Barbara Fried, ‘Tortious Harms’

“… At the end of the day, then, the ‘harm plus fault’ test either provides no answer to the question of what dangers it is permissible to expose others to, or provides an answer that reduces to aggregation manqué. It has, however, answered a different question: when are we required to compensate the victims of our risky conduct for their losses? While the two questions are related, they are nonetheless distinct, and the failure to distinguish dearly between them is one of the central analytic problems with the literature. To the extent nonconsequentialists have distinguished the two questions and are addressing themselves only to the latter – correcting wrongs – their arguments are orthogonal to my main concern here, which is how we ought to decide what sorts of risky conduct are permissible in the first place. Rather than offering an exhaustive account of the nonconsequentialist literature on torts, I want to put on the table what seem to me the central, recurring problems that have led it down a dead end in the quest for a systematic alternative to aggregation to regulate risky conduct …”

‘Tortious Harms’ in Barbara H Fried, Facing Up to Scarcity: The Logic and Limits of Nonconsequentialist Thought (OUP Oxford, March 2020), ISBN 0198847874.

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