!!Экзамен зачет 2023 год / Deacademification of tort law

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imply that such considerations should not affect the definition of rights or the determination of what sorts of act[s] are unjust or wrongful." [FN204]

Moreover, there is "nothing in [Aristotle's] concept of corrective justice [that] implies that only private suits-tort suits or suits for breach of contract-satisfy the remedial demands of corrective justice." [FN205] In fact, the decision on what form the remedy should take "is a judgment of expediency." [FN206] To illustrate this point, Posner asks us to suppose "tort liability for automobile accidents due to negligence were discarded in favor of a combination of no-fault insurance and stepped-up criminal prosecutions of dangerous drivers." [FN207] Al- though victims of mere negligence would thus have no legal remedy against an injurer, if "we were convinced that the system produced fuller compensation, fewer accidents, and lower insurance premiums, which of us would oppose it on the ground that it failed to do corrective justice, and why?" [FN208] In short, "no-fault liability [does not raise] a problem of corrective justice. No-fault involves a redefinition of rights, such that what used to be a wrongful injury (negligently running down someone) is no longer wrongful. If it is not wrongful, there is no duty of corrective justice." [FN209]

Posner notes that "all [his] carping" would be pointless if Epstein (and others) "had articulated and defended a new concept of corrective justice." [FN210] According to Posner, however, they have "tried to milk *86

[[[[Aristotle's] concept for its specific implications for legal doctrine." [FN211] Most of them "think that they are using Aristotle's concept, and they are not. They are arguing from authority, and they . . . got the authority wrong." [FN212]

If Posner's analysis calls into question the philosophical foundations of the corrective justice approach, an even more devastating critique comes from a more surprising source: George Fletcher and Richard Epstein, whose seminal early 1970s articles remain the leading exemplars of that approach. [FN213] A little noticed but devastating fact for the corrective justice approach is that, in their more recent writings, both Fletcher and Epstein conclude that the "central problem of modern tort law" is not one of corrective justice. [FN214]

In a 1993 review of Jules Coleman's Risks and Wrongs, Fletcher notes that "Aristotle's principle of corrective justice works fine for takings, where the defendant's gain is equal to the plaintiff's loss." [FN215] However, "in cases of risk-taking (which Aristotle did not consider), there is no reason to assume that the injurer's gain, either economic or psychic, is equal to the injury that happens to materialize." [FN216] "The problem we moderns face . . . is not Aristotle's problem of correcting disequilibrium and returning to the status quo ante of just distribution." [FN217] This is because the "loss is a sunk cost. It cannot be 'corrected' and thus made to disappear." [FN218] Thus, the "central problem of modern tort law . . . is, Who should be richer and who should be poorer?" [FN219] The problem, in other words, "is one of distributive . . . justice." [FN220]

Epstein has also repudiated the view that tort law should be seen as an implementation of a corrective justice principle. "To use Aristotle's old terms," Epstein argues in a 1987 article, "the question of corrective justice (which examines the matter of redress for harm caused) presupposes that there is some prior resolution of the question of distributive justice (which *87 examines the underlying rights)."[FN221] As a consequence, a rationale for any particular legal regime (strict liability or negligence) "becomes intelligible only if one is prepared to discuss overtly consequentialist (and utilitarian) arguments about the original distribution of rights." [FN222] One must, that is, "compare the social consequences" of legal rules. [FN223]

When he wrote his 1973 article, [FN224] Epstein "thought [he] had . . . a clinching, logical argument which cut in favor of . . . strict liability in all 'stranger' cases." [FN225] "Today," he writes, "I am quite convinced that I did not." [FN226] In short, "there is no formal, analytical way to establish the dominance of strict liability over negligence." [FN227]

Epstein's repudiation of his 1973 approach is, of course, also a repudiation of corrective justice approaches generally, and Epstein recognizes this. In a critique of Weinrib's corrective justice scholarship, [FN228] he observes that Weinrib "trie[s] to use a very limited palate of abstract and formal ideas in order to avoid the substantive arguments that have to go into the intelligent selection of any liability rule." [FN229] However, no "formal argu-

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ment will be sufficient to establish the necessary preeminence of one [[[[liability rule] over [another]. Weinrib tries to make . . . such an argument-and he fails." [FN230] Epstein "puts the point more starkly": "[S] uppose, we were to be able to demonstrate the formal necessity for a system of negligence . . . . Is there any reason why we should put the abstract definition of personal equality ahead of an alternative system that does more to satisfy the human needs and wants of all persons?" [FN231]

Stripping away the "highfalutin" pretenses of linkage to Aristotle reveals that the modern corrective justice scholars share the (flawed) framework of traditional tort theorists who, as enterprise liability scholars have pointed out, were "thinking in terms of complete unreality." [FN232] Seen as such, modern corrective justice theories deserve the same appraisal as their predecessors: they are empty and banal. [FN233] Moreover, scholars *88 concerned with the real world of accidents are today reaching just that conclusion.

An example is provided by the American Law Institute's two-volume Reporters' Study: Enterprise Responsibility for Personal Injury, which was published in 1991 as the culmination of a five-year examination of our system of accident compensation law by fourteen distinguished scholars. [FN234] "[R]ooted . . . in the approaches and techniques of contemporary legal scholarship," [FN235] the Reporters' Study nevertheless is intensely concerned with the real world of accidents and, in fact, grew out of widespread concern in the mid-1980s that the tort system might be in "crisis." [FN236]

Although it recognizes that the corrective justice approach continues to have prominent scholarly exponents, the Reporters' Study finds that its exponents' "premises have become progressively less resonant with the real world of tort litigation." [FN237] In the real world, contrary to the assumption of the corrective justice model, an "actor who was at fault does not actually pay for the victim's injuries. Instead the damages are ordinarily paid by the enterprise employing the actor or by the insurance company that provides liability coverage to the actor or firm." [FN238] Also, "in situations such as product [or] medical [injuries] . . . in which victims and injurers are in some kind of contractual relationship, much of the financial burden of tort liability is ultimately borne by potential victims themselves in the prices they pay for the products or services that create the risks." [FN239] Al- though "[a] verdict in court may formally reflect the tenets of corrective justice," [FN240] the award is merely the symbolic starting point. The patient in a malpractice case, for example, is compensated, but the doctor does not write the check. As the Reporters' Study notes:

Once we recognize that the compensation burden is borne collectively by patients through the premiums they pay their health insurers, who then pay the fees of doctors, who in turn pay liability premiums to malpractice insurers, who finally pay benefits to patients who are injured, the individualist corrective justice idea appears to be an anachronism. [FN241]

*89 Moreover, in some contexts, such as toxic torts, payment by a business enterprise or its insurer may come many years after the relevant actors, management, and stockholders are deceased. "Those who end up paying the bill for . . . earlier misconduct are the present shareholders, employees, and customers of the private firm (or the taxpayers of the government)." [FN242] Thus, corrective justice theorists "must eventually face the fact[] of

. . . the often great distance between those whose actions trigger the suit and those who must eventually pay the bill. When they do, the need for a more pragmatic justification of our tort litigation/liability insurance system becomes evident." [FN243]

One might at this point ask how the corrective justice approach could possibly hold a place of prominence in the world of tort theory. But the fact is that it does. And few scholars would question a recent assessment of tort theory: "Currently there are two major camps of torts scholars. One understands tort liability as an instrument aimed largely at the goal of deterrence. . . . The other looks at tort law as a way of achieving corrective justice between the parties." [FN244] Indeed the corrective justice approach is featured in casebooks and collections of essays. [FN245] Robert Rabin's long-established and well-respected Perspective on Tort Law, [FN246] for example, includes "corrective justice scholarship," featuring the Fletcher and Epstein articles as one of two bodies of scholarship (the other being the economic approach) in the category of "The Search for a Comprehensive Theory of Tort Liability" [FN247]-and devotes fifty pages to it. [FN248]

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*90 As we reach the twenty-first century, however, it seems appropriate we acknowledge that modern corrective justice scholarship with its nineteenth-century conceptual apparatus is, as the Reporters' Study concludes, an anachronism and should be treated as such. It should be relegated to a historical footnote in casebooks and anthologies of tort scholarship. Like a Model T Ford, the corrective justice approach may be interesting for some to look at-or even fun to tinker with-but few will view it as a way to get anywhere important.

At a minimum, consumers of tort scholarship, especially law students, should be informed of the limitations of the corrective justice scholarship. Anthologies and casebooks might, for example, begin the section on corrective justice with an introductory paragraph such as the following:

Warning! The material you are about to read presents what many torts scholars believe is an anachronistic approach, out of touch with reality and distinguished by obscurity. The (few) proponents of the corrective justice perspective do not even agree on a common frame of reference, and their work, which was dismissed at the outset by economists, has largely been ignored over the years by other torts scholars (let alone attorneys and judges). You should also be aware that this scholarship has no authentic claim to an Aristotelian pedigree; indeed, Aristotle's concept of corrective justice is in no way antithetical to the utilitarian goals excluded by these authors in the name of corrective justice. Finally, it should be noted that the authors of the two featured articles have recently concluded that tort law can not properly be understood as an implementation of a principle of corrective justice.

C. Enterprise Liability and the Economic Analysis of Tort Law Revisited

1. Doubts About the Economic Approach

Prior to the law and economics movement, enterprise liability scholars, who emphasized the need for victim compensation, had doubted "whether [tort law] contributes very much to accident prevention." [FN249] Nevertheless, these scholars believed that the expansion of liability either through *91 compensation plans or through strict liability rules was consistent with accident prevention, insofar as liability was imposed on business enterprises that were "in a . . . position to reduce accidents." [FN250] Similarly, in the early years of law and economics, important torts scholars, such as P.S. Atiyah, [FN251] John Fleming, [FN252] and Jeffrey O'Connell, [FN253] also questioned the deterrent effects of tort law, suggesting that real-world factors, such as the prevalence of liability insurance and the fact that much negligent conduct is inadvertent, "prevent tort law from achieving deterrence." [FN254] Economic analysts, however, ignored this challenge, preferring to delve more deeply into theory and thus distance themselves from the real world of accidents.

The consequence of this retreat into theory is that the economics genre has grown increasingly less relevant to real-world problems of accidents, and torts scholars are beginning to notice and comment on this phenomenon. In fact, scholars are increasingly aware that the economic analysis of tort law is vulnerable to a critique largely paralleling the critique of the corrective justice approach. For example, the premise of economic efficiency yields widely divergent conclusions in the hands of leading law and economics scholars. For some, the premise points to absolute manufacturer liability without a defect requirement, [FN255] while for others it points to a negligence rule [FN256] or even rules more restrictive than negligence. [FN257] As Gregory Keating has recently observed, "[e]conomics supplies us with a complex and indeterminate framework, and it permits a variety of approaches to any particular problem." [FN258]

*92 The framework is so complex that many economic analyses have become all but inaccessible to readers without formal training in economics and, at times, advanced calculus. Related to this is the fact, pointed out by Gary Schwartz, that "many of the [law] and economics [scholars] are largely economic technicians, who are inclined to evaluate economic properties of tort liability problems without even considering broader questions [of] what tort law is all about." [FN259] Schwartz's observation about corrective justice scholarship thus applies equally to the economic approach to tort law: its obscurity and the lack of agreement regarding a common framework among its practitioners "permits the [noneconomist] to believe [that economic scholarship consists of] intramural disputes he can properly ignore." [FN260]

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And, like its corrective justice counterpart, the economic approach to tort law does not fare well when not ignored. As scholars have begun in recent years to embrace a reality-based approach to accidental injury law, they have returned to the question raised by an earlier generation of scholars: what, in fact, is the deterrent effect of tort law?

In his book, Doing Away with Personal Injury Law, for example, Stephen Sugarman examines the claim that tort law "prevents injuries by deterring unreasonably dangerous conduct." [FN261] On the theoretical level, he argues that behavior controls apart from tort law, such as self-preservation instincts, market forces, personal morality, and governmental regulation, "combine to control unreasonably dangerous actions independently of tort law." [FN262] Furthermore, the deterrent potential of tort law is undermined by factors, such as the prevalence of liability insurance and ignorance (or discounting) of the risk of tort liability. [FN263] Ultimately, however, "how much impact personal injury law has is an empirical question." [FN264] Based on a review of the literature, Sugarman finds "that theorists who defend torts on deterrence grounds have no convincing empirical support for their position." [FN265] Thus, he concludes that "tort law is unlikely to promote significantly more desirable behavior than that which would occur in its absence." [FN266]

*93 More recently, Gary Schwartz has addressed the important question: "Are tort rules really successful in deterring dangerous conduct?" [FN267] He comments that this "is ultimately a question about the real world." [FN268] Schwartz examines available empirical and reportorial evidence on the effect of liability rules on accidents in various categories, such as workers' injuries, automobile accidents, medical malpractice, and products and landowner liability. [FN269] Based on that examination, Schwartz concludes that tort law provides some deterrence but not nearly as much as economists assume. [FN270] Much of the economics literature attempts to "fine-tune" liability rules, such as negligence, strict liability, and contributory negligence, in order "to achieve the exact result of optimal deterrence." [FN271] Yet, the empirical evidence "indicates that such fine-tuning is unlikely in fact to affect actors' conduct." [FN272] Thus, while "modern economic analysis . . . [may provide] a stimulating intellectual exercise," those "who care about . . . how tort liability rules can actually improve levels of safety . . . would be largely warranted in ignoring those portions of the law-and-economics literature that aim at fine-tuning." [FN273] In short, "efforts at fine-tuning, though intellectually challenging, are likely to be socially irrelevant." [FN274]

2. The Reemergence of the Enterprise Liability Perspective

The most significant reality-based examination of the tort system in recent years is the American Law Institute's 1991 Reporters' Study: Enterprise Responsibility for Personal Injury. [FN275] At first blush, that study appears to confirm economic analysis as the dominant genre of torts scholarship. Thus, the study states that economic analysis, focusing on "liability incentives for the prevention of future injuries," is the "generally prevailing scholarly theory about the appropriate role of tort law." [FN276] This statement is misleading, however, because its conception of tort law excludes no-fault compensation plans. Consistent with its charter to *94 examine the real world of accidental injury, the Reporters' Study does not limit its scope to tort law. And, when its analysis broadens, the themes of enterprise liability, though not labeled as such, emerge.

The primary emphasis of enterprise liability scholarship, as discussed above, was on the need to provide the assurance of adequate, but not undue, compensation to the victims of accidental injury. As the enterprise liability theory fell into obscurity in the 1970s and 1980s, however, it became fashionable for torts scholars to ignore or minimize the need for victim compensation. Some scholars, including George Priest, even went so far as to assert that compensation through the tort system is unnecessary because existing first-party insurance provides adequate compensation to accident victims. [FN277] The Reporters' Study holds such assertions up to the light of reality and finds them without factual basis. The study reports, for example, that in 1991 "[a]t least 30 million individuals in this country [were] without insurance for health care." [FN278] (By 1999, the figure was 43.4 million and was increasing at an average of one million per year. [FN279]) Moreover, the Reporters' Study notes that "another 10 to 20 million [were] significantly underinsured." [FN280] (This figure had increased to 29 million by 1996. [FN281]) The Reporters' Study concludes that "[i]t would be rash . . . to dismiss out of hand the

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role that tort damage awards play in providing a form of health care insurance for the victims of enterprise injuries." [FN282] Moreover, "an even starker gap [in the social safety net] confronts people who lose earnings due to injury." [FN283] With respect to disability and life insurance, the study reports that "[d]isability insuranceparticularly long-term disability insurance-is not widespread." [FN284] Furthermore, "life insurance . . . probably does not provide a substantial economic cushion to the families of most breadwinners upon their death[s]." [FN285] Thus, the Reporters' Study concludes that "compensation paid to the victims of injury . . . from all sources is far from adequate." [FN286]

*95 In addition to documenting the enterprise liability view of the need for victim compensation, the Reporters' Study extends its analysis beyond torts to encompass compensation plans, which (as previously discussed) were the centerpiece of the enterprise liability theory. While the debate among tort theorists has been over the deterrence differences between tort doctrines of strict liability and negligence, the Reporters' Study points out that workers' compensation, in addition to providing "social insurance for guaranteed compensation," [FN287] "has been carefully designed to enhance the battery of incentives trained on employers." [FN288] The "expectation is that . . . [[[[the incentives created by workers' compensation] will, over a period of time, lead to a safer and healthier workplace." [FN289]

This assertion that workers' compensation plans create incentives for workplace safety returns the Reporters' Study to the realm of economic analysis. For the Reporters, however, this did not mean turning to an academified diversion into abstract theory. Instead, their concern was Posner's pragmatic concern with "ground[ing] policy judgments on facts and consequences rather than on conceptualisms and generalities." [FN290]

The Reporter's Study acknowledges that in recent years both "theoretical analysis and . . . empirical investigation [have] cast some doubt on [their] hypothesis" primarily because, in theory, workers' compensation might "lessen the incentive felt by employees to take care to avoid accidents." [FN291] Turning from theory to empirical studies of the safety effects of workers' compensation, the study examines the methodology of studies that have concluded the level of workplace accidents increases as the generosity of workers' compensation benefits improves. This examination reveals a "major problem" of these studies: as "benefits . . . improved . . . [more] employees avail[ed] themselves of [these] benefits rather than choose to go to work with a relatively minor injury, thereby inflating reported workplace injuries." [FN292] Moreover, "the most thorough and sophisticated analysis of this problem"-by Michael J. Moore and W. Kip Viscusi [FN293]-has determined that "the existence of [workers' compensation] at its current level of benefits [[[[has] had a powerful safety effect, reducing *96 workplace fatality rates alone by 25 percent from what they would have been if the system had not been in place." [FN294] The Reporters' Study concludes that these plans have "a powerful safety effect" [FN295] that stems "from the fact that . . . compensation is provided through a liability system that requires a causal connection between an employee's injury and a particular employer's operation." [FN296]

Again echoing enterprise liability themes, now buttressed with empirical support, the Reporters' Study concludes that those "inclined toward . . . fundamental changes in areas that are now governed by the tort system . .

. inevitably turn their attention to the potential of the . . . no-fault model." [FN297] The reason is that compensation plans based on the workers' compensation (third-party liability) model offer a "better blend" [FN298] of "efficient compensation, economical administration, and effective [accident] prevention." [FN299] Negligence law may efficiently achieve the injury prevention goal, as does strict liability, but no one claims that it also gives the promising blend of "efficient compensation [and] economical administration" [FN300] that no-fault provides.

The Reporters' Study itself offers an inventive no-fault compensation plan for persons injured during medical treatment. [FN301] The study's Chief Reporter, Paul Weiler, in collaboration with Kenneth Abraham, who was also a participant in the Reporters' Study, has further elaborated on that *97 proposal in the pages of the Harvard Law Review. [FN302] The medical no-fault proposal follows the enterprise liability tradition of extending the workers' compensation pattern to new accident settings. [FN303] Indeed, the Reporters' Study endorses "Jeffrey O'Connell's idea of elective no-fault as a possible way to bring [its medical no-fault] approach on stream," [FN304] thus demonstrating that its proposal is a derivative of O'Connell's elective no-fault proposals of the

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1970s and 1980s and an implementation of the enterprise liability theory. [FN305]

The Reporters' Study can be faulted, and O'Connell has faulted it, for its failure to propose further extensions of the workers' compensation model. [FN306] That failure, however, is due to the study's primary focus on product accidents and its conclusion, which O'Connell questions, [FN307] that the application of no-fault liability to manufacturers is problematical. In product accidents, for example, the Reporters' Study notes that a manufacturer, unlike an employer or health care professional, lacks "control over the circumstances giving rise to the injury" and is unable "to investigate quickly both the causes and effects of any injuries that occur." [FN308] Product injuries aside, we think it likely that the authors of the Reporters' Study would agree with the conclusion of Mark Rahdert's recent book on insurance and tort law: the attractiveness of the workers' compensation model, with its blend of compensation, prevention, and *98 efficient administration, is apparent; the difficulty is "to find zones of human activity beyond the workplace where such an approach might work." [FN309]

In our view, the distinctive features of the Reporters' Study-its reality-based approach and its related embrace of the enterprise liability perspective-are symptomatic of an emerging trend in torts scholarship. In recent years, these features have appeared in the work of scholars whose ideologies and scholarly starting points range across a broad spectrum: from fairness and Kantian social contract theory to economic efficiency; from pro-tort (negligence law) or pro-tort (absolute manufacturer liability without a defect requirement) to anti-tort (social insurance as the alternative) or anti-tort (libertarian freedom of contract as the alternative). [FN310] Despite their wildly divergent approaches, these scholars converge when they focus on the real world of accidents, and they embrace the themes of the enterprise liability theory. [FN311] Thus, as we move into the twenty-first century, the compensation plan form of enterprise liability may be regaining the position of prominence it held in the late 1960s. [FN312]

An example is provided by Gary Schwartz, who was one of the participants in the Reporters' Study and is the Reporter for the Restatement (Third) of Torts: General Principles (and whose critique of the economic approach has been previously discussed). [FN313] For Schwartz, "the futility of endeavoring to fine-tune liability rules in order to achieve perfect deterrence [suggests the desirability of] regimes of liability that avoid efforts at finetuning." [FN314] An example of such a regime is workers' compensation, which "disavows its ability to manipulate liability rules so as to achieve in each case the precisely efficient result in terms of primary behavior." [FN315] Although a frequent supporter of negligence law in the past, [FN316] Schwartz concludes that "the division of liability affected by workers' compensation . . . may achieve about as much by way of *99 deterrence as any other liability regime." [FN317] He also adds that the worker compensation approach "eliminates the need to expensively litigate issues such as negligence and contributory negligence. Also, it satisfies injured workers' basic insurance needs." [FN318] Schwartz does not discuss the implications of this conclusion, but, for us, the implications are those articulated by generations of enterprise liability scholars from Green and James to O'Connell. These scholars saw the assurance of adequate, but not undue, compensation envisioned by the workers' compensation idea as "a pattern by which to indicate other developments either mature or now underway." [FN319] They also sought to extend this pattern beyond the workplace and auto accident settings by legislation and by common law development, [FN320] which would include limitations on recoverable damages and elimination of the need to prove negligence or defect. [FN321]

Kenneth Abraham, in his 1997 book, The Forms and Functions of Tort Law, also sees workers' compensation as providing appropriate safety incentives-in theory "strengthened [from those provided by] claims . . . in tort." [FN322] And he concludes that "facts confirm" what "theory. . . suggests." [FN323] Studies have shown that "despite eliminating the threat of tort liability, workers' compensation has generated substantial safety-incentive effects. Indeed, no definitive study has shown that workplaces are less safe than they would have been had tort liability been preserved, and many show otherwise." [FN324] He asks whether it is "possible that [workers' compensation and auto] no-fault systems could now serve as models for reform of other aspects of the tort system[]." [FN325] Abraham suggests that in the medical and product contexts elective no-fault, which in practice would *100 require legislation, "in theory . . . is an attractive approach," although such legislation at present "is unlikely to be enacted." [FN326]

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Stephen Sugarman is a tort critic who doubts the deterrent effect of tort law and favors replacing tort law with a system of social insurance and expanded employee-benefit plans. [FN327] Yet, Sugarman also urges no-fault schemes "focusing on the seriously injured-say, for victims of medical accidents, airplane accidents, prescription drug and vaccine side-effects [and] organized recreational sporting accidents." [FN328] Across the ideological spectrum is Peter Huber, a strident conservative critic of the "poisonous swamp" [FN329] of modern tort law and an avowed advocate of a "rediscovered respect for contract." [FN330] Huber, however, is also a proponent of no-fault liability in the form of O'Connell-inspired "neo-no-fault" schemes in which compensation "is severed from questions of negligence, defect or fault." [FN331] Huber recognizes that there are "many possible arrangements," and he proposes the application of no-fault principles to airline crashes, [FN332] as well as "lawn mowers, drugs, medical care, and countless other goods and services." [FN333]

A concern for the real world is also present in the scholarship of a new generation of corrective justice and economics scholars, and this scholarship also reflects enterprise liability and compensation plan themes. On the corrective justice front, Gregory Keating, "a leading justice-oriented scholar," [FN334] has incorporated the reality of insurance and organizational, as opposed to individual, liability into his analysis. [FN335] Keating's work, like that of Fletcher, is based on Kantian social contract theory, [FN336] but, unlike Fletcher, Keating argues that this theory posits "[f]reedom from harm [as] more fundamental to security than freedom from risk." [FN337] "Social contract theory thus [emphasizes] . . . the fair apportionment of the costs of *101 accidents, rather than . . . the fair distribution of risk." [FN338] Because the application of strict liability to business enterprises, as opposed to individual injurers, "spreads accident[] [costs] across those who benefit from creating the risks that result in those accidents, rather than simply shifting concentrated harms from victims to injurers," [FN339] Keating concludes that social contract theory indicates that "strict liability (in the guise of enterprise liability) should be the dominant form of liability in the world of enterprises and activities." [FN340] Moreover, he recognizes that "the long ascendancy of enterprise liability in the first eighty-plus years of this century" [FN341] includes "worker[s'] compensation statutes [and] No-Fault automobile insurance." [FN342] "[E]nterprise liability regimes," he argues, need not always "award normal tort damages or compromise autonomy. No-fault administrative schemes, such as workers' compensation, for example, award lesser damages, and they are important instances of enterprise liability." [FN343]

On the law and economics front, Steven Croley, Jon Hanson, and Kyle Logue have presented a series of lengthy articles offering a "revived case for enterprise liability" [FN344] and have argued that courts should adopt absolute manufacturer liability-liability without a defect requirement. [FN345] We have *102 noted elsewhere [FN346] that the version of enterprise liability presented by Croley, Hanson, and Logue, which is based on the goal of efficient accident prevention, differs from the original enterprise liability, which emphasized victim compensation and loss spreading. In their most recent venture, however, Hanson and Logue have shifted to a more reality-based application of their theory and have moved closer to the original enterprise liability approach.

In a lengthy Yale Law Journal article, Hanson and Logue note that their previous work, perhaps "reflect[ing] the influence of the economic analysis of law," [FN347] was "written at a considerable distance from real-world examples" [FN348] and paid "too little attention . . . to whether and precisely how variations across products affect the analysis." [FN349] In the Yale article, in contrast, the authors focus on one product: cigarettes. Consistent with their previous analyses, they urge absolute manufacturer liability, but they also go beyond this to propose a smoker compensation plan, using the third-party-liability model, in which an administrative tribunal "would decide whether and how much the claimant was entitled to recover" from one or more cigarette manufacturers. [FN350] In their previous work, the authors argued that compensation under their version of enterprise liability should, unlike the original version, include "full compensation for both economic and noneconomic harm" caused by products. [FN351] In their Yale article, in contrast, they argue that this approach would be called for "in an abstract world resembling an economist's model" if deterrence were the only goal. [FN352] "In the real world, however, the picture is clouded by a number of complicating political and administrative considerations." [FN353] In a subsequent article Hanson and Logue, with co-author Michael S. Zamore, lay out the broad contours of a smokers' compensation plan. [FN354] The significance of the proposal of a cigarette compensation

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plan, for our purposes, is that it demonstrates the appeal of the enterprise liability (no-fault) approach to a new generation of law and economics, as well as corrective justice, *103 scholars. Indeed, the enterprise liability theory may once again be well on its way to regaining the position of prominence it held in the late 1960s and early 1970s. [FN355]

3. Deacademification and Enterprise Liability: The Next Step

Our analysis suggests that, after a generation of retreat into abstract theory, torts scholars have turned to a real- ity-based approach to tort law, both by addressing the real-world problems posed by accidental injury [FN356] and by incorporating into their analyses real-world factors such as insurance and organizational liability. [FN357] The consequence is that a diverse group of scholars has embraced the enterprise liability (no-fault) perspective. The common ground shared by these scholars has, however, been obscured because of the very diversity of their approaches.

Also these scholars have overlooked the possibility that courts might adopt no-fault approaches. Scholars who focus on legislative compensation plans, for example, tend to see their proposals as repudiations of tort law and assume that courts are "stuck with the administrative apparatus of [traditional] tort law, [including] the rules of damages" [FN358] and a requirement of negligence (or defectiveness). [FN359] Scholars who focus on tort law and theory may recognize the desirability of a compensation plan approach but *104 may do so only belatedly or in passing-and thus they fail to pursue the implications of this recognition for tort law and courts. [FN360]

In contrast, early enterprise liability scholars, from Green and James through O'Connell, sought to extend the workers' compensation pattern beyond the workplace by legislation or by common law development, which would include limitations on recoverable damages. For these scholars, the choice between legislation and the common law was a false choice because, ultimately, the proper choice between these routes is a pragmatic one contingent on broader political and jurisprudential forces. [FN361]

The return to prominence of the enterprise liability perspective as a tort theory opens up the possibility that courts might adopt enterprise liability approaches to create a tort law suitable for the twenty-first century-a tort law that incorporates the insights of the no-fault compensation plans, including limitations on recoverable damages and the elimination of a requirement of defectiveness. We believe, and have argued, that courts can implement these enterprise liability principles in areas that avoid the substantive problems posed by product and medical no-fault proposals while also bypassing the political stalemate inflicted on the legislative process by insurance companies, trial lawyers, and other groups. [FN362]

We have suggested, for example, that courts might build on existing strict products liability precedents to create a broad doctrine of "business premises" enterprise liability, applicable to persons injured on the premises of supermarkets, department stores, restaurants, and similar *105 establishments. [FN363] And we have argued that the strict liability rules applied to hazardous activity could serve as the premise for the application of an enterprise liability approach to railroad accidents-for injuries occurring when trains collide with persons or vehicles at crossings or elsewhere and when train derailments or collisions cause injury to passengers or bystanders. [FN364]

These examples are merely illustrative and made in the enterprise liability tradition of Leon Green, who emphasized that the "possibilities are many" for the replacement of the negligence system by compensation plan approaches. [FN365] Courts might find any number of settings suitable for the *106 enterprise liability approach. [FN366] As a further example, courts might adopt an enterprise liability approach in accident settings that already are singled out for special treatment. Three examples immediately come to mind from the field of sports and entertainment: professional spectator sports, commercial amusement parks, and high-school athletic competitions. [FN367] When a spectator at a professional baseball game is struck by a foul ball, or a person suffers brain hemorrhage while on an amusement park ride, or an athlete is injured while participating in a highschool football game, the tort system guarantees nothing except uncertainty as to whether, when, and how much compensation will be received. [FN368] In contrast, an enterprise liability approach would assure adequate, but

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not undue, compensation for injuries arising out of these activities. [FN369]

Defectiveness has never been a prerequisite to liability in strict liability cases involving hazardous activity, and that precedent could be extended *107 to our other proposed doctrines, thus avoiding the "nettlesome" defect [FN370] requirement of strict products liability. As in the employment and auto settings, "the compensable event [would be] straightforward and simple: an injury 'arising out of or in the course of"' engaging in the activity covered by the doctrine. [FN371] In these settings, the defendant has "control over the circumstances giving rise to the injury" and is able "to investigate quickly both the causes and effects of any injuries that occur." [FN372] Thus, the Reporters' Study's concerns over manufacturer no-fault are fully met. [FN373] The proposed doctrines also avoid the multiple product problem that would arise in product no-fault. For example, if a shopper slips and falls as a result of stepping on a broken jar of baby food while wearing high-heel shoes and hits her head on a shopping cart, a product no-fault scheme faces the problem of allocating liability among the manufacturers of the baby food, the high-heel shoes, and the shopping cart (and perhaps the manufacturer of the flooring and the building contractor), all of whose products are causally related to the shopper's injury. Under our proposal, the supermarket would compensate the accident victim regardless of how many products, if any, are causally related to the injury.

Also, in order to achieve the enterprise liability goal of assured adequate, but not undue, compensation, our enterprise liability doctrines would limit damages for pain and suffering, eliminate the collateral source rule, and abolish defenses based on victim fault. In 1977, the California Supreme Court, in Borer v. American Airlines, Inc., recognized the "strong policy reasons" that argue against compensation of "intangible, nonpecuniary loss." [FN374] Borer and subsequent cases [FN375] provide the precedent for courts to follow Justice Traynor's admonition to establish "curbs on . . . inflationary damages" once victim compensation has been assured. [FN376] In Li v. Yellow Cab Co., [FN377] the California Supreme Court established the precedent for reevaluation of defenses based on victim fault-while at the same time taking a first step in the judicial alteration of damages law (because the comparative fault rule reduces damages based on plaintiff fault). [FN378] As the Reporters' Study recognizes, "little incentive to take care *108 is lost when a patient (or worker or consumer) [or persons injured on a business premise or in our other proposed settings] is told that even though he might suffer a painful, perhaps even fatal injury, he or his surviving dependents will be able to recover compensation for the losses." [FN379] Both policy and precedent support damages reform and the elimination of victim-fault defenses in our proposed enterprise liability doctrines. [FN380]

The doctrinal framework thus exists for courts, operating within the framework of our common law tradition, to adopt doctrines that provide the efficient and economical compensation and accident prevention sought by the enterprise liability theory. [FN381] In this regard, it is instructive to recall that leading scholars of an earlier generation thought it inconceivable that courts would adopt doctrines of strict products liability and comparative negligencevirtually on the eve of their adoption. Prosser, for example, wrote in 1960, the year Henningsen was decided, that judicial adoption of a general doctrine of strict products liability was so "radical and disruptive" that it might "very possibly be the law of fifty years ahead." [FN382] Similarly, Clarence Morris, another leading torts scholar of the time, [FN383] wrote in 1965 that there was "no substantial likelihood that any court will act today . . . to [adopt] comparative negligence." [FN384] Indeed, this seemed so obvious to Morris that he asserted that "lawyers will not even consider arguing [the] possibility [of judicial adoption of comparative negligence] to a court." [FN385] And Prosser even concluded in 1971 that there was little likelihood of that *109 occurring [FN386]-only to be proven wrong two years later when the Florida Supreme Court [FN387] did just that and was quickly followed by the California [FN388] and Alaska [FN389] Supreme Courts. [FN390] In our view, courts are quite capable of adopting enterprise liability (no-fault) approaches as a "natural and easy extension of existing doctrine" which, of course, is what they did in extending strict products liability from food to products generally.

VI. Conclusion

In this Article, we have argued that the highly ambitious economics and corrective justice developments of the

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past generation of torts scholarship have been a manifestation of the academification of tort scholarship-the turn away from a reality-based approach to tort law in favor of analyses that are "barren of any engagement with reality." [FN391] In recent years, however, the process of deacademification has begun. One consequence of the increasing reengagement with reality is that the appeal of abstract economic and corrective justice theories is fading, and even scholars who write from those perspectives have begun to incorporate real-world facts and concerns. [FN392] A second consequence is that an increasing number of scholars are recognizing the appeal of the compensation plan version of the enterprise liability theory, which provides a promising blend of "efficient compensation, economical administration, and effective [accident] prevention." [FN393] We have sought to accelerate this process of deacademification and thus return the enterprise liability theory to the "top of the agenda of tort scholarship" [FN394] where it stood a generation ago. Our hope is that, as the appeal of the enterprise liability approach is increasingly recognized, scholars will focus on how best to implement the enterprise liability agenda. A focus on that question, as well as a recognition that enterprise liability is a tort theory, suggests that courts might implement that theory by elaborating upon and refining the *110 enterprise liability premises embedded in the tort law of the past three decades. In doing so they would meet Fleming James's 1959 challenge for "common law development [that] . . . produce[s] a prompt, widespread, and, above all, equitable distribution of payments in accident cases." [FN395]

[FNa1]. Professor of Law, University of San Diego.

[FNaa1]. Professor of Law, University of San Diego.

[FN1]. See Association of American Law Schools (AALS), Conference on Torts 1 (June 5-8, 1996) [hereinafter Conference on Torts] (pamphlet available from author). See generally Robert L. Rabin, Law for Law's Sake, 105 Yale L.J. 2261 (1996) [hereinafter Rabin, Law's Sake] (reviewing Ernest J. Weinrib, The Idea of Private Law (1995)); Gary T. Schwartz, Mixed Theories of Tort Law: Affirming Both Deterrence and Corrective Justice, 75 Tex. L. Rev. 1801 (1997) [hereinafter Schwartz, Mixed Theories].

Tort theory is seen by most scholars to consist of these two competing camps of theorists. See Virginia E. Nolan & Edmund Ursin, Understanding Enterprise Liability: Rethinking Tort Reform for the Twenty-First Century 125-51 (1995); Gary T. Schwartz, Foreword: Tort Scholarship, 73 Cal. L. Rev. 548, 550 (1985) [hereinafter Schwartz, Foreword]; Schwartz, Mixed Theories, supra, at 1801 (discussing the economic and corrective justice approaches). Theoretical treatments of tort law, as well as substantive analyses and proposals, often confine themselves to these perspectives. See, e.g., Marc A. Franklin & Robert L. Rabin, Tort Law and Alternatives: Cases and Materials 454-72 (6th ed. 1996); Robert L. Rabin, Perspectives on Tort Law 184-303 (4th ed. 1995) [hereinafter Rabin, Perspectives]; G. Edward White, Tort Law in America 218-19 (1980); Gary T. Schwartz, Contributory and Comparative Negligence: A Reappraisal, 87 Yale L. J. 697 passim (1978).

[FN2]. See Richard A. Posner, Against Constitutional Theory, 73 N.Y.U. L. Rev. 1, 4 (1998) [here-inafter Posner, Constitutional Theory].

[FN3]. Id. at 21.

[FN4]. Id. at 10.

[FN5]. Richard A. Posner, Introduction to Baxter Symposium, 51 Stan. L. Rev. 1007, 1010 (1999) [hereinafter Posner, Baxter Symposium].

[FN6]. Id. at 1009.

[FN7]. See Nolan & Ursin, supra note 1, at 3-12.

[FN8]. See infra note 131; see also sources cited supra note 1.

[FN9]. See generally Leon Green, The Duty Problem in Negligence Cases: II, 29 Colum. L. Rev. 255 (1929) [hereinafter Green, Duty Problem].

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