restatement (Second) of Torts
section 936 factors for injunction issuance expressly include weighing of
"the nature of the interest to be pr~tected,"'~~
thus, presumably inviting an
elevation of plaintiffs bona fides where the court considers the activity
meritorious, perhaps a Camp Fire Girls campground, and a devaluation
where the court deems it less valuable, perhaps an automobile scrapyard.
Along similar lines, hardship to the defendant of ceasing or changing its
activity and "the interests of third persons or the public" are proper
consideration^.'^^ To this observer, Mr. Whalen would have difficulty today
in obtaining his injunction.
Boomer v. Atlantic Cement Co.lZSinvolved a widescale and conceded
industrial nuisance in the form of airborne cement dust emanating from an
upstate New York cement plant. In the lower court, a nuisance was found,
and temporary damages awarded, but plaintiffs' application for an injunction
was denied. Before the New York Court of Appeals, Judge Bergen's
opinion early identified the policy issue most troublesome to the court: to
what extent should the court in deciding a justiciable controversy between
private litigants simultaneously decide broad'policy issues (in this case air
quality) often thought the proper province of l e g i s l a t i ~ n ? ' ~ ~
Recognizing that to deny the injunction would depart from Whalen's
corrective justice--no balancing approach, discussed above, the court
nevertheless adopted a utilitarian approach that weighed the hardships
121. 101 N.E. 805 (1913).
122. 83 S.W. 658 (Tenn. 1904). Ducktown Sulphur involved a state supreme court's
reversal of a trial court's injunction, where the high court assigned great weight to
defendant's showing that an injunction would render useless defendant's property, valued at
many multiples the value of plaintiffs property and representing the largest single
contribution to county revenues, as well as turn out of work hundreds of employees. The
court observed that it is often true "in a case of conflicting rights, . . . that neither party can
enjoy his own without in some measure restricting the liberty of the other." Id. at 667.
123. RESTATEMENT
(SECOND)OF TORTS5 936 (a) (1979).
124. RESTATEMENT
(SECOND)OF TORTS5 936 (e), (f), (g) (1979).
125. 257 N.E.2d 870 (N.Y. 1970).
126. Id. Even without resolution of the question of whether or when it is appropriate to
exercise "judicial power to use a decision in private litigation as a purposeful mechanism to
achieve direct public objectives greatly beyond the rights and interests before the court,"
Judge Bergen observed that the resolution of air quality issues "is likely to require massive
public expenditure and to demand more than any local community can accomplish and to
depend on regional and interstate controls." Id. at 871.
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imposed upon plaintiffs against the economic consequences, for Atlantic
Cement and for regional employment, of the requested injunction:
The ground for denial of injunction, notwithstanding the finding both that
there is a nuisance and that plaintiffs have been damaged substantially,
is the large disparity in economic consequences of the nuisance and of
the injunction."'
2.
Corrective Justice
The moral authority of natural law, and its successor the common law,
turns upon the perception and the reality that its tenets lead to "just"
results.'28What is meant by "justice?" In Aquinas's words, "a thing is said
to be just, from being right, according to the rule of reason."'29 Most
contemporary observers would agree that a core consideration in any modem
contemplation of "justice" is the goal of "corrective" justice, i.e., a result
that, to the extent money damages can, deprives the wrongful party of their
gain, and restores the injured party to the position they enjoyed before the
harm.'30 Holmes, contemplating torts, explained:
Be the exceptions more or less numerous, the general purpose of the law
of torts is t o secure a man indemnity against certain forms of harm to
127. Id. at 872. Authentic questions may be raised about the reach of Boomer. It is
possible that Boomer is an anomaly in that Atlantic Cement was a big economic contributor
to the region and, for the purposes of the suit, the conduct of its business operations was
Simon pure. Cf:Little Joseph Realty v. Town of Babylon, 363 N.E.2d 1163, 1167 (N.Y.
1977), in which the same New York Court of Appeals issued an injunction against an asphalt
plant operating contrary to zoning ordinances, and distinguished Boomer as a case involving
"no zoning violation, or for that matter, [no] violation of any other statute."
128. As Augustine says (De Lib. Arb i . 9 , "[tlhat which is not just seems to be no law
at all: wherefore the force of a law depends on the extent of its justice. Now in human
affairs a thing is said to be just, from being right, according to the rule of reason. But the
first rule of reason is the law of nature. . . . Consequently, every human law has just so much
of the nature of law, as it is derived from the law of nature. But if in any point it deflects
from the law of nature, it is no longer a law but a perversion of law." READINGS
IN
JURISPRUDENCE,
supra note 79, at 37. Cj,Randy E. Bamett, Getting Nonnative: The Role
of Natural Rights in Constitutional Adjudication, 12 CONST.COMM.93, 105-1 13 (1995).
IN JURISPRUDENCE,
supra note 79, at 37.
129. READINGS
130. 1 say "to the extent possible" because the majority of common law remedies involve
the award of money damages, and money damages do not restore to their pre-incident
condition a person who has suffered personal physical injury, or the dignitary injury of a
defamation or an invasion of privacy. Likewise it is only by flight of the-imagination that
we suppose the payment of money damages deprives a defendant of a "gain" achieved by
a tortious battery or medical malpractice. In these settings, the justification of common law
remedies will depend heavily upon connections with other goals, such as deterrence,
individual autonomy and liberty, and instrumentalism.
H e i n o n l i n e - - 1 8 UALR L. J. 5 8 2 1 9 9 5 - 1 9 9 6
THE VITAL COMMON LAW
person, reputation, or estate, at the hands of his neighbors, not because
they are wrong, but because they are harms."'
In Book Five, chapter two of Nicomachean Ethics, Aristotle is credited
with laying the cornerstone of the corrective justice principles of the
common law.I3* Under the Aristotelian corrective principle of diorthotikos,
or "making straight," at the remedy phase the court will attempt "to equalize
things by means of the penalty, taking away the gain from the assailant. For
the term 'gain' is applied generally to such cases, even if it be not a term
appropriate to certain cases, e.g., to the person who inflicts a wound-and
'loss' to the sufferer. . . . The judge restores equality."'33
3.
Instrumentalism and Morality
a.
Instrumentalism
The instrumental role of common law doctrines comprises its effect
upon social and business behavior. A rule having a successful instrumental
role will convey simultaneously an exhortative, hortatory message, lauding
behavior deemed beneficial, together with a message intended to discourage
or deter behavior deemed bad by whatever measure (utilitarian or rightsbased). As an abstract proposition, a just and effective common law rule
will encourage positive and productive behavior and discourage negative
activity.
Often the instrumental objectives of a rule may not be apparent on its
face, and are evident only upon their salutary realization in risk reduction,
131. HOLMES,THECOMMON
LAW,supra note 35, at 144.
132. Considered synonymous with the terms "rectificatory" or "commutative." POSNER,
PROBLEMS,
supra note 17, at 313. "[Tlhe law . . . treats the parties as equal, and asks only
if one is the author and the other the victim of injustice or if the one inflicted and the other
has sustained an injury. Injustice in this sense is unfair or unequal, and the endeavor of the
ETHICS146 (J. Welldon trans., 1912),
judge is to equalize it." ARISTOTLE,NICOMACHEAN
discussed in DAVIDG . OWEN,THEPHILOSOPHICAL
FOUNDATIONS
OF FAULTI N TORTLAW
(1995).
THECOMPLETE
WORKSOF ARISTOTLE1786-87 (Jonathan Barnes ed.,
133. 2 ARISTOTLE,
1984). "It is for this reason," Aristotle continues, "that it is called just [dikaion],because it
is a division into two parts [dika] . . . and the judge [dikastes] is one who bisects [dichastes]
. . . . Therefore the just . . . consists in having an equal amount before or after the
transaction." Id.
See generally Richard W. Wright, SubstantiveCorrective Justice, 77 IOWA L. REV. 625
(1 992).
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UALR LAW JOURNAL
[Vol. 18
loss prevention or the like.'34 The empirical failure of a common law
doctrine may likewise manifest itself.
i. Discouragement of Harmful Conduct
Imposition of an external standard of conduct, it has been argued,
serves less to buy, affect or co-opt the moral position of the population than
to put persons on notice of the behavior expected of them to avoid liability.
In Holmes' words:
The true explanation of the reference of liability to a moral
standard . . . . is not that it is for the purpose of improving men's
hearts, but that it is to give a man a fair chance to avoid the harm before
he is held responsible for it. It is intended to reconcile the policy of
letting accidents lie where they fall, and the reasonable freedom of others
with the protection of the individual from injury.'35
Just what is Holmes' "fair chance to avoid" behavior before being held
responsible for it? In tort, for example, the triggering event for imposition
of responsibility for another's loss takes "knowledge" as the "starting point,"
followed by examination of the cccircumstances"that "would have led a
prudent man to perceive danger, although not necessarily to foresee the
specific harm."'36 What are such circumstances? Holmes answers
"experien~e.'''~'
The goal of deterrence has seemingly been torts' perpetual and faithhl
companion. As early as 1890 an academic author wrote of the goals of the
negligence action in these words:
The really important matter is to adjust the dispute between the parties
by a rule of conduct which shall do justice if possible in the particular
case, but which shall also be suitable to the needs of the community, and
tend to prevent like accidents from happening in [the] future.13*
-
-
134. The instrumentalism of law was recognized by Aquinas: "A thing may be known
in two ways: first, in itself; secondly, in its effect, wherein some likeness of that thing is
found: thus someone not seeing the sun in its substance, may know it by its rays."
READINGSIN JURISPRUDENCE,
supra note 79, at 3 1.
135. HOLMES,THECOMMON
LAW,supra note 35, at 144.
136. Id.
137. Id.
138. William Schofield, Davies v. Mann: Theoy of Contributoty Negligence, 3 HARV.
L. REV. 263, 269 (1890).
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585
Even those who question whether tort law, for example, "does in fact deter
as thoroughly as economic models suggest"13g concede it delivers a
"moderate amount of detert'en~e.'''~~
ii. Encouragement of Useful Conduct
The instrumental quality of law, be it positive (statutory) law or
common law, lies in its capacity to influence behavior. Thus, by hypothesis
( I ) following the notorious verdict involving the woman scalded by
McDonald's coffee, it might be predicted that fast food restaurants would
serve coffee at lower temperatures; (2) following the English decision in
Lumley v. Gye,14' a rival theater owner might be disinclined to importune a
leading singer away from her existing contractual obligations; and (3) after
the verdict arising from the spill of the Exxon Valdez, tanker owners might
be more probing in their evaluation of the fitness of vessel captains.
b. The Moral Promontory: Mores and Morality
Ronald Dworkin has been called a "chief evangelist" of the proposition
that judges should advance a right-based jurisprudence rooted in moral
precepts,I4*a proposition that begs the question: "To whose moral precepts
do we refer?" In periods of our country's past in which populations were
less heterogenous and political power less pluralistic, the guiding precepts
were those of white Christian males. Many academic analyses have
concluded that nineteenth century judges unabashedly used tort law as a
device for inducing morally suitable b e h a ~ i 0 r . l ~ ~
Does morality remain an identifiable fixture of modem common law
doctrine? Emest J. Weinrib answers affirmatively, pointing to tort doctrine
as common law in which wrongdoing is a necessary, if not by itself
sufficient, component of liability.'44 How is a moral position to be
determined? Rawls claimed that "one of the aims of moral philosophy is to
139. Schwartz, supra note 99, at 379.
140. Schwartz, supra note 99, at 379.
141. 118 Eng. Rep. 749 (1853).
142. Vincent A. Wellman, Conceptions of the Common Law: Reflections on a Theory
L. REV.925, 925 n.l (1987) (citing RONALD
DWORKIN,
TAKING
of Contract, 41 U . MIAMI
RIGHTS
SERIOUSLY
1-130 (1977)).
143. E.g., Robert J. Kaczorowski, The Common Law Background of Nineteenth Century
Tort Law, 51 OHIO ST. L.J. 1127, 1128 (1990).
144. Emest J. Weinrib, The Morality of Tort Law, Address at the Tort Law Section,
Association of American Law Schools Annual Meeting (Jan. 9, 1988), discussed in Kotler,
supra note 59, at 123 1 n.2, 1240.
-.
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UALR LAW JOURNAL
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look for possible bases of agreement where none seem to exist; [Moral
philosophy] must attempt to extend the range of existing con~ensus."'~~
To some, the modem surge towards strict tort liability, even though
receding in some settings, is reflective of a moralistic conception of
indemnity obligations, i.e., behavioral and compensatory obligations
unaffected by utilitarian weighing or even, when taken to the extreme,
comparative causal contribution. Richard Posner explained the shift (until
quite recently at least) from negligence based criteria for accident compensation to strict liability in these words: "The need for compensation is
unaffected by whether the participants in the accident were careless or
careful[,] and we have outgrown a morality that would condition the right
to compensation upon a showing that the plaintiff was blameless and the
defendant blame~orthy."'~~
4.
Individual Autonomy and Liberty
What do we mean by the terms autonomy and liberty? "Autonomy"
has been defined as "independence or freed~m."'~' Liberty, in turn, is
defined as "[flreedom from external control of interference, obligations, etc.,
freedom to choose."'48 Some have argued that among the first tasks of a
common law doctrine such as torts "is to define the boundaries of individual
liberty."'49 The "justice" rationale of private property, in turn, "is [that it]
enhances [the owner's] reasonable a u t o n ~ m y . " ' ~ ~
145. JOHN RAWLS, A THEORYOF JUSTICE582 (1971). As Holmes explained, describing
the common law antecedents of the modem law of misrepresentation:
[tlhe common law . . . preserves the reference to morality by making fraud the
ground on which it goes. It does not hold that a man always speaks at his peril.
But starting from the moral ground, it works out an external standard of what
would be fraudulent in the average prudent member of the community, and
requires every member at his peril to avoid that.
HOLMES,THE COMMONLAW, supra note 35, at 137.
Holmes likewise identified a moral basis for the common law action in malicious
prosecution. "The legal remedy here, again, started from the moral basis, the occasion for
it, no doubt, being similar to that which gave rise to the old law of conspiracy, that a man's
enemies would sometime seek his destruction by setting criminal law in motion against him."
HOLMES,T H ECOMMONLAW, supra note 35, at 141.
146. Richard A. Posner, A Theory of Negligence, 1 J. LEGALSTUD.29, 29-30 (1972).
147. THE RANDOM HOUSECOLLEGEDICTIONARY92 (rev. ed. 1975).
148. Id. at 772.
149. Richard A. Epstein, A Theory of Strict Liability, 2 J . LEGALSTUD. 151, 203 (1973).
150. JOHN FINNIS,NATURALLAW AND NATURALRIGHTS 173 (1980), discussed in David
G. Owen, Products Liability: Principles of Justice for the Twenty-first Century, 11 PACE L.
REV.63, 65 & n.4 (1990).
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587
In The Morality of Freedom, Joseph Raz writes that "[a]utonomy
requires that many morally acceptable options be available to a per~on."'~'
Our society's commitment to a legal system vouching safe individual
autonomy and liberty is expressed in the earliest interpretations of its
organizing principles in the Constitution. In his dissent in the SlaughterHouse ~ a s e s , Mr.
' ~ ~Justice Field described the import of the Privileges and
Immunities Clauses of Article IV, Section 2 and Section 1 of the Fourteenth
Amendment as ensuring that "which of right belong[s] to the citizens of all
free governments. Clearly, among these must be placed the right to pursue
lawful employment in a lawful manner, without other restraint than such as
equally affects all persons."'53 As our society recognizes a fundamental
right to pursue lawful activity without wrongful interference of others, it
likewise has recognized the right to do so with relative safety from personal
physical harm. Another's autonomy or liberty interest extends, as it were,
to the tip of your nose and no further. As Professor Richard Epstein has
explained: "[Tlhe law of tort does not end with the recognition of
individual liberty. Once a man causes harm to another, he has brought
himself within the boundaries of the law of tort."'54
Economists, in turn, might cast the sentiments of individual autonomy
and liberty in terms of avoiding involuntary or coerced transfers of wealth.
A manufacturer of amplified sound systems who loses customers as a result
of a trade libelfi5or a theater owner whose premier singer under contract is
lured away by a rival theater,'56each suffers lost profits. The rival theater
owner may actually realize a money profit from the wrongful interference
with the singer's contractual obligations. The author of the trade libel may
gain increased sales of his or her business commentary, or may merely
realize a nonpecuniary increase in wealth-whatever satisfaction one might
derive from having harshly and erroneously criticized a large corporation.
The economist argues that the theater's suit for interference with contractual
relations, or the manufacturer's suit for trade libel, operate simply to correct
a coerced transfer of wealth. If those lost profits are left unrnediated by a
15 1. JOSEPH RAZ, THEMORALITY OF FREEDOM
378 (1986).
152. 83 U.S. (16 Wall.) 36 (1872).
153. Id. at 97 (Field, J., dissenting).
154. Epstein, supra note 149, at 208. Professor Epstein continues: "It does not follow,
however, that he will be found liable in each and every case in which it can be showed that
he caused harm, for it may still be possible for him to escape liability, not by an insistence
upon his freedom of action, but upon a specific showing that his conduct was either excused
or justified." Epstein, supra note 149, at 208.
155. Bose Corp. v. Consumers Union of United States, Inc., 446 U.S. 485 (1984).
156. Lumley v. Gye, 1 18 Eng. Rep. 749 (1853).
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remedy for money damages, they represent an involuntary and inefficient
transfer of wealth from the injured party to the injurer.
C.
The Process of Enlightened Gradualism
Let us now turn to a broader consideration of the systems, mechanisms
and means by which the common law effects its goals of justice and
efficiency. By trial, error, experiment, expansion, and correction, the
common law has hewn to an objective of advancing the public welfare.
Making obeisance in turn to principles of corrective justice, individual
autonomy, instrumentalism and efficiency, courts hearing common law
claims receive and resolve disputes that ordinarily are not the subject of
statute or regulation. Reconciling the nominally divergent goals of
corrective justice and efficiency--the incongruity between which is more
formal than real1"-+he common law proceeds along a course of enlightened
gradualism. I use the term enlightened to describe common law judges'
identification and consideration of evolving societal needs, examined
through the lens of developed principles of modem justice, sociology and
economics. The term gradualism connotes recognition of the common law
court's constant reference in existing doctrine and precedent, providing it
with a genuine but moderated capacity to mold new doctrine.
What have been the principal methodologies of the common law
capacity for growth? This section discusses but a few.
1.
Conditional Stare Decisis
An original assessment of a court's obligation to follow germane prior
decisions, or precedent, of its own or superior courts, commonly called the
rule of stare decisis, left some common law judges with the perception that
theirs was a limited charge of the application of precedent to new
di~putes.''~As early as 1833, English Jurist Baron Parke stated the theory
of case law in these words: "It appears to me to be of great importance to
keep this principle of decision steadily in view, not merely for the
157. LANDES& POSNER, ECONOMICSTRUCTURE,supra note 18, at 9. "[Iln the absence
of a more precise specification of fairness we find no necessary incompatibility between a
positive theory [of torts] that stresses fairness and one that stresses efficiency." LANDES&
POSNER,ECONOMIC
STRUCTURE,
supra note 18, at 19.
158. In 1890 one author described a modest court prerogative: "The office of the judge
is not to make [the law] . . . but to find it, and, when it is found, to affix to it his official
mark, by which it becomes more certainly known and authenticated." JAMESC. CARTER,THE
IDEAL AND THE ACTUAL IN THE LAW 23 1, quoted in COSGROVE,
OURLADY,supra note 5,
at 32.
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THE VITAL COMMON LAW
589
determination of the particular case, but for the interests of law as a
science."'59
Unlike legislatures, which may shed prior policies as a snake sheds its
skin, courts applying common law principles are at least nominally
constrained by stare decisis.I6O Professor Eisenberg, in The Nature of the
Common Law, offers this modem description of the doctrine and its
contemporary role, emphasizing support and replicability as its central
tenets:
Under [the principle of stare decisis,] as it is traditionally formulated, the
'ratio decidiendi' (ground of decision), 'holding,' or 'rule' of a precedent
is binding in subsequent cases, within broad limits. . . . Under the
principles of support and replicability, the courts must establish and
apply rules that are supported by the general standards of
society, . . . and must adopt a process of reasoning that is replicable by
the profession. Reasoning from precedent satisfies both those
principle^.'^'
For Professor Eisenberg's distillation of stare decisis into the twin goals of
support and replicability, stare decisis has always represented more of an
aspirational goal than a rule of any rigidity. Perhaps the bloom of stare
decisis was off the rose when Lord Gardner, Lord Chancellor of England,
was reported in the New York Times as announcing the Law Lords'
abandonment of a rule observed for six decades that the body was powerless
to alter its own decisions. Henceforth, Lord Gardner stated, the Law Lords
would be free to "depart from a previous decision when it appears right to
do so."'62
159. ARTHUR R. HOGUE,ORIGINSOF THE COMMON
LAW231 (1966) [hereinafter HOGUE,
ORIGINS]
(quoting Morehouse v. Rennell, I C1 & F., 527, 546).
160. See RUPERTCROSS,PRECEDENT
IN ENGLISH
LAW 103 (3d ed. 1977); ABNERJ.
MIKVA,THE SHIFTING
SANDSOF LEGALTOPOGRAPHY
(reviewing CALABRESI,
AGE OF
STATUTES,
supra note 4). See also HOGUE, ORIGINS,supra note 159, at 23 1:
Our Common Law system consists in the applying to new combinations of
circumstance those rules of law which we derive from legal principles and judicial
precedents; and for the sake of attaining uniformity, consistency, and certainty,
we must apply those rules, where they are not plainly unreasonable and
inconvenient, to all cases which arise; and we are not at liberty to reject them,
and to abandon all analogy to them, in those to which they have not yet been
judicially applied, because we think that the rules are not as convenient and
reasonable as we ourselves could have devised.
HOGUE,ORIGINS,
supra note 159, at 23 1 (quoting Morehouse).
161. MELVIN
A. EISENBERG,
THENATURE
OF THE COMMON
LAW47 (1988) [hereinafter
EISENBERG,
NATUREOF THE COMMONLAW] (emphasis added).
162. N.Y. TIMES,July 31, 1966, 4 E. at 6, quoted in White & White v. King, 223 A.2d
763, 766 n. 1 (Md. App. 1966).
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Our own courts have repeatedly confirmed that stare decisis imposes
no more than a rebuttable obligation, which obligation is released when
competing public policy beckons persuasively. In one court's words,
[nlotwithstanding the great importance of the doctrine of stare decisis, w e
have never construed it t o inhibit u s from changing o r modifying a
common law rule b y judicial decision where we find, in light o f changed
conditions or increased knowledge, that the rule has become unsound in
the circumstances of modem life, a vestige of the past, no longer suitable
to our people.'63
And as a Maryland Court of Special Appeals stated: "[tlhis Court has
manifested a willingness to change common law rules which have 'become
unsound in the circumstances of modern life.
Thus the animating
principle for abandoning an established rule of common law is that where
the reasons for a rule have changed, the law too should change.'65
Whether or not a given common law rule will be scrutinized for
modification or rejection is a function of the whether the court considers the
rule just. The enduring "justice" of a given common law rule is revealed
9,9164
163. Boblitz v. Boblitz, 462 A.2d 506, 526 (Md. 1983) (abandoning spousal immunity
bar as applied to a vehicular tort claim brought by a woman against her estranged husband).
164. Jones v. Maryland, 486 A.2d 184, 188 (Md. 1985) (abrogating common law rule
precluding conviction of an accessory before the fact of a higher crime than that for which
the principal has been convicted). The court in Jones noted further that another common law
rule discarded once it became "obsolete" was that of precluding trial of an accessory until
the principal was tried. Id. at 188 (citations omitted).
165. New Jersey v. Culver, 129 A.2d 715, 724 (N.J. 1957) ("As long ago as 1609, in
Milborn's Case, 7 Coke 7a (K.B. 1609), Lord Coke stated that the reason for the law is the
soul of the law, and if the reason for the law has changed, the law is changed.") Along
similar lines, Mr. Justice Holmes wrote "[ilt is revolting to have no better reason for a rule
of law than that so it was laid down in the time of Henry IV. It is still more revolting if the
grounds upon which it was laid down have vanished long since, and the rule simply persists
from blind imitation of the past." OLIVER
WENDELL
HOLMES,
JR., COLLECTED
PAPERS187
(1920).
CJ, White, 223 A.2d 763 (involving an automobile guest statute and a choice of law
issue). While declining appellant's request that the court abandon Maryland's lex loci delicti
rule the court nevertheless states:
The doctrine of stare decisis, important as it is, is not to be construed as
preventing us from changing a rule of law if we are convinced that the rule has
become unsound in the circumstances of modem life. While it is important, in
our legal system, that persons should know the probable consequences of their
acts, that consideration has little bearing on the commission of unintentional
torts. . . . It is characteristic of our legal system that the emergence of a new
doctrine depends for its clarification on the case-to-case decisions, as its
application to different factual situations presents new difficulties to be resolved
and new factors to be weighed.
White, 223 A.2d at 766.
.:.
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59 1
in the degree of acceptance accorded it in ensuing decisions, for it will be
the decisions that follow which reveal the community's adoption or rejection
of the rule. Cardozo identified the paradox that it is the very reality that a
judge's expansion or contraction of existing doctrine may be rejected on
appeal or in later decisions should liberate the court to apply its independent
reasoning to the case before it. In Cardozo's words: "I sometimes think
that we wony ourselves overmuch about the enduring consequences of our
errors. . . . In the endless process of testing and retesting, there is a constant
rejection
of the dross."'66
Have courts succumbed to the heady recognition that they can depart
from established precedent seemingly at will? The decisions suggest that
they have not. For example, courts have rejected invitations to decree new
public policy judicially, particularly where a new policy would fly in the
face of manifest legislative intent. In one Maryland decision, Felder v.
elder,'^' a drunk driving case, the court was asked to countenance a claim
against a tavern owner who sold liquor to a visibly intoxicated person. who
was later involved in an accident. Rejecting the invitation, it concluded:
"[Wle should virtually usurp legislative power if we should declare
plaintiffs contentions to be the law of Maryland. . . . On few subjects are
legislators kept better informed of legislation in other states."'68
Does such a malleable interpretaticn of stare decisis doctrine throw the
common law and broader jurisprudential goal of predictability, or Professor
Eisenberg's support and replicability, into a cocked hat? Are the interests
of those engaged in or contemplating business or private pursuits disserved
for being denied a clear common law expression of what conduct is
permitted and what is penalized? Are common law rules truly formed as a
man might make rules for his dog, by waiting for an excess or an omission
and then punishing defendant for it?
To the argument that the very qualities of flexibility we have ascribed
to the common law work unfairly against the actor who may not know in
advance he may be liable in reparations for his conduct, Cardozo responds
that "even when there is ignorance of the rule, the cases are few in which
ignorance has determined conduct."'69 Other courts and commentators have
parsed it according to whether potentially affected activity is a private one,
or one that is commercial or public. Common law judges are more reluctant
to give greater amplitude to an existing law affecting business matters, in
reliance upon which investment-based decisions have been made, than upon
166.
167.
168.
169.
CARDOZO,
JUDICIAL PROCESS,
supra note 47, at 179.
438 A.2d 494 (Md. App. 1981).
Id. at 496 (quoting State v. Hatfield, 78 A.2d 754 (Md. Ct. App. 1951)).
JUDICIAL PROCESS,
supra note 47, at 145.
CARDOZO,
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common law rules affecting personal conduct. Developing this distinction,
the court in Woods v. ~ a n c e t stated:
'~~
[Rlules of law on which men rely in their business dealings should not
be changed in the middle-of the game, but what has that to do with
bringing to justice a tort-feasor who surely has no moral or other right
to rely on a decision of the New York Court of Appeals? Negligence law
is common law, and the common law has been molded and changed and
brought up to date in many another case. Our court [has] . . . not only
the right, but the duty to reexamine a question where justice demands
it."'
2.
Flexibility and Particularized Determination
One of the most distinctive qualities of common law adjudication is its
path of deductive reasoning, i.e., the following or forging of a path from
general principles to a conclusion specific to the case before it.I7* In the
most liberal sense, the process is scientific. As Cornelius J. Peck explains:
'"[Flrequent encounters with a general problem, presented in various
contexts that an endless variety of fact patterns provides, give courts a type
of experimental program in which they can formulate and test a governing
ru1e.),?173
Where precedent is seemingly sound and the facts presented by a
particular case are neither novel nor noteworthy, the process followed by the
common law judge is similar in ways to that followed by a- judge applying
a statute.'74 True, however, to its distinctive role as the forum for resolving
conflicts as to which there is not yet consensus, or at least a brokered
legislative solution, it is the common law jury to which litigants repair for
170. 102 N.E.2d 691 (N.Y. 1951).
171. Id. at 694.
172. "Deduction" is defined as "the act or practice of deducing; reasoning from a known
principle to an unknown; from the general to the specific, or from a premise to a
conclusion." WEBSTER'S
NEW WORLDDICTIONARY
OF THE AMERICAN
LANGUAGE
383
(College Ed. 1962).
173. Cornelius J. Peck, The Role of Courts and Legislatures in the Reform of Tort Law,
48 MINN.L. REV. 265, 297 (1963), discussed in Carl T . Bogus, War on the Common Law:
The Struggle at the Center of Products Liability, 60 Mo. L. REV. 1, 65 (1995).
174. "[Ulnless [exceptional] conditions are present, the work of deciding cases in
accordance with precedents that plainly fit them is a process similar in its nature to that of
deciding cases in accordance with a statute. It is a process of search, comparison, and little
more[,]" a mechanistic endeavor comparable to "match[ing] the colors of the case at hand
against the colors of many sample cases spread out upon their desk." CARDOZO,
JUDICIAL
PROCESS,supra note 47, at 20.
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THE VITAL COMMON LAW
19961
593
answers to "complicated and doubtful cases[.]"'75 Using the model of
products liability, Professor Marshall Shapo has ably described the factsensitive and particularized evaluation that characterizes the incremental
development of design defect, informational obligation and other dimensions
of the common law of products liability:
Products liability is highly fact oriented, a phenomenon manifest in the
case law on defect, issues of liability as they pertain to the position of
parties in the distributional chain, the problems involving alleged failure
to warn, and in questions of proof. In part because of this orientation,
and also in this way reflecting the general law of torts, products law
requires incremental development. It is a classic of case-by-case
construction of lines of precedents, which courts constantly test against
their own jurisprudence on the subject and indeed against the bodies of
law developing in other states. It is the very model of the cross-country
conversation about the law that is a salutary feature of American
j~risprudence."~
3.
Adaptive Ability
To Arthur R. Hogue, "[tlhe survival of the [English] common law has
depended in large part on the ability of its practitioners to adapt the legal
system to new c o n d i t i o n ~ n dadaptation has meant growth. Bold judges
have created precedents adding new rules to meet new social and economic
circum~tances."'~~Has the American experience been similar? The
Maryland Court of Appeals decision in Kelley v. R. G. Industries, Inc. 17* is
emblematic.
a.
"
Kelley v. R. G. Industries
A microcosm of the qualities, and the liabilities, of common law
growth is Kelley, which involved the painful and modem problem of injury
and death caused by criminal use of small, concealable handguns, often
called "Saturday-Night Specials." In this suit, a convenience store employee
who was wounded in a Maryland holdup sued the West German manufacturer of the Rohrn revolver. The complaint alleged that the manufacture and
distribution of the gun was an abnormally dangerous activity, and that the
~
~-
175. HOLMES,
THECOMMON
LAW,supra note 35, at 160.
176. Marshall S. Shapo, In Search of the Law of Products Liabilip: The ALI Restatement
Project, 48 VAND.L. REV.631 (1995).
177. HOGUE, ORIGINS,
supra note 159, at 233.
178. 497 A.2d 1143 (Md. App. 1985).
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gun itself was defective within the meaning of products liability law because
of its negligent or incautious "marketing, promotion, distribution and
de~ign.'"'~
The Maryland Court of Appeals found itself obligated to reject these
two counts. The handgun could not be considered "abnormally dangerous"
under the rule in Restatement (Second) of Torts $5 519-520 because
Maryland courts, in line with courts of other jurisdictions, had not extended
the doctrine beyond its original precincts, i.k., imposition of liability only
upon owners or occupiers of land.Is0 Neither could the gun be considered
defective inasmuch as it functioned precisely as it had been designed to
perform, and as the user had expected it to perform.
In terms of conventional dialectic, the thesis accepted by the Maryland
court was that the sale of so-called Saturday Night Specials posed a grave
and nonreciprocal danger to urban safety, and must therefore be deterred.
The antithesis comprised two prongs: (1) extant products liability law posed
obstacles to finding such handguns "defective" where they did, in fact,
perform as was expected; and (2) existing law governing liability for
abnormally dangerous activities had not been extended to encompass
products that were, at the time of injury, no longer in the actual or
constructive control of the manufacturer.
What avenues, then, were open to the Kelley court? It could not
declare "all handguns or handgun usage . . . inconsistent with Maryland
public policy" as that would be at a clear variance with the state's
"comprehensive regulatory scheme concerning the wearing, carrying and
transporting of handguns.'"'' No such obstacle existed, however, to the
declaration of liability for certain gunshot injuries caused by a small subset
of firearms used in the course of criminal conduct. In the court's words:
There is, however, a limited category of handguns which clearly is not
sanctioned as a matter of public policy. To impose strict liability upon
the manufacturers and marketers of .these handguns, in instances of
gunshot wounds caused by criminal use, would not be contrary to the
policy embodied in the enactments of the General Assembly. This type
of handgun, commonly known as a 'Saturday Night Special,' presents
particular problems for law enforcement.la2
179. Id. at 1145.
180. Id. at 1147.
18 1 . Id. at 1 1 51, 1153 (discussing MD. ANN. CODEart. 27, $ 36B-36G (Cum. Supp.
1984)).
182. Kelley, 497 A.2d at 1153. The court continued with a definition of "Saturday Night
Specials" as "characterized by short barrels, light weight, easy concealability, low cost, use
of cheap quality materials, poor manufacture, inaccuracy and unreliability. These characteristics render the Saturday Night Special particularly attractive for criminal use and virtually
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THE VITAL COMMON LAW
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The Kelley crafting of common law liability for manufacturers of
inexpensive, concealable handguns was soon overturned by the Maryland
legi~lature.'~~
Yet the seed planted will doubtless continue to sprout elsewhere until a lasting common law response to this form of urban violence
is achieved. Has the Kelley experience prompted courts in any other
jurisdictions to refashion common law remedies to respond to these risks?
Only recently a California court, weighing the negligence and strict tort
liability cases arising from a San Francisco law firm office massacre, found
that the victims' claims against the manufacturer of the semi-automatic
assault weapon used in the killings could be pursued under California law
of ultrahazardous a~tivities.'~~
C.
Specific Demonstrations of Common Law Polycentric Justice
Numerous other examples exist of common law developments that
successfully redress societal need, and which do so where legislatures have
ceded the terrain to common law growth, or have failed to act for want of
broad-based political will to do so. These common law developments each
manifest, in varying degrees, some or each of the central propositions of
judge-made law: corrective justice, morality, instrumentalism, efficiency,
and capacity for growth.
1.
Comparative Fault
The common law rule of contributory negligence precludes a plaintiff
from recovery for wrongfully caused harm where the plaintiffs lack of
ordinary care for her own safety contributed to that harm.I8' An early and
influential expression of both the rule and its perceived logic was given in
ButterJield v. orr rester,'^^ the early nineteenth century decision where the
plaintiff rode his horse into a pole left in the road by defendant. Lord
Ellenborough explained the court's logic in denying judgment for plaintiff:
A party is not to cast himself upon an obstruction which has been made
by the fault of another, and avail himself of it, if he do[es] not himself
useless for the legitimate purposes of law enforcement, sport, and protection of persons,
property and businesses." Id. at 1 153-54
183. MD. CODEANN. art. 3A, 5 36-I(h) (1992).
184. In re 101 California Street, No. 959316, 63 U.S.L.W. 2652 (BNA) (Cal. Super. Ct.
April 10, 1995).
185. 2 M. STUART
MADDEN,
PRODUCTS
LIABILITY
5 13.1 (2d ed. 1988 & Supp. 1995
with K. Northern).
186. 103 Eng. Rep. 926 (K.B. 1809).
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use common sense and ordinary caution to be in the right. . . . One
person being in fault will not dispense with another's using ordinary care
for himself. 18'
The defense's logic and application was widely embraced by a
nineteenth century judiciary that was solicitous of early industry's desire to
avoid hobbling liability rules, as well as by its conceptual reluctance, or
incapacity, to contemplate that a harm might have more than one proximate
Whatever might endure of the contributory negligence doctrine's
original and facial logic, it can be seen to be in conflict with principles of
corrective justice, instrumentalism and efficiency. For a plaintiff to be
stripped of any remedy whatever due to any substandard conduct on his
part, however inconsequential, permits considerations of formalism, even
scholasticism, to ovemde fairness. The orthodox rule of contributory negligence also fails to serve instrumental goals. It over deters a plaintiffs
behavior by seemingly offering only the unillurninating admonition "don't
do anything that might later be considered wrong," while providing no
intelligible encouragement of useful conduct. For the potential defendant,
contributory negligence under deters, by providing the message that for a
substantial number of the defendant's wrongfully-caused harms, it will avoid
all liability by a mere showing of some incautious conduct of plaintiff.
Lastly, the contributory negligence rule is inefficient, as it contains no
obligation to apportion the cost of detecting and ameliorating risk along the
lines of the parties' comparative causal contribution to the loss. In this way
it imposes substantial external costs upon parties who are not, with regard
to the totality of the risk, the cheapest cost avoiders.
Today, comparative fault, in either its pure or its modified form, is
"firmly entrenched in American law."'89 Where not implemented by
statute,'90the doctrine of pure comparative fault is a model of an efficient
common law rule. By levying accident costs upon participants in proportion
187. Id. at 927.
188. Mary J: Davis, Individual and Institutional Responsibility: A Visionfor Comparative
Fault in Products Liability, 39 VILL. L. REV. 281, 284 & n.5 (1994) (citing Fleming S.
James, Jr., Contributory Negligence, 62 YALE L.J. 691 (1953); Wex S. Malone, The
Formative Era of Contributory Negligence, 41 ILL. L. REV. 151 (1946)).
L.
189. See Michael Steenson, Comparative Negligence in Minnesota, 9 WM.MITCHELL
REV. 299, 303 (1983), for a valuable exposition of the legislative and judicial enactment of
comparative fault in Minnesota and other states.
190. See Harrison v. Montgomery County Board of Education, 456 A.2d 894, 906 (Md.
1983)(Davidson, J., dissenting) ("In this country, 39 states have abandoned the doctrine of
contributory negligence and have adopted the doctrine of comparative negligence--3 1 by
legislative enactment and 8 by judicial decision.").
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to their causal contribution to the harm, pure comparative fault fairly
apportions the cost of accident prevention, and the burden of failing to
prevent accidents, between the actor and the victim. The comparative fault
approach also achieves the binary instrumental role lacking in pure
contributory negligence in that the rational actor, no longer completely
exculpated by even a small level of substandard behavior on the plaintiffs
part, will govern her conduct in the knowledge that as the author of an
injury-causing activity, she will bear some, and more often than not most,
of any indemnification obligation.
2.
Criminal Law
The dynamism of the common law is revealed not only in matters of
civil litigation, but also in criminal law. Maryland courts have shown
particular intrepidity in discarding common law doctrine that has outlived
its logic or utility, i.e., law that no longer serves the public welfare. For
example, in Pope v . State,Ig' the court abandoned the common law doctrine
of misprision of a felony. While the passage of time without any significant
employment of the doctrine does not, without more, require its abandonment, the court conceded that "non-use, we believe, is not without
significance. When an offense has lain vi,rtually dormant for over two
hundred years, it is difficult to argue that the preservation of society and the
maintenance of law and order demand recognition of it."Ig2 On substantially
similar logic, in Jones v. State Ig3 the Maryland Special Court of Appeals
abrogated the common law rule "that an accessory could not be convicted
of a greater crime than that of which his principal was convicted."194
191. 396 A.2d 1054 (Md. 1979).
192. Id. at 1074. The court went on to explain: "[m]isprision of a felony at common
law is an impractically wide crime, a long standing criticism which remains unanswered. . . .
It has an undesirable and undiscriminating width." Id.
193. 486 A.2d 184 (Md. 1985).
194. Id. at 185. In so doing, the court offered this reasoning:
[mlerely because the evidence in the principal's trial may have been different, or the
principal may have agreed to a favorable plea bargain arrangement, or the jury in
the principal's trial may have arrived at a compromise verdict, is not a good reason
for allowing the accessory to escape the consequences of having committed a
particular offense.
Id. at 188.
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598
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Immunities
a. Spousal
The common law rule precluding one spouse from suing the other was
derived from the legal fiction that husband and wife were "one person in
law,"195 a fiction described as an "outgrowth of "various legal disabilities"
that were placed upon women, and which also included the vesting, upon
marriage, of a married woman's personal property with that of her husband,
a wife's incapacity to make contracts in her own name, and the husband's
entitlement to his wife's services.'96
Courts evaluating the common law question of whether or not to retain
the rule of spousal immunity provide particularly revealing examples of
courts' interest and willingness to adopt the better rule of law as reflected
in the decisions of courts and legislatures of other states. Shook v. CrabbI9'
was an Iowa general aviation wrongful death claim that followed an accident
in which the husband, as pilot, and the wife, as passenger, perished. The
suit was brought by the estate of a wife against the estate of her husband,
and claimed that while he may have been a good husband, he was a poor
pilot. Iowa at that time observed spousal immunity, a doctrine immunizing
a spouse from tort actions arising from the non-intentional torts of another,
a policy arising from the same legal fiction of husband and wife unity
mentioned above.
The Iowa court prefaced its comments with this statement:
[Wlhen a doctrine or rule is of judicial origin, we would "abdicate our
own function, in a field peculiarly nonstatutory, when we refuse to
reconsider an old and unsatisfactory court-made rule." An appellate
court would be remiss in its duties if it did not from time to time
reexamine the analysis underlying its precedents.I9'
Deciding to abrogate the common law doctrine, the court was influenced by
its review of the law of other jurisdictions, which "evidence[d] a definite
trend toward abolishing in toto or limiting in part application of the doctrine
195. "By marriage, the husband and wife are one person in law: that is, the very being
or legal existence of the woman is suspended during the marriage, or at least is incorporated
and consolidated into that of the husband. . . . If the wife be injured in her person or her
property, she can bring no action for redress without her husband's concurrence." 1
WILLIAM
BLACKSTONE,
COMMENTARIES
442-43, quoted in Boblitz v. Boblitz, 462 A.2d 506,
507 (Md. 1983).
196. Condore v. Prince George's County, 425 A.2d 10 1 1 , 1013 (Md. 198 1).
197. 281 N.W.2d 616 (Iowa 1979).
198. Id. at 617 (citations omitted).
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of interspousal immunity due to the hndamental policy consideration of
providing judicial redress of an otherwise cognizable wrong."'99
4.
Tort
a.
The Common Law Relation to the Due Process and Takings
Clauses
Modern tort law is generally agreed to be "the offspring" of the
fourteenth century "action on the case."200 It is a fitting genealogy, for as
"action on the case" freed the ancient remedy in trespass to redress more
subtle and indirect injury in an increasingly interdependent and urbanized
English society,201so modem tort law continues to mediate claims for civil
wrongdoing that are at the margins of modem life.
The common law role as the engine of corrective justice is seen in bold
relief where Constitutional remedies either fall short or are an incomplete
arbiter of Constitutionally-addressed liberty or property interests. The
common law's past role, and its future potential, as a surrogate avenue for
claims stymied by interpretation of Due Process rights under the Fourteenth
Amendment is evidenced in holdings on constitutional claims involving such
varied settings as (1) a public official's failure to act permitting injury to a
person remanded in some measure to their care; (2) an official reproval that
has defamed a private individual; and (3) school-administered corporal
punishment of a student.
The common law has reflected a societal recognition that new
circumstances require new responses. One such common law initiative is
evidenced in Tarasoffv. Regents of University of California,2o2in which the
California Supreme Court held that under certain circumstances "a
psychotherapist has a duty to protect third parties from a threat of serious
harm posed by a patient under his care."203
199. Id. at 618 (collecting authority of 34 jurisdictions). More generally, gender-based
immunities continue to fall by the common law wayside. As Professor Larry Levine has
written, "[iln many instances, duty determinations reflect a judge's views of society's
paramount interests at a specific time. Thus, the duty determination is a dynamic and
evolving concept." JOHNL. DIAMOND,
LAWRENCE
C. LEVINE,M. STUART
MADDEN,
UNDERSTANDING
TORTS5 304[C], 57-59 (1996).
200. FIFOOT,HISTORY,supra note 81, at 3.
201. See Stanley v. Powell, 1 Q.B.86 (1891); JOSEPHW. LITTLE,TORTS:THECIVIL
LAWOF REPARATION
FOR HARMDONEBY WRONGFUL
ACT 14 (1985).
202. 551 P.2d 334 (Cal. 1976).
203. Alan A. Stone, The Tarasoff Decisions: Suing Psychotherapists to Safeguard
Society, 90 HARV.L. REV. 358 (1976).
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In contrast with Tarasoflare the results reached within the confines of
statutory or constitutional language. For example, in DeShaney v.
Winnebago County Department of Social
brought on behalf of
a four-year-old boy repeatedly beaten by his father until he lapsed into
irreversible retardation, appointed representatives for the injured child were
rebuffed in their suit claiming that the Due Process Clause of the Fourteenth
Amendment was violated by social workers' systematic failure to protect the
child. The Supreme Court concluded as follows:
[Nlothing in the language of the Due Process Clause itself requires the
state to protect the life, liberty and property of its citizens against
invasion by private actors. The Clause is phrased as a limitation on the
State's power to act, not as a guarantee of certain minimal levels of
safety and security."205
A like example of the common law of tort's role filling the gaps in
Constitutional remedies is shown in private litigation challenging the
occasional and churlish municipal practice of using public posting, to
discourage so-called "active" shoplifters. In Paul v. Davis;O6 Davis, the
petitioner, sought an injunction against Louisville, Kentucky police to stop
their circulation to Louisville merchants of a flier to that effect. Although
prosecuted for the offense more than once, Davis had never been convicted
of shoplifting. He claimed in his lawsuit that the fliers inhibited him "from
entering business establishments for fear of being suspected of shoplifting
and possibly apprehended, and would seriously impair his future employment opportunities,"207 constituting a deprivation of his Fourteenth
Amendment Due Process liberty interest.
The Court rejected the Due Process claim, holding that a right to one's
reputation, standing aloneY2O8
did not invest in Davis any liberty interest that
would trigger procedural Due Process guarantees. Rather, the Court con-'
cluded, his remedy, if any, lay in a common law action for libel, explaining
that "his interest in reputation is simply one of a number which the state
204.
205.
206.
207.
208.
489 U.S. 189 (1989).
Id. at 195.
424 U.S. 693 (1976).
Id. at 697.
The Court contrasted Wisconsin v. Constantineau, 400 U.S. 433 (1971), granting
Due Process relief to a woman subjected to official posting in liquor stores forbidding sale
of alcoholic beverages to her for a period of one year, as involving an actionable deprivation
of a "right previously held under state law--the right to purchase or obtain liquor in common
with the rest of the citizenry." Paul, 424 U.S. at 708.
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may protect against .injury by virtue of its tort law, providing a forum for
vindication of those interests by means of damages actions."209
Lastly, in circumstances of school-administered corporal punishment,
the Supreme Court has held that the common-law claim of tortious battery,
and the ancient limited privilege of school administrators and teachers to
administer corporal punishment, together act as both a shield and a sword.
a procedural Due Process and an Eighth AmendIn Ingraham v.
ment "cruel and unusual punishment" challenge to school corporal
punishment, the Court conceded that physical punishment involved a
"constitutionally protected liberty intere~t."~"Even so, the Court concluded,
the constitutional claim was obviated by the presence of "common law
The Court explained "Were it not for the
constraints and
common-law privilege permitting teachers to inflict reasonable corporal
punishment on children in their care, and the availability of traditional
remedies for abuse, the case for requiring advance procedural safeguards
would be strong indeed."213
In Lucas v. South Carolina Coastal Council, the Court, evaluating the
Takings Clause limitations upon a state's land use authority, held that "[alny
limitation so severe [as to prohibit all economically beneficial use of land]
cannot be newly legislated or decreed (without compensation), but must
inhere in the title itself, in the restrictions that background principles of the
State's law of property and nuisance already place upon land owner~hip."~'~
The Court's guideline invites, but does not require, the interpretation
that continued development of the law of public nuisance as it affects land
use will be closely reviewed for Takings Clause concerns, at least where the
owner can make the claim that the state's interpretation of permissible land
use operates to deprive the owner of all or practically all beneficial use of
the land. In so doing, the Lucas Court reaffirmed the vitality of the
common law of public nuisance as permitting, generally, continued state
prohibition of uses historically found to be public nuisances. Without,
perhaps, intending to do so, Mr. Justice Scalia simultaneously preserved the
209. Paul, 424 U.S. at 712.
210. 430 U.S. 651 (1977).
2 1 1 . Id. at 672.
LAW: CASESAND NOTES378 (4th
2 12. RONALDD. ROTUNDA,MODERN CONSTITUTIONAL
ed. 1993).
213. Ingraham, 430 U.S. at 674.
214. 505 U.S. 1003, 1029 (1993). Regarding public nuisance, Professor John Humbach
has written that "[tlhe common law of public nuisance is, if anything, even more
indeterminate than private nuisance in the range of behavior to which it can potentially
apply." John A. Humbach, Evolving Thresholds of Nuisance and the Takings Clause, 18
COLUM.J . ENVTL.L. 1 , 12 (1993).
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602
UALR LAW JOURNAL
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role of the common law of nuisance, trespass, and liability for abnormally
dangerous activities as pivotal in future land use regulation. By finding
constitutionally unobjectionable those land use restrictions footed in ancient
public nuisance prerogatives of regulators, the Court ensured for the time
vigorous refamiliarization, by regulators and developers alike, with the metes
and bounds of these common law doctrines. Hopefully, the ongoing
Restatement (Third) of Torts project will closely evaluate the effect of Lucas
upon common law development of public nuisance.
b.
The Adaptive Quality of Common-Law Remedies
An exemplary demonstration of the adaptive ability of the common law
is in the development of the cause of action for negligently inflicted
emotional distress. In an early decision permitting such recovery to a
woman who rationally feared future cancer from a severe radiodermatitis
that followed excessive radiation treatments for bursitis, the New York Court
of Appeals in Ferrara v. G a l l ~ c h i o , while
~ ' ~ conceding the "valid objections" that such a cause of action created the risk of "vexatious suits and
fictitious claims,"216concluded, nevertheless, that "[flreedom from mental
disturbance is now a protected interest in this State."*"
Courts continue to "exhibit significant concern over whether claims for
emotional or mental distress are
The traditional common law
rule provided that damages for emotional distress occasioned by mere
negligence required "impact" or evidence of physical injury.219As the early
decision in Ferrera explained,
[nlot only fright and shock, but other kinds of mental injury are marked
by definite physical symptoms, which are capable o f medical proof. It
is entirely possible to allow recovery only upon satisfactory evidence and
deny it when there is nothing to corroborate the claim, or to look for
some guarantee o f genuineness.220
In many jurisdictions, the "impact" rule has been loosened to permit tort
recovery where plaintiff "actually feared for her own safety," the so-called
"zone of danger" rule.221The watershed decision in Dillon v. Leg$22
215.
216.
217.
2 18.
219.
152 N.E.2d 249 (N.Y. 1958).
Id. at 252.
Id.
Nancy Levit, Ethereal Torts, 61 GEO.WASH.
L. REV.136, 172 (1992).
E.g., Champion v. Gray, 420 So. 2d 348 (Fla. Dist. Ct. App. 1982); Little v.
Williamson, 441 N.E.2d 974 (Ind. Ct. App. 1982).
220. Ferrara, 152 N.E.2d at 252.
221. Gnirk v. Ford Motor Co., 572 F. Supp. 1201, 1202 n.3 (C.D.S.D. 1983). In Gnirk,
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19961
THE VITAL COMMON LAW
603
involved a claim for damages for a mother who witnessed an automobile
fatally injure her infant daughter. Rejecting the "zone of danger" rule as
"hopeless[ly] a r t i f i ~ i a [ l ] , " ~and
~ ~ denoting "foreseeability of risk" as the
the court announced the following approach:
paramount gauge of
In determining . . . whether defendant should reasonably foresee injury
to plaintiff, or, in other terminology, whether defendant owes plaintiff a
duty of due care, the courts will take into account such factors as the
following: (1) Whether plaintiff was located near the scene of the
accident as contrasted with one who was a distance away from it. (2)
Whether the shock resulted from a direct emotional impact upon plaintiff
from the sensory and contemporaneous observance of the accident, as
contrasted with learning of the accident from others after its occurrence.
(3) Whether plaintiff and the victim were closely related, as contrasted
with an absence of any relationship or the presence of only a distant
relationship.225
Dillon stands as an example of the common law's refraction of social
change. One interpretive ray refracted is modem feminist theory. Specifically, feminist theorists have argued effectively that an array of inequalities
in political p o ~ e ?throughout
~ ~
the common law reflect "male gender
biaS.v227
Regarding emotional distress claims particularly, the argument
goes, the distinctions, mandated by the "impact" rule and even its successor,
the "zone of danger" rule "marginalize the interests of women."228
Thus, Dillon's enlargement of recovery for fright-based injury operates
to redefine the "reasonable man" standard of tort law to include the
reasonable mother. As Professors Chamallas and Kerber explain, "[wlhen
a mother's fear for her child is acknowledged as a cause of her own
physical harm we can glimpse the beginnings of a feminization of tort law.
plaintiff, a mother whose son drowned while strapped in an automobile that, due to a
defective transmission, shifted from Park to reverse and submerged in a stock dam, was
permitted to recover even though she was not in the "zone of danger." The court reasoned
that no such restriction ought apply where she was a "user" of a product, under
RESTATEMENT
(SECOND)
OF TORTS$' 402A, rather than a bystander.
222. 441 P.2d 912 (Cal. 1968).
223. Id. at 915 (noting that "we can hardly justify" permitting recovery to one witness
and denying it to another due solely to the "happenstance" of one being "some few yards
closer to the accident").
224. Id. at 919.
225. Id. at 920.
OF LAW: A PROGRESSIVE
CRITIQUE
4 (David Kairys ed., rev. ed.
226. See THEPOLITICS
1990).
ON TORTLAW305 (4th ed. 1995).
227. ROBERT
L. RABIN,PERSPECTIVES
228. Martha Chamallas & Linda K. Kerber, Women. Mothers, and the Law of Fright: A
History, 88 MICH.L. REV.814 (1990), quoted in RABlN supra note 227, at 307.
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Relational interests become a constituent feature of one's own physical
integrity.33229
5.
Contract
a.
Employment
One of the most extraordinary common law transformations of the legal
landscape of recent years is that involving employee rights, and the ancient
doctrine of employment at will. At common law, and unaffected by
statutory initiative in most states, an employee serves at the will of her
employer.230 She may be released for any reason, bona fide or otherwise,
or for no reason at all, "even if such action was purely arbitrary or morally
suspect."23' Where preserved, the doctrine has been justified in part by the
logic that the employee's freedom to depart from the employment relationship at any time requires bestowal of a reciprocal freedom to the employer,
sometimes referred to as a theory of "mutuality."232
Recognition of a germinal liberty interest in the continuation of
employment, absent dismissal for cause or for economic reasons, has led to
the growth of a tort remedy for "unjust di~charge."~"The remedy, a hybrid
of tort and contract, is also referred to as "retaliatory discharge" or
"wrongful termination."234
229. Chamallas & Kerber, supra note 228, at 862. See also, RABIN,supra note 227, at
318.
G. WOOD,TREATISE
ON THE LAWOF MASTER
230. The rule was described in HORACE
AND SERVANT(1 877):
With us the rule inflexible. that a general or indefinite hiring is prima facie a
hiring at will, and if the servant seeks to make it out a yearly hiring, the burden
is upon him to establish it by proof. A hiring at so much as a day, week, month,
or year, no time being specified, is an indefinite hiring, and no presumption
attaches that it is for a day even, but only at the rate fixed for whatever time the
party may serve.
Id. at 134.
F. KIELY,MODERN
TORTLIABILITY:
RECOVERY IN THE '90s $ 1.18, at 47
23 1. TERRENCE
(1990) [hereinafter KIELY,MODERNTORTLIABILITY] .
232. CJ,Palmateer v. International Harvester Co., 421 N.E.2d 876, 878 (1981) ("Recent
analysis has pointed out the shortcomings of the mutuality theory. With the rise of large
corporations conducting specialized operations and employing relatively immobile workers
who often have no other place to market their skills, recognition that the employer and
employee d o not stand on equal footing is realistic.").
233. St. Antoine, A Seed Germinates: Unjust Discharge Reform Heads Toward Full
Flower, 67 NEB. L. REV. 56 (1988); Reuther v. Fowler & Williams, Inc., 386 A.2d 119 (Pa.
's
Foods, Inc. 427 A.2d 385 (Conn. 1980).
Super. Ct. 1978); Sheets v. ~ e d d ~Frosted
234. KIELY, MODERNTORT LIABILITY,
supra note 231, at $1.18 ("Retaliatory
Discharge").
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THE VITAL COMMON LAW
605
The speed of the change has been breathtaking. Only two decades ago,
employment at will was the practically universal common law rule.235
Today, judicial decisions in over eight percent of the jurisdictions "have
unilaterally, and without legislative sanction, expanded their common law
governing the master-servant relationship to limit employers' discretion to
terminate employees."236 These common law modifications have relied
variously upon three approaches: (1) public policy; (2) contract theory; and
(3) the covenant of good faith and fair dealing.237
The most conspicuous fissure in the previously monolithic doctrine of
employment at will has been the so-called "public policy" exception.
Wisconsin, for example, has redelineated an employee's discharge remedy
to "balance employers' needs for 'sufficient flexibility to make needed
personnel decisions' against employees' 'job security interests' and the
public interest in protecting employee actions that advance 'well established
public policies. 7,3238 In that state, the "public policy" unjust discharge
remedy turns upon (1) identification of a specific statutory or regulatory
policy; and (2) a determination that the employee's discharge resulted from
his refusal to violate that
Just what are such "public policies" sufficient to trigger this incremental common law foray? Revealing is Wilcox v. Niagara of Wisconsin Paper
an unjust discharge claim following the firing of Kenneth Wilcox,
the company's longstanding director of computer operations. In the five days
preceding his discharge, repair exigencies spurred by a computer malfunction caused Wilcox to work some 61 hours, 35 of them on the last two days
of the workweek. Wilcox, who had heart surgery less than two years
before, left work that Friday at 9:30 P.M. after experiencing angina pains.
Later that evening his manager called and told Wilcox he would be
expected to work both Saturday and Sunday. Wilcox explained his
situation, and that he still felt ill, but assured his superior the system would
be functioning by Wednesday, the first day it would be needed. He warned
Wilcox he would be dismissed if he did not work the weekend. Wilcox
was hospitalized, and released Saturday with instructions to "take it easy."
Returning to work Monday, Wilcox did, in fact, see the computer system to
235. Dennis P. Duffy, Intentional Infliction of Emotional Distress and Employment at
Will: The Case Against "Tortijication"of Labor and Employment Law, 74 B.U. L. REV.387
(1 994).
236. Id. (collecting authority).
MODERNTORTLIABILITY,
supra note 231, at 48.
237. KIELY,
238. Beam v. IPCO Corp., 838 F.2d 242, 245 (7th Cir. 1988) (quoting Brockmeyer v.
Dun & Bradstreet, 335 N.W.2d 834, 841 (Wisc. 1983)).
239. Bushko v. Miller Brewing Co., 396 N.W.2d 167, 169-171 (Wisc. 1986).
240. 965 F.2d 355 (7th Cir. 1992).
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satisfactory functioning by Wednesday. Nevertheless, he was fired the
following day.24'
In his ensuing action for breach of contract, Wilcox alleged that his
discharge violated the public policy set out in the Wisconsin
an
interpretation the court found to "reflect the public policy of the State of
p is cons in."^^^ Finding that Wilcox's claim fell "squarely within the bounds
of the public policy exception," the court explained that "compliance with
the manager's demand for still more hours over the weekend would have
required Wilcox to work 'for such a period of time . . . as [was] dangerous
or prejudicial to [his] life, health, safety or welfare. ,93244
The public policy exception to the employment at will doctrine is a
clear-cut example of an efficient judge-made rule. In utilitarian terms, in
today's employment environment, a discharge based upon an employee's
refusal to obey an unlawful command works an emotional hardship upon the
employee, together with potentially devastating economic consequences.
The benefit to the employer of maintairiing such a prerogative is psychological at most, and of no identifiable social value. Thus a rule discouraging
such discharges deters wasteful conduct while imposing no material
workplace or social cost.
Indeed, the exception to the employment at will doctrine can be
considered pareto optimal. A rule is pareto optimal when its effects benefit
all parties, in essence a win-win proposition. The rule discussed is pareto
optimal, or win-win, in that the employee gains in economic security and
individual autonomy. The employer gains in that it is more efficient to
desist in capricious firing practices than it is to defend a regulatory
enforcement action brought by a state or federal discrimination or labor
standards unit. Lastly, the broader public welfare is advanced as the
common law rule works in effective synergy with the statutory goal.
241. Id. at 357-58.
242. Id. at 358. See also WIS.STAT.ANN. 5 103.02 (West 1988), which reads in part:
"No person may be employed or be permitted to work in any place of employment for such
period of time during any day, night or week, as is dangerous or prejudicial to the person's
life, health, safety or welfare . . . ." Id.
243. Id. at 360.
244. Id. at 363.
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19961
6.
THE VITAL COMMON LAW
Evidence
a.
Spousal Privilege
It is in the evidence rules and policies governing the spousal testimonial
privilege that we find a noteworthy example of the common law's
progressive incrementalism.
The law of evidence, at both the state and federal level, has been
subject to pervasive codification. In federal courts, the Federal Rules of
Evidence specifically excised from their coverage several evidentiary topics,
notably the evidence rules concerning testimonial privileges, leaving these
subjects to the substantive law of the states.245 Rule 501 of the Federal
Rules of Evidence enjoins the federal courts to shepard the evolution of
testimonial privilege in criminal trials "governed by the principles of the
common law as they may be interpreted . . . in the light of reason and
experience."246
The evidentiary rule that a husband or a wife could, by claim of
spousal privilege, prevent their spouse from giving testimony against them
in a criminal trial was recited in 1628 by Lord Coke, who stated, "[Ilt hath
been resolved by the Justices that a wife cannot be produced either against
or for her husband."247 As the Supreme Court has explained the rule,
[tlhis spousal disqualification sprang from two cannons of medieval
jurisprudence: first, the rule that an accused was not permitted to testify
in his own behalf because of his interest in the proceeding; second, the
concept that husband and wife were one, and that since the woman had
no recognized separate legal existence, the husband was that one. From
those two now long-abandoned doctrines, it followed that what was
inadmissible from the lips of the defendant-husband was also inadmissible from his wife.248
Identified in modem evidence law as a rule of privilege rather than one
of disqualification, the modem rationale for a spousal privilege against
giving criminal testimony against the marital partner "is its perceived role
in fostering the harmony and sanctity of the marriage re~ationship."~~~
Criticized by no less authority than Professor Wigrnore as "the merest
anachronism in legal theory and an indefensible obstruction to truth in
245.
246.
247.
248.
249.
FED.R. EVID.501 advisory committee's note.
FED.R. EVID.501.
1 E. COKE,A COMMENTARY
UPONLITTLETON
6b (1628).
Trammel v. United States, 445 U.S. 40, 44 (1980).
Id. at 44.
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practice,"250the Supreme Court in Hawkins v. United States2" nevertheless
turned back a prosecution request that the privilege be modified to vest only
in the witness-spouse,252although it did emphasize that its decision should
not "foreclose whatever changes in the rule may eventually be dictated by
'reason and experience. '9,253
Two decades later, noting the sea change in state evidence rules,
demonstrating a clear conversion to a more limited privilege,254and the
unquestioned ascent of women in the cultural and political perception,255the
court in Trammel v. United States held that
the existing rule should be modified so that the witness-spouse alone has
a privilege to refuse to testify adversely; the witness may be neither
compelled to testify nor foreclosed from testifying. This modification-vesting the privilege in the witness-spouse-furthers the important
public interest in marital harmony without unduly burdening legitimate
law enforcement needs.256
The Supreme Court's ruling in Trammel evinces a non-normative
commitment to principles of justice and fairness, as well as an unspoken
obeisance to efficiency. By non-normative commitment to principles of
justice is meant that the court is not noticeably stirred by any distaste for
felonious, conspiratorial husbands who have embroiled their wives in
lawless pursuits--although we might forgive the Court had it been. Rather,
the Court seems to have recognized that anterior to just judicial resolution
are facts, and that the old rule operated simply as an obstruction of facts.257
Whether the probandum is criminal culpability or civil liability for money
damages, liberal access to evidence is the hallmark of modem adjudication.
As the Court stated in United States v. ~ r y a n , "'the
~ ~ ' public . . . has a right
to every man's evidence.,97259
250. Id. at 45 (quoting 8 JOHN H. WIGMORE,
EVIDENCE
IN TRIALS
AT COMMON
LAW $
2228, at 221 (3d ed. 1961)).
251. 358 U.S. 74 (1958).
252. By the time of the decision in Hawkins, the American Law Institute's MODEL CODE
OF EVIDENCE
Rule 215 (1942) had rejected the common law rule, as had the UNIF.R. EVID.
.Rule 23(2). Trammel, 445 U.S. at 45.
253. Hawkins, 358 U.S. at 79.
254. Trammel, 445 U.S. 40, 49-50 & nn.9, 10.
255. Id. at 52.
256. Id. at 53.
257. Id. at 44.
258. 339 U.S. 323 (1950).
259. Id. at 33 1 (quoting 8 JOHN H. WIGMORE,
EVIDENCE
IN TRIALS
AT COMMON
LAW $
2192 (3d ed. 1961)).
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THE VITAL COMMON LAW
609
Trammel can also be harmonized with principles of efficiency. In all
litigation, information costs are considerable. Here, the Supreme Court's
holding is consonant with an "informational asymmetry policy" described
by Professor Eisenberg, suggesting that "the applicability of a legal rule
should not depend upon information that will characteristically be in the
hands of only one of the parties."260 It likewise conforms to Professor
Eisenberg's described "opportunism policy," which posits that "legal rules
should not encourage exploitative conduct."26'
VI. CONCLUSION
Has the common law comprised a resolute, patient, faithful and
effective engine of social change for three hundred years? Has the
"revolution" on common law judging resulted in a vital, supple common law
capable of a continued, integral jurisprudential role, a system of law and
judging to which the public will continue to look to resolve the critical case,
the case at the perimeters of societal change?262In the common law is there
yet reposed our legal system's best instrument for responding to "changes
in social valuesr, ?263 Or has the common law embarked on a course of
marginalization and irrelevance that will reduce its contribution in the new
century?
The New York Court of Appeals put it well in Schenectady
chemical^,^^ approving application of the doctrine of public nuisance
against the generator of waste even though the defendant did not own the
premises constituting the nuisance: "The common law is not static. Society
has repeatedly been confronted with new inventions . . . that, through
foreseen and unforeseen events, have imposed dangers upon
NATURE
OF THE COMMON
LAW,supra note 161, at 28.
260. EISENBERG,
NATUREOF THE COMMONLAW,supra note 161, at 28.
261. EISENBERG,
99 (Paul Gewertz ed.
262. KARLN. LLEWELLYN, THECASELAWSYSTEMIN AMERICA
& Michael Ansaldi trans., 1989).
Legal uncertainties arise far more when nonlegal norms in society are in
conflict, . . . . [Conflicts among interest groups] are fact situations that arise
because the margins of growth keep shifting in real life, and for that very reason
they shift the law's margins of growth too. . . . The critical case always involves
a fact situation not from the stable core but from the growth zone of life waiting
to be regulated.
Id. (discussed in John R. Nolan, Footprints in the Shifting Sands of the Isle of Palms: A
Practical Analysis of Regulatory Takings Cases, 8 J . LANDUSE & ENVTL.L. 16 (1992)).
263. Farber & Frickey, supra note 3, at 875.
264. New York v. Schenectady Chemicals, Inc., 459 N.Y.S.2d 971 (N.Y Sup. Ct. 1983),
aff'd as modified 479 N.Y.S.2d 1010 (N.Y. App. Div. 1984).
265. Schenectady, 459 N.Y.S.2d at 977. In environmental and toxic torts, for example,
tort law "has addressed various manifestations of uncertainty" with resultant "movement
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Particularly in the 'twentieth century, with two global wars, there has
been much to belie any "fiction that society [has] educated itself, or aimed
at a conscious
In my view, our common law represents just
such an example of a sustained societal pursuit of a common purpose.
Dispute will always be stimulated by the means selected by a particular
common law doctrine--especially new doctrine. Should the waistband be
pulled in as to what constitutes trade puffing? Should child psychologists
and school administrators be under a duty to report potential child abuse?
These questions, at the perimeters of our social and business dealings, will
be resolved only with the passage of time, and with the entry of two or
three score more common law judgments entered on the basis of individualized facts and able lawyering. The core of the common law, however,
represents an unequaled American commitment to personal freedom,
business opportunity, dignity, and mutual expectations leavened by two
centuries of cultural development.
The debate over the proper goals of the common law continues, with
some arguing that its principal objective should be fairness, while others
seem to be suggesting that efficiency should reign. In the perception of this
author and others, goals of economic efficiency and corrective justice
fairness have proved their compatibility as complementary societal
commitments supporting the progressive development of common law
justice.
What are the potential common law initiatives of the future? Intentional infliction for emotional distress for racial di~crimination?~~'A
nuisance-based foundation for land use law that responds to Mr. Justice
Scalia's instruction that litigants seeking to immunize land use regulation
enforcement from Takings obligations find a common law nuisance or
trespass based foundation for the prohibition? An enduring tort response (1)
to the unconscionable manufacture and distribution of handguns
and
automatic weapons with no plausible purpose other than to kill and maim;
or (2) to rights of the unborn, with the implications of such doctrine to
highly-charged political and religious issues? As the twentieth century
closes, the common law thrives. Its vitality does not depend upon adherence
away from notions of unicausality and toward systemic or multiple causation and
accountability." Levit, Ethereal Torts, supra note 218, at 137.
266. EDUCATION
OF HENRY ADAMS, supra note 42, at 483.
267. See, e.g., Curtis v. Loether, 415 U.S. 189, 195 n. 10 (1974). The "contours of the
[intentional infliction] tort are still developing, and it has been suggested that 'under the logic
of the common law development of a law of insult and indignity, racial discrimination might
be treated as a dignitary tort."' Id. (quoting C. GREGORY& H. KALVEN, CASESAND
MATERIALS
ON TORTS961 (2d ed. 1969)), cited in Rickel v. Commissioner, 900 F.2d 655,
663 (3d Cir. 1990).
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19961
THE VITAL COMMON LAW
61 1
to the claims of others that any constraint of existing remedies is unjust.
Mindful of political pressures, but a thrall to no ideology, the common law
enters the next century much as it did the last--representing a conjunction
of ancient principles of corrective justice with modem, developed consideration of individual autonomy, social efficiency and fairness.
Observers past and present offer agreement that "in relating law to the
totality of social relationships it is difficult to feel that America now has any
A partner, with statutory law, in that system of social justice, our
common law is more than a legacy of jurisprudence. Progressive, protean
and dynamic, American common law is a reflection of our society's better
self.
268. LASKI,AMERICAN
DEMOCRACY,
supra note 66, at 66.
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