!!Экзамен зачет 2023 год / Theories of tort liability

(Cite as: 73 Cal. L. Rev. 677)

[FN268]. See, e.g., Rosenberg, The Causal Connection in Mass Exposure Cases: A 'Public Law' Vision of the Tort System, 97 HARV.L.REV. 849, 887-924 (1984).

[FN269]. See Sugarman, supra note 21, at 633-34.

[FN270]. See supra text accompanying notes 162-71.

[FN271]. Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928).

[FN272]. I do not mean to suggest here that the ability to foresee specific risks is always a prerequisite for characterization as an informed problem-solving actor. I intend to examine the relationship between foreseeability and problem-solving behavior in a future article on strict product liability.

[FN273]. See, e.g., G. CALABRESI, supra note 1, at 244-65; Calabresi, supra note 117, at 136; Rizzo, supra note 123, at 291-310. Even as strong an advocate of negligence as Judge Posner has conceded that courts do not in practice consider all material factors. See Posner, supra note 14, at 209 n.9.

[FN274]. See Epstein, supra note 129; Epstein, Defenses and Subsequent Pleas in a System of Strict Liability, 3 J. LEGAL STUD. 165 (1974).

[FN275]. See Posner, supra note 14, at 217-20; Posner, Epstein's Tort Theory: A Critique, 8 J. LEGAL STUD. 457 (1979). But see Epstein, Causation and Corrective Justice: A Reply to Two Critics, 8 J. LEGAL STUD. 477 (1979).

[FN276]. See Posner, supra note 14, at 213-15; see also supra notes 141, 179.

[FN277]. For Calabresi's discussion of Palsgraf, see Calabresi, supra note 108, at 91-95. In my opinion, this discussion does not identify which party was the best cost-benefit decisionmaker and cheapest cost avoider. Instead, it supports my argument that neither party in Palsgraf was an effective problem solver with respect to the specific risk created. For references to Calabresi's discussion of Vincent, see supra notes 141-42. I did not find any discussion of Kendall in his writings, and I cannot see how Calabresi's strict liability test would differentiate between the dog-owner injurer and the dog-owner victim on a categorical level.

[FN278]. See Schwartz & Wilde, supra note 5, at 1425-46, 1457-89. Their analysis stresses only one cognitive constraint, imperfect consumer information about risks, and ignores the effects on consumer decisionmaking of limited time, attention, and comprehensional capacity. A court under their scheme would not only have to guess whether buyers are likely to underestimate particular risks, but also the extent to which consumers will pay attention to particular risks while using products. These legal decisionmaking criteria are not self-evidently administrable.

[FN279]. See Henderson, supra note 217. The principal example he cited was that if strict liability is imposed on used car dealers, it may create a competitive price advantage for presumably riskier used cars sold by private owners in a noncommercial setting. See id. at 1081-1084. Henderson assumes that the two markets are independent, but that is doubtful. If the prices set by private used car sellers are derived from the 'Blue Book' or in some other way are related to used car prices set by commercial dealers, then Henderson's example falls apart. When used car dealers raise their prices to cover the costs of strict liability, vehicle prices in the private noncommercial market would increase by a commensurate amount and no relative competitive disadvantage would be created. My point is that courts could seldom if ever make the kinds of economic judgments required under Henderson's treatment.

[FN280]. In 'low-attention' risk contexts, where I believe that tort litigation serves little social engineering purpose, legislatures or administrative agencies would have to implement alternative compensation systems. Either legislatures or courts could impose the recommended liability strategies in unilateral and bilateral problem-solv- ing accident contexts, but I have not attempted here to examine the merits of different institutional models for

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(Cite as: 73 Cal. L. Rev. 677)

making the necessary characterizations and classifications. END OF DOCUMENT

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