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This book is a timely account of the relationship between the theory of ‘enterprise liability’ and a number of common law doctrines, principally vicarious liability. The account is timely because the dust has now begun to settle on the 1999 decision in Bazley v Curry, where the Supreme Court of Canada reformulated the law relating to the course of employment by seeking to put it on an ‘enterprise liability’ footing, a decision which in turn influenced the House of Lords’ approach to the same issue in Lister v Hesley Hall Ltd. According to the book’s author, Douglas Brodie, the invocation of enterprise liability can be seen as the common law’s response to contemporary concerns over the proper extent of corporate social responsibility, a claim he seeks to substantiate by a wide-ranging analysis of the inter-relationship between enterprise liability and the common law which is not limited to UK law but also makes extensive reference to authorities from Australia, Canada and the USA.

application/pdf, In diesem Aufsatz werden (i) die Rekonstruktion der deliktischen Haftung der juristischen Personen selbst und (ii) die Gründe für die Beweislastumkehr in besonderen Deliktsvorschriften untersucht. In Bezug auf den ersten Punkt wird die Lehre von der deliktischen Haftung der juristischen Personen kritisiert, weil es die Haftung verschärft und die Frage aufwirft, ob es möglich ist, das Verhalten einer juristischen Personen zu erfassen. Dieser Aufsatz betrachtet das Risiko der juristischen Personen selbst bei ihren eigenen unerlaubten Handlungen unter dem Gesichtspunkt des Organisationsrisikos und das Risiko der juristischen Person selbst bei ihren eigenen unerlaubten Handlungen unter dem Gesichtspunkt des Organisationsrisikos. Mit diesem Ansatz wird es versuchte, die Auferlegung der Haftung zu rechtfertigen. Durch die Anwendung eines Ansatzes, der zwischen dem Gegenstand der Verpflichtung und dem Gegenstand der Leistung in Bezug auf die Handlungen der juristischen Person unterscheidet, ist die Lehre von der Haftung der juristischen Personen möglich. In Bezug auf die Verlagerung der Beweislast für Fahrlässigkeit wird es von das österreichischen Recht angedeutet, dass die Intensität des Risikos die Beweislast für Fahrlässigkeit des Subjektes in besonderen Deliktsvorschrifte verlagert werden sollte.Die Verlagerung der Beweislast für den Kausalzusammenhang ist auf die Fälle beschränkt, in denen der Inhalt der Verpflichtung eine Garantie für das Ergebnis darstellt, und zwar auch in dem Maße, dass die Kausalkette verhindert wird. Da es sich bei diesem Aufsatz um den letzten einer Reihe von Artikeln und um eine Zusammenfassung der bisherigen Forschungsarbeiten des Autors handelt, werden auch einige künftige Themen aufgezeigt.

This paper analyzes the social effectiveness of fines (sanctions) and awards (liability) where accident risks are influenced by decisions made by both the enterprise and the employees of the enterprise (individuals). The regulator observes a proportion of accidents and the safety decision of the individual can be contractible or non-contractible for the enterprise. All sanction regimes yield the first best, given contractible individual care. The liability regimes, however, produce sub-optimal solutions. Given non-contractible individual care, the combined use of an individual sanction and an enterprise sanction (joint use) produces the first best. The exclusive use of an individual sanction produces the first best if the enterprise does not suffer any direct harm. The exclusive use of an enterprise sanction does not, however, produce the first best. If both decision-makers are solvent and have similar liability probabilities, then individual and enterprise liability do equally well under contractible individual care. Individual liability does, however, best for non-contractible individual care.

The general problem of moral luck - that responsibility is profoundly affected by factors beyond the control of the person held responsible - has two distinct dimensions in the case of accidental injury (and no doubt in many other cases). One dimension is concerned with attribution of moral blame. Thomas Nagel explains: "If one negligently leaves the bath running with the baby in it, one will realize, as one bounds up the stairs towards the bathroom, that if the baby has drowned one has done something awful, whereas if it has not one has merely been careless." How badly one has behaved and hence how much one should be blamed turns on consequences beyond one's control - on luck. The other dimension concerns the existence and extent of one's responsibility for having done harm, one's obligation to someone harmed to make amends for or repair the harm done. Someone who has been careless and lucky enough not to injure anyone has no such obligation. Someone who has been equally careless and inflicted a devastating injury may well have a ruinous obligation. In contrast to one another, the first of these dimensions seems distinctively more moral and the second distinctively more legal. The extent of the agent's culpability, the degree to which he or she should be blamed, strikes us as predominantly a matter of moral assessment. We are appraising a person, determining what sort of mark should be entered on the ledger of his life and character. The existence and extent of obligations of reparation, by contrast, strikes us as predominantly a matter of legal liability. We are settling the responsibility of an injurer to her victim. But it would be an error to draw too sharp a distinction between the moral and the legal. A legal judgment of negligence expresses criticism and disapproval of the conduct involved, and it is a mistake to purge that legal criticism of any moral dimension. So, too, the legal obligation to repair harm wrongly inflicted imposed by the tort law of negligence overlaps with a perceived moral obligation of the same kind, and is no doubt at least partially rooted in and justified by that perceived moral obligation. Because the moral and the legal interpenetrate in these ways, our judgments about the role that moral luck should play in on our assessments of the moral culpability of persons cannot be wholly divorced from our judgments about the role that moral luck should play in our assessment of the legal liability of persons. It is significant, then, that Thomas Nagel in one of the articles naming the problem of "moral luck" condemns strict liability as an "irrational . . . moral position" in contradistinction to negligence liability, which takes a defensible position on moral luck. Negligence liability is morally defensible because it holds people "responsible for the contributions of fate as well as for their own - provided they have made some contribution to begin with." The comparative irrationality of strict liability, however, cannot turn on the fact that it holds people accountable solely for fate. It doesn't. Holding "the contributions of fate" constant for the moment, strict liability holds people accountable for harms attributable to their agency whereas negligence liability holds people accountable for harms attributable to their culpable agency. If strict liability is morally irrational it must be because it is irrational to hold people accountable for the consequences of their agency, as opposed to for the consequences of their faulty agency. Perhaps there is some reason why this is the case, though I am inclined to doubt it. But if there is some such reason it is not rooted in moral luck. On the contrary, one of the distinctive virtues of strict liability is that it is capable - in the social world in which we live - of mitigating the effects of moral luck. In law, "moral luck" is in part an artifice of institutional design. And under conditions common in the modern world, strict liability does not exacerbate the effects of moral luck, it mitigates those effects. The standard criticism of strict liability has it exactly backward. This criticism asserts that strict liability is suspect because of the great burden that it places on our freedom: We may find ourselves liable for devastating injury no matter how carefully we proceed, no matter how irreproachably we conduct ourselves. Strict liability is a sword of Damocles dangling over all of our actions. When the subject under consideration is strict enterprise liability in the law of torts - and when that subject is under consideration in a characteristically modern social world - this criticism is wholly misplaced. In a world where the costs of accidents can be dispersed across the activities which engender them, strict liability protects our freedom of action by substituting certain but manageable insurance premiums for unpredictable but potentially catastrophic losses. By subjecting us to a lottery some of whose spins of the wheel impose financial ruin, it is fault liability that puts our actions at the mercy of luck. Tort law may have something to tell us about the sources of moral luck. Thomas Nagel famously mused that the problem of moral luck may arise out of our ability to adopt both objective and subjective perspectives towards ourselves - to see ourselves both as objects within the natural world, governed by causal laws and as actors who cannot help but conceive of ourselves as free. In tort law, the phenomenon appears to arise more proximately from another source: The clash of individual conceptions of fault with the reality of systemic social risk. What is luck to the parties involved, is statistically inevitable harm to the activity within which the accident arises. "Moral luck" is not "luck" at all but the upshot of a mismatch of social reality and institutional form. Moral luck is in part the offspring of human institutions and it may in part be mitigated by their redesign.

The prevailing wisdom about the rise of modern products liability law is framed by a debate which took place more than a generation ago. George Priest argued that modern American products liability law was born as enterprise liability incarnate and consequently ran amok in a nightmare of unlimited liability. Gary Schwartz countered that product liability law strict in name but fault-based in fact. Strict products liability was a revolution in rhetoric alone. To this day, these positions dominate our understanding of products liability law in its formative moment. We are long overdue for a fresh look. This paper argues that Priest was right to argue that modern American product liability law exploded when it was crystallized as a form of enterprise liability in §402A of the Second Restatement of Torts. But he loses the thread of the narrative when he claims that strict products liability self-destructed because enterprise liability is inherently limitless Enterprise liability is liability for the characteristic risks of an activity and it is as preoccupied with identifying those risks of activities as fault liability is preoccupied with determining the presence or absence of fault. Professor Schwartz, for his part, is right that conceptions of balancing, duties of care, and comparative fault all find their ways into product liability law in its formative period. But Schwartz’s identification of products liability with negligence is fundamentally mistaken. In products liability’s formative moment these elements of negligence law were deliberately refashioned to construct a form of liability more strict than ordinary negligence liability.This paper proceeds as follows. Part I briefly traces the long common law pre-history of modern product liability law as it passes through four phases: freedom of contract, negligence liability, warranty liability and strict enterprise liability. Part II explains the idea of enterprise liability as a distinctive conception of tort liability, focused on activities not actions and finding its fullest incarnation in strict liability. Part III explains the liability rules that constituted products liability as enterprise liability with a particular eye to showing how they articulated a distinctive regime consciously designed to be more stringent than ordinary negligence liability. Part IV takes stock of the Priest and Schwartz theses in light of the regime described in Part III. Very briefly, Part IV also suggests why enterprise liability should be considered a valid alternative to negligence liability in the emerging world of autonomous vehicles.

In the context of corporate groups, the legal principles of limited liability and corporate separation can lead to injustice in cases of harm to involuntary creditors by externalising risks that ought to be internalised by the enterprise as the better risk taker. The avoidance of responsibility can be achieved by interposing a separate legal entity between the victims and the ultimate controller of the group, be it a parent company or its controlling shareholders. The resulting lack of legal responsibility could be remedied in a number of ways ranging from adaptations of existing exceptions to the doctrine of limited liability to outright abolition of limited liability. Preference is given to a statutory principle of enterprise liability for the controlling entity. The implications of these doctrines are also discussed in relation to the choice of jurisdiction in which to bring a legal action. Copyright The Author 2010. Published by Oxford University Press on behalf of the Cambridge Political Economy Society. All rights reserved., Oxford University Press.

In Lister v Hesley Hall [2002] 1 AC 215 the House of Lords reformed the law on vicarious liability, in the context of a claim arising over the intentional infliction of harm, by introducing the ‘close connection’ test. The immediate catalyst was the desire to facilitate recovery of damages on the part of victims of child abuse. The precise form the revision assumed was derived from two Canadian Supreme Court cases: Bazley v Curry [1999] 174 DLR (4th) 45 and Jacobi v Griffiths [1999] 174 DLR (4th) 7. The Canadian jurisprudence contains a detailed review of the policy factors underpinning the law of vicarious liability and expresses the view that the most significant of these is ‘enterprise liability’. This article attempts to establish whether enterprise liability holds the same significance in the UK. And, on the assumption that it does, the article goes on to consider any difficulties that may ensue and any further common law reforms that may result. In particular it considers whether the law on vicarious liability for independent contractors is likely to change.

(2002). CYBERSURGERY--AN ARGUMENT FOR ENTERPRISE LIABILITY. Journal of Legal Medicine: Vol. 23, No. 2, pp. 167-210.

In certain situations, a firm that buys some or all of another company can be held liable if the latter’s products harm consumers. This doctrine of successor corporation liability is, in effect, an extension of vertical enterprise liability, a recognized concept in American product liability law. Generally, a corporation that merges with another company takes on the other firm’s legal obligations and liabilities. If the merger is in compliance with all pertinent statutory requirements, the organization which merges post-agreement is liable for all of the predecessors’ obligations, including product liability for defective products.

Without much analysis, the U.S. Supreme Court has imported common law agency and tort principles to resolve issues of employer vicarious liability under Title VII. The story that emerges from the recent Title VII case law is one of similarity and continuity: the main theme is that Title VII is a statutory tort, making it seem appropriate to rely on longstanding common law agency principles to determine employer responsibility for the wrongful acts of their employees. This article contests the prevailing narrative, arguing that it significantly downplays major differences in the structure and history of tort and Title VII claims. Borrowing from tort law is misguided because vicarious liability principles were never meant to govern claims by employees against their own employers. Instead, at common law, the infamous “fellow servant rule” insulated employers from tort liability in such suits, with vicarious liability coming into play only when injured third parties sought recovery. Unlike the dual liability scheme of tort law – which holds both the employer and the offending employee liable – Title VII claims may be brought only against the employer. The enterprise liability scheme of Title VII thus bears little resemblance to the prototypical vicarious liability structure in tort law. The Supreme Court’s approach has lost sight of historical workers’ rights struggles which led to the enactment of comprehensive workers’ compensation statutes. By recasting Title VII as the second major intervention into the employer/employee relationship, this article tells a very different story – one of contrast and change – that would free Title VII vicarious liability doctrine from the strictures of the common law.

Enlightenment, natural law and economic liberalism engendered the grand concept of modern private law. Nearly simultaneously the ongoing process of industrial revolution paved the path into another modernity. Its new paradigms were technical risks, enterprises and insurance. Insurability of losses caused by risky commercial activities created the demand for ‘stricter’ forms of liability beyond fault. The paper presents three different answers to these challenges to civil responsibility. Germany is but a prominent example for the continental EU member states with its mixed system of social insurance, special legislation on strict liability and general fault liability. The US adheres to the negligence system with only marginal corrections. The liability law of the new Russian civil code combines the French and German legal legacy with the revolutionary ideas of the 1922 code leading to two general clauses of quasi-strict and strict liability.

Enlightenment, natural law and economic liberalism engendered the grand concept of modern private law. Nearly simultaneously the ongoing process of industrial revolution paved the path into another modernity. Its new paradigms were technical risks, enterprises and insurance. Insurability of losses caused by risky commercial activities created the demand for ‘stricter’ forms of liability beyond fault. The paper presents three different answers to these challenges to civil responsibility. Germany is but a prominent example for the continental EU member states with its mixed system of social insurance, special legislation on strict liability and general fault liability. The US adheres to the negligence system with only marginal corrections. The liability law of the new Russian civil code combines the French and German legal legacy with the revolutionary ideas of the 1922 code leading to two general clauses of quasi-strict and strict liability.

The aim of this paper is to determine the level of compensatory damages required by fairness approaches to strict liability. It argues that, most of the time, such level is the level corresponding to optimal insurance. O objetivo deste artigo é determinar o montante de indenização requerido por teorias da responsabilidade civil objetiva baseadas na ideia de equidade ou fairness. Argumenta-se que, na maior parte dos casos, o referido montante é o correspondente ao seguro ótimo.

Although tort law centers on the negligence concept, it is accepted that “pockets” of strict liability provide an alternative to the negligence regime. This belief is fueled by cases in which responsibility for the well-being of others appears to be based on causing harm rather than on committing a wrong that causes harm, and by the proliferation of definitions of “strict liability” to cover situations in which “fault” is thought to be absent. Accordingly, tort theory not only assesses the relative merits of strict liability and negligence liability, it seeks to justify their simultaneous implementation within tort law. In this chapter, I question the success of this venture as it applies to abnormally dangerous activities, and I offer a new interpretation. Strict liability of the kind addressed in this chapter puts the focus on an actor's activity. It makes the defendant responsible for causing harm and thereby induces an actor either to set aside money for victims or, if it is cheaper, to make better choices when engaging in the activity that is subject to strict liability. Undoubtedly, a system of strict liability applied to all accidental harms, although not without its problems, could be made coherent. Causing harm could be seen as a basis for compelling an actor to correct the harm she caused, whatever the context, with appropriate adjustments for victim error and an appropriate definition of “cause.

The other-regarding behavior of product sellers has been the object of intense scrutiny for over half a century, developing product liability law into a seemingly distinct branch of tort law. Yet the product liability “revolution” has come into focus over the last couple of decades, and it appears now to be different than it initially appeared. When we reexamine developments in product liability law through justificational lenses, we understand them in a new way. THE JUSTIFICATIONAL ERRORS My account of product liability law emphasizes its close relationship to the negligence concept. My account is therefore a major departure from most contemporary stories of product liability. It is generally thought, for example, that “products liability law” is a unique legal regime, self-contained and separated from the negligence regime applicable to other activities. A small industry has grown up advancing this position, producing product liability casebooks, treatises, and restatements, carefully justifying the regime's individual identity and content. Often the regime is thought of as “strict products liability,” although I demonstrate below that the term strict liability is largely a misnomer when applied to product liability law.

It has often been pointed out that decision making in law, rather than being concerned with complicated legal issues, is concerned with fact finding. As a supreme court judge once put it: “Deciding a legal case is about three things: facts, facts and facts”. Precisely for this reason are rules on burden of proof of enormous practical importance. Thus, rules on burden of proof come into play when there is uncertainty as to the facts of the case.

The chapter’s purpose is to analyse principles of control liability under the major common law systems and apply such principles to the use of economic sanctions. In doing so, the chapter examines the legal and regulatory concept of control liability as it applies to corporate entities and controlling investors. The chapter also examines how the enterprise liability doctrine can lead to the attribution of civil and criminal liability for regulatory and statutory breach to all members of the multi-national business enterprise based on their capacity to control certain aspects of the regulated entity. Under this doctrine, economic sanctions regulations can potentially apply to all affiliated and controlled members of the multi-national group through the mechanism of control or shared control, regardless of the nationality of particular entities within the group. The chapter suggests therefore that the concept of control liability provides a useful legal technique for states when implementing economic sanctions laws by imposing controls on corporate groups and other entities.

The economic perspective views tort law as a mechanism to internalize externalities borne by prohibitively high transaction costs. Tort law has been 'reformed' on two different bases of reasoning. Since the producers have a larger bargaining position to manipulate for underinvestment as measures for precaution, strict liability will increase incentives for them to reduce accidents. The other basis of reasoning concerns business environmental dynamics. Sophistication of products and services, urbanization and globalization of business operations rapidly aggravate the costs associated with precaution and the burden of proof. In this research we investigate such impact on the optimal design of the burden of proof. We model both liability cost (substantive law)and the procedural cost of burden of proof with an integrated model. We investigated the impact of business environment dynamics that enterprise liability defenders identified to justify the reform, and power imbalance that set forth the concept of enterprise liability for fairness beyond efficiency. Our result shows that such dynamics do not unidirectionally allocate burden to the injurer. When the court considers the power unbalance, the burden will be allocated more to the manufacturer. It is also interesting that a fractional allocation of the burden of proof can be socially optimal under the intermediate range of precaution cost when the court favors the manufacturer.

The “idea of private law” has occupied a prominent place in tort theorizing over the past twenty years. To American ears, the idea has a libertarian ring, implying a realm of private freedom beyond the reach of public power. But the idea of “private law” pursued in recent tort theory is different. This strand of tort theory takes an essentially formal view of “private law” as a type of adjudication through which one member of civil society invokes the public power of the state to call another member of civil society to account for breach of an obligation, owed by the latter to the former. In a number of recent, elegant essays, Arthur Ripstein has advanced a particular version of this view, a version distinguished in important part by its enlistment of the political philosophy of John Rawls in support of this project. Ripstein’s recent Tort Law in a Liberal State is a further contribution to this project, summarizing Professor Ripstein’s view and arguing for both the interpretive and the philosophical plausibility of his project. Personal Inviolability and Private Law, JOURNAL OF TORT LAW: Vol. 1: Iss. 2, Article 4 (2006) raises objections to both aspects of Ripstein’s project, and briefly explains why “public law” conceptions of tort are at least as plausible as “private law” ones, both philosophically and interpretively. Interpretively, Professor Ripstein’s conception is open to three serious objections. First, by placing the calling of one member of civil society to account by another at the center of their view, “private law” theorists threaten to place the remedial cart before the substantive horse. Prior to the late nineteenth century, tort law had an intensely remedial cast and was not unified around general principles of liability. Our modern law of torts comes into existence with (and by the recognition of) tort as a freestanding law of primary obligation. By placing such great weight both on Kant’s propertycentered account of private law and on “private law” theory’s heavily remedial conception of tort, Professor Ripstein’s conception cuts against the fundamental thrust of modern tort law. That thrust is to make obligation central and to treat right and remedy as separable. Ripstein, by contrast, places enormous weight on remedy and takes right and remedy to be indivisible. Second, Tort Law in a Liberal State is, in important part, a brief for the fault principle. Professor Ripstein is right to distinguish between “harm-based” torts such as liability for accidental injury, negligently inflicted and “right-based” torts such as trespass, but wrong to claim that “harm-based” liability in tort is always fault-based. This claim leads Professor Ripstein both to a distorted account of tort law’s various strict liabilities and to a fundamental mischaracterization of much of the conduct subject to liability in tort. Professor Ripstein’s recasting of strict liabilities as fault ones commits him to the unfortunate idea that there is something intrinsically wrong with valuable, productive activities, blamelessly conducted. Both the recasting of particular strict liabilities in fault terms, and the righteous condemnation of risk to which this recasting leads, are mistaken. Rylands’ conduct in the famous case of Rylands v. Fletcher was not wrongful; Atlantic Cement’s conduct in Boomer was not wrongful; and Lake Erie’s conduct in Vincent was not wrongful. In all of these cases, defendant’s only “fault” lay in (unreasonably) failing to make reparation for harm (reasonably) inflicted. More generally and more importantly, risk, like pollution, is not wrongful in itself, and harm is a matter of moral concern even when it issues from blameless conduct. Strict liability is a morally significant and instructive form of liability because it registers the perception that serious harm must sometimes be repaired, even though it has been faultlessly inflicted. Third and last, it is an interpretive mistake to insist that “public” and “private” forms of tort and accident law express fundamentally different values and moral conceptions. “Public law” schemes frequently complement or perfect “private law” ones, and threads of political morality tie private and public accident law institutions together. Zoning law’s relation to nuisance is only one of many cases in point. Professor Ripstein’s philosophical claims are likewise open to objection. For starters, Professor Ripstein’s attachment to the form of “private law” transforms Kant’s preoccupation with the inviolability of persons into a preoccupation with the formal purity of legal institutions. This is a path to avoid. An accident law faithful to the power of Kant’s philosophy must give pride of place to the inviolability of our persons, not to the inviolability of our legal forms. That latter path leads to endowing legal rules with the intrinsic value held only by persons. Second, Ripstein’s assertion that Rawls’ theory of justice commits him to the particular institutional form of “private law” is unpersuasive. Famously and explicitly, Rawls’ theory leaves open the choice between capitalism and market socialism. The most natural and plausible reading of his theory of justice shows that it also leaves open the far more modest institutional choice between “private” and “public” law institutions. Equal freedom and reciprocity of right among free and equal citizens does not require the particular institutional form that goes by the name of “private law.” The final part of Personal Inviolability and “Private Law” briefly suggests that some form of enterprise liability constructed around a conception of commutative justice may, in fact, express the independence, equality and inviolability of democratic citizens more adequately than a “private law” constructed around a conception of corrective justice. As far as the law of accidents is concerned, the choice of appropriate institutional form depends as much on the properties of the social world in which accidents arise as it does on the formal characteristics of the available legal institutions. In our characteristically modern social world— where the costs of accidents can be dispersed across the activities responsible for them—“public” law forms of accident law may do a better job than “private” law ones of securing justice among free and equal persons. Free and equal citizens have ample reason not to place their rights against one another at the mercy of a “private law” negligence lottery, and to seek surer reparation for serious injury through some form of enterprise liability. William T. Dalessi Professor of Law and Professor of Philosophy, University of Southern 1 California. I am indebted to Arthur Ripstein for a number of illuminating email exchanges on the subject of his paper and tort law more generally, to Scott Altman for illuminating discussions of the law of property, to Ben Zipursky for astute comments on the penultimate version of the paper, and to Erin Garvey for research assistance. I am especially grateful to Cathy Sharkey for undertaking the thankless task of organizing the conference. This is a corrected version of a paper published at JOURNAL OF TORT LAW: Vol. 1: Iss. 2, Article 4 (2006) See Private Order and Public Justice: Kant and Rawls forthcoming, University of Virginia Law 2 Review [henceforth cited as “Private Order and Public Justice”]and Beyond the Harm Principle, forthcoming, Philosophy and Public Affairs [henceforth cited as “Beyond the Harm Principle”]. Private Order and Public Justice, at 2. 3

There are some important differences in structure and in dogmatic background between the Principles and the CC, of which one can point out the following: (1) The CC adopts the principle of fault, the Principles offer the same dogmatic level to fault, strict liability and liability for others. (2) The definition of wrongfulness and the protection of pure economic interests and contractual relationships is broader in the Principles than in the Portuguese CC. (3) The regime on enterprise liability and (4) the chapter on causation of the Principles are very innovative. (5) Concerning remedies, the Principles provide compensation for non-pecuniary damage for anyone having a “close relationship” with the injured, which is opposed to the enumeration of relatives and (6) the Principles provide compensation of non-pecuniary damage suffered by persons having a close relationship with a victim suffering a very serious non-fatal injury.

This article analyzes twentieth-century tort scholarship in terms of a five-sided debate between compensation-deterrence theory, enterprise liability theory, economic deterrence theory, social justice theory, and individual justice theory. It surveys, parses, and analyzes the central interpretive and prescriptive claims made by each of these theories, exploring and exposing to criticism their underlying assumptions and commitments. The article concludes with a plea for greater theoretical self-consciousness among tort scholars, and for a shift in focus away from the strict-liability v. negligence debate.

This paper explores two central questions in the tort law of accidents—the choice between negligence and strict liability, and the level of reasonable precaution—from a fairness perspective. The first part of the paper develops the idea that liability rules are fair when they are, ex ante and over the long run, to the advantage of all those they affect, even those who fare worst under them. The second part of the paper investigates the choice between negligence and strict liability, taking into account two competing conceptions of fairness. One influential conception takes reciprocity or nonreciprocity of risk to be the master test of fairness, holding that accident costs are fairly distributed when the risks which give rise to accidents are fairly distributed. Another influential conception holds that the accident costs of risky activities should be spread among all those who benefit from the activity, ideally in proportion to their degree of benefit. This conception takes the distribution of harm—of the costs of accidents themselves—to be central. Part two of the paper argues that this second conception of fairness is preferable, and that it gives us good reason to believe that enterprise liability is prima facie fairer than negligence liability. Part three of the paper takes up the question of reasonable care, investigating the fair level of precaution. This part of the paper focuses particularly on the question of what fairness requires when an activity imposes a significant risk of serious injury. When an injury is serious—when the harm it does substantially impairs the pursuit of a normal life and when that harm cannot be repaired—fairness cannot be achieved by redistributing accident costs after the fact of an injury. Fairness must be achieved, if it can be achieved, by pitching the level of precaution at an appropriately high point ex ante. The paper argues that fairness requires pushing the level of precaution beyond the wealth maximizing point when substantial risks of serious injury are at issue. Fairness requires reducing such risks to the point where further reduction would threaten the activity that engenders them, the point where the long run health of the activity would be jeopardized. The fourth and final section of the paper examines the connections between fairness and the forms of justice. Taking issue with the dominant position in contemporary tort theory, section four argues that justice (as fairness) in tort accident law is primarily a question of distributive justice, and only secondarily a matter of corrective justice.

Products liability law has witnessed a long debate over whether manufacturers should be held strictly liable for the injuries that products cause. Recently, some have argued that psychological research on human judgment supports adopting a regime of strict enterprise liability for injuries caused by product design. These new proponents of enterprise liability argue that the current system, in which manufacturer liability for product design turns on the manufacturer's negligence, allows manufacturers to induce consumers into undertaking inefficiently dangerous levels or types of consumption. In this paper we argue that the new proponents of enterprise liability have: (1) not provided any more than anecdotal evidence for their thesis; (2) failed to account for the mechanisms the law already has available to counter manufacturer manipulation of consumers; and (3) made no effort to address the well-known problems enterprise liability creates. Furthermore, even on its own terms, the new arguments for enterprise liability fail to consider the tendency of some manufacturers to exacerbate the risks that some products pose ? a tendency that enterprise liability would exacerbate. In short, the insights gleaned from psychological research on human judgment do not support adopting a system of strict enterprise liability for products.

The proposed Restatement Third, Torts: General Principles takes the position that there is no general conception of strict liability, only special instances of such liability. This paper argues that there is indeed a general conception of strict liability, namely, enterprise liability, and that enterprise liability is a conception of responsibility for harm done equal to and competitive with the fault principle. Enterprise liability emerges early in the 1900's and expands in influence throughout most of the twentieth century. At the very moment when fault theorists like Ames and Jeremiah Smith were proclaiming the triumph of the fault principle in the common law of torts, enterprise liability burst full-blown on the legal landscape, with the enactment of the first Worker's Compensation Acts. These Acts, as Jeremiah Smith saw, were "founded largely upon a theory inconsistent with the common law of torts." That theory - the theory of enterprise liability - went on to spread throughout the tort law of accidents, reshaping preexisting forms of strict and vicarious liability and blossoming in the products liability regime inaugurated by Section 402A of the Second Restatement. Enterprise liability played an important role in tort accident law throughout the twentieth century, expanding the domain of strict liability relative to negligence and increasing the strictness with which certain doctrines (such as res ipsa loquitur) were interpreted. Even during the current renaissance of negligence liability, enterprise liability continues to exert a powerful subterranean influence on the way negligence doctrine is formulated in such disparate areas as medical malpractice, special relationships and duty. The proposed Restatement, Third's portrayal of strict liability as a set of isolated exceptions to a general regime of fault liability is thus untrue to the history and theory of the tort law of accidents as it has come down to us at the start of this century. More disturbingly, this slighting of enterprise liability and celebration of fault liability covertly contributes to its own realization. By writing enterprise liability out of our law and treating all instances of strict liability as special cases with particular histories and peculiar rationales, the proposed Restatement, Third fosters the triumph of negligence over strict liability, a triumph it purports merely to find.

Physicians are traditionally liable under a negligence rule of liability. Economic analysis of liability rules, including malpractice, assumes that the primary function of liability is injury prevention (deterrence). Compensation can be provided more efficiently through other forms of social or private insurance. In theory, a negligence rule creates incentives for efficient care, hence there should be no negligence, no claims and no demand for liability insurance. In practice, the incidence of negligent injury has been estimated at roughly one per hundred hospital admissions in the US and about one in seven physicians is sued per year. These discrepancies between the theory and actual operation of the negligence system arise primarily because of imperfect information on the part of courts, doctors, patients, liability insurers and health insurers. Imperfect information and extensive health insurance lead to biased and uncertain legal standards. Uncertain legal standards create incentives for physicians to practice defensive medicine and incentives for plaintiffs and defendants to invest in litigation, leading to high overhead costs, such that compensation through the malpractice system carries a load of $1.50 per $1.00 of compensation. Nevertheless, the extreme criticisms of the malpractice system are exaggerated. Malpractice premiums are less than 1 percent of total health care costs. There are no comprehensive estimates of defensive medicine costs; in any case such costs are likely to decline with the growth of managed care. Although claim disposition exhibits both Type 1 and Type 2 errors, negligent injuries are much more likely to lead to a claim being field and payment to the plaintiff than non-negligent injuries, and awards are strongly related to loss incurred. The limited empirical evidence of provider response to liability and the deterrent effect of claims suggests — but cannot prove — that the net benefits of the malpractice system may plausibly be positive. Nevertheless, reforms designed to reduce inappropriate compensation and deter excessive litigation and defensive practice would make the system more cost-effective. The empirical evidence, based primarily in the US, includes studies of malpractice injuries; physician response to liability; trends in claim frequency, severity (size), and claim disposition; and the malpractice insurance market. Analyses of actual and proposed reforms address tort reform, no fault, enterprise liability and optimal liability under managed care. More limited evidence is available on the negligence regimes in Canada and the UK, and the quasi no-fault regimes in Sweden and New Zealand.

This paper explores two central questions in the tort law of accidents--the choice between negligence and strict liability, and the level of reasonable precaution--from a fairness perspective. The first part of the paper develops the idea that liability rules are fair when they are ex ante and, over the long run, to the advantage of all those they affect, even those who fare worst under them. The second part of the paper investigates the choice between negligence and strict liability, taking into account two competing conceptions of fairness. One influential conception takes reciprocity or nonreciprocity of risk to be the master test of fairness, holding that accident costs are fairly distributed when the risks which give rise to accidents are fairly distributed. Another influential conception holds that the accident costs of risky activities should be spread among all those who benefit from the activity, ideally in proportion to their degree of benefit. This conception takes the distribution of harm--of the costs of accidents themselves--to be central. Part two of the paper argues that this second conception of fairness is preferable, and that it gives us good reason to believe that enterprise liability is prima facie fairer than negligence liability. Part three of the paper takes up the question of reasonable care, investigating the fair level of precaution. This part of the paper focuses particularly on the question of what fairness requires when an activity imposes a significant risk of serious injury. When an injury is serious--when the harm it does substantially impairs the pursuit of a normal life and when that harm cannot be repaired--fairness cannot be achieved by redistributing accident costs after the injury. Fairness must be achieved, if it can be achieved, by pitching the level of precaution at an appropriately high point ex ante. The paper argues that fairness requires pushing the level of precaution beyond the wealth maximizing point when substantial risks of serious injury are at issue. Fairness requires reducing such risks to the point where further reduction would threaten the activity that engenders them, the point where the long-run health of the activity would be jeopardized. The fourth and final section of the paper examines the connections between fairness and the forms of justice. Taking issue with the dominant position in contemporary tort theory, section four argues that justice (as fairness) in tort accident law is primarily a question of distributive justice, and only secondarily a matter of corrective justice.

In Part III of our study, the authors describe the types of transactions that are most common in products liability cases and also delineate the parties to the transaction. This article concludes by discussing some “special topics” in modern product liability law: enterprise liability, alternative liability, and market share liability. The article relies on references to the Uniform Commercial Code, the Restatement of the Law of Torts, and cites the major common law cases that have impacted on these important issues. Key Words: Products Liability; Bailments; Franchising; Used Goods; Enterprise Liability; Market Share; Alternative Liability

The theory and practice of enterprise liability are oddly disjoined. On the one hand, case rhetoric insists that considerations of fairness are among the primary justifications for imposing enterprise liability. On the other hand, normatively inclined and theoretically ambitious scholarship on enterprise liability is overwhelmingly economic in cast. Economically inclined scholars have flocked to the field, while other kinds of tort theorists have shunned it, implicitly or explicitly conceding it to economic analysis. This paper argues that, contrary to this consensus, there is a powerful and important fairness case to be made for enterprise liability. This case fits the rhetoric of the decisions and the structure of the doctrines, and draws philosophical support from Kantian social contract theory. When enterprises are in a position to spread the costs of nonnegligent accidents across the class of those who benefit from the risks that inevitably issue in such accidents, enterprise liability is more reasonable than negligence liability. Under these circumstances, enterprise liability reconciles the competing claims of liberty and security more fairly, and more favorably, than negligence

Based on systems/strategic analysis, this paper predicts the complete failure of legal liability system. Liability is the system by which injured persons recover money damages from those who injure them. The system operates through the entry and enforcement of judgments by the courts. The paper argues that the system is vulnerable to defeat by a variety of judgment proofing techniques which can be categorized as secured debt strategies, ownership strategies, exemption strategies, and foreign haven strategies. Computerization has recently brought about dramatic reductions in the costs of pursuing these strategies, making them cost effective for more potential defendants. As use spreads, the cultural and political barriers to judgment proofing will decline, leading to wider use of the techniques and ultimately to system failure. The paper examines a variety of strategies by which the system might respond, including shareholder unlimited liability, involuntary creditor priority, asset provider liability, enterprise liability, mandatory insurance, and financial responsibility laws. The paper concludes that judgment- proofing strategists will be able to overcome all of them.