Monday, March 12, 2012
Mike Green (Wake Forest) and Israel Gilead (Hebrew University) have posted to SSRN Maligned Misalignments. The abstract provides:
This article responds to a fascinating and provocative article entitled “Misalignments in Tort Law,” authored by Ariel Porat and published at 121 Yale L.J. 82 (2011). Porat argues that the rule embodied in Section 29 of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm creates a doctrinal misalignment that should be removed. This "scope of liability" provision, which Porat names "the wrongful risks limitation," provides that "[a]n actor‘s liability is limited to those harms that result from the risks that made the actor‘s conduct tortious" (wrongful risks). Porat argues that as "all foreseeable risks created by the injurer should be and are considered by courts when they set the standard of care," liability should not be limited to wrongful risks, as required by Section 29, but rather extend to all harms materializing from foreseeable risks. Limiting liability to wrongful risks, Porat argues, is a misalignment which should be removed because it is unjustified in terms of efficiency and cannot be convincingly justified in terms of corrective justice.
This article argues that Porat's analysis and criticism of the "scope of liability" rule in Section 29 is flawed. While courts should take all foreseeable risks into account when deciding whether a conduct was negligent (namely, when determining whether the standard of care was breached), they should nevertheless for scope of liability purposes distinguish between unreasonable risks on the one other hand and reasonable risks on the other. When an actor is found negligent, liability should be limited to harms materializing from the unreasonable risks and exclude harms materializing from reasonable risks. The article seeks to demonstrate that such a limitation on liability, sanctioned by Section 29, constitutes a rule, even if a misalignment, that, contrary to Porat, contributes to more appropriate incentives to avoid unreasonable conduct and produces fairer results.