Torts
Tort Law and In Vitro Fertilization: The Need for Legal Recognition of "Procreative Injury"
115 Yale L.J. 237 (2005) Even when the facts are humanly grievous, plaintiffs do not often win their in vitro fertilization (IVF) tort suits. In Utah, an IVF clinic fertilized a woman's eggs with the wrong man's sperm; she ultimately bore a stranger's rather than her husband's children. A New York clinic mistakenly implanted one woman's embryos in another's uterus. A Florida clinic implanted a woman's embryos after possibly exposing them to Mad Cow Disease. Nonetheless, these plaintiffs, along with others like them, lost--not before juries and not because their doctors were careful, but because their claims were adjudged legally incognizable. Their claims failed because the law lacks a category of injury fitted to the harm parents and prospective parents endure when IVF goes wrong. Put another way, of a tort's four elements (duty, breach, causation, injury), it is with the last--injury--that existing law falls short of the demands of the new technology. What is needed, then, if IVF plaintiffs are to recover, is a new category of injury--"procreative injury"--based on the legal recognition of the human interest in procreation. I will argue that tort law should recognize and protect this procreative interest. In practice, the right to have this procreative interest protected would be the basis for a new cause of action. Call it the tort of "reprogenetic malpractice" : Where a doctor undertakes a duty to care for a patient's procreative interest, and negligently breaches that duty so as to cause the patient procreative injury, the law should provide a remedy. A word is needed about why the IVF context is important--why the "embryo switching," "wrong sperm," and other cases discussed below are more than isolated curiosities. The extra-corporeal manipulation of gametes and embryos is the first, indispensable step in genetic engineering, genetic screening, embryonic stem cell research, the creation of human-animal hybrids and chimeras, certain forms of sex selection, and human cloning. Consequently, IVF doctors and clinics are the gatekeepers to these much-publicized activities at the border of medicine, research biology, genetics, and eugenics. And individual IVF-related injuries, even if they are rare now, are not going to stay rare for long. The field is young, large, growing, prone to experimentation, and relatively unregulated. With no theory of rights fitted out for IVF, tort law is trailing the new technology, unprepared to perform either of its two functions: individual justice or social regulation.
On the Alienability of Legal Claims
114 Yale L.J. 697 (2005) Courts have become increasingly skeptical of rules restricting plaintiffs' ability to sell legal claims, while legal commentators have argued that markets for claims would be economically beneficial, moving claims to those who can prosecute them most efficiently. Claim sales intuitively might appear to present a clash of economic and philosophical arguments, with perceived efficiency benefits coming at the expense of societal commitments to values other than efficiency. In this Article, Professor Abramowicz argues that economic and philosophical arguments do point in opposite directions, but not as one might expect. A range of philosophical and other noneconomic considerations, such as concerns about commodification, corrective justice, legal ethics, and procedural justice, pose no significant problems for claim sales. There is, however, a significant economic problem. Markets for legal claims face a particularly strong adverse selection effect, because a prospective purchaser must consider not only why the plaintiff wishes to dispose of the claim, but also why the plaintiff cannot obtain a better deal from the defendant. Thus, even a regime permitting alienation might result in very few claim sales, and many of those might be motivated by prospective inefficiencies, such as attempts to manipulate the path of legal doctrine. Using a hypothetical mandatory-alienation regime as a heuristic device, this Article shows that if claim sales became the norm, these economic concerns would be largely eliminated. Philosophical concerns, though, might reemerge.
Punitive Damages as Societal Damages
113 Yale L.J. 347 (2003) Jury awards of "classwide" punitive damages provide windfalls to individual plaintiffs, particularly in products liability, fraud, civil rights, and employment discrimination cases. This suggests a new angle from which to approach the ongoing punitive damages debate. Under current law, classwide assessment of widespread public harms has proceeded under the rubric of retributive punishment and deterrence--the traditional justifications for punitive damages-- bypassing class action procedural requirements and unjustly enriching the plaintiff. In the wake of the Supreme Court's admonition in State Farm that such a practice can violate due process by exposing defendants to the risk of "multiple punitive damages awards for the same conduct," the Article proposes explicit recognition of a distinct category of compensatory societal damages for redress of third-party and societal harms. Up until now, this category has been quietly subsumed within punitive damages. But damages for specific harms to third parties and more diffuse harms to society are actually compensatory (as opposed to punitive) in nature, and should, once assessed, be distributed by legislatures, courts, and juries accordingly. Drawing upon heretofore unconnected trends in punitive damages and class action tort cases, and state-level legislative and judicial innovations with "split-recovery" schemes for distributing punitive awards, the Article explores various mechanisms for transforming punitive damages into societal damages, including the formation of an "ex post class action" at the remedial stage and the punitivedamages- only class at the liability stage. The theory of compensatory societal damages--whether or not embraced by legislatures and courts--reveals more clearly the tradeoffs in transforming the doctrine of punitive damages to achieve the compensatory and deterrence goals of the tort system.
Privacy Rights and Abortion Outing: A Proposal for Using Common-Law Torts To Protect Abortion Patients and Staff
112 Yale L.J. 1545 (2003) When Lori Driver, an anti-abortion activist, learned that Lisa Smith was scheduled to have an abortion the following day, Driver looked up Smith's telephone number and left her two telephone messages. Smith did not return Driver's calls, so Driver stepped up her efforts, going to Smith's house and leaving anti-abortion literature and a plastic model of a fetus on her doorstep. The next morning, the day of Smith's scheduled abortion, Driver left a message on her answering machine, asking her parents to call about a medical emergency involving their daughter. When Smith arrived at the clinic for her appointment, a protestor called out to her by name and accused her of murdering her baby. An unknown caller left a message for Smith at the clinic that Smith's parents knew about her plan and were distraught. Meanwhile, a clinic representative called Driver's number pretending to be Smith's father returning her message, and the person at the other end informed him that Smith had gone in for an abortion. This example has become all too ordinary. (Incidentally, a divided court denied relief to Smith.) Having lost the legal battle to criminalize abortion, anti-abortion protestors have shifted to a strategy of extralegal deterrence through various techniques of shaming, harassment, and obstruction. Protestors publicize the names of patients and, in at least one case, their medical records. They film patients entering and leaving clinics, and post the images on the Internet. They record license plates in clinic parking lots; track down drivers' names and addresses; visit patients' homes; and send letters to them and their families, friends, boyfriends, and husbands. Protestors even pose as abortion providers, taking down personal information from callers and using that information to contact family members and urge them to intervene. Abortion doctors are also targets of intentional exposure. Protestors picket outside doctors' homes, photograph them, videotape them, and observe them through binoculars. They leaflet cars with the names and addresses of clinic staff. They post doctors' names, addresses, phone numbers, and license plate numbers, as well as video footage of clinic entrances, on the Internet. Intent on going further, they have been planning, and may already have begun, to broadcast clinic footage on public access television. What all these activities--to which this Note refers as "abortion outing"--have in common is that they destroy the privacy and anonymity on which the practice of abortion fundamentally depends. Patients need anonymity to be safe from community retaliation and free from the unwanted influence of friends, family members, and acquaintances. Doctors need privacy to be safe from harassment or violence by community members who oppose what they do. Abortion opponents have rightly guessed that reducing anonymity deters abortion, and their guess is paying off. Fewer and fewer doctors are practicing abortion, to the point where abortion is no longer accessible in much of the country, and prospective patients have been driven away from clinics by the threat of publicity. Because Roe's constitutional right to privacy only protects women against state actors, abortion-rights advocates have fought at the federal and state levels for statutory and judicial protections against protestors. At the federal level, for example, they have helped pass the Freedom of Access to Clinic Entrances Act of 1995 (FACE), which criminalizes the use of, among other things, force or threats to prevent women from entering clinics, and the Drivers' Privacy Protection Act of 1994, which makes it more difficult for anti-abortion activists, among others, to obtain personal information based on names and license plates. At the state and local levels, they have secured laws, ordinances, and injunctions restricting protests outside clinic entrances and doctors' homes. So far, however, advocates have largely overlooked common-law privacy rights as a possible source of protection. This may be a serious mistake. Two common-law torts, in particular, are well suited to the specific harm of abortion outing: the intrusion tort, which covers wrongful intrusions into a person's physical seclusion or personal affairs, and the publication tort, which covers wrongful publication of private facts. These torts are expressively valuable in that they focus on the individuals being harmed rather than on their general class, and empower these individuals to seek change directly through the courts rather than waiting to be protected by their legislators. The torts are also practical in that they actually compensate victims of past violations. They are easier to pursue than legislation, which requires tremendous momentum to overcome the burden of inertia, opposition from interest groups, and competition from other legislative priorities. They carry a lower burden of proof than criminal statutes such as FACE and may apply to a wider range of conduct. Moreover, given the Supreme Court's division over questions related to abortion privacy and its growing resistance to federal law that does not fall neatly within Congress's Commerce Clause powers, the states may now be the more promising arena for protecting abortion-related privacy. This Note examines the possibility of using common-law privacy rights to cover gaps left by other forms of legal protection. Part II sorts out the various privacy interests at stake in the debate over abortion outing and takes stock of the conflicting interests of anti-abortion protestors, which courts must also weigh. Part III develops an account of which privacy interests might be protected through the common law. It will be clear from this account that, in its current form, the common law fails to match many of our intuitions about privacy, or, at best, is inconsistent. Part IV addresses constitutional limits and considerations. Part V concludes.
Method and Principle in Legal Theory
111 Yale L.J. 1757 (2002) The Practice of Principle is an excellent book that practically overflows with interesting and original arguments. Coleman is a superb analytical philosopher, as every page of the book attests. This is one of the most important contributions to legal theory to come along in a long time. Coleman's substantive views on both tort theory and jurisprudence reflect the richness and the complexity of the social phenomena, and he advances powerful arguments to support them. But the arguments would be even stronger if Coleman followed through on the logic of his pragmatic holism and abandoned the artificial restrictions he imposes on the use of moral argument in legal theory. Although this change in methodology is warranted in its own terms, the effect of adopting it could only be to enhance both the moral and theoretical appeal of Coleman's views.
Framing Transactions in Constitutional Law
111 Yale L.J. 1311 (2002) Common-law rules and adjudication are typically structured around discrete interactions between strangers. The unit of legal analysis, or "transaction," is intuitively defined by the discontinuous event that disrupted the otherwise unrelated lives of the parties; and the focus of adjudication is on the harm to the plaintiff, as measured by the marginal deviation from her baseline welfare just prior to this event. When applied to constitutional law, however, this model of "transactional harm" becomes immediately and irremediably problematic. The essential problem is that we quickly lose our intuitive grasp on what counts as a transaction for purposes of identifying the harm inflicted by government on a private citizen. Unlike the paradigmatic private parties in common-law cases, government and citizens are not strangers to one another. Instead they are engaged in a continuous relationship--one that plays out over a historical time period and over a scope as broad as the public sphere. Over the course of this relationship, moreover, countless harms and benefits are passed back and forth. When constitutional law borrows the common-law model of transactional harm, it must somehow slice the government-citizen relationship into adjudicative transactions for the purpose of evaluating whether government has inflicted a constitutionally cognizable harm. How the transaction is ¿framedî will determine which parts of the ongoing government-citizen relationship, which of the myriad benefits and harms, will be counted on the adjudicative ledger. Lacking any analogue to the common-law collision between strangers, however, constitutional law has no criteria for carving discrete constitutional transactions out of the background relationship between government and citizens. The results of constitutional cases are consequently determined by the location, size, and shape of transactional frames that are virtually never identified, let alone justified. This is the basic problem of "framing transactions" in constitutional law.
Tobacco Unregulated: Why the FDA Failed, and What To Do Now
111 Yale L.J. 1179 (2002) The book jacket promises drama. David Kessler, former Commissioner of the Food and Drug Administration (FDA), is said to tell "a gripping detective story," a story of "right and wrong" and "moral courage." The "unlikely heroes" are a small team of FDA employees who set out to battle the "lethal" tobacco industry. Kessler himself plays a role akin to James Stewart's Mr. Smith. This was real life, however, and the good guys did not win. Based on its investigations of the tobacco industry, the FDA answered the "question of intent"--whether tobacco manufacturers intended to produce nicotine's drug-like addictive effects--positively. This finding meant, for the FDA, that tobacco was a drug, and that tobacco therefore fell within its jurisdiction. The Agency acted on its claimed authority to promulgate rules aimed at reducing the incidence of youth smoking. These rules, for example, restricted underage purchases, prohibited billboard advertising near schools, and banned all but text-only ads in print publications that reach the young. The Supreme Court, however, taking the position that Congress did not intend to place tobacco within the Agency's jurisdiction, struck down the regulations. Of course, the FDA's battle, despite its ultimate failure to create a regulatory scheme for tobacco, was not wholly without effect. Its investigation brought to light information about the mechanisms manufacturers use to control the level of nicotine in their products. Industry documents obtained by the Agency showed plainly how tobacco products are designed to "deliver nicotine, a potent drug, with a variety of physiological effects." The Agency's evidence demonstrated, as the Supreme Court observed, "that tobacco use, particularly among children and adolescents, poses perhaps the single most significant threat to public health in the United States." Collectively, the information produced through the FDA's investigation "changed popular thinking forever." The investigation also spurred a televised congressional hearing at which tobacco executives denied the addictive nature of cigarettes, a position that helped further to discredit the industry in the public mind. The Kessler-led effort, in short, has put tobacco reform on the public agenda in a way that promises continuing change. Nevertheless, the fact remains that the FDA's regulatory effort failed. One aim of this Review is to explain why. I maintain that Kessler, perhaps driven by the sort of black-and-white dynamics that color the book jacket, sought too much. He claimed an essentially open-ended jurisdiction with unidentified aims. Had he argued for a more limited vision of the Agency's authority, one that, for example, confined itself to the youth smoking that was, in any case, the subject of the Agency's proposed regulations, the Supreme Court might have supported the Agency. When he announced the regulatory effort, President Clinton stated that the "cigarette companies still have a right to market their product to adults. But today we are drawing the line on children." The restrictions promulgated by the FDA did indeed specifically target youth smoking. However, the FDA's jurisdictional claim, based on the addictive effects of nicotine in tobacco, was more sweeping. For Kessler, gaining jurisdiction "was far more important than" any rule, since any rule "was likely to be relatively modest, at least initially." The implication of this and other comments is that Kessler intended for the FDA eventually to regulate adult smoking and quite possibly to reduce nicotine levels in cigarettes generally. The breadth of the FDA's jurisdictional claim allowed the industry to raise the stakes of tobacco regulation to unacceptable levels. The industry argued that the Agency's findings on the harmful effects of nicotine would necessitate an absolute ban on the sale of tobacco products, but that such a ban was not intended by Congress. Whether the FDA could ever have regulated adult use of tobacco products is debatable, but if the Agency wanted to leave the issue open it should have done so in a way that made further regulation subject to independent judicial review, by, for example, framing its initial jurisdictional assertions in a way that precluded the possibility of any de facto ban. By arguing for open-ended authority, Kessler ironically allowed the tobacco industry to inject its own question of intent, one that looked not to the minds of the manufacturers but to the thinking of congressional lawmakers. The first two Parts of the Review elaborate this thesis. Part I summarizes Kessler's account of the Agency's decision to take on tobacco and its search for evidence to support its jurisdictional claims. The summary points out the discoveries that the FDA made and highlights the ways in which Kessler designed the FDA's effort to regulate youth smoking as a sympathetic hook upon which to capture wide jurisdictional authority. Part II examines the Supreme Court decision that invalidated the FDA's rule. The Court's decision merits only brief mention in Kessler's discussion, which dismisses it as a straightforward outcome of conflicting ideologies. Whatever the Justices' motives, their opinions respond to basic questions about congressional intent and the scope of an agency's delegated authority. My analysis of the Court's opinion suggests that, given an agency's ability to adapt its legal powers to new circumstances in light of the statutory purpose of its enacting legislation, the FDA's youth-centered rule could have survived had the Agency argued for it on narrower jurisdictional grounds. In any case, the conflicting approaches expressed by the majority and the dissent regarding agency discretion, both generally and in the tobacco context, provide signposts for the FDA in determining its future role in the realm of tobacco regulation. Part III considers directly the future of tobacco policy. Echoing the crusading chords of the book jacket, Kessler makes a stark proposal: He suggests that tobacco companies "be spun off from their corporate parents" and transferred to a congressionally chartered corporation that satisfies the industry's product liability obligations and sells tobacco in brown paper wrappers. If, as one tobacco lawyer suggested, the industry must now "obtain[] permission from society to continue to exist," Kessler seems unwilling to grant such permission. I argue that his approach is riddled by too many unknowns, and is also constitutionally problematic, since First Amendment protections of commercial speech ordinarily preclude a total restriction on product promotion. Furthermore, the proposal ignores the advent of new types of risk-reduced tobacco products, "safer" cigarettes that may help those who cannot or will not quit smoking. A recent FDA-funded report by a committee of the Institute of Medicine (IOM) in the National Academy of Sciences found that these "reduced exposure" products could potentially be beneficial, if accompanied by an adequate regulatory scheme. Philip Morris, which is developing a smokeless cigarette, has also issued a new position paper acknowledging the need for legislation authorizing limited FDA regulation of tobacco. In the remainder of Part III, I argue that the FDA should be given regulatory authority over reduced-risk products. Moreover, even if no new authority is granted, the Agency's existing authority may by itself permit regulation. Although the Supreme Court rejected the FDA's broad jurisdictional claim, the Court was dealing with tobacco products generally, not with products specifically intended to reduce risk. I conclude by suggesting that tobacco companies should have an obligation, because of tobacco's addictive nature, not only to reduce smokers' risk but also to assist smokers who wish to quit. Most promising would be industry development and marketing of cigarettes containing progressively lower quantities of nicotine as part of a graduated program of cessation. Measures such as this would restore to tobacco users the choice of which addiction robs them.
Tortious Interference and the Law of Contract: The Case for Specific Performance Revisited
111 Yale L.J. 735 (2001)
Drug Designs are Different
111 Yale L.J. 151 (2001) In an essay published in this Journal entitled Is There a Design Defect in the Restatement (Third) of Torts: Products Liability?, George Conk criticizes the American Law Institute and the Reporters of the new Restatement for immunizing prescription drug manufacturers from liability for defective design. In doing so, he joins other commentators who have been critical of this aspect of the new Restatement, upon which we served as Reporters. Because Conk claims to have history on his side, and because this most recent criticism may prove to be disproportionately influential, we offer a response both to him and to other critics. Conk praises the general product-design standard adopted by the Restatement, which predicates liability for almost all nonprescription products upon proof that a reasonable alternative design could have been adopted that would have avoided or reduced harm to the plaintiff. However, he criticizes the Restatement's provisions relating to defective drug design for not applying the same "reasonable alternative" standard. (The Restatement deems a drug defective in design only if it would not be prescribed for any class of patients.) In his view, the Restatement test for defective drug design would protect prescription drug manufacturers from liability even if a plaintiff could show that an alternatively designed drug would have avoided unnecessary risk. Conk argues that during the late 1970s and early 1980s, the absence of a reasonable alternative design standard for prescription drugs allowed distributors of blood to escape liability for supplying blood products contaminated with the hepatitis C virus and that the Restatement test would condone such noxious results in the future. Claiming this regrettable history as support for his position, Conk urges that the defectiveness of prescription drug designs should be determined by the same standard as is generally applicable to nonprescription products. Our critics have misread the prescription drug design provision of the new Restatement. It does not immunize prescription drug manufacturers for defective design. Plaintiffs may establish defectiveness by showing that safer alternative drugs were available on the market that reasonable health care providers would have prescribed in place of a defendant's drug for all classes of patients. Moreover, Conk's premise that the blood cases in the 1980s would have been decided differently if blood products had been subject to the reasonable alternative design rule of the new Restatement is false. Finally, the purportedly pro-plaintiff approach he advocates, which would require courts to deny classes of patients access to a particular drug that provides them unique benefits in order to protect other patients from the risks of misprescription by negligent physicians, is both unfair and inefficient. In short, the Restatement is quite correct in treating prescription drug designs differently from other product designs, although it does not treat them as differently as Conk supposes. Drug designs are different from other product designs, and they deserve different treatment under the new Restatement. Part I of this Essay summarizes Conk's thesis, including his interpretation of the new Restatement. Part II identifies significant errors in Conk's critique: He has read the Restatement incorrectly, and his reliance on the blood cases is misplaced. Part III explains and justifies the substantive differences between the new Restatement's treatment of prescription drug design and its treatment of defective product design generally. These differences include the Restatement's refusal to allow courts to consider alternative, safer prescription products that have not yet received FDA approval (under the general design provisions, courts routinely consider not-yet-marketed alternative designs) and its refusal to sacrifice the welfare of one class of patients to enhance the welfare of another class of patients (under the general design provisions, such cross-consumer sacrifices of welfare are routinely condoned). Part III also explains why drug design litigation cannot legitimately be made more plaintiff-friendly by reducing its complexity and why the rule in the new Restatement should not significantly reduce manufacturers' incentives to discover new and safer prescription products.
Disaggregating Constitutional Torts
110 Yale L.J. 259 (2000) This Essay has attempted to clarify and reconceptualize constitutional tort law. Current doctrine severs remedies from rights and authorizes money damages on terms that apply indifferently to all constitutional violations. This remedial uniformity is faithful to the Monroe model of statutory interpretation, but at odds with the differences among rights in enforcement strategies and opportunities. In fact, even under current doctrine, various constitutional claims do have--and under any plausible understanding, should have--remedial variation. Restructuring the law of § 1983 to accommodate this insight would invite recognition of the differences among rights and promote clear thinking about remedies to enforce them. Disaggregating constitutional torts would reorient our thinking in three important ways. First, it would inhibit the tendency, evident in virtually all discussions of § 1983, to cite one kind of constitutional violation as if it stood for all. Reasoning based on one type of unconstitutionality will apply across the board only if the particular represents the general. In constitutional tort law, that is rarely true. Virtually any assertion about the role of qualified immunity, or the availability of alternative remedies, or the utility of damage actions in enforcing constitutional rights, will make no sense in some contexts. That does not mean that we should abandon theoretical and systematic analysis of constitutional tort remedies, but it does suggest a need for caution in generating comprehensive doctrine from specific examples. Second, disaggregation of constitutional tort law would encourage remedial comparison. The crucial question in enforcing the Fourth Amendment is not whether the exclusionary rule works well or poorly. The question is--or at least should be--whether it works better than the available alternatives. The same is true of money damages. The costs and benefits of damages liability as a means of enforcing the Fourth Amendment cannot be assessed in isolation. The efficacy of exclusion is also relevant. Such comparisons are local, not global. The fact that exclusion of evidence provides meaningful redress for illegal search and seizure in some contexts does not mean that it applies to all, much less that it has relevance for other constitutional rights. Just as remedial opportunities vary among rights, the comparative advantage of remedial mechanisms will vary as well. The straitjacket of remedial uniformity imposed by the current law of § 1983 hinders comparative evaluation of alternative strategies. A more flexible approach to remedial choice would invite attention to that concern. Finally, I hope that thinking of remedies in relation to specific rights would lead to better enforcement of the Constitution. If the costs and benefits of civil liability vary across rights, remedial uniformity precludes optimal enforcement. Crafting remedial strategies to redress particular kinds of constitutional violations would hold out the prospect, at least, of securing greater compliance at lower cost. Muddled thinking about the relationship between rights and remedies in constitutional law not only leads to intellectual confusion and misplaced argument; it also contributes to shortfall and sloppiness in redressing constitutional violations. A better understanding of the differential role of civil liability in enforcing various rights would not make the hard choices go away, but it would remove the conceptual blinders that prevent us from seeing those choices clearly. Disaggregating constitutional torts would be a step in the right direction.
Reply: Notions of Fairness Versus the Pareto Principle: On the Role of Logical Consistency
110 Yale L.J. 237 (2000) In other writing, we advance the thesis that legal policies should be evaluated solely on the basis of their effects on individuals' well-being, meaning that no independent evaluative weight should be accorded to notions of fairness. In that work, we consider a variety of principles of fairness, justice, and corollary concepts that are conventionally employed in the assessment of legal rules. In the course of our research, we discovered that each of the leading notions of fairness that we examined could be shown to conflict with the Pareto principle; that is, consistent adherence to any of the notions of fairness would, in some circumstances, make everyone worse off. This observation led us to inquire about the generality of the conflict, and we explored it in two articles. In the first, we demonstrated that, in symmetric settings (in which every person is similarly situated), every individual will necessarily be made worse off whenever a welfare-independent notion of fairness is decisive. In the second, a short, technical article intended for economists, we presented a formal proof of the proposition that, in all cases (symmetric or not), if a welfare-independent notion of fairness is given any weight in making social decisions, there will exist circumstances in which everyone is made worse off. Howard Chang has written an article in this journal that addresses aspects of our second article. He accepts the validity of our formal proof, but he challenges the appeal of our assumptions. Furthermore, he suggests that certain notions of fairness that do not satisfy these assumptions, including his own conception of liberal welfarism, could be sufficiently modified so that they would not conflict with the Pareto principle. (Chang's precise claim is unclear, however. The overall thrust of his article may give the reader the impression that many familiar notions of fairness might be susceptible to modification so as to avoid conflict with the Pareto principle, yet the analysis itself suggests only the logical possibility that the conflict can be circumvented with respect to modifications of certain types of notions of fairness, which are not formally specified. ) We begin this Reply by summarizing the demonstration in our first paper of the conflict between notions of fairness and the Pareto principle. This demonstration, which Chang does not contest, is easier to understand than our second, and it is independently sufficient to establish our conclusion. Then we consider our second, more technical demonstration of our conclusion. We emphasize that the two assumptions that Chang challenges are really minimal in character; in essence, they amount to requirements that normative theories be logically consistent. (Indeed, the relevance of centuries of moral philosophers' normative discourse depends on one of these assumptions.) We also explain how, even when one does not require logical consistency in the respects to be articulated, Chang's effort to show that certain notions of fairness can be altered so as to avoid conflicts with the Pareto principle is unsuccessful. Finally, we offer brief remarks on Chang's liberal welfarism, drawing upon arguments from our larger work. Before proceeding, we should note that we are well aware that many readers will be reluctant to accept our claims. First, the idea that all plausible notions of fairness conflict with the Pareto principle may seem surprising; indeed, it came as a surprise to us during the course of our research. Yet, analysis has revealed it to be true to a general extent. Second, some of our analysis--particularly the second demonstration with which Chang takes issue--is of a technical nature. We endeavor to explain the relevant points in accessible terms so the reader can see what is really involved in considering them. Third, the fact that notions of fairness have broad intuitive appeal to everyone--including to us--seems in tension with our critique. In our conclusion, however, we briefly draw upon our other writing to sketch some of the ways that this appeal can be reconciled with our overall thesis that notions of fairness should not be employed as independent evaluative principles in the assessment of legal policy.
The Floodgates of Strict Liability: Bursting Reservoirs and the Adoption of Fletcher v. Rylands in the Gilded Age
110 Yale L.J. 333 (2000)