ABSTRACT
David Cohen has made a powerful and sophisticated attack on the use of tort concepts in the public arena. His main contention is that private tort law is an inappropriate vehicle for sorting out claims by citizens against the state and therefore that the extension of tort into the public sphere has been a mistake. In the economic stylization tort law is a system designed to give incentives to both parties to take optimal care. That theory works just as well in the public as in the private arena. Cohen claims that public bodies are different from private bodies in that they will be wholly indifferent to, and therefore will ignore, any potential holding of liability. Cohen criticizes the policy/operational distinction, used widely in the western world, to discriminate between a legally authorized imposition of loss and unauthorized sloppiness in the course of doing the authorized task.
