Fordham University School of law THis Research paper 49 June 2004 The Philosophy of Tort Law Between the esoteric and the banal Professor of law ( Forthcoming in BLACKWELL GUIDE TO PHILOSOPHY OF LAW AND LEGAL THEORY, Martin Golding William Edmundson, eds. 2004) This paper can be downloaded without charge from the Social Science Research Network electronic library http://ssrn.com/abstract=555705
Fordham University School of Law Research Paper 49 June 2004 The Philosophy of Tort Law: Between the Esoteric and the Banal Benjamin Zipursky Professor of Law (Forthcoming in BLACKWELL GUIDE TO PHILOSOPHY OF LAW AND LEGAL THEORY, Martin Golding & William Edmundson, eds. 2004) This paper can be downloaded without charge from the Social Science Research Network electronic library: http://ssrn.com/abstract=555705
Philosophy of Tort Law: Between the Esoteric and the banal amin C. Zipursky Professor of law Fordham University forthcoming in BLACKWELL GUIDE TO PHILOSOPHY OF LAW AND LEGAL THEORY, Martin Golding William Edmundson, eds. 2004) The string of words, " Philosophy of tort law " may seem like a random conjunction of academic topic nouns selected from columns in a word game. If the phrase has a comical ring, law is among the most practical and least high-falutin' areas of law. Tort law deals with car accidents medical malpractice, and defective lawn mowers, matters seemingly far from the celestial concerns of the philosopher. And so, like the lobster ice cream sold in a sea-faring tourist town, the existence of philosophy of tort law as a subject may seem to be proof that people will swallow just about anything that can be served up The decision to write this chapter indicates that I do not share the perspective articulated above And yet the question raised -"Is philosophy of tort law intellectually unmotivated? -provides a valuable backdrop for thinking about the topic. i shall suggest in what follows that the subject actually covers a number of different kinds of inquiry, each kind motivated by a set of practical or intellectual concerns. By probing these diverse motivations we will not only address the reasons why there is such a subject(philosophy of tort law), we will also get a better sense of the substance of ongoing debates within tort law, and we will have greater reason to hope that further development in philosophy of tort law will lead to valuable contributions to our legal system and academic culture. Rather than setting forth several leading tort theories as if the subject had an uncontested subject matter over which different scholars had different theories, we shall look at several different kinds of questions that have led to the development of philosophically rich answers Philosophy/tort questions will be presented in three sections. The first section pertains to problems within the development of the black-letter law of torts within the twentieth century, which have spurred the development of philosophical tort theories. The second looks to broader debates within legal theory in which tort theory has been a singularly important domain. Third, and finally, there are debates within moral and political philosophy that have again displayed tort theory as a tort law has emerged from, addressed, pushed forward, and been shaped by, developments nallor 3? domain within which particularly rich philosophical ideas have been generated. Philosophical work these debates Pushed by problems in Law and policy A. Negligence versus strict liability In a number of different domains of tort law during the twentieth century, judges, lawyers, legislators, and academics engaged in a debate over whether companies and individuals should be held strictly liable for the injuries they cause. Workers' compensation for workplace injuries, no-fault automobile insurance for car accidents in some jurisdictions, and strict liability for manufacturing defects in products are prominent examples of domains in which the advocates of strict liability have prevailed. A wide variety--probably the vast preponderance--of areas of accident law remain negligence-based but there has been and continues to be a significant range of areas in which debates between negligence principle and a strict liability principle remain energetic and nuanced. This includes, for example, liability for suboptimal designs and unknown hazards in products, liability for automobile accidents and a significant number of dangerous activities
Philosophy of Tort Law: Between the Esoteric and the Banal Benjamin C. Zipursky Professor of Law Fordham University [forthcoming in BLACKWELL GUIDE TO PHILOSOPHY OF LAW AND LEGAL THEORY, Martin Golding & William Edmundson, eds. 2004)] The string of words, “Philosophy of tort law” may seem like a random conjunction of academic topic nouns selected from columns in a word game. If the phrase has a comical ring, it is because tort law is among the most practical and least high-falutin’ areas of law. Tort law deals with car accidents, medical malpractice, and defective lawn mowers, matters seemingly far from the celestial concerns of the philosopher. And so, like the lobster ice cream sold in a sea-faring tourist town, the existence of philosophy of tort law as a subject may seem to be proof that people will swallow just about anything that can be served up. The decision to write this chapter indicates that I do not share the perspective articulated above. And yet the question raised -- “Is philosophy of tort law intellectually unmotivated?” -- provides a valuable backdrop for thinking about the topic. I shall suggest in what follows that the subject actually covers a number of different kinds of inquiry, each kind motivated by a set of practical or intellectual concerns. By probing these diverse motivations we will not only address the reasons why there is such a subject (philosophy of tort law), we will also get a better sense of the substance of ongoing debates within tort law, and we will have greater reason to hope that further development in philosophy of tort law will lead to valuable contributions to our legal system and academic culture. Rather than setting forth several leading tort theories as if the subject had an uncontested subject matter over which different scholars had different theories, we shall look at several different kinds of questions that have led to the development of philosophically rich answers. Philosophy/tort questions will be presented in three sections. The first section pertains to problems within the development of the black-letter law of torts within the twentieth century, which have spurred the development of philosophical tort theories. The second looks to broader debates within legal theory in which tort theory has been a singularly important domain. Third, and finally, there are debates within moral and political philosophy that have again displayed tort theory as a domain within which particularly rich philosophical ideas have been generated. Philosophical work in tort law has emerged from, addressed, pushed forward, and been shaped by, developments in all of these debates. I. Pushed by Problems in Law and Policy A. Negligence versus strict liability In a number of different domains of tort law during the twentieth century, judges, lawyers, legislators, and academics engaged in a debate over whether companies and individuals should be held strictly liable for the injuries they cause. Workers’ compensation for workplace injuries, no-fault automobile insurance for car accidents in some jurisdictions, and strict liability for manufacturing defects in products are prominent examples of domains in which the advocates of strict liability have prevailed. A wide variety -- probably the vast preponderance -- of areas of accident law remain negligence-based, but there has been and continues to be a significant range of areas in which debates between a negligence principle and a strict liability principle remain energetic and nuanced. This includes, for example, liability for suboptimal designs and unknown hazards in products, liability for automobile accidents, and a significant number of dangerous activities
While the strict-liability-versus-negligence debate has benefited from major, and in some cases, central, contributions from economists, historians, and other analysts within the social sciences, it has from its inception presented a significant philosophical aspect. At first appearance, one might suppose that the philosophical question at issue has been: ought a person who has caused injury to another person be held liable for the cost of compensating the victim's injury, regardless of whether the one who caused injury acted in a faulty manner? In fact, this bald normative question has not been the primary target of philosophical analysis. Rather, the primary philosophical question has been one that presupposes a setting within legal doctrine, and an interpretive slant: to the extent that the imposition of liability under Anglo-American tort law embodies a set of legal principles that displays a defensible normative structure, does that normative structure permit the imposition of liability without fault, and ifso, when? The results of this broad inquiry fall into a spectrum running from strict liability to negligence Richard Epstein's straightforwardly titled"A Theory of Strict Liability"(1973)is a libertarian case for strict liability in accident law, by contrast, Ernest Weinrib's corrective justice theory advocates a fault principle across the board, and Arthur ripstein largely shares this position. Several views fall in between--including those of George Fletcher, Gregory Keating, Jules Coleman, and Stephen Perry 1. Epsteins strict-liability corrective justice theo Richard Epstein has taken the view that, just as each person who infringes upon another's property ight is required by the law to compensate the property owner for the infringement, so each who causes injury to another's body is also liable to the other for the costs of the injury inflicted (at least where there is not a specific showing of excuse or justification)(Epstein 1973: 203-04). The purpose of this body of law is not to provide compensation to accident victims, nor to deter wrongdoers(although it does, and not unimportantly, have those consequences); the purpose of the law is to protect each body is as precious as one's real property, so invasions of bodily integrity trigger a right o rate or person's holdings against the infringements of others. Whether those infringements are deliberate or negligent or without fault is largely irrelevant, just as it generally is for property infringements. Ones compensation The key to the interpretive success or failure of Epstein's account is whether he can recast what would otherwise seem to be a conception of fault in many cases as an aspect of the causation requirement; Stephen Perry's widely respected critique of Epstein(based on the idea that he must smuggle normative notions into his conception of cause), suggests that cannot.(Perry 1989: 404-12) From a normative point of view, the view requires adherence to an almost visceral Nozickian libertarianism--a view to which Epstein appears to remain loyal, albeit for a different set of reasons than he initially endorsed 2. Weinrib and Ripstein: Fault-based conceptions of corrective justice theory Weinrib, like Epstein, embraces a corrective justice framework in which restoring an equilibrium that was disturbed by tortious conduct is a central feature of tort law(Weinrib 1995). Unlike Epstein however, Weinrib openly states that the equilibrium disturbed (and then ideally restored)is not simply the status quo distribution of entitlements. It is, Weinrib argues, a"normative equilibrium, " which is disturbed only where people have acted in a manner that they were not entitled to act, outside of their rights. Where the defendant has so acted and the conduct ripens into an invasion of the plaintiff s right, that invasion is a disturbance that needs to be rectified when the tort law obligates the tortfeasor defendant to pay the plaintiff, it is making sure that the rectification occurs and normative equilibrium is restored; things are set right, so far as possible. Because the trigger of liability is an action in breach of duty, or outside of a defendants right, this is not strict liability. The defendant has injured the plaintiff, but the liability for the injury is not generated by that fact alone, but by the wrongfulness of
2 While the strict-liability-versus-negligence debate has benefited from major, and in some cases, central, contributions from economists, historians, and other analysts within the social sciences, it has from its inception presented a significant philosophical aspect. At first appearance, one might suppose that the philosophical question at issue has been: ought a person who has caused injury to another person be held liable for the cost of compensating the victim’s injury, regardless of whether the one who caused injury acted in a faulty manner? In fact, this bald normative question has not been the primary target of philosophical analysis. Rather, the primary philosophical question has been one that presupposes a setting within legal doctrine, and an interpretive slant: to the extent that the imposition of liability under Anglo-American tort law embodies a set of legal principles that displays a defensible normative structure, does that normative structure permit the imposition of liability without fault, and if so, when? The results of this broad inquiry fall into a spectrum running from strict liability to negligence. Richard Epstein’s straightforwardly titled “A Theory of Strict Liability” (1973) is a libertarian case for strict liability in accident law; by contrast, Ernest Weinrib’s corrective justice theory advocates a fault principle across the board, and Arthur Ripstein largely shares this position. Several views fall in between -- including those of George Fletcher, Gregory Keating, Jules Coleman, and Stephen Perry. 1. Epstein’s strict-liability corrective justice theory Richard Epstein has taken the view that, just as each person who infringes upon another’s property right is required by the law to compensate the property owner for the infringement, so each who causes injury to another’s body is also liable to the other for the costs of the injury inflicted (at least where there is not a specific showing of excuse or justification) (Epstein 1973: 203-04). The purpose of this body of law is not to provide compensation to accident victims, nor to deter wrongdoers (although it does, and not unimportantly, have those consequences); the purpose of the law is to protect each person’s holdings against the infringements of others. Whether those infringements are deliberate or negligent or without fault is largely irrelevant, just as it generally is for property infringements. One’s body is as precious as one’s real property, so invasions of bodily integrity trigger a right to compensation. The key to the interpretive success or failure of Epstein’s account is whether he can recast what would otherwise seem to be a conception of fault in many cases as an aspect of the causation requirement; Stephen Perry’s widely respected critique of Epstein (based on the idea that he must smuggle normative notions into his conception of cause), suggests that cannot. (Perry 1989: 404-12) From a normative point of view, the view requires adherence to an almost visceral Nozickian libertarianism -- a view to which Epstein appears to remain loyal, albeit for a different set of reasons than he initially endorsed. 2. Weinrib and Ripstein: Fault-based conceptions of corrective justice theory Weinrib, like Epstein, embraces a corrective justice framework in which restoring an equilibrium that was disturbed by tortious conduct is a central feature of tort law (Weinrib 1995). Unlike Epstein, however, Weinrib openly states that the equilibrium disturbed (and then ideally restored) is not simply the status quo distribution of entitlements. It is, Weinrib argues, a “normative equilibrium,” which is disturbed only where people have acted in a manner that they were not entitled to act, outside of their rights. Where the defendant has so acted and the conduct ripens into an invasion of the plaintiff’s right, that invasion is a disturbance that needs to be rectified. When the tort law obligates the tortfeasor defendant to pay the plaintiff, it is making sure that the rectification occurs and normative equilibrium is restored; things are set right, so far as possible. Because the trigger of liability is an action in breach of duty, or outside of a defendant’s right, this is not strict liability. The defendant has injured the plaintiff, but the liability for the injury is not generated by that fact alone, but by the wrongfulness of
the defendants injuring of the plaintiff. Hence, fault is essential to liability in tort, under Weinrib's view. This is not to say that insurance or administrative law frameworks could not justifiably be created purporting to apply tort law, and could not appeal to the supposed normative bases of tort lay udiciary that would impose strict liability, but such structures could not properly come from within the Arthur Ripstein's powerful book, Equality, Responsibility and the Law (1998), takes Kantian strands in Weinrib and weaves them into a contemporary, constructivist, Rawlsian defense of tort law His basic idea is that security and liberty are goods that it is the domain of law to shape and constrain for citizens on equal terms. Tort law does this by declaring that when people act in a manner that takes more liberty than a generalized scheme of liberty could permit-- when they unreasonably risk harm to others, for example --then the risked harm, if it comes to pass, will be their responsibility. In that manner, tortious conduct in effect creates a domain of responsibility for injuries caused Because it is essential to Ripstein s view that the injury only becomes the defendant's responsibility under the tort law because he or she acted beyond the limit of liberty designated negligence or fault is critical to liability 3. Fletcher's reciprocity theory Two pioneers of the philosophical study of tort law --George Fletcher and Jules Coleman--have offered accounts that expressly leave room for both strict liability and negligence within tort law Fletchers 1972 article, "Fairness and Utility in Tort Theory, asserts that a single principle accounts for both strict liability and negligence: a principle that the creation of nonreciprocal risks generates liability for the realization of those risks. In risky activities that are widely engaged in and are taken as part and parcel of modern life in a given community--such as driving--each of us accepts a certain degree of risk as a form of vulnerability that we must tolerate in light of our own production of similar risks to others. Therefore, when those risks are realized the generator of realized risks need not bear the liability. However, when people do not use reasonable care in engaging in those activities, they generate a nonreciprocal risk and must therefore take responsibility if the risk is realized in an injury That is negligence-based liability. Similarly, if people engage in abnormally risky activities, the reciprocity of risk does not apply, and they should be held liable for the results of those realized risks That is strict liability. Recent work by Gregory Keating has expanded Fletcher's theory in illuminating ways(Keating 1996, Keating 1997; Keating 2001) 4. Mixed corrective justice theories: Coleman and perry I Coleman has offered at least two quite different models aimed at capturing both strict liability and negligence. In his early work, Coleman depicted the tort law as a system fundamentally aimed at annulling unjustifiable losses(which, he argued, is consistent with strict liability)( Coleman 1976).At the same time, Coleman recognized that the legal system may choose particular modes of rectifying those losses, and some modes(e.g, a fault principle) may serve other social goals or implement other principles.(Coleman 1983) Those crafting the tort system presumably need to decide which principles they think should be treated as primary if they want to ascertain the propriety of strict liability A second incarnation of Coleman's thinking --which displays a stimulating conversation wi Stephen Perry's work--is found in Risks and Wrongs(Coleman 1992). Like both Perry and Weinrib, Coleman urges a corrective justice view that treats plaintiffs and defendants in an interlocked relationship, within which their rights and duties are correlative. Tort liability is imposed where defendants have a duty of repair running to the plaintiff, and they have this duty of repair where they are responsible for the plaintiffs injury. They are responsible for injuries where they have violated a right not to be injured tortiously. For the most part, such rights are correlative to duties not to injure another wrongfully. To this extent, they are negligence-based. However, Coleman also suggests that some rights are defined such that infringement can occur without wrongdoing; land rights are a good
3 the defendant’s injuring of the plaintiff. Hence, fault is essential to liability in tort, under Weinrib’s view. This is not to say that insurance or administrative law frameworks could not justifiably be created that would impose strict liability, but such structures could not properly come from within the judiciary purporting to apply tort law, and could not appeal to the supposed normative bases of tort law. Arthur Ripstein’s powerful book, Equality, Responsibility and the Law (1998), takes Kantian strands in Weinrib and weaves them into a contemporary, constructivist, Rawlsian defense of tort law. His basic idea is that security and liberty are goods that it is the domain of law to shape and constrain for citizens on equal terms. Tort law does this by declaring that when people act in a manner that takes more liberty than a generalized scheme of liberty could permit -- when they unreasonably risk harm to others, for example -- then the risked harm, if it comes to pass, will be their responsibility. In that manner, tortious conduct in effect creates a domain of responsibility for injuries caused. Because it is essential to Ripstein’s view that the injury only becomes the defendant’s responsibility under the tort law because he or she acted beyond the limit of liberty designated, negligence or fault is critical to liability. 3. Fletcher’s reciprocity theory Two pioneers of the philosophical study of tort law -- George Fletcher and Jules Coleman -- have offered accounts that expressly leave room for both strict liability and negligence within tort law. Fletcher’s 1972 article, “Fairness and Utility in Tort Theory,” asserts that a single principle accounts for both strict liability and negligence: a principle that the creation of nonreciprocal risks generates liability for the realization of those risks. In risky activities that are widely engaged in and are taken as part and parcel of modern life in a given community -- such as driving -- each of us accepts a certain degree of risk as a form of vulnerability that we must tolerate in light of our own production of similar risks to others. Therefore, when those risks are realized, the generator of realized risks need not bear the liability. However, when people do not use reasonable care in engaging in those activities, they generate a nonreciprocal risk and must therefore take responsibility if the risk is realized in an injury. That is negligence-based liability. Similarly, if people engage in abnormally risky activities, the reciprocity of risk does not apply, and they should be held liable for the results of those realized risks. That is strict liability. Recent work by Gregory Keating has expanded Fletcher’s theory in illuminating ways (Keating 1996; Keating 1997; Keating 2001). 4. Mixed corrective justice theories: Coleman and Perry ]Coleman has offered at least two quite different models aimed at capturing both strict liability and negligence. In his early work, Coleman depicted the tort law as a system fundamentally aimed at annulling unjustifiable losses (which, he argued, is consistent with strict liability) (Coleman 1976). At the same time, Coleman recognized that the legal system may choose particular modes of rectifying those losses, and some modes (e.g., a fault principle) may serve other social goals or implement other principles. (Coleman 1983) Those crafting the tort system presumably need to decide which principles they think should be treated as primary if they want to ascertain the propriety of strict liability. A second incarnation of Coleman’s thinking -- which displays a stimulating conversation with Stephen Perry’s work -- is found in Risks and Wrongs (Coleman 1992). Like both Perry and Weinrib, Coleman urges a corrective justice view that treats plaintiffs and defendants in an interlocked relationship, within which their rights and duties are correlative. Tort liability is imposed where defendants have a duty of repair running to the plaintiff, and they have this duty of repair where they are responsible for the plaintiff’s injury. They are responsible for injuries where they have violated a right not to be injured tortiously. For the most part, such rights are correlative to duties not to injure another wrongfully. To this extent, they are negligence-based. However, Coleman also suggests that some rights are defined such that infringement can occur without wrongdoing; land rights are a good
example, for a trespass need not be negligent or wrongful. Coleman 1992: 371-74)Hence, a right w violation is either a wrongful injuring or an infringement of a predefined interest in not being injured through a certain sort of conduct and as to a particular sort of entitlement. Negligence liability is the first sort, strict liability is consistent with the second Perry grounds corrective justice in a notion of responsibility --one that he labels(following Honore)"outcome responsibility"(Honore 1988; Perry 1992) The assignment of liability in tort is, in effect, a recognition that the defendant is responsible for the plaintiff s injury. The implication of such a finding of responsibility, as a moral matter, is the recognition of a duty of conduct toward the plaintiff to rectify the injury in some manner. Perry offers a detailed analysis of the moral principle underpinning the assignment of responsibility, arguing that the notion of outcome responsibility is part and parcel of a social practice in which certain outcomes are linked to, and associated with, a person's 192390m0 orrective justice offer a prine时由2多 agency. Typically, an accidental injury is not simply within one person's agency, but within more than one person's agency. The question therefore arises as to which should be deemed responsible for the outcome, given that both are linked with it causally, and possibly both(or several)could have localized to the few who are outcome -responsible, imposing a duty of repair upon the one whom we udge most fairly bears the burden among those who are outcome-responsible(Perry 1992: 512-13) Normally, a notion that one of the parties was at fault is necessary to a judgment that that person shoul fairly bear the burden of the injury, but in a certain class of cases, the comparitive judgment may not require any actual judgment of fault(Perry 1992: 510-11). To that extent, Perry argues, a fragment of strict liability may be cogent, notwithstanding the general preference for fault 5. Revisiting the doctrinal and policy arenas It is not necessarily easy to say what the precise contributions of these philosophical accounts have been to the development of legal doctrine, but that is not to say that they have been inert. a variety of economic,political, social, and intellectual forces pushed toward strict liability in products and more generally in the 1950s through the early 1970s. Philosophical theorists of tort law at first added to this pressure, by depicting tort as aimed toward --or at least constrained by --the notion of responsibility and by analyzing responsibility in a manner that permitted strict liability. However, since Epsteins views were rejected and an analysis of responsibility in terms of fault gained prominence, philosophical and justice-based accounts of tort law have tended to support at least a strong presumption that fault or negligence is required in the theory of tort liability, with strict liability remaining a fragment of exceptions. At the same time, courts, legislatures, and tort doctrinalists have greatly retreated from the movement toward strict liability. Indeed, the American Law Institute's Restatement (Third) of products Liability has expressly advocated negligence over strict liability in both the products context and more generally, in part citing philosophical reasons. The directions of the causal link among these academic, political, and legal developments -- if there be any links -- would require much greater analysis; suffice it to say that there is no a priori reason to assume that the causal link traveled in only one direction A somewhat subtler, but perhaps even more significant effect has involved the issue of causation more than the issue of fault. During the 1970s, courts began experimenting with the relaxation of proof requirements for cause in fact and for tortfeasor identification. Hence, in the dES context, plaintiffs in jurisdictions that permit market-share liability can recover from a drug company that produced the same sort of drug that injured them, without proving that the manufacturer produced the particular brand that injured them. a spate of commentators asserted that this sort of innovation should be followed in a wide variety of tort cases, and in fact provided a more sound basis for tort law than actual doctrine. Philosophical analysts of tort law, particularly corrective justice theorists, presented an account of tort law in terms of responsibility for injuries that provided a powerful and cogent justification for the central role of causation, roughly as traditionally understood. In
4 example, for a trespass need not be negligent or wrongful. (Coleman 1992: 371-74) Hence, a rights violation is either a wrongful injuring or an infringement of a predefined interest in not being injured through a certain sort of conduct and as to a particular sort of entitlement. Negligence liability is the first sort, strict liability is consistent with the second. Perry grounds corrective justice in a notion of responsibility -- one that he labels (following Honore) “outcome responsibility” (Honore 1988; Perry 1992) The assignment of liability in tort is, in effect, a recognition that the defendant is responsible for the plaintiff’s injury. The implication of such a finding of responsibility, as a moral matter, is the recognition of a duty of conduct toward the plaintiff to rectify the injury in some manner. Perry offers a detailed analysis of the moral principle underpinning the assignment of responsibility, arguing that the notion of outcome responsibility is part and parcel of a social practice in which certain outcomes are linked to, and associated with, a person’s agency. Typically, an accidental injury is not simply within one person’s agency, but within more than one person’s agency. The question therefore arises as to which should be deemed responsible for the outcome, given that both are linked with it causally, and possibly both (or several) could have foreseen the outcome (Perry 1992: 509). Our notions of corrective justice offer a principle of distribution localized to the few who are outcome-responsible, imposing a duty of repair upon the one whom we judge most fairly bears the burden among those who are outcome-responsible (Perry 1992: 512-13). Normally, a notion that one of the parties was at fault is necessary to a judgment that that person should fairly bear the burden of the injury, but in a certain class of cases, the comparitive judgment may not require any actual judgment of fault (Perry 1992: 510-11). To that extent, Perry argues, a fragment of strict liability may be cogent, notwithstanding the general preference for fault. 5. Revisiting the doctrinal and policy arenas It is not necessarily easy to say what the precise contributions of these philosophical accounts have been to the development of legal doctrine, but that is not to say that they have been inert. A variety of economic, political, social, and intellectual forces pushed toward strict liability in products and more generally in the 1950s through the early 1970s. Philosophical theorists of tort law at first added to this pressure, by depicting tort as aimed toward -- or at least constrained by -- the notion of responsibility and by analyzing responsibility in a manner that permitted strict liability. However, since Epstein’s views were rejected and an analysis of responsibility in terms of fault gained prominence, philosophical and justice-based accounts of tort law have tended to support at least a strong presumption that fault or negligence is required in the theory of tort liability, with strict liability remaining a fragment of exceptions. At the same time, courts, legislatures, and tort doctrinalists have greatly retreated from the movement toward strict liability. Indeed, the American Law Institute’s Restatement (Third) of Products Liability has expressly advocated negligence over strict liability in both the products context and more generally, in part citing philosophical reasons. The directions of the causal link among these academic, political, and legal developments -- if there be any links -- would require much greater analysis; suffice it to say that there is no a priori reason to assume that the causal link traveled in only one direction. A somewhat subtler, but perhaps even more significant effect has involved the issue of causation more than the issue of fault. During the 1970s, courts began experimenting with the relaxation of proof requirements for cause in fact and for tortfeasor identification. Hence, in the DES context, plaintiffs in jurisdictions that permit market-share liability can recover from a drug company that produced the same sort of drug that injured them, without proving that the manufacturer produced the particular brand that injured them. A spate of commentators asserted that this sort of innovation should be followed in a wide variety of tort cases, and in fact provided a more sound basis for tort law than actual doctrine. Philosophical analysts of tort law, particularly corrective justice theorists, presented an account of tort law in terms of responsibility for injuries that provided a powerful and cogent justification for the central role of causation, roughly as traditionally understood. In