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78 Va. L. Rev. 1291 (1992)
Negligence, Strict Liability, and the Cheapest Cost-Avoider

handle is hein.journals/valr78 and id is 1301 raw text is: ARTICLE NEGLIGENCE, STRICT LIABILITY, AND THE CHEAPEST COST-AVOIDER Stephen G. Gilles* INTRODUCTION S O much has been written about negligence and strict liability in tort law that anyone who wishes to write about them now had better explain why it is necessary to revisit such familiar ground. There is a wealth of historical and doctrinal scholarship concerning the choice between negligence and strict liability as the basic principle of tort liability. There is also a wealth of law and economics scholar- ship that evaluates the choice between negligence and strict liability from the normative standpoint of efficiency, and examines whether, as a positive matter, the courts employ negligence where it is more effi- cient than strict liability, and vice-versa.1 Yet each of these extensive scholarly literatures is deficient, both in its own terms and in failing to account for the central findings and insights of the other. The various historical and doctrinal accounts of the roles of negligence and strict liability in tort law lack a coherent conception of what negligence is, what strict liability is, how they dif- fer, and what they have in common. Strict liability and negligence are often portrayed as polar opposites, corresponding respectively to no- * Assistant Professor of Law, the University of Chicago Law School. I am grateful to Richard Craswell, Richard Epstein, Laurie Feldman, David Friedman, William Landes, Richard Posner, David Rosenberg, and participants in faculty workshops at Chicago, Vanderbilt, and Virginia for helpful comments on previous drafts. I am also grateful to the Lynde and Harry Bradley Foundation for financial support for the research on which this article is based. I Of course, there is also a rich body of moral and philosophical scholarship concerning the appropriate basis for liability in tort. I do not attempt to deal with that tradition in this Article, which presupposes a broad instrumental conception of tort law in the service of utilitarian goals. 1291

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