Thursday, March 26, 2009
Ken Simons (Boston) has posted to SSRN The Restatement Third of Torts and Traditional Strict Liability: Robust Rationales, Slender Doctrines. Simons will present the paper next week at the Wake Forest Conference on the Restatement (Third) of Torts. Here is the abstract:
The traditional strict liability doctrines - liability for abnormally dangerous activities, for wild animals, for abnormally dangerous animals, and for intruding livestock - can largely be explained by a small set of rationales. The Restatement Third Draft offers six principal economic and fairness-based rationales for strict rather than negligence liability: providing the injurer an incentive to optimize (1) the level of care and (2) the level of the activity; and recognizing the justice of requiring the injurer to pay when his activity (3) creates a nonreciprocal risk, (4) affords him a nonreciprocal benefit, (5) is the exclusive cause of the harm, or (6) when the community's sense of fairness supports strict liability. The Draft also rejects (7) loss-spreading as a rationale in this context. With the notable exception of (5), exclusive causation, this is a defensible and plausible set of rationales. However, the actual strict liability doctrines endorsed in the Draft are narrower in scope than the robust logic of these rationales would imply. This mismatch is probably best explained by judicial reluctance to impose strict liability unless the effects of such liability are modest. At the same time, from a wider perspective, the supposed contest between strict liability and negligence approaches is overstated, for each approach contains traces of the other.