!!Экзамен зачет 2023 год / Deacademification of tort law

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[FN10]. See generally Fleming James, Jr., The Columbia Study of Compensation for Automobile Accidents: An Unanswered Challenge, 59 Colum. L. Rev. 408 (1959) [hereinafter James, Columbia Study].

[FN11]. See, e.g., Jeffrey O'Connell, Expanding No-Fault Beyond Auto Insurance: Some Proposals, 59 Va. L. Rev. 749, 773 (1973) [hereinafter O'Connell, Expanding] (discussing enterprise liability).

[FN12]. By "academified" economic analysis we mean the form of economic analysis, focusing on "liability incentives for the prevention of future injuries," that by the late 1970s had become "the generally prevailing scholarly theory about the appropriate role of tort law." 1 American Law Inst., Reporters' Study: Enterprise Responsibility for Personal Injury 31, 32 (1991) [[[[hereinafter Reporters' Study]. As discussed below in Part V.C.1, critical attention has recently focused on this type of scholarship, which has been considered "overly preoccupied with the comparative merits of strict liability and negligence-and consequently has fixated on products liability." Robert L. Rabin, Some Thoughts on the Ideology of Enterprise Liability, 55 Md. L. Rev. 1190, 1201 (1996) [hereinafter Rabin, Some Thoughts]. The extensive efforts to fine tune liability rules, "though intellectually challenging," have been said "to be socially irrelevant." Gary T. Schwartz, Reality in the Economic Analysis of Tort Law: Does Tort Law Really Deter?, 42 UCLA L. Rev. 377, 379 (1994) [[[[hereinafter Schwartz, Reality in Economic Analysis]. Our focus is thus on one subset of the vast literature of law and economics. See Richard A. Posner, Rational Choice, Behavioral Economics, and the Law, 50 Stan. L. Rev. 1551, 1552 (1998) (noting the great range of legal doctrines, institutions, and procedures to which economic analysis has been applied). This subset, however, looms large in tort scholarship. The economic approach need not necessarily lead into the mist of abstract, academified theory. At its best, the economic approach is concerned with "ground[ing] policy judgments on facts and consequences rather than on conceptualisms and generalities." Richard A. Posner, The Problematics of Moral and Legal Theory 227 (1999) [hereinafter Posner, Problematics]. However, economics, by itself, cann could not tell the policymakers how much weight to give costs and benefits as a matter of social justice." Id. at 46-47. As discussed below in Part V.C.2., economic analysis can provide theoretical and empirical support for the compensation plan form of the enterprise liability agenda. See 1 Reporters' Study, supra, at 122-27. It can also provide reasons to look to courts and the common law for its adoption. See Daniel A. Farber & Philip P. Frickey, Law and Public Choice 14043 (1991) (stating that public choice theory suggests reasons for a court "to abandon the old common law rule").

[FN13]. See Nolan & Ursin, supra note 1, at 125-51.

[FN14]. 2 Reporters' Study, supra note 12, at 534.

[FN15]. Schwartz, Foreword, supra note 1, at 548; see also Stephen D. Sugarman, Doing Away with Personal Injury Law at xvi (1989) (stating that proposals for compensation plans held "center stage" in the 1960s and early 1970s); Fleming James, Jr., The Future of Negligence in Accident Law, 53 Va. L. Rev. 911, 916 (1967) [hereinafter James, The Future] ("As for new statutory systems of enterprise liability, proposals for some kind of automobile accident compensation hold the center of the stage today . . . .").

[FN16]. See, e.g., 2 Reporters' Study, supra note 12, at 534.

[FN17]. See, e.g., id.

[FN18]. See Conference on Torts, supra note 1, at 1.

[FN19]. Robert E. Keeton, Conditional Fault in the Law of Torts, 72 Harv. L. Rev. 401, 402 (1959) [hereinafter Keeton, Conditional Fault].

[FN20]. Schwartz, Foreword, supra note 1, at 548.

[FN21]. Rabin, Law's Sake, supra note 1, at 2261.

[FN22]. Schwartz, Mixed Theories, supra note 1, at 1802.

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[FN23]. Id.

[FN24]. See Guido Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 Yale L.J. 499 (1961) [hereinafter Calabresi, Risk Distribution].

[FN25]. Ronald H. Coase, The Problem of Social Cost, 3 J.L. & Econ. 1 (1960).

[FN26]. See Schwartz, Mixed Theories, supra note 1, at 1806.

[FN27]. Id.

[FN28]. Id.; see also William M. Landes & Richard A. Posner, The Economic Structure of Tort Law 7 (1987) (stating that "economic scholarship on torts erupted in a sustained flow that continues to this day").

[FN29]. 1 Reporters' Study, supra note 12, at 31-32.

[FN30]. Schwartz, Mixed Theories, supra note 1, at 1810.

[FN31]. See George P. Fletcher, Fairness and Utility in Tort Theory, 85 Harv. L. Rev. 537 (1972) [hereinafter Fletcher, Fairness].

[FN32]. See Richard A. Epstein, A Theory of Strict Liability, 2 J. Legal Stud. 151 (1973) [here-inafter Epstein, A Theory of Strict Liability].

[FN33]. Schwartz, Mixed Theories, supra note 1, at 1802.

[FN34]. Id. at 1803; see also Gregory C. Keating, The Idea of Fairness in the Law of Enterprise Liability, 95 Mich. L. Rev. 1266, 1273 (1997) [[[[hereinafter Keating, The Idea] (discussing the "fairness" rationale).

[FN35]. See sources cited supra note 1.

[FN36]. Schwartz, Foreword, supra note 1, at 550.

[FN37]. See sources cited supra note 1.

[FN38]. See Schwartz, Mixed Theories, supra note 1, at 1802.

[FN39]. See Nolan & Ursin, supra note 1, at 5-10.

[FN40]. See id.

[FN41]. 2 Fowler V. Harper & Fleming James, Jr., The Law of Torts § 12.4, at 755 n.12 (1956); see also William L. Prosser, Handbook of the Law of Torts § 4, at 18-19 (4th ed. 1971) [hereinafter Prosser, Handbook] (distinguishing between "personal blame" and "social morality"); Green, Duty Problem, supra note 9, at 256, 270 (referring to the "justice" factor and "a liberalized ethical notion of responsibility").

[FN42]. 2 Harper & James, supra note 41, at 756; see also Escola v. Coca Cola Bottling Co., 150 P.2d 436, 440-41 (Cal. 1944) (Traynor, J., concurring) (discussing safety incentives and loss spreading that occur with manufacturers' absolute liability).

[FN43]. 2 Harper & James, supra note 41, at 756; Fleming James, Jr., & John J. Dicksinson, Accident Proneness and Accident Law, 63 Harv. L. Rev. 769, 780 (1950); see also Green, Duty Problem, supra note 9, at 255-56 (describing the "preventive" or "prophylactic" function of tort law); Roger J. Traynor, The Ways and Meanings of Defective Products and Strict Liability, 32 Tenn. L. Rev. 363, 376 (1968) [hereinafter Traynor, Ways and Meanings] (emphasizing loss spreading); infra Part V.C.1. (discussing the enterprise liability scholars' skepticism regarding tort law's accident prevention capability).

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[FN44]. Green, Duty Problem, supra note 9, at 270.

[FN45]. See id. at 272-74.

[FN46]. Report by the Committee to Study Compensation for Automobile Accidents, Co-lumbia University Council for Research in the Social Sciences (1932).

[FN47]. See generally Fleming James, Jr., Accident Liability: Some Wartime Developments, 55 Yale L.J. 365 (1946).

[FN48]. See Karl N. Llewellyn, Cases and Materials on the Law of Sales 34042 (1930); see also Karl N. Llewellyn, On Warranty of Quality, and Society, 36 Colum. L. Rev. 699, 704-05 n.14 (1936) (discussing food warranties).

[FN49]. 150 P.2d 436, 440-44 (Cal. 1944) (Traynor, J., concurring).

[FN50]. See, e.g., 2 Harper & James, supra note 41, § 28, at 1534-1606 (discussing the liability of suppliers of chattels); Fleming James, Jr., General Products-Should Manufacturers Be Liable Without Negligence?, 24 Tenn. L. Rev. 923, 924 (1957) [hereinafter James, General Products]; Fleming James, Jr., Products Liability (pts. 1 & 2), 34 Tex. L. Rev. 44-77, 192-228 (1955).

[FN51]. See, e.g., Escola, 150 P.2d at 440-44 (Traynor, J., concurring).

[FN52]. See Nolan & Ursin, supra note 1, at 106-15.

[FN53]. See Albert A. Ehrenzweig, Negligence Without Fault 4 (1951).

[FN54]. Louis L. Jaffe, Damages for Personal Injury: The Impact of Insurance, 18 Law & Contemp. Probs. 219, 221 (1953).

[FN55]. See id.

[FN56]. Id. at 235.

[FN57]. See Leon Green, Traffic Victims: Tort Law and Insurance 87-103 (1958).

[FN58]. See Seffert v. Los Angeles Transit Lines, 364 P.2d 337, 344, 346 (Cal. 1961) (in banc) (Tray-nor, J., dissenting) ("Ordinarily the part of the verdict attributable to pain and suffering does not exceed the part attributable to pecuniary losses.").

[FN59]. See Fleming James, Jr., Damages in Accident Cases, 41 Cornell L.Q. 582, 584-85 (1956) [hereinafter James, Damages] (questioning not only the award of pain and suffering damages but also the awards for full pecuniary loss); see also 2 Harper & James, supra note 41, at 1299-1360.

[FN60]. See, e.g., Clarence Morris, Liability for Pain and Suffering, 59 Colum. L. Rev. 476, 476 (1959).

[FN61]. Unlike other items on the enterprise liability agenda, damages reform in the common law, as opposed to no-fault compensation plans, met with no success. See Neil M. Levy & Edmund Ursin, Tort Law in California: At the Crossroads, 67 Cal. L. Rev. 497, 519-21 (1979) [hereinafter Levy & Ursin, Crossroads]. Nevertheless, Jeffrey O'Connell picked up the damages reform theme in the late 1970s and early 1980s, proposing, among other things, the elimination of pain and suffering damages in return for a rule requiring a losing defendant to pay a victim's attorneys' fees and other costs of prosecuting the claim. See Jeffrey O'Connell, A Proposal to Abolish Contributory and Comparative Fault, with Compensatory Savings by Also Abolishing the Collateral Source Rule, 1979 U. Ill. L.F. 591, 598-601 [[[[hereinafter O'Connell, Compensatory Savings]; Jeffrey O'Connell, A Proposal to Abolish Defendants' Payment for Pain and Suffering in Return for Payment of Claimants' Attorneys'

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Fees, 1981 U. Ill. L. Rev. 333, 341-51. Furthermore, O'Connell argued that this and his other reforms could be implemented by common law decision. See O'Connell, Compensatory Savings, supra, at 605-06.

[FN62]. James, Damages, supra note 59, at 585.

[FN63]. See, e.g., 2 Reporters' Study, supra note 12, at 494; see also Stephen D. Sugarman, Foreword: Choosing Among Systems of Auto Insurance for Personal Injury, 26 San Diego L. Rev. 977, 977 (1989) (discussing automobile insurance).

[FN64]. Schwartz, Mixed Theories, supra note 1, at 1802.

[FN65]. See Schwartz, Foreword, supra note 1, at 548 (stating that tort scholarship, in the late 1960s, was primarily concerned with the coherence and clarification of tort doctrine).

[FN66]. Richard A. Epstein, Cases and Materials on Torts at xxx-xxxi (5th ed. 1990).

[FN67]. Keeton, Conditional Fault, supra note 19, at 402.

[FN68]. They were so hostile that Ives v. South Buffalo Railway Co., a 1911 New York Court of Appeals decision, held unconstitutional that state's workers' compensation statute. 94 N.E. 431, 448 (N.Y. 1911).

[FN69]. See Jeremiah Smith, Sequel to Workmen's Compensation Acts, 27 Harv. L. Rev. 235, 363 (1914).

[FN70]. Warren A. Seavey, Principles of Torts, 56 Harv. L. Rev. 72, 86 (1942) [hereinafter Seavey, Principles].

[FN71]. Id.

[FN72]. 1 L.R.-Ex. 265 (1865).

[FN73]. Warren A. Seavey, Mr. Justice Cardozo and the Law of Torts, 52 Harv. L. Rev. 372, 375 (1939) [hereinafter Seavey, Cardozo].

[FN74]. Seavey, Principles, supra note 70, at 86.

[FN75]. Francis H. Bohlen, Book Review, 80 U. Pa. L. Rev. 781, 794 (1932) (reviewing Leon Green, Judge and Jury (1930)).

[FN76]. Seavey, Cardozo, supra note 73, at 373.

[FN77]. Lochner v. New York, 198 U.S. 45 (1905) (holding unconstitutional, under the Due Process Clause, a New York state law limiting work hours in bakeries to 60 per week and 10 per day).

[FN78]. See Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law (Tentative ed. 1958).

[FN79]. Id. at 398.

[FN80]. Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 17 (1959) [hereinafter Wechsler, Toward Neutral Principles].

[FN81]. Robert E. Keeton, Venturing To Do Justice: Reforming Private Law 4344 (1969).

[FN82]. Keeton, Conditional Fault, supra note 19, at 444.

[FN83]. Oliver W. Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 467 (1897) [hereinafter Holmes, The Path of the Law].

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[FN84]. Id. at 467. For a discussion of the implications of this view for judicial lawmaking, see infra notes 88, 395.

[FN85]. Fleming James, Jr., Accident Liability Reconsidered: The Impact of Liability Insurance, 57 Yale L.J. 549, 551 (1948) [hereinafter James, Accident Liability Reconsidered].

[FN86]. Id.

[FN87]. Id. at 552.

[FN88]. Justice Traynor's view of judicial lawmaking resembles that of other great judges, such as Chief Justice Lemuel Shaw of Massachusetts. See Oliver Wendell Holmes, Jr., The Common Law 106-07 (1881) ("[T]he strength of that great judge lay in [his] accurate appreciation of the requirements of the community . . . [and in his] understanding of the grounds of public policy to which all laws must ultimately be referred."). Perhaps the most striking articulation of this perspective is found in Holmes's 1897 essay, The Path of the Law. Holmes, The Path of the Law, supra note 83, at 466-67; see also Posner, Problematics, supra note 12, at vii (describing The Path of the Law as Holmes's greatest essay); Edmund Ursin, Judicial Creativity and Tort Law, 49 Geo. Wash. L. Rev. 229, 272-75 (1981) [hereinafter Ursin, Creativity] (discussing The Path of the Law). Justice Benjamin Cardozo's writings expressed similar themes. See Ursin, Creativity, supra, at 282-85; see also John C.P. Goldberg, The Life of the Law, 51 Stan. L. Rev. 1419, 1456-74 (1999) (reviewing Andrew L. Kaufman, Cardozo (1998)) (emphasizing the importance of conceptual analysis in Cardozo's work). The most complete articulation of the Holmesian perspective is found in Judge Posner's writings on "pragmatic adjudication." See, e.g., Posner, Problematics, supra note 12, at viii (stating that a judge "can do no better than to rely on notions of policy, common sense, personal and professional values, and intuition and opinion, including informed or crystalized public opinion"); see also id. at 240-65 (defining pragmatic adjudication). See generally Henry J. Friendly, Ablest Judge of His Generation, 71 Cal. L. Rev. 1039, 1040 (1983) (stating that "no other judge of his generation matched Traynor's combination of comprehensive scholarship, sense for the 'right' result, craftsmanship and versitility"); Richard A. Posner, In Memoriam: Henry J. Friendly, 99 Harv. L. Rev. 1709, 1724 (1986) (stating Judge Friendly "was the greatest federal appellate judge of his time-in analytic power, memory, and application perhaps of any time").

Like Traynor, Holmes wrote and Posner writes in opposition to the dominant jurisprudential views of their respective times. See [Oliver Wendell Holmes, Jr.], Book Review, 14 Am. L. Rev. 233 (1880) (reviewing critically Christopher Columbus Langdell's contracts casebook and Langdell's formalism); Posner, Problematics, supra note 12, at 115-20, 24080 (critiquing contemporary theorists, including Ronald Dworkin); see also Ursin, Creativity, supra, at 235 n.24 (critiquing Dworkin). For the substantive implications of Holmes's view of judicial lawmaking, see infra note 395. For a thoughtful analysis that criticizes many of the jurisprudential assumptions of contemporary legal scholarship, including that written from a Holmesian perspective, see Duncan Kennedy, A Critique of Adjudication fin de si cleOE (1997).

[FN89]. Roger J. Traynor, Law and Social Change in a Democratic Society, 1956 U. Ill. L.F. 230, 232; see also Ursin, Creativity, supra note 88, at 243-50.

[FN90]. Roger J. Traynor, Comment, in Legal Institutions Today and Tomorrow 48, 52 (Mon-rad G. Paulsen ed. 1959).

[FN91]. Roger J. Traynor, No Magic Words Could Do It Justice, 49 Cal. L. Rev. 615, 616 (1961) [hereinafter Traynor, Magic Words].

[FN92]. Id. at 618.

[FN93]. Id.; see also Roger J. Traynor, Statutes Revolving in Common Law Orbits, 17 Cath. U. L. Rev. 401, 402 (1968).

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[FN94]. Traynor, Magic Words, supra note 91, at 618.

[FN95]. Roger J. Traynor, The Courts: Interweavers in the Reformation of Law, 32 Sask. L. Rev. 201, 213 (1967).

[FN96]. See, e.g., Green, supra note 57.

[FN97]. See, e.g., Albert A. Ehrenzweig, "Full Aid" Insurance for the Traffic Victim: A Voluntary Compensation Plan (1954).

[FN98]. See Robert E. Keeton & Jeffrey O'Connell, Basic Protection for the Traffic Victim: A Blueprint for Reforming Automobile Insurance (1965).

[FN99]. Fleming James, Jr., Book Review, 1966 Utah L. Rev. 297, 302 [[[[hereinafter James, Book Review] (reviewing Walter J. Blum & Harry Kalvern, Jr., Public Law Perspectives on a Private Law Problem-Auto Compensation Plans (1965)).

[FN100]. See Nolan & Ursin, supra note 1, at 56-57.

[FN101]. See id. at 57-60.

[FN102]. O'Connell, Expanding, supra note 11, at 773.

[FN103]. Keeton, Conditional Fault, supra note 19, at 444.

[FN104]. William L. Prosser, The Assault upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099, 1120 (1960) [hereinafter Prosser, Citadel] (quoting Roscoe Pound, New Paths of the Law 39-47 (1950)).

[FN105]. Id.

[FN106]. Id.

[FN107]. See Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69, 80-84 (N.J. 1960); see also Greenman v. Yuba Power Prods, Inc., 377 P.2d 897, 901 (Cal. 1963) (in banc).

[FN108]. Harry Kalven, Jr., Tort Watch, 34 J. Am. Trial Law Ass'n 1, 57 (1972).

[FN109]. Id. at 57.

[FN110]. James, The Future, supra note 15, at 916; see also Schwartz, Foreword, supra note 1, at 548.

[FN111]. See Jeffrey O'Connell, Operation of No-Fault Auto Laws: A Survey of the Surveys, 56 Neb. L. Rev. 23, 23 (1977).

[FN112]. O'Connell, Expanding, supra note 11, at 773 (footnote omitted); see also Jeffrey O'Con-nell, Foreword to Sugarman, supra note 15, at x (discussing his efforts to extend no-fault, "to other areas of tort law-principally medical malpractice and products liability").

[FN113]. See Schwartz, Foreword, supra note 1, at 548.

[FN114]. See Richard A. Posner, The Problems of Jurisprudence 432 (1990) [[[[hereinafter Pos-ner, Jurisprudence] (discussing legal scholarship generally).

[FN115]. O'Connell, Expanding, supra note 11, at 749.

[FN116]. See sources cited supra note 1.

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[FN117]. O'Connell, Expanding, supra note 11, at 749.

[FN118]. Id. at 771.

[FN119]. See Virginia E. Nolan & Edmund Ursin, Enterprise Liability and the Economic Analysis of Tort Law, 57 Ohio St. L.J., 835, 841 (1996) [[[[hereinafter Nolan & Ursin, Enterprise Liability].

[FN120]. O'Connell, Expanding, supra note 11, at 773.

[FN121]. See id.

[FN122]. Jeffrey O'Connell, The Lawsuit Lottery 187 (1979).

[FN123]. See id. at 262.

[FN124]. See Nolan & Ursin, supra note 1, at 125-32.

[FN125]. See, e.g., 1 Reporters' Study, supra note 12, at 35.

[FN126]. See U.S. Dep't of Transp., Motor Vehicle Crash Losses and Their Compensation in the United States, 122-25 (1971).

[FN127]. See Richard B. Schmitt, Slick Tactics: Trial Lawyers Glide Past Critics with Aid of Power-ful Trade Group, Wall St. J., Feb. 17, 1994, at A1.

[FN128]. See id.

[FN129]. See id.; see also Peter A. Bell & Jeffrey O'Connell, Accidental Justice 182 (1997).

[FN130]. See Jeffrey O'Connell, Alternatives to the Tort System for Personal Injury, 23 San Diego L. Rev. 17, 29-30 (1986).

[FN131]. The "disappearance" of the enterprise liability theory can be seen in treatments of tort his-tory that appeared in the early 1980s. For example, the term "enterprise liability" is not even listed in the index to G. Edward White's excellent book on tort history. See G. Edward White, Tort Law in America: An Intellectual History 279-82 (1980). Other scholars either failed to recognize the common law agenda of the enterprise liability scholars or lumped it together with "traditional tort scholarship-primarily concerned with the coherence and clarification of tort doctrine." Schwartz, Foreword, supra note 1, at 548. Compensation plans, now seen as a legislative repudiation of tort, were either ignored in tort histories or treated largely as a product of the 1960s and the Keeton-O'Connell plan. O'Connell has written, for example, that "nowhere in Professor White's book does he discuss workers' compensation . . .- like many torts scholars[, he] completely ignores it." Jeffrey O'Connell, Book Review, 1980 Duke L.J. 1201, 1208 [hereinafter O'Connell, Book Review] (reviewing White, supra). Absent from these accounts was the unified theory of enterprise liability that, dating from Leon Green's seminal work in the 1920s, had challenged and defeated traditional tort theory, conceived and nurtured the compensation plan idea, provided the framework for the Keeton-O'Connell plan, and dominated personal injury law since the early 1960s. As scholars in the 1980s began to reacquaint themselves with the enterprise liability theory, they mistakenly equated "enterprise liability" with strict products liability-thus neglecting the compensation plan and damages reform aspect of that theory. That (mistaken) equation can be traced to an article by George Priest, linking enterprise liability to the scholarship of Fleming James but failing to note the centrality of compensation plans and damages reform in James's thought. See George L. Priest, The Invention of Enterprise Liability: A Critical History of the Intellectual Foundations of Modern Tort Law, 14 J. Legal Stud. 461, 465-83 (1985). This misperception has persisted in tort scholarship. See, e.g., 1 Reporters' Study, supra note 12, at 35 (discussing compensation plans as alternatives to tort, not as an aspect of a broader (tort) enterprise liability theory); see also Rabin, Law's Sake, supra note 1, at 2261-63 (not mentioning compensation plans and enterprise liability in an

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account of tort theory); Schwartz, Mixed Theories, supra note 1, at 1804 (stating that enterprise liability scholars of the 1920s to 1950s supported "broad expansions in the coverage of tort liability rules" but failing to note the compensation plan and damages reform agenda). But see Rabin, Some Thoughts, supra note 12 (mentioning compensation plans in the context of a discussion of enterprise liability).

[FN132]. Posner, Jurisprudence, supra note 114, at 432-33. For more elaborate explanations, see Posner, Problematics, supra note 12, at 284-85; Nolan & Ursin, supra note 1, at 133-46; and Nolan & Ursin, Enterprise Liability, supra note 119, at 840-50.

[FN133]. Posner, Jurisprudence, supra note 114, at 432 (noting that "the most imaginative prac-titioners become restless").

[FN134]. See Nolan & Ursin, supra note 1, at 133-46.

[FN135]. See, e.g., Calabresi, Risk Distribution, supra note 24.

[FN136]. See, e.g., Guido Calabresi & Jon T. Hirschoff, Toward a Test for Strict Liability in Torts, 81 Yale L.J. 1055 (1972).

[FN137]. Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis 3-16 (1970).

[FN138]. Calabresi, Risk Distribution, supra note 24, at 499 (quoting Charales O. Gregory & Harry Kalven, Jr., Cases on Torts 689 (1959)).

[FN139]. See id.

[FN140]. Guido Calabresi, The Decision for Accidents: An Approach to Nonfault Allocation of Costs, 78 Harv. L. Rev. 713, 745 (1965) [hereinafter Calabresi, Decision].

[FN141]. Id.

[FN142]. See id.

[FN143]. Ironically, as Walter Blum and Harry Kalven noted at the time, Calabresi's "modified enterprise liability" was an explicit blend of "policy judgments [and] political predictions." Walter J. Blum & Harry Kalven, Jr., The Empty Cabinet of Dr. Calabresi: Auto Accidents and General Deterrence, 34 U. Chi. L. Rev. 239, 272 & n.74 (1967). Calabresi wrote that "we are faced with the fact that a time-honored system (fault) fails to satisfy a modern demand (compensation)." Calabresi, Decision, supra note 140, at 745. In fact, he believed that the fault system was "so unpalatable on compensation grounds that it would soon be replaced." Id. at 744. Calabresi characterized the debate among torts scholars as a debate between "'conservative' and 'radical' camps," and he expressly rejected the views of both traditional tort theorists and the "radical" enterprise liability scholars who had urged that "compensation [is] the main purpose of accident law." Id. at 715, 745. Instead, Calabresi offered a "middle ground." Id. at 745.

[FN144]. Harper & James, supra note 41, at 4-5 (Supp. 1968).

[FN145]. See O'Connell, Expanding, supra note 11, at 766-67 (quoting Calabresi, Decision, supra note 140, at 26).

[FN146]. See Marc A. Franklin, Tort Liability for Hepatitis: An Analysis and a Proposal, 24 Stan. L. Rev. 439, 461-65 (1972) [hereinafter Franklin, Hepatitis].

[FN147]. See id. at 462-65, 479-80; James, Book Review, supra note 99, at 302-03; O'Connell, Ex-panding, supra note 11, at 766-68, 826-29.

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[FN148]. See Fletcher, Fairness, supra note 31.

[FN149]. See Epstein, A Theory of Strict Liability, supra note 32.

[FN150]. Calabresi, Risk Distribution, supra note 24, at 499 (quoting Charles O. Gregory & Harry Kalven, Jr., Cases on Torts 689 (1959)).

[FN151]. See Schwartz, Foreword, supra note 1, at 548-49; see also James, The Future, supra note 15, at 916.

[FN152]. James, Accident Liability Reconsidered, supra note 85, at 552.

[FN153]. O'Connell, Expanding, supra note 11, at 749.

[FN154]. Calabresi, Decision, supra note 140, at 744.

[FN155]. Posner, Jurisprudence, supra note 114, at 432-33.

[FN156]. See Schwartz, Mixed Theories, supra note 1, at 1810.

[FN157]. Id.

[FN158]. See id. at 1802.

[FN159]. But they advocated fewer strict liability rules than commonly thought. See Gary T. Schwartz, The Vitality of Negligence and the Ethics of Strict Liability, 15 Ga. L. Rev. 963, 979 n.80 [hereinafter Schwartz, Vitality] (noting that "Epstein is explicitly an advocate of strict liabilty," and that "comentators . . . have interpreted Fletcher primarily as a strict liability theorist[]"). As Schwartz has pointed out, "the strict liability [[[[Fletcher]

professes to deliver . . . turns out to be very limited in scope." Id. at 986. Similarly, Epstein "has turned out to be interestingly sympathetic to the negligence standard." Id. at 980; see also infra text accompanying notes 213-31 (discussing Fletcher and Epstein's later view that the problem of modern tort law is not one of corrective justice).

[FN160]. Fletcher, for example, insists on a "non-instrumentalist" approach to tort law, and the "distinctive characteristic of non-instrumentalist claims is that their validity does not depend on the consequences of the court's decision." Fletcher, Fairness, supra note 31, at 539 n.4. In this view, "judges should look solely at the claims and interests of the parties before the court," rather than attempt to "resolve seemingly private disputes in a way that serves the interests of the community as a whole." Id. at 540. Thus, "[u] sing the tort system to redistribute . . .

(accident losses) violates the premise of corrective justice, namely that liability should turn on what the defendant has done, rather than on who he is." Id. at 547 n.40. If taken seriously, an insistence on a non-instrumentalist approach would seem to call into question workers' compensation legislation. But who would take seriously a call to repeal workers' compensation legislation because "it violates the premise of corrective justice, namely liability should turn on what the defendant has done rather than who he is"? Id. Does the spirit of Ives v. South Buffalo Railway Co. live on? 94 N.E. 431, 448 (N.Y. 1911) (holding unconstitutional workers' compensation legislation); see also Fletcher, Fairness, supra note 31, at 544 n.24, 548 n.43 (excluding from his tort theory cases in which parties are in a contractual relationship); Keating, The Idea, supra note 34, at 1380 (stating that enterprise liability is "imposed because an enterprise's activities [what it has done] create current risks").

[FN161]. See Fletcher, Fairness, supra note 31, at 547.

[FN162]. In reality, Fletcher's reciprocal risk approach is not a general tort theory but a theory that, on its own terms, excludes from its purview strict products liability and physician and landowner cases. See id. at 544 n.24, 548 n.43.

Also, the idea that liability should hinge on reciprocity did not originate with Fletcher. Scholars in the 1930s and 1940s wrote of "reciprocity" or "mutuality" of risk as "one of the great foundation stones on which the main

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(Cite as: 48 U. Kan. L. Rev. 59)

structure of negligence law has been erected." Lawrence Vold et al., Aircraft Operator's Liability for Ground Damage and Passenger Injury, 13 Nebr. L. Bull. 373, 380 (1935); see also Wex Malone, The Formative Era of Contributory Negligence, 41 U. Ill. L. Rev. 151, 156-57 (1946) (discussing Vold's theory). In the absence of such mutuality, "negligence doctrine loses its attraction as being inherently fair." Vold et al., supra, at 380. Thus, "where there is no reciprocity of risk, absolute liability is apt to follow." Malone, supra, at 156. Fletcher relied on the same cases as these authors. Compare Fletcher, Fairness, supra note 31, at 544-45, with Vold et al., supra, at 379-80 (relying on wild or vicious animal cases; Rylands v. Fletcher, I.L.R.-Ex.265 (1965); blasting cases; and cases of ground damage caused by aircraft).

[FN163]. Fletcher, Fairness, supra note 31, at 542.

[FN164]. Id.

[FN165]. See Epstein, A Theory of Strict Liabilty, supra note 32.

[FN166]. Id. at 151-52.

[FN167]. Schwartz, Foreward, supra note 1, at 549; see also Ernest J. Weinrib, Understanding Tort Law, 23 Val. U. L. Rev. 485 (1989).

[FN168]. See, e.g., Jules L. Coleman, Risks and Wrongs (1992); Ernest J. Weinrib, The Idea of Private Law (1995); see also Schwartz, Mixed Theories, supra note 1, at 1802-03 (discussing the new wave of corrective justice scholarship).

[FN169]. See Schwartz, Mixed Theories, supra note 1, at 1802-03.

[FN170]. See infra note 248 and accompanying text.

[FN171]. See, e.g., Seavey, Cardozo, supra note 73, at 395.

[FN172]. James, Accident Liability Reconsidered, supra note 85, at 552; see also 2 Reporters' Study, supra note 12, at 493.

[FN173]. See discussion supra Part IV.B.

[FN174]. See generally Richard A. Posner, A Theory of Negligence, 1 J. Legal Stud. 29 (1972) [hereinafter Posner, A Theory of Negligence].

[FN175]. See Schwartz, Mixed Theories, supra note 1, at 1806.

[FN176]. Id. at 1806 n.38 (quoting Posner, A Theory of Negligence, supra note 174, at 73).

[FN177]. Id. at 1810 (citations omitted).

[FN178]. Id.

[FN179]. Id. at 1806.

[FN180]. Landes & Posner, supra note 28, at 7.

[FN181]. 1 Reporters' Study, supra note 12, at 31-32.

[FN182]. Franklin, Hepatitis, supra note 146, at 462; see also William F. Baxter & Lillian Altree, Legal Aspectsof Airport Noise, 15 J.L. & Econ. 1 (1972) (presenting an economic analysis of the problem of airport noise).

[FN183]. Richard A. Posner, Strict Liability: A Comment, 2 J. Legal Stud. 205, 221 (1973). Pos-ner also ques-

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