Strict Liability and the Liberal Justice Theory of Torts

Professor Alan Calnan of Southwestern Law School has posted an interesting working paper, Strict Liability and the Liberal Justice Theory of Torts, on SSRN.  Here is the abstract:

     Ask a group of tort scholars to explain the relationship between fault
    and strict liability and the responses are likely to be sharply split. An
    economist might reply that strict liability – assigned on the basis of
    efficiency – should be the rule and fault, if it is to apply at all, but a
    reluctant and occasional exception. A moralist, however, would likely
    give the opposite opinion – that fault, defined as deontological culpability,
    should be the rule and strict liability the exception.

    Ironically, both economists and moralists often base their views on liberal
    principles. Economists rely on the political dimension of liberalism, arguing
    that government generally should not intervene in free market transactions,
    ut if it must, it should do so only with clear tort rules that minimize accident
    costs. Not surprisingly, moralists rely on the moral dimension of liberalism,
    contending that tort law should promote private rights and freedoms by creating
    and enforcing personal responsibilities.

    Both views, however, share the same three flaws. Methodologically, they are
    one-dimensional (focusing on either the moral or the political, but not both)
    and unilateral (seeking to either punish or deter injurers while virtually ignoring
    the injured). Substantively, they are strangely illiberal (promoting either social
    welfare or a particular conception of the Good).

    In this article, I offer a liberal justice tort theory that avoids these pitfalls. It is
    holistic, encompassing both sides of tort law’s dual personality; relational, invoking
    justice concepts that illuminate the bilateral aspects of all torts; and classic, adopting
    a longstanding and mainstream perspective that seeks only to protect and promote
    individual liberty. After recapturing and redefining strict liability, I demonstrate how
    that concept can lay the groundwork for a new metatheory of torts.

    My thesis, in short, is that strict liability is both a moral-political and a substantive-
    procedural concept that must be implemented in a two-step process. The first step
    determines whether the parties’ encounter and its effects were consensual. If consent
    exists, the consenter is held strictly liable for her own loss, irrespective of the fault of
    her counterpart. If no consent is found, or if it is not an issue, liberal justice theory
    then implements a scheme of reasonableness, grounded in concepts of strict law and
    equity, to determine the actor’s liability. Strict law creates substantive rules that forbid,
    inhibit or sanction certain people, activities or relations that pose the greatest and
    surest threats to freedom and equality. However, even when a person, activity or
    relationship is not covered by a strict substantive rule, equity may episodically impose
    strict procedural requirements on actors who hold an unfair advantage in the trial of
    their actions. Because litigation itself is a threat to the freedom of the loser, the ad
    hoc adjustment of procedural burdens serves to correct an important imbalance
    between the parties and restores them to a state of moral and political equality.