TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Monday, August 26, 2019

Two More by Keating

Greg Keating has  been busy lately.  He has posted two more pieces to SSRN.  First, Between Absolutism and Efficiency:  Reply to Professors Geistfeld, Grady, and Priel.  The abstract provides:

This paper replies to Professor Geistfeld, Grady, and Priel’s excellent comments on my article Principles of Risk Imposition and the Priority of Avoiding Harm, 36 Revus J. for Const. Th. & Phil. of Law, 7 (2018). Both my article and Professor Geistfeld’s, Grady’s and Priel’s papers a part of the “Symposium: Risk Regulation and Tort Law, A discussion with Gregory C. Keating.” This Reply completes the Symposium. It attempts, briefly, to develop two lines of argument. One line attempts to respond to the specific criticism that Professors Geistfeld, Grady, and Priel, make in the Comments. In part, my specific replies seek to show that the safety and feasibility standards are rationally justifiable and genuine alternatives to cost-justification as a standard of precaution. Though I disagree with specific arguments of each of my critics, I believe that other claims they make are true, but do not undermine my arguments. For example, my arguments are compatible with Professor Grady’s correct observation that juries have the authority to reach verdicts inconsistent with the priority of avoiding harm — or any other theory of negligence. The merits of jury adjudication are not settled by any normative theory of reasonable care. I also agree with Professor Priel’s thesis that societies do not prioritize harm prevention. We are, I think, torn between competing moral outlooks and the standards of precaution that express those outlooks. My point is that standards of precaution which prioritize the avoidance of harm are rationally defensible, albeit in non-welfarist terms. I am likewise persuaded that Professor Geistfeld is correct to contend that welfare economics is compatible with non-welfarist normative commitments, but mistaken to think that measures such as willingness-to-pay and willingness-to-accept are the best ways to articulate the concrete implications of non-welfarist principles of precaution.

This Reply leads, however, with a second line of argument. We are all — consequentialists and non-consequentialists, philosophers and economists — imprisoned in the grip of the debate between utilitarianism and its critics that dominated political philosophy in the latter half of the 20th century. Classical utilitarianism fell into disfavor because its commitment to maximizing utility is capable of justifying deprivations of basic rights for a minority whenever such restrictions promoted the greatest net happiness. The cure for this disease lay in making some basic rights “absolute” — in ruling out some trade-offs entirely. Applied to problems of risk imposition, the legacy of this debate is the assumption that we must choose between “absolutism” and “efficiency”. Unattractive as “efficient” trade-offs may be, the absolute prohibition of trade-offs is untenable when risks of physical harm are at issue. The safety and feasibility standards must fail because they are unacceptably absolutist. Once we shake ourselves free of this philosophical legacy we can see that this is not the case: these standards are standards for making trade-offs not for forbidding them and that the trade-offs they prescribe are perfectly plausible.

Second, Fair Precaution.  The abstract provides:

This book chapter briefly sketches a general framework which explains why questions of fairness have a natural salience when the imposition of risks of harm by some on others is at issue, and it applies that conception to major aspects of negligence law. Fairness comes to the fore because risk impositions require us to compare what those who impose the risks stand to gain, and those upon whom they are imposed stand to lose. Determinations of due care reconcile competing claims of liberty and security, for a plurality of persons. Fairly reconciling liberty and security requires reconciling them on terms that are justifiable both to those who impose risks and to those upon whom they are imposed. This, in turn, requires comparing the benefits and burdens of risk impositions in terms of their objective urgency, assessing the burdens and benefits of risk impositions qualitatively, and assigning a certain priority to the avoidance of harm. The framework is used to explicate the concept of due care articulated by the Hand Formula, to illuminate the circumstance where risks are imposed with a “community of risk”, and to situate subordinate doctrines of due care such as custom, statutory negligence, and jury adjudication. Brief contrasts are drawn with both law and economic approaches to justified precaution as efficient precaution, and with versions of corrective justice which see negligence liability falling out of a universe of conceptual possibilities where it holds the high ground of a golden mean.

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