Public Services Meet Private Law

Public services are provided at various levels, and for various reasons, by governments to corporate and private citizens. Recently, an important movement in tort theory has sought to allow governments to recoup the cost of public services as tort damages from wrongdoers, especially from wrongdoers of the corporate variety. Much of the latest thrust in tort law, which consists of attorneys-general's suits against corporations, relies implicitly on a challenge to the common law's "free public services doctrine."\nRecently, scholarship emanating largely from plaintiff-oriented sources has sought to appeal to free-market and law-and-economics scholars (who are often defense-oriented) by emphasizing the allocative and distributive efficiency of abolishing this common law doctrine. This article rebuts this new scholarship and defends the common law rule against both efficiency arguments and non-efficiency arguments. The article establishes that the free public services doctrine is fundamental both to the nature of private law and to the essence of tort, and concludes that only public law, not common law "evolution", should be allowed to alter the doctrine. The article should appeal to readers interested in the essence of tort law, as well as to law-and-economics readers.