Law in Contemporary Society

Comments welcome.

Strict Liability Should Govern Tort

-- By RonMazor - 19 Feb 2010

The Middle Ages Had It Right

Medieval law gets a short shrift. Too often, it is reduced to some primitive, bloody, superstitious, and inherently unjust monstrosity--a dark age of ordeals and inquisitions. Such simplistic reductions are tiresome. Monty Python isn't an accurate secondary source, and law professors should know better. Especially those who teach tort.

If they were more familiar with medieval tort, they'd know it captures law at an essential level. It reflects a time when people didn't rely exclusively on courts to resolve their grievances. If a court couldn't give a satisfactory resolution, the dispute would be settled in a private manner. Private settlements were not pretty. As such, medieval law possessed great awareness of the limits of its own power, and of the intense need to lay out a law that people would choose to follow. As a basic prerequisite, medieval tort could not leave harms unsatisfied. Its operating principle: strict liability.

Ancient societies couldn't have people running around doing injury and getting away with it, even if the harm was unforeseeable. Courts and the law were ignored frequently enough, even when they came to good conclusions. It would have been institutional suicide for a court of law to deny recovery to those injured by the actions of others. Not allowing recovery for non-negligent accidents wouldn't stop people from taking revenge on their injurers, but it would erode the relevance of the court. If the court couldn't engage with people's basic sensibilities, it would be ignored. And the sense that a party who does injury should be liable is at least as old as the Code of Hammurabi.

Yet, strict liability is a word barely uttered in the legal academy. If the behavior isn't abnormally dangerous, the notion that people should be liable regardless of their intent doesn't meet a welcome audience. Almost not harming someone becomes the same as doing no harm, so long as you try really hard. Hold people liable for damages, even if they made a reasonable effort to avoid them?


Damage Without Compensation is a Bad Way to Conduct Tort Law

Somehow, in the smoke and fire of industrialization, American jurisprudence lost sight of an ancient truth. Tort is not about blame, but harm. It is about making injured people whole, as best as the law can approximate. It shouldn't matter that, by all accounts, you built a really safe and professional backyard batting cage. If you hit a ball and cripple Little Timmy from across the street, Little Timmy shouldn't have to pay out of pocket for a lifetime of corrective surgery and physical therapy. Yet, that's how negligence works.

Theoretically, your almost-effective batting cage excuses you from liability. Because you tried to make it safe, and took a "reasonable" level of precaution, Little Timmy is not able to recover from you. That you can do harm and not be negligent seems to demand a redefinition of negligence. But as it stands, Little Timmy has to swallow the cost of his injury so you can enjoy your "right" to practice your swing. He pays a leg, and you get to enjoy your freedom to participate in semi-dangerous behavior with impunity. In essence, our society has decided it's better to shift costs to the random injured individual than to stifle free enterprise with the occasional award of monetary damages.

It shouldn't be a controversial proposition that the law should compensate a person who, through no fault of his own, is injured by the acts of another. It is a travesty that "reasonableness" and negligence subvert this fundamental standard.

In the past, if a court failed to do justice, people had private means to rectify the problem. What changed from the Middle Ages to the present day is the monopoly of force and the centralized power of law. In modern civilization, private people no longer retain agency. They have entrusted the force of society to the courts.

Yet, courts are fallible, and they bind themselves to their mistakes. Bad precedent, once accepted, creates perpetual injustice. And since private action is no longer tolerated, a lack of legal recourse is a deprivation of all recourse. The result? Over a century of uniformly bad jurisprudence, where tying compensation for damage to the reasonable conduct of the damager leaves the equally reasonable victim drifting in the wind.

Strict Liability Would Work in the Real World

If the U.S. ran on a strict liability system, life wouldn't change much. More baseball stadiums might have enclosed roofs. Hockey games might be shielded by higher glass. Insurance would be more extensive and widespread. But strict liability wouldn't be a paradigm shift. Free enterprise would continue to exist. It'd just be safer at the margins.

I have heard the argument that strict liability would create an unacceptable incentive for companies to flout the law more often and simply pay damages. I think this is a stupid argument, for two reasons.

Increased demand for safety will likely make the cost of precautions cheaper than the cost of litigation

If capitalism is good at anything, it's exploiting opportunity. Manufacturers will be fighting tooth and nail to design and sell cheap and effective safety measures.

Companies already flout the law

When legal damages are less than the cost of precautions, companies behave negligently. This isn't a new phenomenon. Example: Eben's story of the Goodyear tire rims.

The only real difference is that under strict liability, companies will always be liable for the injuries they cause, and those that get injured will have full recourse under the law for any damage they suffer.


An injury creates a grievance. Under negligence, we are occasionally leaving injured parties to suffer--grievance unsatisfied--while the perpetrator of the injury is excused for having taken insufficient precautions. This is not right.

Ultimately, tort is about harm. As such, strict liability is the proper way to assess tort--what matters is the result, not the thought process.

This essay is confused where it could be clear, and clear where it should be more aware of complexity. The idea of strict liability as the primitive standard from which "modern" negligence systems diverge is ahistorical, no matter what your timescale is. For the history of the common law, it is largely but not entirely myth. In every locale, the proposition depends in part on absence of evidence about administration. Some formal source tells us that an injury of a certain type (running someone over with a horse-drawn vehicle, for example) must be paid for at a certain rate. But unless we know everything about the details of administration, we do not know at what stage of the process it may be possible for a defendant to say "But the horse was frightened by lightning and bolted," or what will happen if he does. As Toby Milsom pointed out a generation ago, the medieval English law of accident is entirely obscure to us because we have only records of pleading in Westminster Hall, not the substance of what trial evidence was like, how juries were charged, and what they decided. Beyond the blank pleading of the general issue and eventual "postea" recording an equally blank jury verdict, we can have no idea whether "unavoidable accident" was a defense, or how it fared under different factual circumstances. Not to mention the different classes of injury characteristic of human-powered and steam-powered societies....

The littlest Coasean in the house can show without breaking a sweat that the only difference between strict liability and negligence regimes is transactions costs. Hence Guido Calabresi's wonderfully original argument in _The Cost of Accidents_ (a book that people used to read when I was young, apparently under the impression that Guido's idea hadn't been had a hundred years earlier by Holmes) that the optimal tort system is strict liability appropriately imposed on the party who could avoid the accident at lowest cost. You have reinvented Guido's idea without the subtleties. But we do not live in a system without friction, and so the real point, as Coase himself (not so little as his admirers) articulated in his Nobel Prize address, is to make an exhaustive study of the transactions costs. So far as your essay's argument goes—with all the overworked nonsense about children's legs destroyed by batted balls reduced, as it should be, to the necessary minimum—strict liability is just a litigation-intensive substitute for universal health insurance, which does much more and wastes much less. Dealing with harm directly, rather than treating it as the fault of a faultless party with a nearby pocket, makes more sense.

And then, of course, the whole point of the exercise is to assume away causation, which in a strict liability system becomes the black hole. When several parties, including the plaintiff, have all contributed to an injurious outcome, all the social ready reckoning that used to be involved in determination of relative fault shifts the permanent floating crap game over to determination of causation and resumes play. Some slight experience with the confusions inherent in causation doctrine should have convinced you that all the phenomena you object to in disputes about negligence can be reformulated there, and will be once it's the only game in town.

You could then, no doubt, offer a dashingly irresponsible essay, suggesting that we impose damages liability on those who were not at fault and did not cause the harm, just because. As my distinguished colleague Victor Goldberg might say, "Find a guy who at least looks like the tort-feasor, and shoot him." This too, it turns out, is a very efficient system.


Webs Webs

r15 - 13 Jan 2012 - 23:14:25 - IanSullivan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM