Tuesday, June 2, 2015
Heidi Hurd has posted to SSRN The Innocence of Negligence. The abstract provides:
This article defends the claim that negligence is not blameworthy, and that the system of accident law that dominates Anglo-American law is thus not, in fact, fault-based. Recognizing that this claim contradicts hundreds of years of case law and jurisprudential rhetoric, the article systematically examines five alternative bases upon which it might be tempting to predicate claims of fault in cases in which persons have inadvertently caused harm. On these accounts, we are entitled to blame, and therefore to transfer the costs of accidental injuries, to negligent actors because: (1) they deliberately chose to violate per se precautionary rules that exist to safeguard others from inadvertent injury, and in so doing they culpably engaged in objectively faulty conduct, even if they did not subjectively appreciate its risks; or, (2) they deliberately chose to do acts that they knew would make their later inadvertence to risks unjustifiably likely, and we can properly blame them for those prior culpable choices, even if we cannot blame them for the inadvertence that later attended their injurious actions; or (3) while they made no relevant choices with regard to the accidental injuries they caused, they possessed unexercised capacities, which if exercised, would have prompted them to choose a risk-free course of conduct; or, (4) they possessed defective motor skills, cognitive capacities, or volitional resources which were themselves morally blameworthy or which, if not themselves blameworthy, were causally significant to the accidental injury in ways that could have been prevented; or (5) they possessed defects of character which were themselves blameworthy, and which caused their failure to advert to the risks of their behavior, thus making such inadvertence blameworthy.
As I shall argue, none of these arguments succeed in grounding the claim that negligence is morally blameworthy. None thus provide a basis for thinking that negligence liability is fault-based. Absent any further account of how inadvertent injuries are culpably caused, tort law and tort theorists should confess that negligence liability is just another species of strict liability. Corrective justice theorists who are anxious to preserve the claim that tort law should be in the business of redressing culpable wrongs should thus either urge the doctrinal adoption of genuine culpability conditions or get on with the task of vindicating the morality of redistributing losses to those who have voluntarily caused them, however innocently.