Toward a General Theory of Tort Law: Strict Liability in Context
Journal of Tort Law, Vol. 3, No. 1, 2010
50 Pages Posted: 6 Oct 2010 Last revised: 7 Nov 2010
Date Written: October 4, 2010
In this extensive article I revisit my earlier writings from the 1970s that deal with tort liability in both stranger and consensual arrangements. On the former, I examine Stephen Perry’s 1988 critique of my work, and more recent contributions by Joshua Getzler and Benjamin Zipursky, to defend the view that a rigorous conception of causation under a theory of strict liability is neither logically impossible nor practically unworkable. In so doing, I reexamine the earlier efforts by writers such as Joseph Beale and H.L.A. Hart & Tony Honoré on causation in order to show how some controversial moves within their theories can be clarified without having to resort to the standard views of causation that work off the notion of “but for” causes. In addition, I explain, in connection with the critique of Jill Horwitz, why some form of a negligence system remains appropriate for medical malpractice cases. In these consensual cases, doctrines of charitable immunity for nonprofit institutions often removed the need to investigate the basis of liability. But once those were removed, a contractual system, which in practice would never embrace a strict liability rule would often turn to some form of negligence, often coupled with institutional changes, such as arbitration and explicit limitations on contractual damages.
Keywords: apportionment, assumption of risk, causation, charitable immunity, medical malpractice negligence, strict liability, sequential wrongs, waiver
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