The Future of Proportional Liability
67 Pages Posted: 26 Oct 2004
Since the 1970's evidential uncertainty has forced the law to consider employing a proportional liability rule in which the defendant would pay damages based on the probability that the defendant's tortious conduct caused the plaintiff's harm rather than adhering to liability on an all-or-nothing basis. Two such areas in which courts have accepted the idea of proportional liability are market share and lost opportunity. By 1990, scholarly opinion in favor of a broader regime of proportional liability had coalesced. Dan Farber declared that "there is now widespread scholarly agreement that the preponderance rule should be discarded in favor of some form of probabilistic recovery." Scholars from both the corrective justice and law-and-economics schools concurred in this assessment.
This article takes issue with the scholarly consensus. At least in the arena of toxic substances, in which epidemiology provides the evidence that would provide the probabilities on which proportional liability would be based, impediments to accuracy at the level required for probabilistic assessments are too great for any proportional liability scheme to be workable.
Keywords: proportional liability, epidemiology, tort, probabalistic recovery
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