Mischief and Misfortune (original) (raw)
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Mischief and Misfortune ( Annual McGill Lecture in Jurisprudence and Public Policy )
1999
This article argues that the problems of corrective and distributive justice are, at bottom, the same. The authors argue that both can be understood as responses to the question: who owns which of life's misfortunes? Two extreme but unattractive positions set the range of possibilities. All misfortunes could be left where they fall, or all could be held in common. Neither extreme is attractive, because neither has room for the intuitive idea of responsibility, that is, that people should bear the costs of their activities. Libertarians try to incorporate that idea by adding a rule of strict liability for injuries as an exception to a general rule that injuries should lie where they fall. Liberal egalitarians seek to make room for responsibility by supposing that all misfortunes should be held in common except those to which people willingly expose themselves. The authors argue that the libertarian and the egalitarian employ parallel strategies, neither of which can succeed, beca...
Strict Liability and the Mitigation of Moral Luck
SSRN Electronic Journal, 2000
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. William T Dalessi Professor of Law, Gould School of Law, University of Southern 1 California. An earlier version of this paper was prepared for the conference on The Morality of Fortune held at the USC Department of Philosophy on March 24-25 2006 under the auspices of the Center for Law and Philosophy. I am grateful to the participants in the conference for their comments and reactions, to Andrei Marmor both for valuable exchanges on the paper and for organizing the conference., and to Martin Stone for commenting on the paper. I also owe particular thanks to Scott Altman, Ben Zipursky and John Goldberg for valuable discussion and comments.
The Morality of Strict Liability
1976
Accidents occur; personal property is damaged and sometimes is lost altogether. Accident victims are likely to suffer anything from mere bruises and headaches to temporary or permanent disability to death. The personal and social costs of accidents are staggering. Yet the question of who should bear these costs has turned the heads of few philosophers and has occasioned surprisingly little philosophic discussion. Perhaps that is because the answer has seemed so obvious; accident costs, at least the nontrivial ones, ought to be borne by those at fault in causing them.' The requirement of fault at one time appeared to be so deeply rooted in the concept of personal responsibility that in the famous Ives 2 case, Judge Werner was moved to argue that liability without fault was not only immoral, but also an unconstitutional violation of due process of law. Al
The paper deals with negligence and strict liability offences
Is There Really No Liability Without Fault: A Critique of Goldberg & Zipursky
University of Southern California Center for Law & Social Science (CLASS) Law & Economics Research Paper Series, 2016
This paper comments on John C.P. Goldberg & Benjamin C. Zipursky, The Strict Liability in Fault and the Fault in Strict Liability 85 Fordham L.Rev. 743 (2016). In their important writings over the past twenty years, Professors Goldberg and Zipursky have argued that torts are conduct-based wrongs. A conduct-based wrong is one where an agent violates the right of another by failing to conform her conduct to the standard required by the law. Strict liability in tort poses a formidable challenge to the claim that all torts are wrongs whose distinctive feature is that they violate an applicable standard of conduct. When lawyers speak of strict liability causes of action, they are describing a domain of liability where a plaintiff does not have to prove that the defendant’s conduct was defective in order to recover. Strict liability is liability without regard to defective conduct. Defective conduct may be present, but its presence is not essential to liability. When liability in tort is ...
New Forms of Damage in Negligence
Modern Law Review , 2007
Although damage is an essential component of negligence liability, important extensions of the categories of actionable damage occur with little or no analysis or even acknowledgement of the fact. In this article, consideration is given to a number of new forms of actionable damage which appear either to have received recognition by the courts in recent years, or to be close to receiving such recognition. The article is divided into three core sections, dealing with negligent imprisonment, wrongful conception and educational negligence. The principal conclusions are that redress for negligent imprisonment is best achieved through recognition of imprisonment as actionable damage in negligence; that an unwanted pregnancy is a form of personal injury, albeit an unusual one; that the conventional sum award in wrongful conception cases is best analysed as compensation for a diminution in the parents' autonomy; and that while untreated learning disorders are now treated by the courts as a form of personal injury, in the absence of such a disorder educational under-development ought not to be recognised as actionable damage in its own right. Keywords: negligence, damage, personal injury, negligent imprisonment, wrongful conception, educational negligence.
Liability Without Regard to Fault: A Comment on Goldberg & Zipursky
2016
This paper comments on John C.P. Goldberg & Benjamin C. Zipursky, The Strict Liability in Fault and the Fault in Strict Liability 85 Fordham L.Rev. 743 (2016). In their important writings over the past twenty years, Professors Goldberg and Zipursky have argued that torts are conduct-based wrongs. A conduct-based wrong is one where an agent violates the right of another by failing to conform her conduct to the standard required by the law. Strict liability in tort poses a formidable challenge to the claim that all torts are wrongs whose distinctive feature is that they violate an applicable standard of conduct. When lawyers speak of strict liability causes of action, they are describing a domain of liability where a plaintiff does not have to prove that the defendant’s conduct was defective in order to recover. Strict liability is liability without regard to defective conduct. Defective conduct may be present, but its presence is not essential to liability. When liability in tort is ...
The Cambridge Law Journal, 2008
Few commentators would express satisfaction with the current state of the tort of negligence. The case-law is unpredictable, lacks clarity and the tests provided applied in an inconsistent manner. It is easy to blame such uncertainty on the desire of the judges to achieve 'justice'. In White v Jones, Lord Goff accepted that 'The question therefore arises whether it is possible to give effect in law to the strong impulse for practical justice. .. For this to be achieved. .. the court will have to fashion "an effective remedy".' 1 Lord Bingham in Fairchild v Glenhaven Funeral Services Ltd (t/a GH Dovener & Son) demonstrated that such an approach is far from unique. 2 In so doing, the judiciary demonstrate a willingness to look far beyond the case itself and consider its wider implications to society as a whole. 3 Yet, in so doing, recognition is still made of the need for such decisions to exist within a doctrinal framework. In Fairchild, Lord Nicholls stated: 'To be acceptable the law must be coherent. It must be principled. The basis on which one case, or one type of case, is distinguished from another should be transparent and capable of identification. When a decision departs from principles normally applied, the basis for doing so must be rational and justifiable if the decision is to avoid the reproach that hard cases make bad law'. 4 The question remains whether the current state of the tort of negligence is a natural result of its breadth as a tort or represents 'the disintegration of the modern law'. In his book, Beever asserts the latter view. In a forceful thesis, he argues that the current lack of transparency, uncertainty and, he claims, illegitimate assertion by individual judges of policy concerns, can be avoided. One simply needs to 'rediscover' the principled basis of the tort. To do so he focuses on five "great" cases: