Justifying Strict Liability: A Comparative Analysis in Legal Reasoning

✍ Scribed by Marco Cappelletti

• Publisher: Oxford University Press
• Year: 2022
• Tongue: English
• Leaves: 385
• Category: Library

✦ Synopsis

The imposition of strict liability in tort law is controversial, and its theoretical foundations are the object of vigorous debate. Why do or should we impose strict liability on employers for the torts committed by their employees, or on a person for the harm caused by their children, animals, activities, or things? In responding to this type of questions, legal actors rely on a wide variety of justifications. Justifying Strict Liability explores, in a comparative perspective, the most significant arguments that are put forward to justify the imposition of strict liability in four legal systems, two common law, England and the United States, and two civil law, France and Italy. These justifications include: risk, accident avoidance, the 'deep pockets' argument, loss-spreading, victim protection, reduction in administrative costs, and individual responsibility. By looking at how these arguments are used across the four legal systems, this book considers a variety of patterns which characterise the reasoning on strict liability. The book also assesses the justificatory weight of the arguments, showing that these can assume varying significance in the four jurisdictions and that such variations reflect different views as to the values and goals which inspire strict liability and tort law more generally. Overall, the book seeks to improve our understanding of strict liability, to shed light on the justifications for its imposition, and to enhance our understanding of the different tort cultures featuring in the four legal systems studied.

✦ Table of Contents

Cover
Justifying Strict Liability
Copyright
Dedication
Contents
Table of Cases
Table of Legislation
List of Abbreviations
1. General Introduction
1.1 Justifying Strict Liability
1.2 Scope of the Book
1.3 Sources of Analysis and Use of Materials
1.4 Methodology
1.5 Structure of the Book
2. Strict Liability in the Four Tort Systems: An Overview
2.1 Introduction
2.2 Strict Liability in English Law
2.3 Strict Liability in the Law of the United States
2.4 Strict Liability in French Law
2.5 Strict Liability in Italian Law
2.6 Concluding Remarks
3.1. Introduction
3.2. Risk
3.2.1 The Risk-​based Justifications of Strict Liability
3.2.2 The Pervasive Nature of Risk in French Strict Liability
3.2.3 Risk in Italian Law: The Varied Importance of its Permutations
3.2.4 Risk in the United States: All Five Permutations at Play
3.2.5 Risk in English Law: Controversy and Context-​Dependence
3.2.6 Concluding Remarks
3.3. Accident Avoidance
3.3.1 Accident Avoidance as a Justification for Strict Liability
3.3.2 The Pervasive Nature of Accident Avoidance in the United States
3.3.3 Accident Avoidance in Italy: A Leading Justification
3.3.4 Accident Avoidance in English Law: Not (Yet?) a Leading Justification
3.3.5 Avoiding Accidents: (Not) a Concern of French Strict Liability?
3.3.6 Concluding Remarks
3.4. Deep Pockets
3.4.1 The Deep-​Pockets Justification of Strict Liability
3.4.2 Deep Pockets in France: On the Way Towards the Socialization of Losses
3.4.3 Deep Pockets in Italy: A Justification Belonging to the Past?
3.4.4 The Minor Significance of the Deep-​Pockets Argument in the United States
3.4.5 Deep Pockets in England: A Justification of Modest Significance, with an Exception
3.4.6 Concluding Remarks
3.5. Loss Spreading
3.5.1 The Loss-​Spreading Justification of Strict Liability
3.5.2 Loss Spreading in France: A Panacea?
3.5.3 Loss Spreading in the United States: A Leading and Flexible Justification
3.5.4 Loss Spreading in Italy: A Neglected Argument?
3.5.5 Loss Spreading in England: The Most Controversial Argument of All?
3.5.6 Concluding Remarks
3.6. Victim Protection
3.6.1 Victim Protection as a Justification for Strict Liability
3.6.2 The Ultimate Reason for Strict Liability in France?
3.6.3 An Essential Justification, but Not All that Matters in Italian Reasoning
3.6.4 The Protection of Victims in the United States: A Falling Star?
3.6.5 Victim Protection in English Law: An Argument to Be Handled with Care
3.6.6 Concluding Remarks
3.7. Reduction in Administrative Costs
3.7.1 Reduction in Administrative Costs as a Justification for Strict Liability
3.7.2 The Ambiguous Significance of Reducing Administrative Costs in the United States
3.7.3 Reducing Administrative Costs in Italy: A Concern for the Legal Economists Only?
3.7.4 The Modest Significance of Administrative Cost Reduction in England
3.7.5 Reducing Administrative Costs in France: An Insignificant Argument
3.7.6 Concluding Remarks
3.8. Individual Responsibility
3.8.1 Individual Responsibility as a Justification for Strict Liability
3.8.2 Individual Responsibility in the United States: An Argument of Moderate Significance
3.8.3 The Limited Significance of Individual Responsibility in English Law
3.8.4 Individual Responsibility in Italian Law: An Insignificant Argument
3.8.5 Individual Responsibility, an Argument at Odds with French Strict Liability
3.8.6 Concluding Remarks
4. Concluding Reflections
4.1 Justifications and Contexts of Liability
4.2 Some Reflections on the Patterns of Reasoning in Strict Liability
4.3 Justifying Strict Liability: Arguments, Values, and Goals
4.4 Further Critical and Comparative Thoughts
Bibliography
Index