Document Type


Publication Date



Harvard Professors David Rosenberg and Charles Fried have presented a provocative, sweeping critique of the theoretical foundations of tort liability that leaves virtually no aspect of our current tort system untouched, or perhaps more accurately, unscathed. Their article throws down the gauntlet to defenders of traditional tort law. For instance, Rosenberg and Fried take aim at the jury system, arguing that ex post liability rules created by juries are inefficient and should be replaced, whenever possible, by ex ante liability rules set by legislative bodies. And they attack the idea that compensation plays a legitimate role in structuring our tort system. In their view, in this era of near-universal access to insurance, deterrence is the only legitimate basis for creating rules of liability. Despite my trepidation in picking up the gauntlet and doing battle with two eminent scholars, I take issue with much of their thesis, so much so that I began my oral remarks by saying "so much to disagree with, so little time." But I was not asked to engage in a point-by-point debate over theory. Nor was I called upon to challenge their view that the widespread availability of insurance somehow justifies dispensing with concerns over compensation in setting liability rules. Rather, I was asked to comment briefly on their article. With that task in mind, I want to explore the central question posed in Rosenberg and Fried's article, namely, which institution of government ought to have the principle responsibility for setting rules governing liability for accidents and product defects? Should it be the courts, through jury determinations? Or should it be legislative bodies, through legislation or the delegation of decisional authority to administrative agencies?

Publication Citation

31 Seton Hall L. Rev. 631-643 (2001)