Rawlsian Fairness and Regime Choice in the Law of Accidents

Abstract

Early in the 1970's George Fletcher wrote a remarkable article Fairness and Utility in Tort Theory—connecting distinctively Rawlsian ideas of fairness with reciprocity of risk imposition. Fletcher argued that nonreciprocity of risk both characterized realms of strict liability in tort and justified those realms, whereas reciprocity of risk characterized realms of tort law which were governed by negligence liability, and appropriately so. This article argues (1) against Fletcher’s identification of fairness in the choice of an accident law regime with the presence or absence of reciprocity of risk, and (2) in favor of focusing on the fair distribution of the costs of accidental injury across those who benefit from the imposition of the underlying risks. Put differently, this paper argues that Rawlsian ideas support a powerful general case for preferring strict enterprise liability to negligence liability. Under the characteristic circumstances of modern life—where risk is the byproduct not of discrete acts but of organized activities --enterprise liability distributes the burdens of risky but mutually beneficial activity more fairly than negligence liability does.

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