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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
Gary T. Schwartz*
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.

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