The asserted unimportance of the defendant's motive underlying acts giving rise to tort liability is part of the conventional wisdom of most writers of basic tort texts.' Frequently, the irrelevance of the defendant's motivation is considered so obvious that many writers fail to discuss it at all, or discuss it only in the limited context of punitive damages. Virtually all of the literature that considers the significance of motive in tort law deals with either altruism, primarily in the rescue context, or spite, primarily in the punitive damages context. However,little, if any, of the literature considers the legal treatment of defend-ants who act for economic gain. In fact, the premise underlying the vast majority of the so-called "law and economics" literature either assumes a social acceptance of acting for economic gain or affirmatively argues that acting for economic gain is a fundamental social value. The purpose of this Article is not to enter the "is wealth maximization a value"debate. Rather, this Article attempts to demonstrate that, although some commentators claim that the pursuit of economic gain is laudatory, statutory and common-law development reveals a deep-seated social bias against those whose conduct is motivated by a desire for economic gain. In some cases, acting for economic gain is treated more harshly and with greater suspicion than conduct motivated by spite.'This Article reconsiders the conventional wisdom and argues that the actor's motivation is frequently a significant, though unarticulated, factor in the formulation of much tort doctrine. This Article attempts also to demonstrate that when courts develop principles of liability and damages that are truly independent of any consideration of the actor's motive, whether real or perceived, legislatures tend to reject those motivation-neutral principles in favor of liability and damages rules based on the defendant's economic motivation.
Martin A. Kotler,
Motivation and Tort Law: Acting for Economic Gain as a Suspect Motive,
41 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol41/iss1/2