Statutes and civil liability in the Commonwealth and the United States: A comparative critique

The organisers of Obligations VI have designated this conference as one in which we will be “Challenging Orthodoxy”. This paper does a fair amount of that. It deals with the question of how statutes can be used as a source of private law liability. Current orthodoxy on this subject in the United States of America seems to be (at the risk of oversimplication) that: 1. At a State level, breach of many statutes (including even minor traffic legislation) will provide a basis for civil damages; but whether the courts will do so in a particular case is decided on broad “policy” grounds, and an outcome is almost impossible to predict; 2. At a Federal level, hardly any Federal statutes will these days create civil liability. I want to suggest a radical revision of these views. It is “radical” in the sense that it goes back (as the etymology of the word suggests)2 to the “roots” of the development of the doctrine. The roots of both US State and Federal jurisprudence in this area, as I hope to show, will be found in the classic United Kingdom decisions relating to the tort of “breach of statutory duty”. I want to suggest that if courts in the United States took into account the contours of that action as it is still applied in the Commonwealth, there may be a way forward to deal with both of the major problems (that is, on the one hand unconstrained use of “policy-based” considerations at State level in applying statutes; on the other hand, a narrow refusal at the Federal level to read the implications of statutes) which currently beset statute-based civil liability in US private law jurisprudence.