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Theory of Strict Liability: Toward a Reformation of Tort Law
Book by Epstein, Richard A.
141 pages, Paperback
First published January 1, 1979
5 people want to read
About the author
Richard A. Epstein
89 books90 followersRichard A. Epstein is the James Parker Hall Distinguished Service Professor Emeritus of Law and Senior Lecturer at The University of Chicago Law School.
Epstein started his legal career at the University of Southern California, where he taught from 1968 to 1972. He served as Interim Dean from February to June, 2001.
He received an LLD, hc, from the University of Ghent, 2003. He has been a member of the American Academy of Arts and Sciences since 1985 and a Senior Fellow of the Center for Clinical Medical Ethics at the University of Chicago Medical School, also since 1983. He served as editor of the Journal of Legal Studies from 1981 to 1991, and of the Journal of Law and Economics from 1991 to 2001.
His books include The Case Against the Employee Free Choice Act (Hoover 2009); Supreme Neglect Antitrust Decrees in Theory and Practice: Why Less Is More (AEI 2007); Overdose: How Excessive Government Regulation Stifles Pharmaceutical Innovation (Yale University Press 2006); How Progressives Rewrote the Constitution (Cato 2006). Cases and Materials on Torts (Aspen Law & Business; 8th ed. 2004); Skepticism and Freedom: A Modern Case for Classical Liberalism (University of Chicago 2003): Cases and Materials on Torts (Aspen Law & Business; 7th ed. 2000); Torts (Aspen Law & Business 1999); Principles for a Free Society: Reconciling Individual Liberty with the Common Good (Perseus Books 1998): Mortal Peril: Our Inalienable Rights to Health Care (Addison-Wesley 1997); Simple Rules for a Complex World (Harvard 1995); Bargaining with the State (Princeton, 1993); Forbidden Grounds: The Case against Employment Discrimination Laws (Harvard 1992); Takings: Private Property and the Power of Eminent Domain (Harvard 1985); and Modern Products Liability Law (Greenwood Press 1980). He has written numerous articles on a wide range of legal and interdisciplinary subjects.
He has taught courses in civil procedure, communications, constitutional law, contracts, corporations, criminal law, health law and policy, legal history, labor law, property, real estate development and finance, jurisprudence, labor law; land use planning, patents, individual, estate and corporate taxation, Roman Law; torts, and workers' compensation.
Epstein started his legal career at the University of Southern California, where he taught from 1968 to 1972. He served as Interim Dean from February to June, 2001.
He received an LLD, hc, from the University of Ghent, 2003. He has been a member of the American Academy of Arts and Sciences since 1985 and a Senior Fellow of the Center for Clinical Medical Ethics at the University of Chicago Medical School, also since 1983. He served as editor of the Journal of Legal Studies from 1981 to 1991, and of the Journal of Law and Economics from 1991 to 2001.
His books include The Case Against the Employee Free Choice Act (Hoover 2009); Supreme Neglect Antitrust Decrees in Theory and Practice: Why Less Is More (AEI 2007); Overdose: How Excessive Government Regulation Stifles Pharmaceutical Innovation (Yale University Press 2006); How Progressives Rewrote the Constitution (Cato 2006). Cases and Materials on Torts (Aspen Law & Business; 8th ed. 2004); Skepticism and Freedom: A Modern Case for Classical Liberalism (University of Chicago 2003): Cases and Materials on Torts (Aspen Law & Business; 7th ed. 2000); Torts (Aspen Law & Business 1999); Principles for a Free Society: Reconciling Individual Liberty with the Common Good (Perseus Books 1998): Mortal Peril: Our Inalienable Rights to Health Care (Addison-Wesley 1997); Simple Rules for a Complex World (Harvard 1995); Bargaining with the State (Princeton, 1993); Forbidden Grounds: The Case against Employment Discrimination Laws (Harvard 1992); Takings: Private Property and the Power of Eminent Domain (Harvard 1985); and Modern Products Liability Law (Greenwood Press 1980). He has written numerous articles on a wide range of legal and interdisciplinary subjects.
He has taught courses in civil procedure, communications, constitutional law, contracts, corporations, criminal law, health law and policy, legal history, labor law, property, real estate development and finance, jurisprudence, labor law; land use planning, patents, individual, estate and corporate taxation, Roman Law; torts, and workers' compensation.
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Displaying 1 of 1 review
July 25, 2024
A RADICAL PROPOSAL FOR ELIMINATING "NEGLIGENCE," "INTENT," ETC., FROM TORT LAW
Richard Allen Epstein (born 1943) is a Professor of Law at the New York University School of Law, as well as associated with the Cato Institute, the Hoover Institution, and the Heartland Institute. He has written many books, including 'Mortal Peril: Our Inalienable Right to Health Care?', 'Takings: Private Property and the Power of Eminent Domain, Why Progressive Institutions are Unsustainable etc.
He states in the Introduction to this 1980 essay (originally published in 1973/4), "The task is to develop a normative theory of torts that takes into account common sense notions of individual responsibility... This common sense approach to torts as a branch of common law ... does not regard economic theory as the primary means to establish the rules of legal responsibility."
He asserts, "(the) theory of strict liability, holds the defendant prima facie liable for the harm caused whether or not either of the two further conditions relating to negligence and intent is satisfied." (Pg. 5) He argues, "the only proper question for tort law is whether the plaintiff or the defendant will be required to bear the harm upon the plaintiff." (Pg. 77)
Later, he expands, "The doctrine of strict liability holds that proof that the defendant caused harm creates that presumption because proof of the nonreciprocal source of the harm is sufficient to upset the balance where one person must win and the other must lose. There is no room to consider... allegations that the defendant intended to harm the plaintiff, or could have avoided the harm he caused by the use of reasonable care. The choice is plaintiff or defendant, and the analysis of causation is the tool which, prima facie, fastens responsibility upon the defendant." (Pg. 25)
He suggests that "the rules of strict liability are in the end preferable on economic grounds because they reduce the administrative costs of decision." (Pg. 48) He acknowledges that "Damages in tort still do not permit a plaintiff to make a profit; and in some cases it is arguable that they do not permit recovery of adequate compensation." (Pg. 68)
Epstein's book is, as always, challenging and thought-provoking. (One may raise a thoughtful eyebrow when considering its applications to certain specific situations of "harm," however.)
Richard Allen Epstein (born 1943) is a Professor of Law at the New York University School of Law, as well as associated with the Cato Institute, the Hoover Institution, and the Heartland Institute. He has written many books, including 'Mortal Peril: Our Inalienable Right to Health Care?', 'Takings: Private Property and the Power of Eminent Domain, Why Progressive Institutions are Unsustainable etc.
He states in the Introduction to this 1980 essay (originally published in 1973/4), "The task is to develop a normative theory of torts that takes into account common sense notions of individual responsibility... This common sense approach to torts as a branch of common law ... does not regard economic theory as the primary means to establish the rules of legal responsibility."
He asserts, "(the) theory of strict liability, holds the defendant prima facie liable for the harm caused whether or not either of the two further conditions relating to negligence and intent is satisfied." (Pg. 5) He argues, "the only proper question for tort law is whether the plaintiff or the defendant will be required to bear the harm upon the plaintiff." (Pg. 77)
Later, he expands, "The doctrine of strict liability holds that proof that the defendant caused harm creates that presumption because proof of the nonreciprocal source of the harm is sufficient to upset the balance where one person must win and the other must lose. There is no room to consider... allegations that the defendant intended to harm the plaintiff, or could have avoided the harm he caused by the use of reasonable care. The choice is plaintiff or defendant, and the analysis of causation is the tool which, prima facie, fastens responsibility upon the defendant." (Pg. 25)
He suggests that "the rules of strict liability are in the end preferable on economic grounds because they reduce the administrative costs of decision." (Pg. 48) He acknowledges that "Damages in tort still do not permit a plaintiff to make a profit; and in some cases it is arguable that they do not permit recovery of adequate compensation." (Pg. 68)
Epstein's book is, as always, challenging and thought-provoking. (One may raise a thoughtful eyebrow when considering its applications to certain specific situations of "harm," however.)
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