concurring.
The Court rejects plaintiffs claim for damages based on asserted violations of defendants’ professional duties under ORS 9.460(4)1 because plaintiff did not plead that the allegedly false pleadings filed against it in the earlier action caused special injuries beyond the ordinary and typical consequences attendant on defending against an opponent’s allegations. I agree that in a state which, like Oregon, requires “special injury” in an action for wrongful prosecution of civil proceedings, O’Toole v. Franklin, 279 Or 513, 569 P2d 561 (1977), the financial and personal costs typically associated with litigating a legal dispute also do *338not give rise to a private claim for damages for knowingly filing a baseless pleading, for the same reasons stated in O’Toole, even though opposing counsel may be subject to discipline under ORS 9.460(4). The ordinary incidents of litigation, including mutual accusations, are part of the price of living in a society which values every person’s right to pursue a grievance in court, or to seek “a remedy by due course of law for injury done him in his person, property, or reputation,” as Oregon Constitution, Article I, § 10, puts it. 279 Or at 520.
These reasons may not apply, and the rule as to special damages therefore may be different, when the violation of that section extends to the knowing use of false evidence, which subjects an opponent not only to the costs of having to appear and defend but to the risk of unjustly suffering a loss of property or perhaps (as in family disputes) of priceless personal relationships. This is the principal harm against which the duty of truthfulness under ORS 9.460(4) is designed to protect litigants, apart from the public interest in the integrity of the judicial system itself. The demurrer to that part of plaintiffs complaint was not sustained, and the subsequent rulings were not brought here on review, as the Court points out. 291 Or at 321, note 1.
In concurring, I believe something more should be said about potential civil liability for violation of statutory duties. As recognized in Miller v. City of Portland, 288 Or 271, 604 P2d 1261 (1980), one who violates a statute enacted for the protection of the private interests of others, may be liable in damages for injuring the protected interest when the statute or its legislative history is silent on the question, even when there is no corresponding common law basis of recovery. 288 Or 276-78; see supra, 291 Or at 326. This principle itself has ancient antecedents in common law courts. See Salmond, Law of Torts 242 (17th ed. 1977); Fricke, The Juridical Nature of the Action Upon the Statute, 76 L Q Rev 240, 243-44 (1960).
Lord Campbell in Couch v. Steel,2 decided in 1854, attributed an injured party’s right to recover for a statutory *339wrong to the Statute of Westminster II of 1285 (relying also on Sir Edward Coke’s Institutes) though the source in that statute is disputed. Andre’, The Implied Remedies Doctrine and the Statute of Westminster II, 54 Tul L Rev 589 (1980); see also Katz, The Jurisprudence of Remedies: Constitutional Legality and the Law of Torts in Bell v. Hood, 117 U Pa L Rev 1 (1968). The action upon a statute was given a separate chapter in Comyns’s Digest, citing numerous examples and explaining that an existing common law remedy would continue to coexist with the separate claim on the statute unless the statute expressed or implied the contrary.3 Couch v. Steel, supra, adopted the statement from Comyns that “in every case, where a statute enacts, or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompence of a wrong done to him contrary to the said law.”4 Other mid-19th century English cases examined damage actions brought for statutory violations to see whether a civil remedy under the statute was meant to be excluded by its remedial provisions, not whether a civil remedy was meant to be affirmatively enacted.5
Whatever its antecedents, the rule of Couch v. Steel was known and cited in the United States. See, e.g., Willy v. Mulledy, 78 NY 310 (1879), Andre’, supra at 593-96, citing cases and texts. This was before the development of a general theory of tort law focused on negligence; in fact, “negligence” originally meant neglect of a duty imposed by law or contract. See White, Tort Law in America 12-19 (1980). In mid-19th century, when the law now before us, *340ORS 9.460, was enacted, an action under a statute by one whom the statute was designed to protect was distinguished from the same person’s possible cause of action at common law. Judge Cooley devoted a section in his treatise on torts to “Statutory Duties,” covering the problem whether a statutory remedy is meant to replace an existing common law liability as well as the problem of private recovery for breach of a statutory duty.6 The Supreme Court of the United States recited the doctrine of recovery upon a statutory fault in a 1916 decision under the Federal Safety Appliance acts:
“A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied.”
Texas & Pacific R. Co. v. Rigsby, 241 US 33, 39 (1916). That court since has been more ambivalent about the implication of civil liability from federal statutes, partly because unless Congress expressly or impliedly means to employ a private remedy as a means to exercise its delegated powers, damage actions are normally a question of state law.7 *341Unlike Congress, however, state lawmakers legislate in a setting in which judicial recognition of implicit tort liability has never involved jurisdictional questions.
It would, of course, be desirable if legislatures were to indicate their intention to allow or to withhold the right of those injured by violations of statutes passed for their benefit to recover damages from the violator, if not in each individual statute, than by enacting some general formula. That suggestion was made long ago in the House of Lords, in tones mixing resignation with frustration:
“ ‘To a person unversed in the science or art of legislation it may well seem strange that Parliament has not by now made it a rule to state explicitly what its intention is in a matter which is often of no little importance, instead of leaving it to the courts to discover, by a careful examination and analysis of what is expressly said, what that intention may be supposed probably to be. There are no doubt reasons which inhibit the legislature from revealing its intention in plain words. I do not know, and must not speculate, what those reasons may be. I trust, however, that it will not be thought impertinent, in any sense of that word, to suggest respectfully that those who are responsible for framing legislation might consider whether the traditional practice, which obscures, if it does not conceal, the intention which Parliament has, or may be presumed to have, might not safely be abandoned...’ ”
Cutler v. Wandsworth Stadium Ltd. [1949] A.C. 398, 410, quoted in Fricke, supra 76 L Q Rev at 256. In the absence of a discoverable intention, however, the court nonetheless faces the task of examining whether the statutory duty said to have been breached implies liability for private injury or excludes it. It is of little moment that a statute is enforceable by other means, for this will normally be the case. Sometimes the nature and details of the prescribed means of enforcement may be a clue to the legislative policy. Often it will be cold comfort to the victim of a *342forbidden act that the wrongdoer will be disciplined, if this excludes liability for damages or other compensation to the injured person, and this policy choice should not be presumed to be implicit in legislative silence.
In this crucial respect, a part of the language from Burnette v. Wahl, 284 Or 705, 588 P2d 1105 (1978) included in the court’s opinion is distinctly unhelpful because it overstates the court’s “own appraisal of the policy considerations involved.” See 291 Or at 327. The statute is the policy of the legislature, not that of the court, and the court’s responsibility is no less in deciding that the policy excludes civil recovery by silence than that it includes it. Implied recovery as much as its denial is attributable to the legislation, not to the court’s independent policy choice, because the injured party’s claim stands and falls with the statute under which it is asserted, and it disappears as soon as the statute is repealed or amended. See Burnette v. Wahl, supra, 284 Or at 727 (dissenting opinion). There is no evident presumption either way.
To assume that statutory silence means to exclude civil recovery attributes to the lawmakers a needlessly hostile policy toward making whole the intended beneficiaries of a statutory obligation imposed for their protection. Rather, when a plaintiff seeks damages for injuries of a kind which a prohibitory or regulatory law was enacted to prevent, the court must decide without preconceived assumptions whether defendant’s act violated the law and caused an injury of the kind and to the kind of person contemplated by the protective law, and whether the legislature meant some other remedy or method of enforcement to be exclusive. The Court states that it recites Burnette because the parties in this case have not questioned it, and that a different analysis should await another day. Be that as it may, the present decision in any event does not rest on theories about implied private remedies for statutory violations but on a prerequisite for a damage action that one show greater injury than the ordinary effects of being haled into court. I therefore concur in the decision.
ORS 9.460 provides that:
“An attorney shall:
“Employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth, and never seek to mislead the court or jury by any artifice or false statement of law or fact;...”
118 Eng Rep 1193 (QB 1854).
1J. Comyns, A Digest of the Laws of England, 433-47 (5th ed. London 1822) (1st ed. London 1762).
118 Eng Rep at 1196-97. One earlier source of the formula is Anonymous, 87 Eng Rep 791 (QB 1703).
The Supreme Court of Canada later quoted Comyns’s formulation, attributing it to chapter 24 of the Statute of Westminster II. Orpen v. Roberts, [1925] 1 DLR 1101. To a Canadian commentator it seemed natural that a statutory violation should be a species of wrongful conduct or “fault” which renders the violator liable for the resulting harm to another, drawing upon Canadian familiarity with civil law as well as common law doctrine. Newman, Breach of Statute as the Basis of Responsibility in the Civil Law, 27 Can Bar Rev 782 (1949).
See, e.g., Stevens v. Jeacocke, 116 Eng Rep 647 (QB 1848) (fishery act held to exclude a damage action by providing a penalty of L50 and forfeiture of the fish to the injured party).
“[I]f performance of the duty is enjoined under penalty, the recovery of this penalty is in general the sole remedy, even when it is not made payable to the party injured. But the rule is not without its exceptions; for if a plain duty is imposed for the benefit of individuals, and the penalty is obviously inadequate to compel performance, the implication will be strong, if not conclusive, that the penalty was meant to be cumulative to such remedy as the common law gives when a duty owing to an individual is neglected. And if the duty imposed is obviously meant to be a duty to the public, and also to individuals, and the penalty is made payable to the State or to an informer, the right of an individual injured to maintain an action on the case for a breach of the duty owing to him will be unquestionable.
“There are always questions of difficulty respecting the remedy when a statute imposes a duty as a regulation of police, without in terms pointing out what shall be the rights on the one side and the liabilities on the other, if the duty is neglected. Is the duty imposed on public grounds exclusively, and if not, what persons or classes of persons are within its intended protection? These are the problems which such statutes usually present.”
Cooley, The Law of Torts 653-54 (1880).
Recent decisions have tied the implication of civil liability from federal statutes more closely to a search for Congressional intent, See, e.g., California v. Sierra Club, 451 US 287, 101 S Ct 177568 LEd2d 101 (1981), Transamerica Mtg. Advisors, Inc. v. Lewis, 444 US 11 (1979), and see generally Frankel, Implied Rights of Action, 67 Va L Rev 553 (1981), Comment, Implied Causes of Action: A Product of Statutory Construction or the Federal Common Law Power?, 51 U Colo L Rev 355 (1980). *341Texas & Pac. R. Co. v. Rigsby, supra, regarded as the origin of the federal cases, itself dates from the era when common law in the federal courts was less doubtful, before Erie R. Co. v. Tompkins, 304 US 64 (1938).
But compare also the implication of private damage actions directly from constitutional violations, Carlson v. Green, 446 US 14, 100 S Ct 1468, 64 LEd2d 15 (1980) (eighth amendment), Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 US 388 (1971) (fourth amendment).