THEORIES OF CORRECTIVE JUSTICE
CALABRESI & MELAMED: CATHEDRAL VIEW
Annulment theory of corrective justice: to fully repair a wrong is not repair not only the wrong but its
consequences as well. This accounts for why we require those at "fault" to pay damages only when
someone has suffered some harm – he should recompense the injured person – while we don't require
someone at "fault" to pay damages when there was no harm.
Corrective justice has two dimensions: 1) losses are concerned if they are wrongful, which means they
stem from a wrongdoing; 2) the reason for imposing liability for the wrong is because they were
caused by the actor's volition and are his responsibility.
Those pockets of SL in tort law can be thought about as "inherently faulty," like ADA, where there just is
no way to reduce the risk to a non-negligent level. Even non-"faulty" actions can be wrong – Vincent v.
Lake Erie, where it would be wrongful to untie the boat even if dock owner had the right to do so. But it
is also wrongful to trespass for private necessity, which is why we hold them liable for damage caused.
FRANKLIN: REPLACING THE NEGLIGENCE LOTTERY
Growth of strict liability is a "corrective justice" thing; we are not concerned with the Δ's fault, but
with Π's compensation for harm he suffers. Tort law cannot be the exclusive system of recovery for
injury, since there is not always a Δ (natural causes). Therefore, need social insurance. Paternalism
argument: people don't always know how to care for themselves (creates need for Social Security &
Medicare). We don't impose "true social costs" on every activity because of distributional preferences.
FLETCHER: FAIRNESS AND UTILITY IN TORT THEORY
Non-reciprocal risk is the basis for both negligence and the pockets of strict liability in tort law.
Examples of nonreciprocal risk for strict liability: non-natural (inappropriate or uncommon) uses of land
(including abnormally dangerous activity), liability in cases of private necessity for harm caused to
property despite "prudently" availing oneself of the other's property. Negligence is also based on nonreciprocal risks relative to some normative communal baseline by which we all accept some level of risk
as members of society. Even intentional torts can be viewed as non-reciprocal risk, and under this view
the attitude of risk creator is irrelevant. Regardless of the type of tort (SL, Negl, Int), the bottom line is
that all members of society should expect roughly the same degree of security from risk. Compensation
is a surrogate for this security, and thus we can sometimes allow liability instead of property rules.
Also explains why we have the "harm within the risk" requirement for strict liability. Also explains selfdefense rules: allows the creation of a reciprocal risk. When a risk is justifiable, the right of the riskcreator supplants the right of the victim to recover: fault is a judgment about the risk, not the actor
who created the risk; is a question of cost-benefit of the risk, not fairness; fault is a condition of
recovery.
DOBBS: ACCOUNTABILITY AND COMPARATIVE FAULT
People should be accountable for their wrongs and for themselves as core of tort law. Pure
comparative negligence might increase number of claims for which Πs recover, but this is consistent
with goal of accountability, since each is apportioned his percentage of the fault. Contributory
negligence (and modified comparative negligence) does not serve that purpose because it holds only the
Π accountable, where both should be.
Assumption of risk under comparative fault makes us realize that assumed risk was two things: (1)
contributory negligence, or (2) no duty.
Last Chance: must use reasonable care to mitigate harm. Essentially the same as comparative
negligence.
Comparative Negl.and SL: can assign a strictly liable party the pretend world where, if Δ had been
negligent, what was Π's proportion of total negligence contributing to the harm (that is the proportion
we bar Π from recovering).
KELMAN: CONSUMPTION THEORY, PRODUCTION THEORY, AND IDEOLOGY IN THE COASE THEOREM
Rise in income is less important than fall in income; therefore if the polluter is disfavored by a liability
rule, then victim will hold out. In other words, people overvalue the things to which they have
entitlements, and undervalue those things to which they don't have the entitlement. This is a big flaw in
Coase theory.
THEORIES OF ECONOMIC EFFICIENCY
CALABRESI & MELAMED: CATHEDRAL VIEW
Problem of "Entitlement": who gets the entitlement when rights conflict. The state must decide who
wind and what type of protection to grant: property, liability, inalienability rules.

Property Rule: Someone who wishes to remove the entitlement from its holder must buy it from
him in a voluntary transaction.

Liability Rule: If someone destroys another's initial entitlement, he must pay an objectively
determined value for it. Solves freeloader/holdout problems of property rule.

Inalienability Rule: The transfer of entitlement is not permitted.
Property Rule
Liability Rule
Inalienability Rule
Π has entitlement, Δ
Court injunction; Δ
Court awards damages, Injunction; Δ cannot
wants it
must negotiate with Π
gives Δ the rights
buy the right from Π.
on the private market
Δ has entitlement, Π
Δ gets to continue; Π
Δ gets to continue,
Δ gets to continue, and
wants it
must negotiate with Δ
unless Π pays court-set Π can't do anything
on private market
fee to get Δ to stop
about it
Nuisance
Because transaction costs are not cheap, we turn to liability rules when we cannot be sure who is the
LCA. But when we have reason to think one is LCA, then we impose property rule. Inalienability rules in
nuisance turns on distributional goals.
Economic Efficiency
Reason to assign entitlement to any particular person is to (1) minimize administrative costs of
enforcement, (2) lead to the most efficient allocation of resources (Pareto optimality).
(1)
Minimizing administrative costs alone only justifies giving rights to most powerful actor
(2)
Pareto optimality varies depending on the starting distribution of wealth
Economic efficiency favors (1) choices made by fully informed actors; (2)costs imposed on the actor best
situated to make a cost-benefit analysis; (3) imposing costs on the party who can most cheaply avoid
them; (4) when uncertain about who LCA is, impose costs on part with lowest transaction costs; (5) since
there are transaction costs, our decision should be based on whether market transactions or collective
fiat is most likely to bring us to Pareto optimality.
Distributional Goals
Where we assign entitlements for inalienability takes into account "moralisms," where external costs
which are not reasonably measurable in an objective manner (perhaps because of freeloader and
information costs). Self paternalism (prescribing rules for self to prevent future misjudgment) and true
paternalism (others prescribe rules to prevent your misjudgment because you cannot make that
decision yourself). Paternalism is consistent with efficiency, but not with Pareto optimality.
CALABRESI & HIRSCHOFF: TOWARD A TEST FOR STRICT LIABILITY IN TORTS
Correct optimizing rule in BPL is to have a doctrine of contributory negligence only where the cost of
injurer avoidance exceeds the cost of victim avoidance. Reverse hand formula: costs of accident borne
by injurer unless accident avoidance on the part of the victim would have cost less than the accident.
Difference is that under the normal Hand rule the costs of all accidents not worth avoiding are borne by
victims, whereas under the reverse rule they’re born by injurer. As opposed to the Hand test that
requires a judgment as to whether an injurer should have avoided the accident costs, SL simply looks to
see which party was in the better position to judge whether avoidance costs would exceed accident
costs and to act on that judgment. In short, who is the cheapest cost avoider. This requires less state
intervention b/c no judgment call in necessary as to the worth of the activity is needed in SL.
When we impose SL on mfg, it is because we think that they are the LCA. The mfg is best suited to
determine whether to conduct research to prevent future harms. However, some uses of a product are
unforeseeable or unsual such that the person using the product is better situated to make the judgment
call about the cost-benefit, which is when we exempt the mfg from liability. But when mfg knows of
likelihood of misuse, he is still LCA, which is why contributory negligence is not an inevitable defense.
Assumption of risk, however, is like SL for the Π. The reason we use SL in things like ADA is because it
reduces the overall cost – in most cases it would be less expensive not to use explosives, and so it is not
worth spending the time to determine one a case-by-case basis whether there should not be liability.
When there is no meaningful choice for consumers, SL should be applied since there will be no incentive
to research otherwise.
COASE: THE PROBLEM OF SOCIAL COST
The question of A hit B ignores the fact that to avoid A hitting B means that you take away A's right to hit
B. In other words, the question is not whether there is a harm, but to avoid the more serious harm. If
there were no liability rules, people would bargain for the most efficient solution (assuming 0
transaction costs) and that is what torts should strive to recreate.
POSNER: ECONOMIC ANALYSIS OF LAW
Under SL Π still will not take precautions if B is larger than PL. If B<PL, Π will just pay damages and
continue his activity. Judicial inability to determine optimal activity levels is a big shortcoming of a
negligence standard: for example, if trains are 10% cheaper than canals as a mode of transportation
before accidents are taken into account but 5% more expensive after considering accidents, the
railroads will still displace canals under a negligence standard. Not so under SL standard. This is why SL
for ultrahazardous activities; potential to change the activity levels of potential injurers is the most
efficient way to avoid accidents and SL encourages them to avoid these accidents. But where accidents
are unavoidable in an economic sense (B>PL) the main effect of switching to SL from negligence will
simply be an increase in the number of damages claims. Given these differences, it makes sense that
torts doesn’t just opt for one or the other but applies different standards in different places.
We should impose SL when activity-level changes are what we think is the most efficient method of
accident prevention. New activities tend to be considered ultrahazardous because there is little
experience with their safety characteristics, and the fact that they are new implies that there are good
substitutes.
POSNER: THEORY OF NEGLIGENCE
Negligence is the failure to exercise the care of an ordinarily careful and prudent man. Shift in 19th C. to
negligence was supposedly to subsidize infant industries, but really is consistent with optimal accident
prevention. Dominant purpose supposedly for compensation, but private rights of action also perform
function of increasing safety. Negligence is not mostly a moral "fault" standard, but an objective
efficiency standard since we also hold stupid people to average person standard. B<PL is evidence of
the efficiency in negligence tort law, since it says we don't want to squander resources to prevent
injury when the cost of the injury is low relative to the cost of prevention. Foreseeability test for
Proximate Cause: Rationale is that the "freak" accident isn't worth spending money to prevent (BPL).
POSNER: THE CONCEPT OF CORRECTIVE JUSTICE IN RECENT THEORIES OF TORT LAW
Aristotle: the law looks to the character of the injury and treat the parties as equal. The judge tries to
equalize things by means of the penalty to take away the gains of the assailant.
Posner on Aristotle: The injurer must do wrong and harm, and the victim must be wronged and harmed.
The judge considers the character of the injury, not the character of the parties outside of the injury.
Posner on Fletcher: "paradigm of reasonableness" corresponds roughly to negligence standard;
"paradigm of reciprocity" goes to question of reciprocal risk. Posner thinks Fletcher's reciprocal risk view
of CJ does not flow from Aristotle's view, since we should weight the social utility of the actor's conduct
even if we don't judge his personal character.
Posner on Coleman: Coleman says that if injury is wrongful, victim is entitled to compensation, but not
necessarily by the injurer. Problem with this view of CJ is that this means some innocent third party must
pay for the harm. Unfairly gives injurer a benefit of not internalizing the costs of his actions, which is a
wrongful gain.
Problem with CJ: doesn't specify a standard for what is wrongful; this must be solved by economic
standard (B<PL?)
CALABRESI: THE COST OF ACCIDENTS
We don't want to prevent all accidents at unlimited cost. We use the words "risk allocation" to mean 3
things: risk spreading, deep pocket, and general deterrence. Central assumption is that principle
function of accidents law is to reduce the cost of accidents and cost of avoiding them. There deep
pocket and risk spreading methods accomplish reduce accidents by concentrating the costs on certain
people. General deterrence implies that accident costs should be treated as one of the costs we face
whenever we do anything: including the cost of accidents in our decisions to undertake an activity
prevents people from undertaking accident-prone activities. General deterrence thus creates a market
for cost-saving substitutes.
Question is how to determine the Cheapest Cost Avoider: we initially only rule out those who onvously
are not the LCA. If determining the actual LCA is expensive, it may end up better to allocate costs to
slightly more expensive cost avoider. Therefore, we rule out allocation of liability to clearly unrelated
parties unless, for come reason, the administrative savings make up for the lack of deterrence and
increased cost of accidents that result. (Exclude taxpayers from paying cost of pedestrian-car accidents
unless it reduces the overall cost.) Frequently, we use the best "briber" standard – the one who can
mostly cheaply avoid transaction/information costs. LCA may be the one who can best get insurance.
Π's cost of
avoidance
Δ's cost of
avoidance
Π
A $60
$30
No
CN
B $60
$60
C $40
$30
Efficient Result if
0 Xaction costs
Worth
Bribe?
N
Δ takes
precaution
5: Π
No
CN
Not
N
Allow harm
---
CN
N
Δ takes
precaution
Δ
KEY:
1.
2.
3.
4.
5.
Negl w/o CN
SL w/o CN
Negl w/ CN
SL w/ CN
No liability
Assumes that expected
harm if no precautions is
$50
3, 4, 5: Π
D $30
$40
CN
N
Π takes
precaution
1, 2: Δ
E $40
$60
CN
Not
N
Π takes
precaution
2: Δ
LEVMORE: WAITING FOR RESCUE
Rewards and penalties are only incentives when the actor is aware of them, but we should in any case
use the law to promote symbolic incentives even if people are unaware of the law. Rewards for recue
could be: paid by state, victim, or third party; exemption from liability for injuries caused in rescue;
compensation for injuries suffered in rescue. Penalties could be: fine/jail, civil liability (or both) for non
rescue.
Levmore on Posner & Landes: (1) large rewards paid by victims leads to inefficient over-precaution by
potential victim; (2) legal incentives erode moral incentives (altruism/heroism); (3) harsh penalties
decrease number of rescue since people avoid "rescue spots." Landes says (1) true and also will create
moral hazard of staged emergency if publicly financed rewards, but small rewards would not create this
inefficiency; (2) moral incentives are not eroded by rewards because rescuers can decline rewards, and
people who would rescue anyway are not likely to feel less heroic because they faced sanction; (3) true,
but could offer a combo of reward and penalty to offset each other. A slightly imbalanced package, with
slightly more carrots than sticks is the most efficient system.
WEINRIB: THE CASE FOR A DUTY TO RESCUE
Utilitarian's only concern is that an individual bring about a situation that brings about a greater net
benefit, so should rescue when discounted probability of success is greater than probability of greater
harm. Problem is that this extends too far and would create problem of "officious intermeddler" and
paternalism, and should limit to emergency situations. Basically, should impose duty to rescue where
the rescue would not create an expectation of future rescue and the cost of rescue is less costly than
nonrescue.
POSNER:
Liability should be a means to ensure the original intent. If had been contracted for, would be that there
is a mutual duty to rescue? The consideration for the rescue is the promise that the rescuee would be
the rescuer in some future situation.
BEAU:
Moral Duty does most of the work anyway in rescue cases, why impose legal duty? Problem of
extortion; Problem of causing people to avoid situations where they might be put in rescuer situation
STRICT LIABILITY VS NEGLIGENCE
CJ AS NEGLIGENCE
Holmes - "moral choice"; rejects the notion that a man acts at his peril. Important that the man has
chosen to act -there is a profile of risk out there at the time you commit any act.
Strict liability "would impose a penallty upon efforts, made in a reasonable, skillful, and careful manner,
to rise above the condition of barbarism" . . . Which, essentially deprives us of "the rights of civilization
[which] are, in a legal sense, as natural as any others."
We must have factories, machinery, dams, canals, and railroads. They are demanded by the manifold
wants of mankind . . . If I have any of these upon my lands, and they are not a nuisance and are not so
managed as to become such, I am not responsible for any damage they accidentally and unavoidable do
to my neighbor. He receives his compensation for such damage by the general good, in which he shares.
"even the most careful person cannot avoid creating some risks and accepting others. What a man must
not do, and what I think a careful man tries not to do, is to create a special risk which is substantial"
EE AS NEGLIGENCE
If you think that the point of tort law is to minimize the cost of accidents (and of accident prevention),
then one should take only as much precaution as is necessary to be maximally efficient when cost and
probability of any accident is considered.
CJ AS SL
Non-reciprocal risk: you gotta pay [e.g. Flecther v Rylands; Fletcher's theory]
Casuation, but or "a hit b" situation: you gotta pay [Epstein]
The "rights" theory: if your acts infringe on another's rights, then you are liable [Powell v Fall]
EE AS SL
SL should be used when it will reduce the cost of accidents, which means Sl is the right standard when
there is incentive to minimize activity level.
For SL
HENDERSON: EXPANDING THE NEGLIGENCE CONCEPT
Some questions are not sensibly adjudicated in courts because there are no recognized rules of decision.
As a result, when those courts are forced to deal with those questions, they will exercise managerial
authority, meaning that they will impose their own will on the outcome. The negligence concept is one
of the questions courts are not capable of deciding properly since (1) evaluation of Δ's conduct requires
complex analysis; (2) parties may have a special relationship that modifies the duties owed; and (3)
practical considerations mean courts must impose limitations on potential liability.
EPSTEIN: THEORY OF STRICT LIABILITY
Minimum condition of tort liability is damage to Π. "A hit B" shows a causal link between A's action and
B's harm, while differentiating their roles. This allows us to avoid the "but for" question, since that test
does not establish the causal connection. Proof of causation in itself is not conclusive, but creates a
presumption of liability because of the nonreciprocal nature of the source of harm. In assault, must take
into account Π's reactions, but since these are not volitional they are not "acts." SL is better standard
even in cases where Δ caused harm to third party when acting in self defense, since otherwise the
innocent bystander remains uncompensated. Even where the case is "A compelled B to hit C," C can
recover against B, who can then sue A for indemnification, which makes the SL fair; alternatively, C can
sue A and skip the middleman. SL also accounts for creating dangerous conditions, since it still involves
that "volition" of creating the condition: whether they be "inherently" dangerous (explosives), normally
safe things in dangerous situations (boulder on edge of cliff), defective products (gun that explodes
when fired). The "volition" requirement also accounts for "harm within the risk" requirement, since
there is no volition to have your parked car be swept up by a tornado and dropped on your neighbor's
house.
Under Negligence, it doesn't make sense to not impose duty to rescue, since negligence is defined as the
"omission to do something a reasonable man would do or the doing of something a reasonable man
would not do" under the circumstances (e.g., Carroll Towing). BPL makes this clear, and also says a
person is not privileged to value himself higher than others. SL, on the other hand, does not impose
good Samaritan requirement, because it would not be possible to argue that A hit B when he didn't
rescue B. Expansion of law erodes moral worth of acts if law is thought of as setting a baseline.
Epstein on Ames: Ames argues that utilitarianism thinks we need to impose duty to rescue when there
would be a net benefit to society, but that we should have some special place for egoism (and this is
inconsistent/self-contradictory). To say that the rule only applies to obvious cases of rescue is a slippery
slope. Ames says surgeon doesn't have to travel across Indian continent, but what if he would be
compensated such that he would suffer no loss? It is a greater burden on freedom to compel action than
to prevent an action. Egoism argument; you don't get to tell me what to do because you infringe on my
autonomy.
THEORIES THAT THERE'S NO DIFFERENCE BETWEEN EE AND CJ
1/100 chance of $10,000 damage
SL
Negligence
(expected cost, $100)
Liability
Take the Precaution
Liability
Take Precaution
Spend $500 to put up a fence?
Yes (100)
No ($400 savings)
No
No
Spend $5 to reorient the pitch?
Yes (100)
Yes ($95 savings)
Yes
Yes
Give up cricket? (valued $5000)
Yes (100)
No ($4900)
No
No
SCHWARTZ: PROPOSALS FOR PRODUCTS LIABILITY REFORM
Consumer sovereignty norm supports upholding contracts when there is actual (fully informed and
uncoerced) consent or when consent is implied because certain requirements are imposed by the state
(either by default rules, which apply when the contract doesn't address the issue, or by required
clauses). Also works for hypothetical consent, where we should choose the "utility maximization" rule
(not the "maximin" rule). Maximin states that there should be full compensation to bring every injured
person to the state they were in before the injury, but this would result in over-insurance, which people
wouldn't want to pay for. Utility maximization is essentially BPL liability argument. Argues that CJ
would essentially yield the same result, since CJ favors enforcement where a well-informed person
would actually consent prior to the injury. SL should incentivize mfg of safe products and ensure private
insurance, since the private market cannot properly provide that incentive due to imperfect
information. People will only want enough liability, though, for pecuniary harms since more liability than
this will lead to over-insurance through higher prices, which is insurance consumers would not buy if
they had to make the decision for themselves. "True" SL is justifiable if consumers don't know the risks
of harm, but people are good at judging risks (although tend to underrate some risks and overrate
others). People evaluate risks in a "heuristic" way, with the first or most recent information as most
dangerous, least is last or less rememberable.
MISCELLANEOUS
COLEMAN: RISKS AND WRONGS
In torts, accidents create losses whose costs must be borne by somebody. Different from criminal law,
which imposes new costs because he deserves to be punished. In tort law the goal is to allocate existing
costs onto those who bear responsibility, which allows risk spreading; tort law has an insurance
function. Regardless of liability rules, the existence of accident costs incentivizes the insurance function
of tort law. Therefore, insurance contracts are appropriate ways to discharge obligations under tort law.
Problem in tort law is distinction between grounds for recovery and liability, which could be solved
through a public insurance scheme.
TORT SYSTEM: FEMINIST AND CRITICAL PERSPECTIVE
Tort law does not adequately compensate needy victims since liability is a function of fault rather than
need. When Δ lacks resources to pay judgment, there is no remedy for P. Sovereign immunity protects
government from liability, when its victims are likely to be welfare/charity cases. Tort coercively
recreates unequal distribution of wealth by assigning biggest payout to those with bigger wealth/bigger
losses. Further, not all goods are fungible; assigning damages for "pain and suffering" requires
sadomasochistic determination of how much a juror would want to stand in Π's shoes.
BENDER:
We must take the broader social context into account; people are not just numbers. Individual
autonomy is less important than the imposition of the affirmative duty, and many are harmed when
somebody dies/is injured, so this is not a simple case of weighing individual interests
CALFEE & CRASWELL: SOME EFFECTS OF UNCERTAINTY ON COMPLIANCE WITH LEGAL STANDARDS
Uncertainty occurs whenever people cannot be sure what legal consequences will attach to each of their
possible courses of action. This occurs most commonly when the legal standard is unknown by the actor.
This means that actors can’t decide simply based on whether they’ll be liable or not but by a calculus of
the probability associated with an action of being tried and found liable by the court. From ∆’s point of
view the law is the distribution of these probabilities. Where the exact standard is known (like with BPL)
there is an incentive for ∆ to act exactly in compliance, but where there is uncertainty ∆’s course of
action will be spread across a greater continuum where his action is determined by balancing the
marginal costs of increasing activity vs. increased possibility of his liability. Problem is that uncertainty
leads to overprotection.
GRADY: UNTAKEN PRECAUTIONS
The plaintiff has the burden of suggesting untaken precautions that a defendant might have taken to
avoid negligence, and as a result Π will tack on all the risks of Δ's behavior to increase the B, P, and L in
BPL formula to increase chances of recovery. Conversely, Δ will try and make the B specific to the PL of
the Π's particular harm.
GRADY: RES IPSA LOQUITUR AND COMPLIANCE ERROR
Negligent behavior is an anomaly in negligence theory and is caused by: (1) imperfect information in
party or court; (2) random component of care; (3) averaging inherent in reasonable person standard.
Sometimes is advantageous to be negligent because: uncertainty, error, and misperception lead to
overestimation of the cost of taking care relative to cost of payout. Also, since Π has to pay own
attorney fees, is less likely to sue.
Problem of repeat players; it is impossible to always take "reasonable" precaution unless take too much
precaution, because a person naturally varies his attention from some level to another over a period of
time. There is an increased cost to consistent care. As a result, compliance error yields a result of
negligence per se. Res Ipsa Loquitur is another way that we impose liability for compliance error.
Paradox: the safer an activity, the more likely a res ipsa argument will work when injury results.
Increasing litigation is therefore a natural result of increased safety.
FARBER & FRICKEY: COMMON LAW IN THE AGE OF THE NEW PUBLIC LAW
Arguments for innovation in common law always challenged on grounds that it is legislature's duty to
make reforms. As a result, courts have looked to statutes to extract general principles rather than as
sources of "brute political power."
SIMONS: ASSUMPTION OF RISK AND CONSENT IN TORTS
Consensual behavior sometimes constitutes contributory negligence. Three hypothetical choices: (1)
refrain from activity; (2) engage in activity and encounter the risk; (3) engage in the activity and not
encounter the risk. In typical case, Π will argue that Δ was negligent for presenting option 2 but not 3. Δ
argues that even if there was no option 3, there was option 1, so Π assumed the risk. But true
assumption of risk is when Π prefers 2 over 3 (although there are instances when choice of 2 over 1 is
also assumption of risk). Nonetheless, tort denies recovery to Π who chooses 2 over 1, even if it is
reasonable to do so under BPL calculation. Engaging in activities which cannot be made safer than they
are is to assume the potential risks of harm encompassed by engagement in those activities (no duty).
JAMES & PERRY: LEGAL CAUSE
There may be liability for unforeseeable consequences. (1) Foreseeability of damage is irrelevant to
cause-in-fact. (2) Foreseeability of harm is the basis for negligence; it follows that if a foreseeable harm
exists, it should exist to anybody who might be hurt by that harm – duty to the world (Andrews view).
On the other hand, prevailing view (Cardozo) is that duty is limited to the person who is likely to be
endangered and to the type of harm which made the act negligent. Foreseeability is pretty much an
inquiry into "harm within the risk." (3) Where the extent of the harm goes beyond the state of
reasonable expectation, generally award damages (eggshell shin Jones). (4) Intervening forces invokes
foreseeability test: large intervening forces are intervening if they arrived on the scene after the
negligent act and they were not clearly inevitable results. The question is whether is the intervening
force was what made the Δ's act negligent in the first place. (5) It is irrelevant whether the intervening
force is criminal/intentional/negligent, only that the force is reasonably foreseeable. (6) Foreseeability is
not a question of the precise hazard or consequence; it's whether Δ's conduct was negligent in light of
all the risks to be foreseen under the circumstances. (We should abolish the foreseeability test under
cause since we already do it under duty). (7) Foreseeability is an objective standard, though it includes
what the Δ actually did foresee. (8) Foreseeability is not a precise term; we think about it in hindsight
and say, "was that extraordinary?"
EMPTY SHELL OF FAILURE TO WARN
There are costs to adding warnings that are not accounted for by juries. The more warning, the less
likely people will read them or think they are important; adding more warnings dilutes the most
important ones. Bad design cases are easier because hard sciences back the question of engineering
feasibility and cost, but failure to warn lacks these sciences to determine if warnings would be effective.
Therefore, the question should ideally be whether the fact that there was no warning was the cause: if
there was a warning, would this harm have been avoided? Problem is it becomes a he-said/she-said case
between Π and Δ, and juries don't like Δ's to make personal attacks on Π, so they frequently lose cases
they should win. As a result, we should ask not how many warnings to give, but how to sequence them.
EPSTEIN: A THEORY OF CAUSATION
Intervening acts: (1) accidental; (2) negligent; (3) deliberate. Accidental acts do not break the chain of
causation between Π's injury and Δ's conduct. Negligent acts of Π or 3d party do not break the chain of
causation where negligence is the failure to take reasonable steps to prevent the harm, (though it may
create a defense of contributory negligence). The argument that deliberate acts break the chain of
causation is flawed, because even though they are "voluntary," the harm is that Δ created an
opportunity for harm to Π. "The intent of X should be of no concern in the action between the Π and the
Δ." There is a distinction between "large" and "little" forces: large or "abnormal" forces break the chain
of causation where a little force would not have also caused the harm (thimble of water in dam?).
Important because the larger the intervening force, the more likely the Δ didn't actually create the
dangerous condition.