!!Экзамен зачет 2023 год / Deacademification of tort law

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tioned O'Connell's contemporaneous proposals to extend third-party no-fault liability to enterprises such as manufacturers, arguing that economic theory did not support the claim that strict liability would create greater safety incentives. See id. Moreover, because these proposals called for limitations on damages, they might, in fact, undermine safety incentives: permitting enterprises "to limit their liability to . . . 'out of pocket' expenses," might result in "fewer precautions and . . . more accidents" than under the negligence system. Richard A. Posner, A Comment on No-Fault Insurance for All Accidents, 13 Osgoode Hall L.J. 471, 474 (1975); see also Nolan & Ursin, supra note 1, at 145-46. For a discussion of Judge Posner's more recent views regarding workers' compensation plans, see infra note 296. Compare Richard A. Epstein, The Historical Origins and Economic Structure of Workers' Compensation Law, 16 Ga. L. Rev. 775, 803, 809 (1982) [[[[hereinafter Epstein, Historical Origins] (concluding that "[w]orkers' compensation rules are in most instances a closer approximation to the consensual ideal [and thus efficiency] than the negligence rules to which they are opposed," but suspicious that "the levels of benefits and the extent of coverage have . . . become too lavish"), with Martha T. McCluskey, The Illusion of Efficiency in Workers' Compensation "Reform", 50 Rutgers L. Rev. 657, 681 (1998) (questioning whether the recent workers' compensation cost crisis was caused by increased benefits and extent of coverage that distorted "the original workers' compensation bargain").

[FN184]. See Calabresi & Hirschoff, supra note 136, at 1059.

[FN185]. Posner, A Comment, supra note 183, at 211-12.

[FN186]. See id. at 221.

[FN187]. Id. at 212.

[FN188]. Id. at 211-12.

[FN189]. See Posner, Constitutional Theory, supra note 2, at 21-22.

[FN190]. Posner, Baxter Symposium, supra note 5, at 1010; see also O'Connell, Foreword to Su-garman, supra note 15, at x-xi (characterizing the scholarship of this generation as "a new wasteland-abstract, self-contained, artificial," and "far removed from real problems").

[FN191]. Posner, Jurisprudence, supra note 114, at 432-33.

[FN192]. See Nolan & Ursin, supra note 1, at 164. We say "crises" because the existence and cause of these crises is disputed. See, e.g., Deborah Jones Merritt & Kathryn Ann Barry, Is the Tort System in Crisis? New Empirical Evidence, 60 Ohio St. L.J. 315, 398 (1999) (casting doubt on the existence of a tort "crisis" based upon an empirical study of medical malpractice and product liability litigation in one county between 1985 and 1996); see also William Glaberson, State Courts Sweeping Away Laws Curbing Suits for Injury, N.Y. Times, July 16, 1999, at A1 ("[M]ore than a decade after states began enacting laws to cut back jury awards and curtail lawsuits, state courts across the country are overturning one measure after another, concluding that Americans have a powerful right to settle their disputes in court.").

[FN193]. Rabin, Law's Sake, supra note 1, at 2261.

[FN194]. Id. at 2261-62.

[FN195]. For example, the American Law Institute launched an examination of the tort system during this period. See 1 Reporters' Study, supra note 12.

[FN196]. Schwartz, Mixed Theories, supra note 1, at 1802.

[FN197]. Id. at 1811 n.77 (citations omitted).

[FN198]. Id.

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[FN199]. But see discussion infra notes 202-12 and accompany text.

[FN200]. Schwartz, Mixed Theories, supra note 1, at 1810.

[FN201]. Id. at 1811. Corrective justice scholars have, at times, been equally dismissive of their corrective justice colleagues. George Fletcher has, for example, written: "Now if someone asked me whether Jules Coleman's Risks and Wrongs was fiction or nonfiction, I would want to give the straight reply [[[[that is, nonfiction]. Thinking about the book, however, I hesitate. And I do not laugh." George P. Fletcher, Corrective Justice for Moderns, 106 Harv. L. Rev. 1658, 1658 (1993) [hereinafter Fletcher, Corrective Justice] (reviewing Jules Coleman, Risks and Wrongs (1992)).

[FN202]. Posner, Jurisprudence, supra note 114, at 316.

[FN203]. Id. at 315.

[FN204]. Id.

[FN205]. Id. at 315-16.

[FN206]. Id. at 321.

[FN207]. Id.

[FN208]. Id.

[FN209]. Id. at 326.

[FN210]. Id. at 328.

[FN211]. Id. at 323.

[FN212]. Id. at 328. Judge Posner argues, more broadly, that "moral philosophy has nothing to offer judges or legal scholars so far as either adjudication or the formulation of jurisprudential or legal doctrines is concerned." Posner, Problematics, supra note 12, at viii. Moreover, its "influence is pernicious; it is deflecting academic lawyers from their vital role . . . of generating the knowledge that the judges and other practical professionals require if they are to maximize the social utility of law." Id. at xi.

[FN213]. See, e.g., Rabin, Perspectives, supra note 1, at 254-303.

[FN214]. Fletcher, Corrective Justice, supra note 201, at 1668.

[FN215]. Id.

[FN216]. Id.

[FN217]. Id.

[FN218]. Id.

[FN219]. Id.

[FN220]. Id.

[FN221]. Richard A. Epstein, Causation In Context: An Afterword, 63 Chi.- Kent L. Rev. 653, 654 (1987) [hereinafter Epstein, Causation].

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[FN222]. Id. at 655.

[FN223]. Id.

[FN224]. See Epstein, A Theory of Strict Liabilty, supra note 32.

[FN225]. Epstein, Causation, supra note 221, at 657.

[FN226]. Id.

[FN227]. Id. at 660.

[FN228]. See id. at 658-64 (discussing Ernest Weinrib, Causation and Wrongdoing, 63 Chi.-Kent L. Rev. 407 (1987)).

[FN229]. Id. at 664 (emphasis added).

[FN230]. Id. (emphasis added).

[FN231]. Id. (emphasis added).

[FN232]. James, Accident Liability Reconsidered, supra note 85, at 552.

[FN233]. See Schwartz, Mixed Theories, supra note 1, at 1802.

[FN234]. Reporters' Study, supra note 12.

[FN235]. Stephen D. Sugarman, A Restatement of Torts, 44 Stan. L. Rev. 1163, 1208 (1992) [here-inafter Sugarman, Restatement] (reviewing 1-2 Reporters' Study, supra note 12).

[FN236]. 1 Reporters' Study, supra note 12, at 3.

[FN237]. 1 id. at 25.

[FN238]. 1 id.

[FN239]. 1 id.

[FN240]. 1 id. (emphasis added).

[FN241]. 2 id at 493.

[FN242]. 1 id. at 27.

[FN243]. 1 id. To date, most corrective justice scholars have not been responsive to this critique. Indeed, as Robert Rabin has recently written in a book review of Ernest Weinrib's The Idea of Private Law, most corrective justice scholarship "is, by design, totally disengaged from the lively policy debate that rages over the present tort system" and has yet to respond adequately to the fact that "today's social structure . . . features risk-production dominated by organizational entities and widespread loss and liability insurance." Rabin, Law's Sake, supra note 1, at 2279-80 (reviewing Weinrib, supra note 168).

[FN244]. Schwartz, Mixed Theories, supra note 1, at 1801.

[FN245]. See sources cited supra note 1.

[FN246]. Rabin, Perspectives, supra note 1.

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[FN247]. Id. at 184, 254.

[FN248]. See id. at 254-303; see also Franklin & Rabin, supra note 1, at 268-272. Gregory Keating writes of the "recent renaissance of moral theorizing about tort liability . . . organized around the idea of corrective justice." Keating, The Idea, supra note 34, at 1270. As examples of scholarship employing "a corrective justice conception of tort," he cites Fletcher's "influential account" and Epstein's "libertarian theory of strict liability." Id. at 1271.

Fletcher himself appears to have relapsed into an endorsement of the "narrow focus that Aristotle urged for corrective justice,"-without explaining that relapse. George P. Fletcher, Basic Concepts of Legal Thought 87-94 (1996). Fletcher believes that "[i]f distributive justice were the standard, the rich and generally wicked would always lose." Id. at 92. He does not state whose theory of distributive justice would lead to this result.

Authors may, at times, indicate that Fletcher and Epstein have modified their views, but these authors do not disclose that Fletcher and Epstein have each stated unequivocally (but has Fletcher now recanted?) that the problem of modern tort law is not one of corrective justice. See, e.g., Rabin, Perspectives, supra note 1, at 274, 263. Gary Schwartz, for example, writes that "Epstein has converted to utilitarian view . . . . But his early articles are still taken very seriously in the corrective justice literature." Schwartz, Mixed Theories, supra note 1, at 1803 n.7. After noting that Fletcher was, with Epstein, one of the "leading scholars espousing a corrective justice point of view" in the early 1970s, Schwartz writes that "Fletcher's [1996] book . . . supports a corrective justice approach." Id. at 1802, 1807. Schwartz does not mention Fletcher's 1993 statement that the problem for modern tort law is not one of corrective justice but rather "one of distributive . . . justice." Fletcher, Corrective Justice, supra note 201, at 1668.

[FN249]. James, Accident Liability Reconsidered, supra note 85, at 569.

[FN250]. James & Dickinson, supra note 43, at 769, 780.

[FN251]. See P.S. Atiyah, Accidents, Compensation and the Law 590-600 (1970).

[FN252]. See John G. Fleming, Is There a Future for Tort?, 44 La. L. Rev. 1193, 1197-98, 1203 (1984).

[FN253]. See Bell & O'Connell, supra note 129, at 77.

[FN254]. Schwartz, Reality in Economic Analysis, supra note 12, at 378.

[FN255]. See generally Steven P. Croley & Jon D. Hanson, Rescuing the Revolution: The Revived Case for En- terprise Liability, 91 Mich. L. Rev. 683 (1993) [hereinafter Croley & Hanson, Rescuing] (discussing strict liability and negligence standards).

[FN256]. See, e.g., 2 Reporters' Study, supra note 12, at 16 (discussing product design defects).

[FN257]. Compare Richard A. Epstein, The Unintended Revolution in Product Liability Law, 10 Cardozo L. Rev. 2193, 2206-12 (1989), and George L. Priest, Modern Tort Law and Its Reform, 22 Val. U. L. Rev. 1, 23-33 (1987), with Croley & Hanson, Rescuing, supra note 255, at 727, 730 (stating that "Epstein's . . . prescription translates to a proposal that courts should return to . . . a standard approaching [the Winterbottom rule]" and that "Priest's arguments strongly suggest that courts should adopt a mutable, absolute consumer liability regime").

[FN258]. Keating, The Idea, supra note 34, at 1281; see also John C. Moorehouse et al., Law & Economics and Tort Law: A Survey of Scholarly Opinion, 62 Alb. L. Rev. 667, 694 (1998) (reporting that "no grand consensus about [the efficiency of] common law tort rules" emerged from the authors' survey of members of the American Law and Economics Association); Jeanne L. Schroeder, The End of the Market: A Psychoanalysis of Law and Economics, 112 Harv. L. Rev. 483, 484 (1998) (critiquing economic analysis from the perspective of Lacanian psychoanalysis and Hegelian political philosophy).

[FN259]. Schwartz, Mixed Theories, supra note 1, at 1809-10.

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[FN260]. Id. at 1811.

[FN261]. Sugarman, supra note 15, at 3. [FN262]. Id. at 4.

[FN263]. See id. at 6-18. [FN264]. Id. at 21. [FN265]. Id.

[FN266]. Id. at 23.

[FN267]. Schwartz, Reality in Economic Analysis, supra note 12, at 378. [FN268]. Id. at 390.

[FN269]. See id. at 381-420. [FN270]. See id. at 379, 423, 443. [FN271]. Id. at 425.

[FN272]. Id. at 425-26.

[FN273]. Id. at 426.

[FN274]. Id. at 379.

[FN275]. Reporters' Study, supra note 12. For a variety of views on the Reporters' Study, in-cluding those of three of its authors, see Symposium on the American Law Institute's Reporters' Study on Enterprise Responsibility for Personal Injury, 30 San Diego L. Rev. 213 passim (1993).

[FN276]. 1 Reporters' Study, supra note 12, at 31-32.

[FN277]. See George L. Priest, The Current Insurance Crisis and Modern Tort Law, 96 Yale L.J. 1521, 1586-87 (1987).

[FN278]. 1 Reporters' Study, supra note 12, at 156.

[FN279]. See Peter T. Kilborn, Uninsured in U.S. Span Many Groups, N.Y. Times, Feb. 26, 1999, at A1. [FN280]. 1 Reporters' Study, supra note 12, at 156.

[FN281]. See Edwin Chen, Number Without Health Insurance Rises, L.A. Times, Apr. 27, 1996, at A5. [FN282]. 1 Reporters' Study, supra note 12, at 156.

[FN283]. 1 id. at 44. [FN284]. 1 id. at 163. [FN285]. 1 id. [FN286]. 1 id.

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[FN287]. 1 id. at 121.

[FN288]. 1 id. at 122.

[FN289]. 1 id. at 122-23.

[FN290]. Posner, Problematics, supra note 12, at 227.

[FN291]. 1 Reporters' Study, supra note 12 at 123.

[FN292]. 1 id. at 124; see also Alan B. Krueger, Incentive Effects of Workers' Compensation In-surance, 41 J. Pub. Econ. 73, 95 (1990) (stating that more research is needed "to disentangle the reporting effect [of higher benefits] from the moral hazard effect").

[FN293]. See Michael J. Moore & W. Kip Viscusi, Compensation Mechanisms for Job Risks (1990).

[FN294]. 1 Reporters' Study, supra note 12, at 124; see also Don Dewees, et al., Exploring the Domain of Accident Law: Taking the Facts Seriously 353 (1996) (relying in part on Moore & Viscusi, supra note 293, and noting that the operation of workers' compensation reduces worker injury rates more than the tort system would).

[FN295]. 1 Reporters' Study, supra note 12, at 124.

[FN296]. 1 id. at 125. Judge Posner offers an economic analysis that may explain the replacement of negligence law by workers' compensation plans early in this century. As potential workplace hazards became more subtle, "the costs of information about them to the workers [may have become] prohibitive"-unlike the nineteenth century when "subtle dangers were likely to escape anyone's notice." Richard A. Posner, Economic Analysis of Law 277 (5th ed. 1997) [[[[hereinafter Posner, Economic Analysis]. "The growing subtlety of those dangers may conceivably explain the movement in this century to [the] strict liability [[rule of workers' compensa- tion]-although not the limits that workers' compensation laws place on the amount of damages or . . . the refusal to make contributory negligence a defense to a compensation claim." Id. However, "given the abolition of contributory negligence, limiting the amount of damages was necessary to preserve the worker's incentive to take care, by denying him full compensation if he did not." Id. at 277 n.5. Posner raises the possibility that the enactment of workers' compensation "may have increased the rate of accidents in the workplace." Id. (citing Krueger, supra note 292, passim).

[FN297]. 1 Reporter's Study, supra note 12, at 127.

[FN298]. 1 id. at 35.

[FN299]. 2 id. at 534.

[FN300]. 2 id.

[FN301]. 2 id.

[FN302]. Kenneth S. Abraham & Paul C. Weiler, Enterprise Medical Liability and the Evolution of the American Health Care System, 108 Harv. L. Rev. 381 (1994).

[FN303]. See 2 Reporters' Study, supra note 12, at 407-516.

[FN304]. 2 id. at 513.

[FN305]. We say "implementation of the enterprise liability theory" because that theory called for extending the workers' compensation "pattern" to other accident settings, see, e.g., Green, Duty Problem, supra note 9, at 270, including the medical setting, see O'Connell, Expanding, supra note 11, at 773.

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One could also say that the Reporters' Study's medical no-fault proposal is a consequence of a broadening of the study's economic analysis beyond tort to include compensation plans and beyond the goal of accident prevention to include the goals of victim compensation and administrative efficiency. Economic analysis can be so extended. See, e.g., Posner, Economic Analysis, supra note 296, at 192-97 (analyzing strict liability and negligence with respect to accident prevention, administrative cost, and provision of accident insurance).

Similarly, the enterprise liability theory, while emphasizing victim compensation, also was concerned with accident prevention and administrative efficiency. See Green, Duty Problem, supra note 9, at 25556; O'Connell, Expanding, supra note 11, at 776. Perhaps the best characterization is that the compensation plan agenda of the enterprise liability theory, which emphasized victim compensation but was also concerned with accident prevention and administrative efficiency, has now found support in economic analysis, which had emphasized accident prevention but now considers administrative cost and provision of accident insurance.

[FN306]. See Jeffrey O'Connell & Chad M. Oldfather, A Lost Opportunity: A Review of the American Law In- stitute's Reporters' Study on Enterprise Responsibility for Personal Injury, 30 San Diego L. Rev. 307, 329 (1993).

[FN307]. See id. (questioning the Reporters' Study's conclusions).

[FN308]. 2 Reporter's Study, supra note 12, at 528.

[FN309]. Mark L. Rahdert, Covering Accident Costs: Insurance, Liability, and Tort Re-form 182, 178-87 (1995). In this vein, the Reporters' Study explores the possibility of a no-fault approach for future mass toxic, environmental-exposure disasters of the dimension of the asbestos episode. 2 Reporters' Study, supra note 12, at 480.

[FN310]. See infra notes 313-55 and accompanying text.

[FN311]. See infra notes 313-55 and accompanying text.

[FN312]. See generally Bell & O'Connell, supra note 129, at 200 ("If the recent stream of no-fault proposals from prominent tort scholars is any indication, a new wave of no-fault reforms will soon be advanced in many legislatures.").

[FN313]. See supra notes 267-274 and accompanying text.

[FN314]. Schwartz, Reality in Economic Analysis, supra note 12, at 430.

[FN315]. Id.

[FN316]. See, e.g., Schwartz, Vitality, supra note 159, at 964-70.

[FN317]. Schwartz, Reality in Economic Analysis, supra note 12, at 430.

[FN318]. Id. at 430 n.261.

[FN319]. Green, Duty Problem, supra note 9, at 270.

[FN320]. See discussion supra Part III.

[FN321]. In a subsequent article, Schwartz concludes that the combined deterrence and corrective justice benefits of the negligence system "justify the system's quite considerable costs." Schwartz, Mixed Theories, supra note 1, at 1826. In that article, however, Schwartz does not compare the benefits of the negligence system with the combined deterrence, administrative efficiency, and victim compensation benefits of compensation plans (like workers' compensation) based on the third-party-liability model. We, obviously, believe that compensation plan benefits would exceed those of the negligence system. Since such compensation plans would eliminate the

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need to prove negligence or defectiveness, they would also avoid Schwartz's past objection to loss distribution as a tort objective. See id. at 1818 n.128 (objecting to the loss distribution objective in situations in which negligence is the criterion of liability).

[FN322]. Kenneth S. Abraham, The Forms and Functions of Tort Law 240 (1997).

[FN323]. Id. at 241.

[FN324]. Id.

[FN325]. Id.

[FN326]. Id. at 249.

[FN327]. See Sugarman, supra note 15, at 23.

[FN328]. Stephen D. Sugarman, Doctor No, 58 U. Chi. L. Rev. 1499, 1525 (1991) (reviewing Paul C. Weiler, Medical Malpractice on Trial (1991)).

[FN329]. Peter Huber, Liability: The Legal Revolution and Its Consequences 18 (1988).

[FN330]. Id. at 203.

[FN331]. Id. at 196.

[FN332]. Id. at 194.

[FN333]. Id. at 197.

[FN334]. Schwartz, Mixed Theories, supra note 1, at 1832.

[FN335]. See, e.g., Keating, The Idea, supra note 34, at 1332-33. Keating relies extensively on Judge Henry Friendly's opinion in Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167 (2d Cir. 1968), to contrast fairness and efficiency rationales and "the implications [of these contrasts] for the scope of enterprise liability." Keating, The Idea, supra note 34, at 1274.

[FN336]. See Keating, The Idea, supra note 34, at 1295-97.

[FN337]. Id. at 1330 (emphasis added).

[FN338]. Id.

[FN339]. Id.

[FN340]. Id. at 1360. Keating argues that enterprises should "pay for the accidental injuries charac-teristic of their activities whenever doing so will distribute the financial burdens of those accidents among those who have benefitted from the underlying risk impositions." Id. Keating's "characteristic accidental injuries" criterion for liability resembles the "typical risk" criterion employed by O'Connell and other enterprise liability scholars. See, e.g., O'Connell, Expanding, supra note 11, at 773.

Keating may, however, favor a liability more limited than liability for risks typical or characteristic of the enterprise. He notes that his "general argument" leads to the "particular conception [of] liability for the distinctive risks of the enterprise-those risks . . . that are 'different from those attendant on the activities of the community in general."' Keating, The Idea, supra note 34, at 1360 (emphasis added) (quoting Ira S. Bushey & Sons, 398 F.2d at 172). We have argued that an expansive law of hazardous activity strict liability might incorporate a similar, but perhaps broader, standard. We suggested applying strict liability when an enterprise creates a "commercial hazard," a hazard unlike those that individual citizens routinely create as part of their everyday activities.

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See Virginia E. Nolan & Edmund Ursin, The Revitalization of Hazardous Activity Strict Liability, 65 N.C. L. Rev. 257, 314 (1987) [ [ [ [hereinafter Nolan & Ursin, Revitalization].

[FN341]. Keating, The Idea, supra note 34, at 1360.

[FN342]. Id. at 1360 n.219.

[FN343]. Id. at 1376 n.252.

[FN344]. See generally Steven P. Croley & Jon D. Hanson, The Nonpecuniary Costs of Accidents: Pain- and-Suffering Damages in Tort Law, 108 Harv. L. Rev. 1787 (1995); Croley & Hanson, Rescuing, supra note 255; Steven P. Croley & Jon D. Hanson, What Liability Crisis? An Alternative Explanation for Recent Events in Products Liability, 8 Yale J. on Reg. 1 (1991); Jon D. Hanson & Kyle D. Logue, The First-Party Insurance Externality: An Economic Justification for Enterprise Liability, 76 Cornell L. Rev. 129 (1990) [hereinafter Hanson & Logue, Externality].

[FN345]. See Croley & Hanson, Rescuing, supra note 255, at 786-95.

[FN346]. See, e.g., Virginia E. Nolan & Edmund Ursin, Back to Basics: A Comment on the "Revived Case" for Enterprise Liability, 26 Hofstra L. Rev. 161, 173 (1997).

[FN347]. Jon D. Hanson & Kyle D. Logue, The Costs of Cigarettes: The Economic Case for Ex Post IncentiveBased Regulation, 107 Yale L.J. 1163, 1177 n.47 (1998) [hereinafter Hanson & Logue, Cigarettes].

[FN348]. Id. at 1177.

[FN349]. Id. at 1177 n.47.

[FN350]. Id. at 1284.

[FN351]. Id. at 1295.

[FN352]. Id.

[FN353]. Id.

[FN354]. See Jon D. Hanson et al., Smokers' Compensation: Toward a Blueprint for Federal Regula-tion of Ci- garette Manufacturers, 22 S. Ill. U. L.J. 519, 529 (1998).

[FN355]. See James, The Future, supra note 15, at 916; Schwartz, Foreword, supra note 1, at 548-49. A broad range of support can also be found for automobile no-fault plans-despite their being held hostage since the mid1970s by special interest politics. "An early and influential legislative supporter of no-fault insurance" in Massachusetts, the first state to enact an auto no-fault plan, was Michael Dukakis, who later was George Bush's 1988 opponent for the presidency. O'Connell, supra note 122, at 209. In his 1992 bid for re-election, President Bush made an O'Connell-inspired, no-fault insurance proposal a facet of his campaign, proposing federal legislation that would require states to give drivers an elective no-fault option. See Peter Passell, Bush's Bold Plan for Car Insurance, N.Y. Times, Oct. 17, 1992, at A41. Similarly, no-fault was a facet of Bob Dole's 1996 presidential campaign. See Morton Kondracke, Tort Reform Could Be Boost for Dole, San Diego Union-Tribune, July 25, 1996, at B14. Also, auto no-fault has been championed by the conservative Manhattan Institute, as well as by persons with ties to the Consumer Movement. See Passell, supra, at A41 (quoting Michael J. Horowitz, Director of the Judicial Studies Program at the Manhattan Institute); see also Michael Johnson et al., A New, NoFault Road Map to Auto Insurance Reform, L.A. Times, June 5, 1995, at B5 (presenting the views of Michael Johnson, a former policy analyst for Public Citizen; Andrew Tobias, winner of the Consumer Federation of America Media Service Award; and Bill Zimmerman, a political consultant).

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[FN356]. See, e.g., 2 Reporters' Study, supra note 12, passim.

[FN357]. See Keating, The Idea, supra note 34, at 1335-39 (discussing insurance); see also Hanson & Logue, Cigarettes, supra note 347, at 1224-29 (discussing insurance).

[FN358]. Sugarman, supra note 15, at 36; see also 1 Reporters' Study, supra note 12, at 29-30.

[FN359]. See 1 Reporters' Study, supra note 12, at 29.

[FN360]. Gary Schwartz, for example, has praised the blend of deterrence, compensation, and ad-ministrative efficiency found in workers' compensation plans, but he has not suggested extensions of the workers' compensation model to other accident settings. See supra notes 313-21 and accompanying text; see also Schwartz, Reality in Economic Analysis, supra note 12, at 392 (discussing beneficial safety aspects of workers' compensation plans). Gregory Keating, on the other hand, recognizes compensation plans as a form of enterprise liability but does so only in a footnote while focusing his scholarship on the fairness justification of strict enterprise liability. See Keating, The Idea, supra note 34, at 1360 n.219, 1376 n.22. Croley, Hanson, and Logue have lately turned to a compensation plan approach for cigarettes. Nevertheless, despite supporting absolute manufacturer strict liability (presumably judge made), they seem to assume that a legislative route is necessary to achieve no-fault solutions. See, e.g., Hanson & Logue, Cigarettes, supra note 347, at 1284.

[FN361]. See Nolan & Ursin, supra note 1, at 21-29.

[FN362]. See id. at 61-68 (describing the political stalemate). The Reporters' Study finds the ap-plication of nofault to product-related accidents problematic on substantive grounds that we have previously discussed. See supra Part V.C.2. Scholars have also pointed to the quandary these proposals face in dealing with accidents in which several products are causal factors. See, e.g., James A. Henderson Jr. & Aaron D. Twerski, Closing the American Products Liability Frontier: The Rejection of Liability Without Defect, 66 N.Y.U. L. Rev. 1263, 1279-83 (1991). The application of no-fault to medical accidents, in turn, poses the difficult question of how to separate adverse conditions due to treatment from conditions associated with the underlying illness or injury. See, e.g., Abraham, supra note 322, at 248.

[FN363]. See Nolan & Ursin, Enterprise Liability, supra note 119, at 856-57. It is already hornbook law that strict liability applies to business premises whose activities fall within the "license to use" and "hybrid salesservice" categories. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 104, at 719-20 (5th ed. 1984). Strict liability thus applies to a laundromat whose washing machine malfunctions or to a beauty parlor that applies a defective permanent wave solution to a patron. See Garcia v. Halsett, 82 Cal. Rptr. 420, 423 (Cal. Ct. App. 1970) (applying strict liability in the case of a washing-machine malfunction); Newmark v. Gimbel's, Inc., 258 A.2d 697, 701 (N.J. 1969) (applying strict liability to health-care products). Courts have also imposed "something close to a strict liabilty" in slip-and-fall cases involving self-service retail stores. Gary T. Schwartz, The Beginning and the Possible End of the Rise of Modern American Tort Law, 26 Ga. L. Rev. 601, 651-52 (1992) [hereinafter, Schwartz, The Beginning] (relying upon Chiara v. Fry's Food Stores, Inc., 773 P.2d 283 (Ariz. 1987); Sheil v. T.G. & Y. Stores, Co., 781 S.W.2d 778 (Mo. 1989); and Pimentel v. Roundup Co., 666 P.2d 888 (Wash. 1983)); see also Steven D. Winegar, Comment, Reapportioning the Burden of Uncertainty: Storekeeper Liability in the Self-Service Slip and Fall Case, 41 UCLA L. Rev. 861, 888 (1994) (noting additional courts that have created results approaching strict liability). Courts could easily move beyond these precedents to recognize a general doctrine of business-premises strict liability in a manner analogous to the extension of strict liability from food products generally in the 1960s. See James, General Products, supra note 50, at 926.

In Becker v. IRM Corp., the California Supreme Court extended the strict liability rule of the products cases to landlords who lease residential property. 698 P.2d 116, 122 (Cal. 1985), overruled by Peterson v. Superior Court, 899 P.2d 905 (Cal. 1995). By 1995, the composition of that court had dramatically changed, with six of its seven members appointed by conservative Republican governors. See Schwartz, The Beginning, supra, at 686. The Becker case is among the decisions overruled or limited by the more conservative court. See Peterson v. Superior Court, 899 P.2d 905, 906 (Cal. 1995) (overruling Becker, 698 P.2d at 116); see also Thing v. La

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