Pressing Precaution Beyond the Point of Cost-Justification

Years ago, Bruce Ackerman contrasted two competing perspectives on law, that of the ordinary observer and that of the scientific policymaker. \u27 The perceptions and discourse of the ordinary observer, Ackerman explained, start from the common practices and language of laymen. The scientific policymaker takes the realization of particular objectives-efficient precaution against risks of accidental injury and death, for example-as her end and uses the law as an instrument toward that end. Clashes between these two perspectives are endemic to our legal culture. Nowhere in the law of accidents is that conflict sharper than in cases where the risks imposed threaten severe and irreparable injury. A powerful and influential tradition of thought asserts that reasonable care in the law of negligence is, and ought to be, economically efficient care. When Learned Hand devised his famous formula for determining the amount of care due, Richard Posner argues, he was both adumbrating, perhaps unwittingly, an economic meaning of negligence, and attempting nothing more novel than to make explicit the standard that the courts had long applied. Judge Hand, as Robert Cooter and Thomas Ulen explain, set the legal standard of care by explicitly balancing the benefits and costs of precaution, just as an economist would have done .... So conceived, reasonable care is the level of precaution that minimizes the combined costs of preventing and paying for accidents, thereby maximizing the wealth at society\u27s disposal. Precaution should be taken until a penny more spent to prevent accidents yields less than a penny\u27s reduction in expected accident costs. \ The economic interpretation of reasonable care has been enormously influential, but it remains deeply problematic. It equates reasonable care with rational care, and spells rationality out in economic terms. The average reasonable person thinks and acts as a single, economically rational actor would, if she bore both the costs and the benefits of precaution. An unreasonable person, by contrast, gives more weight to the benefits she gains by imposing risks on others than to the costs that her risks impose on others. Put this way, the economic interpretation of due care seems almost innocuous. Reasonable people, surely, take the costs and benefits of alternative courses of action into account in deciding what to do, and reasonable people weigh those costs and benefits impartially. If anything is unreasonable, assuming that my interests are objectively more important than someone else\u27s-just because they are my interests-is unreasonable

The Theory of Enterprise Liability and Common Law Strict Liability

The fundamental claim that the Restatement (Third) of Torts: General Principles makes about strict liability is striking and bold. The Restatement (Third) claims that there are only special instances of strict liability. Negligence is a general legal principle, but strict liability is a set of particular doctrines. Curiously, however, the Restatement (Third) also takes the position that strict liability is a unified form of liability; it characterizes strict liability as liability for the characteristic risks of an activity.\u27 So the Restatement (Third)\u27s claim that strict liability is a set of special cases seems to be a claim that strict liability is not a coherent general conception of responsibility for accidental physical injury in the way that fault liability is. This claim strikes me as mistaken. The idea of liability for characteristic risk expresses a conception of responsibility for accidental physical injury that is as coherent and as general as the conception embodied by the fault principle. Whereas the fault principle holds actors accountable for injuries issuing from risks whose imposition should have been prevented ab initio, the strict liability principle holds actors accountable for injuries that flow from their agency. Strict liability expresses the notion that losses should be borne by the doer, the enterprise, rather than distributed on the basis of fault. Fault liability makes wrongful agency the fundamental basis of responsibility for harm accidentally done; strict liability makes agency itself the fundamental basis of responsibility. The distinctive modern form of strict liability-enterprise liability-is a particular articulation of what it means to make agency the basis of responsibility. Two propositions form the core of enterprise liability. First, activities should bear their characteristic accident costs. Fault liability pins the costs of the nonnegligent accidents that are the long-run price of an activity\u27s presence in the world on the random victims of the activity. Enterprise liability pins those accident costs on the activity-the enterprise-which imposed the nonnegligent risks responsible for the injuries at issue. Second, enterprise liability holds that an enterprise\u27s accident costs should be distributed among the members of the enterprise. The costs of an injury should be shared by those who profit from the activity responsible for the injury; they should not be concentrated on the injured party, or be dispersed across unrelated activities. These two propositions are often linked to a particular conception of fairness. Fairness requires a just distribution of burdens and benefits. It therefore gives rise to a presumption that the costs of the accidental physical injuries characteristic of an activity should be borne by those who benefit from the activity, whether or not they are culpably responsible for precipitating the injuries at issue. These propositions are also frequently linked to economic ideas of allocative efficiency and loss-spreading

The Idea of Fairness in the Law of Enterprise Liability

The theory and practice of enterprise liability are oddly disjoined. On the one hand, case rhetoric insists that considerations of fairness are among the primary justifications for imposing enterprise liability. On the other hand, normatively inclined and theoretically ambitious scholarship on enterprise liability is overwhelmingly economic in cast. Economically inclined scholars have flocked to the field, while other kinds of tort theorists have shunned it, implicitly or explicitly conceding it to economic analysis. This paper argues that, contrary to this consensus, there is a powerful and important fairness case to be made for enterprise liability. This case fits the rhetoric of the decisions and the structure of the doctrines, and draws philosophical support from Kantian social contract theory. When enterprises are in a position to spread the costs of nonnegligent accidents across the class of those who benefit from the risks that inevitably issue in such accidents, enterprise liability is more reasonable than negligence liability. Under these circumstances, enterprise liability reconciles the competing claims of liberty and security more fairly, and more favorably, than negligence liability