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exploring tort law
Tort law provides individuals or groups redress for wrongful harm to every dimension of life from physical injury to property damage to personal insult. Over past
decades no body of law within the civil justice system has experienced greater
ferment than the law of torts. This edited collection comprises new scholarship
from many of today’s most influential contributors to the evolving law of torts.

Topics include provocative analyses of original tort-type norms; punitive damages, proportional liability; the political-legal dynamics of the Restatement process; landmark modern torts decisions; the future of collateral source rules relative
to various types of insurance; the role of risk information in assignment of seller
liability; privity and freedom of contract; the vitality of negligence and duty rules,
and optimal rules for vicarious liability. The collection closes with chapters from
civil code nation authorities on the European view of causation in toxic harm
suits and on collective rights and actions in South America and in Europe.
M. Stuart Madden is Distinguished Professor of Law at Pace University School of
Law. His primary teaching and scholarly interests are in the areas of torts, environmental torts, and products liability. He is an elected member of the American
Law Institute and serves on various policy advisory groups and scholarly advisory
boards. He has lectured internationally on tort and accident prevention subjects
and has given testimony before both Houses of Congress on tort reform issues.

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EXPLORING TORT LAW
Edited by

M. Stuart Madden
Distinguished Professor of Law
Pace University School of Law

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CAMBRIDGE UNIVERSITY PRESS

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo
Cambridge University Press
The Edinburgh Building, Cambridge CB2 8RU, UK
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
Information on this title: www.cambridge.org/9780521851367

© Cambridge University Press 2005
This publication is in copyright. Subject to statutory exception and to the provision of
relevant collective licensing agreements, no reproduction of any part may take place
without the written permission of Cambridge University Press.
First published in print format 2005
eBook (EBL)
ISBN-13 978-0-511-34459-6
ISBN-10 0-511-34459-7
eBook (EBL)
ISBN-13
ISBN-10

hardback
978-0-521-85136-7
hardback
0-521-85136-X

ISBN-13
ISBN-10

paperback
978-0-521-61680-5
paperback
0-521-61680-8

Cambridge University Press has no responsibility for the persistence or accuracy of urls
for external or third-party internet websites referred to in this publication, and does not
guarantee that any content on such websites is, or will remain, accurate or appropriate.

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For my precious wife, Maria, with all of my love.

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CONTENTS

Contributors

page ix

Preface

xi

introduction

1

M. Stuart Madden

section i. tort law in the new millennium: past as
prologue
1 tort law through time and culture: themes of
economic efficiency

11

M. Stuart Madden

2 past as prelude: the legacy of five landmarks of
twentieth-century injury law for the future
of torts

52

Robert L. Rabin

section ii. compensation and deterrence in the
modern world
3 twenty-first-century insurance and loss
distribution in tort law

81

Kenneth S. Abraham

4 beyond master–servant: a critique of vicarious
liability

111

Jennifer H. Arlen and W. Bentley MacLeod

section iii. duty rules, courts, and torts
5 the disintegration of duty

Ernest J. Weinrib
vii

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Contents

6 managing the negligence concept: respect for
the rule of law

187

James A. Henderson, Jr.

7 rebuilding the citadel: privity, causation, and
freedom of contract

228

Richard A. Epstein

8 controlling the future of the common law by
restatement

262

Jane Stapleton

9 information shields in tort law

295

David G. Owen

10 the complexity of torts – the case of punitive
damages

333

Guido Calabresi

11 the future of proportional liability: the lessons
of toxic substances causation

352

Michael D. Green

section iv. torts in a shrinking world
12 causation in products liability and exposure to
toxic substances: a european view

403

Federico Stella

13 collective rights and collective actions:
examples of european and latin american
contributions

426

Juan Carlos Henao
Index

483

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CONTRIBUTORS

Kenneth S. Abraham
Robert E. Scott Distinguished Professor of Law, University of Virginia
School of Law
Jennifer Arlen
Norma Z. Paige Professor of Law, NYU School of Law
Guido Calabresi
Judge, United States Court of Appeals for the Second Circuit; Sterling
Professor of Law Emeritus and Professorial Lecturer, Yale Law School
Richard A. Epstein
James Parkar Hall Distinguished Service Professor of Law, University of
Chicago, The Law School
Michael D. Green
Bess and Walter Williams Distinguished Chair in Law, Wake Forest
University School of Law
Juan Carlos Henao
Permanent Professor, Universidad Externado de Colombia; Guest Professor,
Universities of Paris 3 (Iheal), Cergy-Pontoise and Montpellier; Lecturer,
Institut d’Etudes Politiques of Paris
James A. Henderson, Jr.
Frank B. Ingersoll Professor, Cornell Law School
W. Bentley MacLeod
Professor of Economics and Law, University of Southern California
M. Stuart Madden
Distinguished Professor of Law, Pace University School of Law
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Contributors

David G. Owen
Carolina Distinguished Professor of Law, University of South Carolina
Robert L. Rabin
A. Calder Mackay Professor, Stanford Law School
Jane Stapleton
Ernest E. Smith Professor, University of Texas School of Law; Professor of
Law, Research School of Social Sciences and the Australian National
University, Canberra
Federico Stella
Professor of Criminal Law, Universita’ Cattolica del Sacro Cuore, Milan
Ernest J. Weinrib
University Professor and Cecil A. Wright Professor of Law, University of
Toronto

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PREFACE

This collection originated in a colloquium held at Pace University School of
Law in November 2003. The title of the colloquium and the title originally
envisioned for this collection was The Future of Torts. The scholars invited
to give papers at this gathering include many of the leading torts scholars in the
United States, with contributions also from scholars from Australia, Canada,
Colombia, and Italy. Each was asked to prepare a paper responding in some
way to the question of what will be the future directions of tort law. All, with
the exception of the University of Milan’s Federico Stella, were able to present
their papers at the School of Law, and the eleven invited papers, together
with that of Prof. Stella, were each of the highest quality, innovative, and
provocative.
However, by the time the participants completed their final papers some
months later, two things had become clear. First, and a point mentioned by
some early on, it is unlikely that any volume today could fulfill the promise
entailed in a title The Future of Torts. Moreover, even if such an ambitious

title could be validated by the work of some individual author or authors,
no one could reasonably expect that a group of such highly individualistic
scholars as convened here would cleave harmoniously to any single objective,
even one so deceptively simple as that of viewing torts prospectively.
The inevitable and desirable result is that this collection of some of the finest
torts scholarship that has found recent publication was renamed Exploring
Torts, a title that more accurately represents the work product. The chapters,
derived from the colloquium papers, emphasize a large proportion of the
themes that engage the attention of persons pursuing the study and evaluation
of modern tort themes.
Exploring Torts is published with the expectation that it will find interested audiences among jurists, scholars, attorneys, and students, including students studying law, political science, and philosophy. With specific
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Preface

reference to law students, the editor and the publisher believe that this volume might well suit upper-level torts, jurisprudence, or law and philosophy

offerings.
Principally, however, we hope that you will find it stimulating and enjoyable
to read the scholarship of many of the finest torts thinkers and writers of
this era.
Appreciation is due several persons the help of whom has been instrumental to this project: Faculty Assistant Mary Stagliano, Kay Longworth and
Carol DelBalzo of the School of Law staff, Marie Newman, Professor of Law
and Librarian, and also Vickie Gannon, Circulation Librarian, Marilyn Belo,
Maryam Afif and Michael Stalzer, my Research Assistants, and my wife, Maria
Madden.
M. Stuart Madden
White Plains, New York
2005

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INTRODUCTION

For the last forty years, no body of law within the civil justice system has
experienced greater ferment than has the law of torts. This dynamism withal,
the most prominent identified objectives of tort law continue to be the creation of an optimally uniform body of law that gives notice to all that certain

behaviors that cause injury or loss to others will trigger obligations, usually
including (1) the cessation of the conduct; and (2) compensation of the injured
party for harm caused in a measure that will place him, to the extent money
damages can do so, in the status quo ante. More recently, these corrective
justice motivations have been reevaluated and enlarged to include tort law
justifications with an economic basis. These economic models have been
assigned modifiers such as “law and economics” or “efficiency-deterrence”
or “cheapest cost avoider.” As a general proposition, the economic paradigms
suggest that the informed and rational individual will make decisions that tend
to ensure that the benefits he enjoys by his activities are not outweighed by
the sum total of the internalized potential liability costs, including secondary
and social costs.
The uneasy heterogeneity existing between the “corrective justice” and the
“efficiency” models for tort norms is but one of the modern fault lines in the
field. The movement, once seemingly inexorable, from fault-based liability to
strict liability is now seen to have produced tort rules of responsibility that
are either only nominally “strict,” are limited to the most select of circumstances, or both. Whether the tort relates to personal physical injury or to
other noncontractual harm, collective, group, joint, alternative, and market
share liability have all been tested, and found effective in effectuation of these
objectives in some instances, and of limited or no utility in others.
During the same time, state court and state legislators have added actively to
the development of tort policy. State courts have initiated changes in the treatment of duty, proximate cause, compensable damages, aggregative actions,
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and cases involving indeterminate defendants. Legislatures in virtually every
state have passed laws affecting such subjects as statutes of limitation, statutes
of repose, recovery for noneconomic harm, and the availability of punitive damages. The Supreme Court has established new standards for (1) the
introduction of expert causation evidence, applicable both to complex medical and scientific matters and also to other more prosaic but nonetheless
expert-reliant causation evidence; (2) the appropriate application of fundamental class action fairness safeguards to settlement class actions; and
(3) punitive damages.
In this milieu, the American Law Institute commenced the broad-gauge
Restatement (Third) of Torts. In terms of international attention to liability
rules, following the European Economic Community’s publication of its strict
products liability Directive, there continues nation by nation code adaptation
of liability provisions to respond to new types of injuries, together with new
means, including collective actions, necessary to respond thereto. In Europe
and elsewhere, more than one private law entity labors in an American Law
Institute fashion to publish tort rules that might offer a coherence to tort law
and its ever-broadening international application.
This collection is divided into four sections. The first, titled Tort Law
in the New Millennium: Past as Prologue, includes two chapters that,
each in their own way, provide a springboard for the volume. Chapter 1 ,
titled Tort Law through Time and Culture: Themes of Economic Efficiency,
is an investigation of the original stimuli for tort-type norms. My inquiry

takes me from ancient Mesopotamia forward, with what I think to be several
illuminating patterns that show a continuum of efficiency and deterrence
motivations behind old and new tort norms alike. In Chapter 2, Past as Prelude:
The Legacy of Five Landmarks of Twentieth-Century Injury Law for the Future of
Torts, Robert L. Rabin selects for analysis five tort landmarks: (1) MacPherson v.
Buick Motor Co.; (2) workmen’s compensation legislation; (3) the concurring
opinion of Justice Roger Traynor in Escola v. Coca Cola Bottling Co.; (4) the
primarily legislative movement from contributory to comparative fault; and
(5) United States v. Carroll Towing Co. As to Carroll Towing, Rabin maintains
that its noteworthiness was reinvigorated when Judge Learned Hand’s opinion
came to be recognized as a cornerstone of the law and economics movement.
The focal points of his chapter are the “rich thematic influence[s]” each
decision or legislature movement had on torts among Western nations, and
the respective effects, sometimes substantial, sometimes less so, that each is
likely to have on the future of tort law.
Section II of the collection is titled Compensation and Deterrence
in the Modern World. Together Chapters 3 and 4 provide an enriching

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3

treatment of two central tort themes. Regarding compensation first, in
Chapter 3, Twenty-First-Century Insurance and Loss Distribution in Tort Law
Professor Kenneth S. Abraham first surveys the different sources of compensation for personal injury, illness, and death, and shows that there is a vast
system of loss distribution, of which tort is only a small part. As to the gaps
in the larger system, Abraham suggests, the question remains as to whether
these gaps should be filled by tort law or by the other sources. Examining
the relationship between tort and the rest of the loss distribution system,
and exploring the impacts of four possible variants of the collateral source
rule, the chapter looks at the rarely considered, distinct treatment accorded
to life insurance and savings under existing rules. He then recommends an
alternative approach that would afford first-party insurance policyholders the
option of transferring all their tort rights of recovery to their insurers.
In Chapter 4, Beyond Master-Servant: A Critique of Vicarious Liability,
Professors Jennifer H. Arlen and W. Bentley MacLeod examine important
issues in the second element of the compensation/deterrence diad: the effectiveness of rules of vicarious liability in deterring corporate torts. To Arlen and
MacLeod, for tort liability rules to regulate risk-taking efficiently, such rules
must make it beneficial for corporations to take cost-effective precautions
to regulate agent conduct. The authors proceed to show the ways in which
current tort law falls short of this objective, and specifically how, by holding
organizations liable for employee torts but not for the torts of independent
contractors, vicarious liability discourages organizations from asserting direct
control over agents, even when such control would be efficient.
Section III is titled Duty Rules, Courts, and Torts, and comprises chapters on themes including the vitality of duty rules; the practical limitations on
litigation of design defect claims (be they programmatic or product-related);
the contemporary role of the privity rule; the proper objectives for the Restatement (Third) of Torts; the viability of a legal regimen in which persons who
are fully apprised of a risk or a hazard should be precluded from recovery in

tort; the perils of the path the Supreme Court has chosen as regards standards
for imposition of punitive damages; and the extraordinary effects, applications, and complexities of proportional liability, with particular attention to
toxic substances causation.
In Chapter 5, The Disintegration of Duty, Professor Ernest J. Weinrib sounds
a clarion warning that the relational underpinnings of common law duty have
been in noticeable erosion. In answer to the question: “When does an actor
owe a duty?,” Weinrib begins with the defining 1932 decision of English negligence law, Donoghue v. Stevenson, in which Lord Atkin asserted that “there
must be, and is, a general conception of relations giving rise to a duty of care.”

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Unfortunately, Weinrib writes, courts in more and more modern decisions
have seemingly abandoned an effort to identify and apply this unitary conception of duty, and have opted instead to identify a multiplicity of particular
duties that Lord Atkin would have deplored. Weinrib sets about the task of
analyzing the landmark cases of the twentieth century to show how duty fits
with other negligence concepts to connect the defendant’s act to the plaintiff ’s

injury in a normatively coherent way. He describes the internal structure of
the duty of care, and what its constituents must be if it is to reflect a coherent
conception of wrongdoing.
In Chapter 6, Managing the Negligence Concept: Respect for the Rule of Law,
James A. Henderson Jr. evaluates the risks of open-ended judicial review
of complex tort issues, and specifically “design” issues. “Design” issues are
defined more broadly than they are in their familiar context of products
liability law, and Henderson includes in this subject grouping medical malpractice and governmental “design” claims. Examining such issues as institutional competency, enterprise liability, the prima facie case, and evidentiary
requisites, he concludes that courts have taken an appropriately “humble”
approach, avoiding open-ended review in contexts in which the pressures
to engage in such review are the greatest. After first reviewing products liability themes, the author turns to medical malpractice litigation, in which
courts rely on professional custom to supply specific standards that render
negligence claims adjudicable. In negligence claims against the government,
courts and legislatures have built on the traditional principle of sovereign
immunity to allow courts to impose tort liability on governmental actors
while avoiding open-ended review of complex institutional programs of policies. In each setting, Handerson writes, courts have adopted approaches that
successfully contain the negligence concept and keep it with in its proper
bounds.
In Chapter 7, Rebuilding the Citadel: Privity, Causation, and Freedom of
Contract, Richard A. Epstein identifies this watershed issue affecting compensation for physical and financial harm: whether to deal with these through
tort law or through contract. The modern direction of cases, Epstein writes,
seems to favor tort remedies over contractual arrangements, with the latter’s frequent restrictions on the damages recoverable. Financial loss claims,
in turn, find favor in contract. Epstein poses this question: Is there something about the structure of a physical harm claim versus that of a financial
harm claim that is sufficiently similar to undercut the argument that only
one, rather than both, should be subject to contract rules? A second part of
Epstein’s analysis is the examination of the decline of privity rules, and involves a new look at the venerable origins of privity. He notes a contrapuntal
distinction between the original justification of privity and its actual history,

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5

and concludes that, nevertheless, the privity limitation continues to play a role
in a number of important contexts, including environmental and financial
losses, in which potentially ruinous unlimited liability is thought to be of the
greatest significance. Ultimately, Epstein defends both those limitations and
the contractual efforts to restrict recovery for consequential losses.
Jane Stapleton begins Chapter 8, Controlling the Future of the Common Law
by Restatement, by noting how daunting it is to restate a common law for the
United States, a nation of such a state-by-state diversity in liability rules and
remedies. She analyzes the architecture of the current Restatement (Third)
of Torts, and considers the extent to which tort standards can be crystallized
in bright-line rules, as well as how the underlying institutional competition
between the trial judge and the jury imposes a unique dynamic to the restatement process. For example, Stapleton argues, in “traditional” duty contexts,
that is where the defendant’s own affirmative careless action directly caused
physical injury, and also in special prior relationship settings, the Reporters
can find sufficiently objective and determinate criteria on which a rule of law
might clearly be based, thereby facilitating directed verdicts. Outside these

areas, however, the rationale for denial of liability rests on the absence of
the sort of contextual facts that are usually seen as relevant to the breach or
scope of duty issues, matters traditionally decided by the jury. If, therefore,
the Restatement proposes to allocate to the trial judge institutional power
to enter a directed verdict in the defendant’s favor in such cases, Stapleton
suggests, it will need to formulate the criteria on which he or she might do
so in terms of what have hitherto been seen as no-breach or outside-scope
factors in the particular case.
Chapter 9, Information Shields in Tort Law, by David G. Owen, begins with
that proposition that a person possessed of correct information about the
nature of a dangerous thing or situation is more likely to make informed,
safe, and efficient choices about how or whether to confront such risks, and
the more likely such choices are to be cost-effective and rational. The chapter
inquires into the extent to which tort law should impose responsibility on
actors for harm to persons who possess full and complete risk information.
Owen presents a model Liability Shield statute that would preclude failure to
warn liability for manufacturers who provide consumers with full information
of product hazards. For the attractions of such an approach, he proceeds to
note, such a rule may place unrealistic reliance on multiple assumptions about
human rationality, and about the nature and abilities of the central institutions
in a program of this type: manufacturers, safety agencies, and insurers. The
chapter thus concludes that today’s tort law has correctly moved beyond the
wooden construct of no-duty rulings to the flexible assessments of victim
responsibility permitted by comparative fault.

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Guido Calabresi, in Chapter 10, The Complexity of Torts: The Case of Punitive
Damages, addresses the tension between those, be they courts, legislatures or
scholars, who view tort law as serving numerous (or multidimensional) goals,
and those who may be quick to identify a single, simple goal – whether it be
economic efficiency, furthering loss spreading, or anything else – and, having
examined tort doctrines and cases on that basis, are properly attacked for being
reductionists. His thesis is that pursuit of one-dimensional goals in tort law
is fraught with risk. Calabresi is troubled by the ever-increasing incursions
by federal courts into the tort process, a problem that is worsened when
the incursion is by the Supreme Court. Concentrating on punitive damages,
Calabresi states that exemplary awards in tort law can further at least five very
different objectives, including: (1) a desire to enforce societal norms, through
the use of private attorneys general; (2) a desire to employ “the multiplier,”
in the sense that the proper measurement of the deterrent assessed is not
the harm to any one victim but, rather, that harm multiplied by all those
victims whose harms, although real, are not otherwise likely to be charged
to the injurer; (3) the “Tragic Choice” Function, such as is represented in
the Pinto case; (4) Recovery of Generally Non-Recoverable Compensatory
Damages; and (5) Righting of Private Wrongs. Calabresi suggests that the

Supreme Court’s modern decisions regarding punitive damages fail to take
into account the multiple functions a state or states may have intended that
these awards perform, and that it is rare that such single mindedness as the
Court has demonstrated can fully appreciate a slowly developed field of law
such as torts.
Proportional liability is identified by many as one of the most important
developments in modern tort law. In Chapter 11 , The Future of Proportional
Liability: The Lessons of Toxic Substances Causation, Michael D. Green analyzes the reform of contributory negligence into a scheme of comparative
fault through the lens of environmental and toxic tort litigation, the most
notable of which have included case aggregations involving asbestos, Agent
Orange, DES, silicone gel breast implants, and tobacco. Litigation of such cases
relies on probabilistic evidence, the most probative of which is epidemiology.
Green writes that the confluence of comparative fault principles and probabilistic evidence of causation in toxic substances cases raises the question of
whether liability should be imposed proportionally based on the probability
of causation. He critically assesses the potential for such an approach by examining the precision and fallibility of epidemiological evidence, and concludes
that proportional liability would not provide the deterrence benefits many
have claimed for it.

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Section IV (the final section of this collection) is titled Torts in a Shrinking World. As the section’s title suggests, and as the two chapters presented
show, modern scholars and policy makers should take into proper account
that civil code nations, among others, are responding to domestic and international tort-type challenges with sophisticated decisional, legislative and
constitutional approaches. Federico Stella of the University of Milan contributed Chapter 12, Causation in Products Liability and Exposure to Toxic
Substances: A European View. Stella examines the multitextured similarities
and contrasts between the United States treatment of causation in toxic substances cases and that followed in Italy and also in a representative selection
of other European nations. Explaining how many European nations have yet
to elaborate a developed body of decisional law, individually or collectively, in
the subject matters of toxic torts and products liability, Stella describes how
many such claims have been brought as criminal matters. In the final decades
of the preceding century, he continues, European nations, and Italy particularly, were confronted with a surge of such hybrid toxic tort-criminal liability
suits that placed in issue the obstacles to proving individual causation. On a
case-by-case basis, problems in proving causation might be overcome by the
expedient of replacing the notion of condicio sine qua non with the standard
of risk elevation and, beginning in 2000, in Italy and elsewhere, nations took
this different tack. There followed, however, an influential decision of the Italian Supreme Court that held that simple risk elevation would not suffice to
prove individual causation in criminal prosecutions. Rather, the prosecution
would be required to prove not only “but for” cause but also sustain that burden beyond a reasonable doubt. Stella notes, however, that in an increasing
number of Italian universities, professors of civil liability systems have begun
to teach the evidentiary and doctrinal approaches to causation used by the
American civil courts.
Suits to vindicate collective or popular rights are recognized in numerous
nations. They represent means that are at once similar to and dissimilar from
the aggregative suits (class actions and consolidations) that may be brought
in the United States. At this date, such claims are not recognized in the form
often taken in the United States, such as when numerous claims arise from the

same tortious conduct. Instead, collective or popular actions are more likely
to arise to challenge governmental action, or failure to act, that has deprived
citizens of rights guaranteed by legislation or by the country’s constitution. In
the concluding selection to this collection, Chapter 13, Collective Rights and
Collective Actions: Examples of European and Latin American Contributions,
Colombian and French scholar Juan Carlos Henao takes on the ambitious task

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of a comparative analysis of how such claims are provided for, and how they
have been prosecuted, in France and in Colombia. Describing how achieving
remediation for violation of collective rights is a well developed constitutional, legislative and decisional principle in many civil law countries, Henao
explains how an increasing number of constitutions in civil law countries
include, to name only two: (1) the right to a safe and healthy environment;
and (2) the right to the preservation of open space. He explains the similarities
between such claims and public or private nuisance actions in common law

nations. Juxtaposing the law of France with that of Colombia, the chapter
includes a critical assessment of how such approaches preserve separation of
powers, democratic participation in the protection and preservation of public
property, and the respective powers of the judge and the citizen.
M. Stuart Madden
White Plains, New York
May, 2005

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section one

TORT LAW IN THE NEW MILLENNIUM:
PAST AS PROLOGUE

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chapter one

TORT LAW THROUGH TIME AND CULTURE:
THEMES OF ECONOMIC EFFICIENCY
M. Stuart Madden

abstract. As human societies developed, a bedrock necessity was the development of

expectations and norms that protected individuals and families from wrongful injury,
property damage, and taking. Written law, dating to the Babylonian codes and early
Hebrew law, emphasized congruent themes. Such law protected groups and individuals from wrongful injury, depredation of the just deserts of labor, interference with the
means of individual livelihood, and distortion of the fair distribution of wealth.
Hellenic philosophers identified the goals of society as the protection of persons and
property from wrongful harm, protection of the individual’s means of survival, discouragement of self-aggrandizement, and the elevation of individual knowledge that would carry
forward and perfect such principles. Roman law was replete with proscriptions against
forced taking and unjust enrichment, and included rules for ex ante contract-based resolution of potential disagreement. Customary law perpetuated these efficient economic
tenets within the Western world and beyond. The common law has pursued many of the
same ends. From the translation of the negligence formula of Judge Learned Hand into
a basic efficiency model to the increasing number of judicial opinions that rely explicitly
upon economic analysis, efficiency themes can be predicted to enjoy a continued and
increasingly conspicuous place in modern tort analysis.

i. introduction
Tort law represents a society’s revealed truth as to the behaviors it wishes to
encourage and the behaviors it wishes to discourage.1 From causes of action
for the simple tort of battery to the more elegant tortuous interference with
prospective advantage, the manner in which individuals or groups can injure
1

There will be some rarified instances of behavior that tort law would not discourage, such as
abnormally dangerous activities, but instead may wish to modify or limit, and in any event,
assign strict liability.
M. Stuart Madden, Distinguished Professor of Law, Pace University School of Law. The author
notes with appreciation the research assistance of Maryam Afif, Michael Stalzer, Natara Feller,
and Lynn Belo in the preparation of this chapter.

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