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87 Tul. L. Rev. 901 (2012-2013)

handle is hein.journals/tulr87 and id is 949 raw text is: Malice in the Jungle of Torts Elspeth Reid* ThisArticle takes as its startng point Tony Webir comparative essays on the law of torts. In particular it examines the chourmstances i which requiement to establish malice subsists in the intentional tots and tracks 'the staggenng march ofneglgencemrst charted by Weir fifteen yeais ago. As the conclusion argues, tis process is certain to continue unless greater precision can be achieved identifying the element of intention entailed in dffereent wrongs and the ihterests thereby protected. I. MALICE AND THE INTENTIONAL WRONGS........ ..........901 II. THE MEANING OF MALICE ...................... .......903 III. MALICE IN WRONGS AGAINST THE PERSON ................906 IV DEFAMATION AND THE STAGGERING MARCH OF NEGLIGENCE ......................................908 V PRIVILEGE IN WRONGS AGAINST THE PHYSICAL PERSON ..........915 VI. MALICE OR HOSTILITY AT THE BOUNDARIES OF WRONGS AGAINST THE PERSON ................... ......919 VII. PROPERTY AND EcoNOMIC HARM AND THE (IR)RELEVANCE OF MALICE .......................921 A. NeighbourLa.w........... ............... 921 B. The Economic Torts AnAfterword... .........926 VII CONCLUSION ............................................928 I. MALICE AND THE INTENTIONAL WRONGS In France the law is laid out as a gloss on a central text, and a rule is found as easily and pleasantly as a flower in a formal garden set out along the path of principle. Not so in England, where one has to hack a way through a jungle of torts to find the relevant rule; once found, however, it is easier to apply, since it is at a lower level of abstraction.' Tony Weir's elegant summary of civil law and common law difference appears in the last of the series of seminal articles comparing the two systems of tort law, co-written with Pierre Catala * © 2013 Elspeth Reid. Professor of Scottish Private Law, University of Edinburgh. 1. Pierre Catala & John Antony Weir, Delict and Torts: A Study in Parallel (pt. 4), 39 TuL. L. REv. 701, 781 (1965). 901

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