Fordham Law

Zipursky on Epstein & the Battle between Negligence & Strict Liability in Tort

Benjamin Zipursky in Legal Theory Blog, December 06, 2010

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Benjamin C. Zipursky (Fordham University - School of Law) has posted Richard Epstein and the Cold War in Torts (Journal of Tort Law, Vol. 3, No. 1, 2010) on SSRN. Here is the abstract:

The article begins with a puzzle about Richard Epstein. Coining the phrase "the Cold War in Torts" to refer to the battle between Negligence (represented by Richard Posner) and Strict Liability (represented by Guido Calabresi), the article asks, "where does Richard Epstein fit into the Cold War in Torts?" Strict liability is usually depicted as an ally of liberals, but Epstein seems to be both more conservative than Posner and more enamored of strict liability than Calabresi. How can this be? This puzzle is joined by several others: is Epstein a law and economist or a corrective justice theorist or both? How can the anti-government author of Takings be an advocate of a tort law ready to have the state imposing strict liability left and right in private law? These problems and several others turn out to be readily explicable when the depth and historical subtlety of Epstein’s views are taken seriously and also when his approach to interpretive questions of tort doctrine are carefully separated from his normative views on various policy questions. The greatest challenge presented by Epstein’s tort scholarship stems from his 1973 article A Theory of Strict Liability and Professor Stephen Perry’s well known critique of that article, The Impossibility of General Strict Liability. The questions presented are: (a) whether a paradigms-centered conception of causation in torts is worth seeking; (b) whether such a conception of causation must utilize a notion of responsibility that is normatively rich, rather than value-free; and (c) whether a normatively rich, paradigms-based conception of causation and responsibility yields a theoretical framework importantly different from the negligence-based conception of tort law put forward by Posner, and Prosser before him. The last half of the article answers "yes" to all three of these questions, utilizing Epstein’s 1973 article as a source of insights for a powerful and historically rooted wrongs-based framework in tort theory.