Law Commons^™

Strict Liability Wrongs, Gregory Keating

Gregory C. Keating

Strict liability is an orphan among moral theorists of torts. They wish either to expunge it from the law of torts entirely, or to assimilate it to negligence liability. This chapter argues that strict liability torts are genuine wrongs. They involve violations of rights, and they delineate two distinctive domains of wrongful conduct. One domain—the territory of “harm-based” strict liabilities—involves the distinctive wrong of harming-without-repairing. The other domain—the territory of “sovereignty torts”—involves the distinctive wrong of violating core autonomy rights which confer on persons fundamental powers of control over their selves and their property.

When Is Emotional Distress Harm?, Gregory C. Keating

Gregory C. Keating

In 1968, the California Supreme Court decided Dillon v. Legg, to this day the most famous American negligent infliction of emotional distress (NIED) case. In a nutshell, Dillon ruled that, henceforth, the scope of liability for negligent infliction of emotional harm would be governed by the same principle of reasonable foreseeability which governs the scope of liability for the infliction of physical harm. In retrospect, Dillon brought to a close an important period of American negligence law. Early in the twentieth century, in his celebrated MacPherson and Palsgraf decisions, Benjamin Cardozo made reasonable foreseeability the cornerstone of both duty and …

The Priority Of Respect Over Repair, Gregory C. Keating

Gregory C. Keating

Contemporary tort theory is dominated by a debate between legal economists and corrective-justice theorists. Legal economists suppose that tortfeasors and tortious wrongs are false targets for cheapest cost-avoiders and avoidable future losses. Corrective-justice theorists argue powerfully that the economic account of tort as search for cheapest cost-avoiders with respect to future accidents does not capture the most fundamental fact about tort adjudication, namely, that the reason we hold defendants liable in tort is that they have wronged their victims and should therefore repair the harm they have done. Deterring cheapest cost-avoiders from committing future harms no more justifies imposing liability …

Nuisance As A Strict Liability Wrong, Gregory Keating

Gregory C. Keating

Nuisance law offers unrivaled instruction about the formal structure and substantive morality of strict liability in tort, and by so doing challenges the dominant theories of tort. On the one hand, the structure and substance of nuisance law do not conform to the economic thesis that tort is a law concerned with the efficient management of externalities. Nuisance law does indeed address harmful spillovers caused by the productive use of land but its governing aim in addressing those spillovers is to reconcile equal, but conflicting, rights. The right to the reasonable use and enjoyment of land is the touchstone of …

Is The Role Of Tort To Repair Wrongful Losses?, Gregory Keating

Gregory C. Keating

No abstract provided.

Recovering Rylands, Gregory Keating

Gregory C. Keating

This paper, written for a Clifford Symposium Festschrift for Robert Rabin, comments on his lovely, widely admired, and yet still underappreciated paper The Historical Development of the Fault Principle: A Reinterpretation. Rabin’s paper teaches us something essential about the character and structure of modern tort law at the moment of its genesis, and it reminds us of the even more general truth that what the law does not cover is at least as important as what it does cover. The Historical Development of the Fault Principle is constructed around a simple, but powerful, distinction between fault as a breach of …

The Priority Of Respect Over Repair (Forthcoming), Gregory C. Keating

Gregory C. Keating

No abstract provided.

Personal Inviolability And "Private Law", Gregory C. Keating

Gregory C. Keating

The “idea of private law” has occupied a prominent place in tort theorizing over the past twenty years. To American ears, the idea has a libertarian ring, implying a realm of private freedom beyond the reach of public power. But the idea of “private law” pursued in recent tort theory is different. This strand of tort theory takes an essentially formal view of “private law” as a type of adjudication through which one member of civil society invokes the public power of the state to call another member of civil society to account for breach of an obligation, owed by …

Settling Through Consent Decree In Prison Reform Litigation: Exploring The Effects Of Rufo V. Inmates Of Suffolk County Jail, Gregory C. Keating

Gregory C. Keating

No abstract provided.

Pricelessness And Life: An Essay For Guido Calabresi, Gregory C. Keating

Gregory C. Keating

This paper - written for a conference celebrating "The Costs of Accidents," three and half decades after its publication - pays tribute to Calabresi's remarkable exploration of the deepest, most disturbing and most difficult problem in the law of accidents. Throughout his long and distinguished career, Guido Calabresi has insisted that a tragic conflict of irreconcilable values lies at the heart of our law of accidents. We are profoundly committed both to "the ideal that life is a pearl beyond price" and to the practice of valuing people's lives in market terms - to the practice of pricing life. We …

Is Tort A Remedial Institution?, Gregory C. Keating

Gregory C. Keating

In the past 30 years, philosophers of tort have performed invaluable work in restoring the concept of a “wrong” to prominence in tort scholarship, and in building a persuasive case that no adequate account of tort can replace the idea of a “wrong” with the idea of a “cost”. The structure of tort adjudication, which pits an injured victim against the party allegedly responsible for injuring her, is powerfully explained and justified by the thesis that the plaintiff has a claim for redress against the defendant when and because the defendant has wronged the plaintiff. The competing claim that tort …

Putting "Duty" In Its Place: A Reply To Professors Goldberg And Zipursky, Dilan Esper, Gregory C. Keating

Gregory C. Keating

Black-letter law has it that “duty”—the first element of a prima facie case of negligence in tort—is a nonissue in most cases. “Duty” fixes the legal standard applicable to the conduct in question and that standard is generally the tort obligation to exercise reasonable care for the protection of those who might foreseeably be endangered by one’s actions. Commentators from Oliver Wendell Holmes to the drafters of the pending Restatement Third of Torts have recognized a general duty not to subject others to unreasonable risk of physical harm as the very foundation of modern negligence law. From the time of …

Rawlsian Fairness And Regime Choice In The Law Of Accidents, Gregory Keating

Gregory C. Keating

Early in the 1970's George Fletcher wrote a remarkable article Fairness and Utility in Tort Theory—connecting distinctively Rawlsian ideas of fairness with reciprocity of risk imposition. Fletcher argued that nonreciprocity of risk both characterized realms of strict liability in tort and justified those realms, whereas reciprocity of risk characterized realms of tort law which were governed by negligence liability, and appropriately so. This article argues (1) against Fletcher’s identification of fairness in the choice of an accident law regime with the presence or absence of reciprocity of risk, and (2) in favor of focusing on the fair distribution of the …

Is Negligent Infliction Of Emotional Distress A Freestanding Tort?, Gregory C. Keating

Gregory C. Keating

Liability for negligent infliction of emotional distress (NIED) is often taken to be a freestanding tort, which guards our interest in emotional tranquility against careless injury. Scope of duty determinations− settling who owes a legal obligation to exercise reasonable care and to whom they owe that obligation− are paramount on this account. Gruesome accidents may traumatize hundreds and even thousands of people. Unless the duty to exercise reasonable care not to inflict emotional harm is carefully controlled, liability will be excessive. In this paper, prepared for a conference on the Restatement 3rd of Torts, I argue that courts have come …

Tort, Rawlsian Fairness And Regime Choice In The Law Of Accidents, Gregory C. Keating

Gregory C. Keating

No abstract provided.

Strict Liability And The Mitigation Of Moral Luck, Gregory C. Keating

Gregory C. Keating

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 …

Abusing "Duty", Dilan Esper, Gregory C. Keating

Gregory C. Keating

Black-letter law has it that “duty”—the first element of a prima facie case of negligence in tort—is a nonissue in most cases. “Duty” fixes the legal standard applicable to the conduct in question and that standard is generally the tort obligation to exercise reasonable care for the protection of those who might foreseeably be endangered by one’s actions. Commentators from Oliver Wendell Holmes to the drafters of the pending Restatement Third of Torts have recognized a general duty not to subject others to unreasonable risk of physical harm as the very foundation of modern negligence law. From the time of …

The Heroic Enterprise Of The Asbestos Cases, Gregory C. Keating

Gregory C. Keating

The asbestos crisis pushed our adjudicative institutions to the brink of failure, and exposed the extraordinary difficulty of managing mass tort litigation on a scale so vast. Even so, there is much to praise in the efforts of courts to come to grips with this, the greatest of all mass accidents. The asbestos cases are an heroic judicial effort to construct a form of enterprise liability, one tailored to the distinctive features of a mass disaster of unprecedented scope and duration. Asbestos is the greatest of modern mass accidents. It is the expression of a nightmarishly well-organized world of systematically …

Recovering Rylands (Forthcoming), Gregory C. Keating

Gregory C. Keating

No abstract provided.

Property Right And Tortious Wrong In Vincent V. Lake Erie, Gregory C. Keating

Gregory C. Keating

Property Right And Tortious Wrong In Vincent V. Lake Erie, Gregory Keating

Gregory C. Keating

Vincent v. Lake Erie has given rise to two enduring controversies. The first concerns the imposition of the duty of repair itself. Lake Erie acted reasonably in lashing its ship to Vincent's dock and damaging the dock. Why should justified conduct--doing the right thing--give rise to liability in tort? The second concerns the basis of the duty of reparation recognized by the case. Is it rooted in Vincent's property right to exclude Lake Erie, a right overriden by the urgency of Lake Erie's plight but perhaps possessed of enough residual pull to compel compensation? Or is it grounded not on …

Tort And Accident Law: Cases And Materials, 4th Ed., Gregory Keating

Gregory C. Keating

No abstract provided.

Vexing Situations: Ethics And International Practice, Gregory C. Keating

Gregory C. Keating

Practicing law, especially in the international context, often involves non-legal dilemmas which must be considered and resolved. Sometimes the situations involve legal ethics and can be resolved by referring to the rulings promulgated by various bar associations and other lawyer licensing organizations. However, often times these situations arise in a context that can only be understood when historical events or social norms are considered. Accordingly, there may be no clear answer. In such cases, the attorney must rely on his or her common sense, and appreciation of the feelings of the parties involved. This article presents six situations that, at …

Irreparable Injury And Extraordinary Precaution: The Safety And Feasibility Norms In American Accident Law, Gregory Keating

Gregory C. Keating

The tort law of negligence is one of our principal forms of protection against accidental physical injury. But it is underspecified in one respect and incomplete in another. The common law of negligence is underspecified in that its norm of reasonable care does not register clearly enough the fact that it is reasonable to take greater precautions against some kinds of physical injuries — severe and irreparable ones — than it is against other kinds — mild and fully repairable ones. The common law of negligence is incomplete in that it relies on the award of money damages to induce …

Pressing Precaution Beyond The Point Of Cost-Justification, Gregory C. Keating

Gregory C. Keating

Economists generally argue that it is irrational to take more than cost-justified precaution against risks of accidental physical injury. Cost-justified precaution minimizes the dollars spent preventing and paying for accidents, thereby maximizing the wealth at society's disposal. When we take more than cost-justified precaution, we make ourselves worse off by making ourselves poorer. It costs more to prevent cost-justified accidents than it does to let those accidents happen and pay for the damage they do. Yet both common law and statutory risk regulation sometimes prescribe more than cost-justified precaution. Are these prescriptions unjustifiable? This paper argues that they are not. …

The Theory Of Enterprise Liability And Common Law Strict Liability, Gregory C. Keating

Gregory C. Keating

The proposed Restatement Third, Torts: General Principles takes the position that there is no general conception of strict liability, only special instances of such liability. This paper argues that there is indeed a general conception of strict liability, namely, enterprise liability, and that enterprise liability is a conception of responsibility for harm done equal to and competitive with the fault principle. Enterprise liability emerges early in the 1900's and expands in influence throughout most of the twentieth century. At the very moment when fault theorists like Ames and Jeremiah Smith were proclaiming the triumph of the fault principle in the …

A Social Contract Conception Of The Tort Law Of Accidents, Gregory C. Keating

Gregory C. Keating

No abstract provided.

Distributive And Corrective Justice In The Tort Law Of Accidents, Gregory Keating

Gregory C. Keating

Tort theory is torn between two competing conceptions. One of these - the justice conception - takes the tort law of accidents to be continuous with our ordinary notions of agency and responsibility, carelessness and wrongdoing, harm and reparation. The other - the economic conception - holds that tort accident law should express an appropriately scientific conception of human welfare. Theorists in the first camp have generally believed that justice in tort is a matter of corrective justice, that it is concerned all but exclusively with the rectification of losses wrongfully inflicted. This paper challenges that belief. It argues that …

Cases And Materials On Tort And Accident Law, 3d Ed., Gregory Keating

Gregory C. Keating

No abstract provided.

Teacher's Manual To Accompany Tort And Accident Law, 3rd Ed., Gregory Keating

Gregory C. Keating

No abstract provided.