[March 21, 2020] Sabbatical update: For obvious reasons, I am home, and not in Africa. Thanks to my wife who booked my return journey from Windhoek to Boston. Stay tuned for a return to normalcy. Meanwhile, #QuarantineLife.

Friday, November 1, 2019

Teachable torts: Samsung satellite crash-lands in 'paradigm of reciprocity'

"Strict liability" in tort law is liability without fault.  That is, more precisely, it is liability without regard for fault.  Lawyers and social scientists have much debated the theoretical foundation and doctrinal justifications for strict liability.  After talking recently with a scholar-colleague in Honduras, I think strict liability may be on the rise in a new class of cases in Latin American environmental law.  Meanwhile, we use strict liability, in the United States, in certain classes of tort cases, such as when the defendant is a seller of a defective product, or the defendant was engaged in an "abnormally dangerous" activity, such as dynamiting.

Professor George Fletcher in 1972 posited one theoretical basis for strict liability as the "paradigm of reciprocity":

The general principle expressed in all of these situations governed by diverse doctrinal standards is that a victim has a right to recover for injuries caused by a risk greater in degree and different in order from those created by the victim and imposed on the defendant—in short, for injuries resulting from nonreciprocal risks. Cases of liability are those in which the defendant generates a disproportionate, excessive risk of harm, relative to the victim’s risk-creating activity. For example, a pilot or an airplane owner subjects those beneath the path of flight to nonreciprocal risks of harm.

The downed plane is the paradigmatic paradigm exemplar, albeit tragic.  But space news from a Michigan backyard, where no one was hurt, provides this week a happier occasion to consider the professor's proposal.

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