Gregory Keating, ‘A Social Contract Conception of the Tort Law of Accidents’

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.

Keating, Gregory C, A Social Contract Conception of the Tort Law of Accidents (June 1, 2001) in Philosophy and the Law of Torts (Cambridge University Press, 2001).

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