Strict Liability and the Liberal Justice Theory of Torts
Southwestern Law School
New Mexico Law Review, Spring 2008
Southwestern Law School Working Paper No. 0710
Tort scholars disagree about the relative priority of fault and strict liability. Economists prefer the clearer and more efficient theory of strict liability to the vaguer and more complicated concept of fault. Moralists, by contrast, prefer the deep moral or deontological idea of fault to the more sterile rule of strict liability.
Ironically, both economists and moralists often base their views on liberal principles. Economists rely on the political dimension of liberalism, arguing that tort law should interfere with free market transactions only rarely, and even then, only with clear rules that minimize accident costs. Not surprisingly, moralists rely on the moral dimension of liberalism, contending that tort law should promote private rights and freedoms by creating and enforcing personal responsibilities.
Both views, however, share the same three flaws. First, they assume a singular perspective, focusing on either the moral or the political, but not both. Second, they adopt a unilateral objective, seeking to either punish or deter injurers while virtually ignoring the injured. Third, they endorse positions that are strangely illiberal, promoting either social welfare or a particular conception of the Good.
In this article, I offer a liberal justice tort theory that avoids these pitfalls. After recapturing and redefining strict liability, I demonstrate how that concept can lay the groundwork for a new metatheory of torts. My thesis, in short, is that strict liability is both a moral-political and a substantive-procedural concept that must be implemented in a two-step process.
The first step determines whether the parties' encounter and its effects were consensual. If consent exists, the consenter is held strictly liable for her own loss, irrespective of the fault of her counterpart.
If no consent is found, or if it is not an issue, liberal justice theory then implements a scheme of reasonableness grounded in concepts of strict law and equity. Strict law creates substantive rules that forbid, inhibit or sanction certain people, activities or relations that pose the greatest and surest threats to freedom and equality. However, even when a person, activity or relationship is not covered by a strict substantive rule, equity may episodically impose strict procedural requirements on actors who hold an unfair advantage in the trial of their actions. Because litigation itself is a threat to the freedom of the loser, the ad hoc adjustment of procedural burdens serves to correct an important imbalance between the parties and restores them to a state of moral and political equality.
Number of Pages in PDF File: 55
Keywords: torts, strict liability, justice, liberalism
JEL Classification: K13
Date posted: August 17, 2006 ; Last revised: November 4, 2007
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