About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

15 Ga. L. Rev. 963 (1980-1981)
The Vitality of Negligence and the Ethics of Strict Liability

handle is hein.journals/geolr15 and id is 979 raw text is: THE VITALITY OF NEGLIGENCE AND THE ETHICS OF STRICT LIABILITY Gary T. Schwartz* I. INTRODUCTION It is a commonplace to observe that there has been an explosion of tort liability during the past quarter-century. The observation strikes me as entirely accurate. What has not been sufficiently ob- served, however, is the extent to which this explosion has quite explicitly been an explosion of negligence liability. Let the negli- gence principle be defined initially as the idea that when there is negligent conduct that causes harm, the negligent actor should be held responsible. The last quarter-century has witnessed what can fairly be described as a vindication or unleashing of the negligence principle - the dismantling of obstacles that previously have im- peded the achievement of that principle's full potential. To docu- ment these observations concerning the present vitality of the neg- ligence principle is one of this essay's purposes.1 To achieve this purpose, the essay will be required to deal, however briefly, with recent changes in the law of strict liability. A second definition of the negligence principle refers to the idea that the law should be wary of imposing liability in the ab- * Professor of Law, U.C.L.A. School of Law. I am grateful to Alison Anderson and Robert Rabin for comments. I In 1970, Harry Kalven's highly literate article, Kalven, Negligence on the Move, 33 J. AM. TRIAL LAW. A. 1 (1970), commented on a number of these developments. My essay attempts to show how the negligence principle has continued to move during the subse- quent decade. Professor Henderson deals with several of the examples reviewed here in Henderson, Ex- panding the Negligence Concept: Retreat from the Rule of Law, 51 IND. L.J. 467 (1976). Henderson strongly agrees with my basic assessment that the recent case law has been ex- hibiting the expansion and purification of the negligence concept. Id. at 491; see also id. at 488, 525. He regards all of this, however, as a disaster: the negligence standard seems to him to be excessively open-ended in several ways that threaten the integrity of the judicial process. Even if one thinks that Henderson somewhat misstates and overstates his anti- negligence arguments, one still can agree that many of these arguments deserve to be taken seriously. They are, however, largely beyond the scope of this portion of my essay, the pur- poses of which are more modestly descriptive. At least so far, Henderson has done little more than to hint at any strict-liability alternative to negligence law. Id. at 526-27.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most