Some Thoughts on Risk Distributions and the Law of Torts

Abstract

In their excellent new casebook on Torts Professors Gregory and Kalven state that "the central policy issue in tort law is whether the principal criterion of liability is to be based on individual fault or on a wide distribution of risk and loss." And so, I suppose, it is. But to say "risk distribution" is really to say very little. Indeed, under the heading "risk distribution" have come the most diverse schemes for allocating losses, schemes that have almost nothing to do with each other. The reason for the difficulty is, presumably, that while many people have talked about "risk distribution," and some have even used it as a basis for proposed modifications in the law of torts, few have in recent years attempted to examine in any depth just what it is they are striving for when they say "distribute losses." They could mean one of three things. Do they wish as broad a spreading of all losses, both interpersonally and intertemporally, as is possible? Or do they want the burden of losses to be borne by those classes of people "most able" to pay? Or do they seek something entirely different—that those "enterprises" which give rise to a loss "should" bear the burden, whether or not this accomplishes the prior two aims? The answer, I suppose, is that sometimes they mean each of these things, and at other times all of them. Unfortunately, these goals are not always consistent with each other. They are, moreover, supported by quite different ethical and economic postulates—postulates of quite varied acceptability. To decide when and how we wish to distribute losses we must, therefore, examine the theoretical justifications of each of these three positions. This Article takes some first steps in that direction.