¹ Tort Law and the Public Interest, the American Assembly's Seventy-eighth Report, New York, 1990, p. 5.Google Scholar

² Simpson, D.P., ed., Cassell's New Latin Dictionary (New York: Funk and Wagnalls, 1968), p. 608.Google Scholar

³ Brody, Michael, “When Products Turn into Liabilities,” Fortune (March 3, 1986), pp. 20–24.Google Scholar

⁴ Meeks v. Marx, Washington Court of Appeals (1976).

⁵ Sugarman, Stephen, “Doing Away with Tort Law,” The California Law Review, vol. 75 (1988), p. 664.Google Scholar

⁶ Posner, Richard A., Cardozo: A Study in Reputation (Chicago: University of Chicago Press, 1990).Google Scholar

⁷ O'Connell, Jeffery, The Lawsuit Lottery: Only Lawyers Can Win (New York: The Free Press, 1979).Google Scholar Somewhat on this point of jurors' emotions in making judgments is the article by Pillsbury, Samuel, “Emotional Justice: Moralizing the Passion of Criminal Punishment,” Cornell Law Review, vol. 74 (1987), pp. 655–710.Google Scholar

⁸ Calabresi, Guido, The Costs of Accidents (New Haven: Yale University Press, 1970).Google Scholar

⁹ In one of the classic cases in the indirect-harm category, Justice Brandeis indicated that indirect and unintentional acts which harmed others were not torts. But Justice Andrews, speaking for the minority, said that the “act itself, not the intent of the act,” is what counts. Palsgrafv. Long Island Railroad, 1928. The “act itself doctrine” has become standard in our legal currency. It is called strict liability and the costs of compensating victims is really an insurance.

¹⁰ Epstein, Richard, “The Temporal Dimension in Tort Law,” University of Chicago Law Review, vol. 53 (1986), esp. pp. 1175–78.CrossRefGoogle Scholar

¹¹ Pollack, Edward and Maitland, F. W., The Heritage of English Law before the Urne of Edward I (New York: Cambridge University Press, 1968).Google Scholar

¹² Court, Edward, “Attorneys at Fault: The Liability Crisis,” The Journal of Business Ethics, vol. 7 (September 1988), pp. 711–14.CrossRefGoogle Scholar

¹³ Report on Accident Costs. The National Safety Council, Washington, DC, 1986.Google Scholar

¹⁴ Shavell, Steven, Economic Analysis of Accident Law (Cambridge: Harvard University Press, 1987).CrossRefGoogle Scholar Shavell used a sophisticated mathematical formula to reach the conclusion that tort law is inefficient and unfair.

¹⁵ Huber, Peter, Liability The Legal Revolution and Its Consequences (New York: Basic Books, 1988), p. 154.Google Scholar

¹⁶ Landes, William M. and Posner, Richard A., The Economic Structure of Tort Law (Cambridge: Harvard University Press, 1987), especially pp. 312et seq.CrossRefGoogle Scholar

¹⁷ This argument was made earlier by Landes, Elisabeth, “Insurance, Liability, and Accidents: A Theoretical and Ennpirical Investigation of the Effect of No-Fault Accident,” The Journal of Law and Economics, vol. 25 (March 1982), pp. 49–65.CrossRefGoogle Scholar

¹⁸ Dworkin, Ronald raised this question in The Law's Empire (Cambridge: Harvard University Press, 1985)Google Scholar and answered it simply: efficiency and justice are not identical.

¹⁹ Bankers Life and Casualty Co. v. Crenshaw, Miss. Sp. Ct., 1985, p. 274.

²⁰ Morris, Clarence, “Punitive Damages in Tort Cases,” Harvard Law Review, vol. 44 (June 1985), pp. 1173–1209.CrossRefGoogle Scholar

²¹ Bittle, Lyndon F., “Punitive Damages and the Eighth Amendment: An Analytical Framework for Determining Excessiveness,” California Law Review, Vol. 75 (1987), pp. 1433–70.CrossRefGoogle Scholar

²² Bankers Life, 1985.

²³ The judge's action triggered sharp debate between (a) those who thought that if judges introduced matters extraneous to the original trial issues, the defendant was unfairly disadvantaged and (b) those who felt judges had a clear responsibility to control amounts awarded as punitive damages. Those who took the first position argued that trials are litigated on the basis that the most at stake was a particular amount of damages, not whether a particular product line should be discontinued. Tampering with jury awards subverts the purpose of punitive damages. See Siconolfi, Michael, “Novel Punitive Damage Approach,” The Wall Street Journal (September 17, 1985).Google Scholar

²⁴ The National Law Journal (August 12, 1985), p. 12.

²⁵ Tyler, Kenneth C., “Punitive Damages: A Judicial Cancer,” Best's Review (April 1985), pp. 16, 22.Google Scholar

²⁶ The Supreme Court answered the constitutional question only in part in June 1989 when it said, in a 7-to-2 decision, that the eighth amendment was designed to protect people's property from harm by the, government and not harm in private suits. The court did not rule on whether unrestricted punitive damages might run afoul of the due process clause of the fourteenth amendment and dodged this issue by saying that Browning-Ferris had not raised the question at the appropriate time. A straw in the wind may be seen in the June 1980 ruling by the Supreme Court of Maine which said that proof for awarding punitive damages had to go from a preponderance of evidence to a “clear and convincing evidence.” The shift is significant for a state that has lived in relative peace with a doctrine it had introduced in 1863.

²⁷ The National Law Journal, December 24, 1984.

²⁸ A controversial difference in the bills is that Shumway's proposal would cap the amount of punitive damages a claimant may recover, limiting it to twice the amount of compensatory damages awarded but not to exceed $1 million. In addition, the total punitive damage liability of a manufacturer for a particular product would be limited to $5 million or 5 percent of a company's net worth, whichever is less. The Kasten bill did not provide such protection. States like Minnesota and Wisconsin already require plaintiffs to show conclusively that the defendant was guilty of reckless conduct before punitive damages can be awarded.

²⁹ Simonetti, Gilbert Jr. and Andrews, Andrea R., “The Liability Crisis: Make Room for Fairness at the Mad Tea Party,” Price Waterhouse Review, vol. 30 (1986), pp. 57–59.Google Scholar

³⁰ Calabresi, op. cit., pp. 236–43.

³¹ Posner, Richard, “Retribution and Related Examples of Punishment,” Journal of Legal Studies, vol. 9 (1981), p. 71.CrossRefGoogle Scholar

³² Rawls, John, “Two Concepts of Rules,” Philosophical Review, vol. 64 (1955), pp. 03–05.CrossRefGoogle Scholar

³³ Among Dewey's voluminous works, two may be cited as relevant to this point: Individualism: Old and New (New York: Milton, Balch Co., 1930)Google Scholar and Freedom and Culture (New York: Capricorn Books, 1963).Google Scholar Dewey has been accused of ambiguity and possibly contradictions regarding the relationship of the political society to the larger social community. See Cruz, Feodor F., John Dewey's Theory of Community (New York: Peter Lang, 1988).Google Scholar

³⁴ Nisbet, Robert N., The Social Philosophers: Community and Conflict in Western Thought (New York: Thomas Crowell Company, 1973), p. 445.Google Scholar

³⁵ Ibid., p. 446. See also Nisbet's Quest for Community: A Study in the Ethics of Order and Function (New York: Oxford University Press, 1953).Google Scholar

³⁶ Clark, John Maurice, Alternative to Serfdom (New York: Alfred A. Knopf, 1948).Google Scholar Something of the same idea appeared in an unexpected source: Berle and Means’ classic study of the modern corporation. The two, also from Columbia, observed that “neither the claims of the ownership nor that of control can stand against the paramount claims of the community.” Berle, Adolf Jr. and Means, Gardiner, The Modern Corporation and Private Policy (New York: Knopf, 1933), p. 357.Google Scholar

³⁷ Hart, David K., “A Partnership in Virtue among All Citizens: Public Service and Civic Humanism,” Public Administration Review (March/April 1989), pp. 102–03.Google Scholar See also Messner's, Johannold but relevant study, Social Ethics (St. Louis: Herder and Company, 1949).Google Scholar

³⁸ Rawls, John, “Social Unity and Primary Goods,” in Sen, Amartya, ed., Utilitarianism and Beyond (Cambridge: Cambridge University Press, 1982), p. 169.Google Scholar

³⁹ Bickel, Alexander, The Morality of Consent (New Haven: Yale University Press, 1975), p. 54.Google Scholar

⁴⁰ Shuck, Peter H., “Membership in the Liberal Polity: The Revolution of American Citizenship,” Georgetown Immigration Law Review, vol. 3 (Spring 1984), pp. 01–18.Google Scholar

⁴¹ Louis Henkin, W., “Rights: American and Human,” Columbia Law Review, vol. 79 (April 1979), pp. 405–25.CrossRefGoogle Scholar

⁴² Relevant is the fascinating book by Oldenquist, Andrew, The Non-Suicidal Society (Bloomington: University of Indiana Press, 1986).Google Scholar

⁴³ Gert, Bernard, Mora lity: A New Justification of Moral Rules (New York: Oxford University Press, 1988), p. 257.Google Scholar

⁴⁴ Ibid., p. 61. Italics mine.

⁴⁵ Rawls, Johnseems to suggest thisin A Theory of Justice (Cambridge: Harvard University Press, 1971), pp. 120–36.Google Scholar

⁴⁶ The Fundamental Law of the Union of Soviet Socialist Republics (Moscow: Progress Publishers, 1969), Article 60.Google Scholar

⁴⁷ Becker, Lawrence C., “The Obligation to Work,” Ethics, vol. 91 (October 1980), p. 41.CrossRefGoogle Scholar

⁴⁸ Mallor, Jane and Roberts, Barry, “Punitive Damages: Toward a Principled Approach,” Hastings Law Review, vol. 39 (January 1980), pp. 639–41.Google Scholar The Delaware Chancery Court has long handled complex corporate cases and the Pennsylvania legislators are currently considering special court for complicated business cases.

⁴⁸ Wall Street Journal, November 23, 1990, p. 1A.

⁵⁰ “Notable and Quotable,” The Wall Street Journal, July 30, 1990, p. 7.

⁵¹ Hutton v. West Cork Railway Corporation, 1883.

⁵² Quoted in the author's book, Corporate Social Responsibilities (Belmont, CA: Wadsworth Publishing Co., 1953), p. 51.Google Scholar