THE LOGIC OF LEGAL REMEDIES AND THE RELATIVE WEIGHT ...

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1060 AKRON LAW REVIEW [39:1053
breach of criminal laws reflects the importance of those norms. The
punishment for such violations may include deprivation of property,
liberty, or, in extreme cases, death under capital punishment statutes.
Such significant sanctions apply to the most egregious breaches of social
norms, such as murder, rape, and physical assault. The principle of
proportionality applies even with regard to extreme harms. 27
Varying levels of protection for varying interests often turn on
whether the interest at issue relates to safety or economic interests. For
example, the failure of a seller of property to reveal environmental
contamination to the purchaser may lead to significant liability to the
seller when the condition constitutes a material defect unknown to the
buyer. 28 The significance of the risk of harm is also an important factor
in establishing the hierarchy of laws. For example, both federal and
state statutes provide significant sanctions for violating environmental
laws that protect individuals and the public from unreasonable risk of
harm. Environmental statutes provide for punishment of those who fail
or refuse to control environmental risks at prescribed levels and by
prescribed mechanisms. 29 State and federal environmental statutes
provide both civil and criminal sanctions, including significant fines and
imprisonment 30 for knowing violations. 31
Property or economic interests evoke lesser protection than
sanctions accorded to the interest in bodily integrity. Tort law provides
incentives to encourage safe practices and discourage negligent conduct.
“Tort law does and should provide deterrence as well as compensation,
and if wrongful death actions produce significant under-deterrence,
something is seriously amiss.” 32 The net result may be greater costs for
actors in the world but lower costs to society as a whole, by virtue of the
costs saved in terms of the injuries and pain and suffering avoided by
enhanced safety. The burden to act in a non-negligent manner preserves
physical integrity. The cost may seem out of line in a lassiez-faire world
that accords no value for the safety created by tort principles.
27. See, e.g., Enmund v. Florida, 458 U.S. 782 (1982) (holding death penalty violates Eighth
Amendment as disproportionate penalty for robbery); Coker v. Georgia, 433 U.S. 584 (1977)
(applying proportionality review to reject death penalty for rape of adult woman).
28. See New West Urban Renewal Co. v. Westinghouse Elec. Corp., 909 F. Supp. 219 (D.
N.J. 1995).
29. Clean Air Act § 113(c)(2), 42 U.S.C. § 7413(c)(2) (2006). The Clean Air Act classifies
knowing failure to make required reports or keep required records as a felony. See id.
30. See, e.g., 33 U.S.C. § 1319 (2006).
31. See, e.g., 42 U.S.C. § 6928(d) (1994); Solid Waste Disposal Act § 3008(d), 42 U.S.C. §
6928(d) (1994).
32. Eric A. Posner & Cass R. Sunstein, Dollars and Death, 72 U. CHI. L. REV. 537, 540
(2005).