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21 U.C. Davis L. Rev. 1141 (1987-1988)
Allocating Liability among Multiple Responsible Causes: A Principled Defense of Joint and Several Liability for Actual Harm and Risk Exposure

handle is hein.journals/davlr21 and id is 1153 raw text is: Allocating Liability Among Multiple Responsible Causes: A Principled Defense of Joint and Several Liability for Actual Harm and Risk Exposure Richard W. Wright* I. SORTING OUT THE ISSuES Recently there has been considerable debate about the proper alloca- tion of liability in tort law when there are multiple responsible causes of the same injury. The debate encompasses two distinct but related issues. The first issue has been argued primarily in the political arena, while the second has been argued almost exclusively in the academic arena. The first issue is the general method that should be used to allo- cate liability among the responsible parties. For example, should each responsible defendant (tortfeasor) be liable to the plaintiff for the entire injury, with a right to obtain partial reimbursement from the other tortfeasors, or instead be liable, initially as well as ultimately, only for a fractional share of the injury? The second issue is the specific method that should be used to calculate the fractional shares under any general method, such as the two just mentioned, which provides (initially or ultimately) for fractional apportionment of liability among the multiple responsible causes. In the political arena the debate has focused on the traditional joint and several liability allocation rule. According to this rule, when more than one defendant has tortiously contributed to the same injury, each tortfeasor is held jointly and severally liable for the entire injury. The plaintiff may recover compensation for the full amount of the injury © 1988 Richard W. Wright * Associate Professor of Law, Illinois Institute of Technology, Chicago-Kent College of Law. B.S. 1968, California Institute of Technology; J.D. 1973, Loyola University, Los Angeles; LL.M. 1976, Harvard University. Helpful comments were provided by Richard Epstein, Gary Schwartz, and Stewart Sterk. Financial support for this article was provided by the Marshall D. Ewell Research Fund of the IIT Chicago-Kent Col- lege of Law. 1141

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