Strict Liability - Fairness Theories

Question 1

Fletcher - General Theory on Strict Liability

Answer 1

• fairness as reciprocity + equality of risk imposition-> strict liability deals w/ situations in which the risks are not reciprocated
• pl should only be expected to bear those risks we impose reciprocally on one another

Question 2

Limitations of Fletcher’s Fairness Theory

Answer 2

• doesn’t account for different forms of strict liability (ex: vicarious liability)
• doesn’t really address nuisance
• doesn’t really address modern issues - against auto no-fault (since cars = reciprocal community of risk), also against products liability + workers’ comp

Question 3

Fletcher - Unequal Risk vs. Unequal Harm

Answer 3

• Fletcher focuses on unequal risk, but doesn’t address unequal harm - means his theory is corrective ex ante but not distributive ex post
• think Prof’s issue w/ this is that even if the risks are reciprocal, doesn’t mean the harm should be left to one unlucky person (that’s not achieving full fairness - think this deals w/ way in which this theory works for something like abnormally dangerous activity but DOESN’T work for something like products liability)

Question 4

Bohlen - Core Concept

Answer 4

• fairness as proportionality - loss is proportionate to benefit
• strict liability improves the relationship between benefit and burden - beneficiaries of an activity pay for its characteristic risks
• vs. without strict liability, burden is entirely separate from the benefit

Question 5

Bohlen and Internalization

Answer 5

• notion that fairness requires that actors internalize costs of their characteristic harms, regardless of negligence
• ultimately spreads to consumers + beneficiaries

Question 6

Prof’s View on Bohlen’s Theory

Answer 6

Sarge approves of this b/c:

• addresses all six forms of strict liability
• rhetoric of fairness can be found in judicial decisions

Question 7

Lubin v. Iowa City

Answer 7

• 1964
• broken water main
• water supplier pays -> the community that benefits from the water main ultimately bears the cost

Question 8

Utilitarians vs. Fairness Theorists - Spreading

Answer 8

• utilitarian wouldn’t really care who does the spreading as long as spreading is achieved (although bear in mind for Calabresi, there are other reasons why he’d prefer strict liability over victim spreading, ie. market allocation + background safety)
• for fairness rationale though, it DOES matter who does the spreading - company should be responsible for spreading the costs among its consumers b/c the consumers benefit from the activity (they shouldn’t get a free ride - shouldn’t externalize the costs of the activity)