Document Type

Article

Publication Title

Ohio State Law Journal

Abstract

The legal revolution of the past 25 years has dramatically changed tort law, but not for the better. The inexorable expansion of liability has taken place on two fronts. The scope of the defendant's basic liability has increased, while the available defenses have been whittled away. This one-two combination has worked dramatic effects that could not be gleaned from looking at each change in isolation. While the changes have been massive, the justifications offered for them have been inadequate. In a short paper it is quite foolish to attempt to assay the entire landscape of tort doctrine, from causation, to proof, to foreseeability, to privity, to assumption of risk. Nonetheless, it is important to stress that this vast array of doctrinal changes have not occurred at random. Quite the contrary they all reflect a uniform, if misguided, vision of the role of tort law in particular and of legal rules in general. My hope is to isolate one central methodological weakness of modem tort law and to show, however briefly, the influence it exerts on a large number of doctrinal areas. That weakness is the incurable judicial fondness for replacing fixed rules of tort liability with open-ended balancing tests. The now common risk/utility test, as developed by Professor Wade, is the foremost illustration of the new approach and the unfortunate social consequences that it produces. The paper is divided into two sections. The first section of this paper argues that rules of thumb should be preferred over balancing tests generally. The second section gives some examples of workable bright line rules and concludes with a brief critique of the risk/utility doctrine generally.

First Page

469

Volume

48

Publication Date

1987

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