The Enterprise of Liability

37 Pages Posted: 17 Dec 2004


This article, an expanded version of the Monsanto Lecture given at Valparaiso University School of Law in early 2004, coins a phrase to complement enterprise liability. Traditional enterprise liability theory conceived of accident victims as passive, the mere recipients of what business does to them. Their advocates were also viewed as passive.

In a new century, however, the enterprise of liability - the plaintiffs' bar - has emerged as a robust, aggressive source of what both injured individuals and the American public demand. Commentary attacking the plaintiffs' bar as entrepreneurial (a term almost always used pejoratively) notwithstanding, the enterprise of liability deserves credit for the two social goods associated with entrepreneurial endeavor - wealth and choice - and should be lauded by anyone who lauds free enterprise.

Keywords: Enterprise liability, plaintiffs' bar, entrepreneurial litigation, civil justice

Suggested Citation

Bernstein, Anita, The Enterprise of Liability. Valparaiso University Law Review, Vol. 69, p. 27, 2004, Emory Public Law Research Paper No. 06-15, Available at SSRN:

Anita Bernstein (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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