The Idea of Fairness in the Law of Enterprise Liability

Gregory C. Keating
1997 Michigan law review  
The theory and practice of enterprise liability are oddly disjoined. On the one hand, case rhetoric insists that considerations of fairness are among the primary justifications for imposing enterprise liability. On the other hand, normatively inclined and theoretically ambitious scholarship on enterprise liability is overwhelmingly economic in cast. Economically inclined scholars have flocked to the field, while other kinds of tort theorists have shunned it, implicitly or explicitly conceding
more » ... to economic analysis. This paper argues that, contrary to this consensus, there is a powerful and important fairness case to be made for enterprise liability. This case fits the rhetoric of the decisions and the structure of the doctrines, and draws philosophical support from Kantian social contract theory. When enterprises are in a position to spread the costs of nonnegligent accidents across the class of those who benefit from the risks that inevitably issue in such accidents, enterprise liability is more reasonable than negligence liability. Under these circumstances, enterprise liability reconciles the competing claims of liberty and security more fairly, and more favorably, than negligence liability. I. THE ESTRANGEMENT OF TORT THEORY FROM TORT LAW In one of his more memorable and arresting aphorisms, Oliver Wendell Holmes remarked that "[o]ur law of torts comes from the old days of isolated, ungeneralized wrongs, assaults, slanders, and the like," whereas "the torts with which our courts are kept busy today are mainly the incidents of certain well known businesses.provided excellent research assistance.
doi:10.2307/1290009 fatcat:j755wwkjnjdlpliivy4gt7qf2q