Transactional justice and reciprocity: towards a cohesive theory of liability
by Larry Dean Pender Jr.
International Journal of Private Law (IJPL), Vol. 3, No. 1/2, 2010

Abstract: The traditional view of tort liability in the USA is based on the assumption that fault generally turns on whether the tortfeasor's actions were 'reasonable'. This understanding has resulted in a legal landscape where the exceptions defy the rule, creating anomalous areas of law that operate according to completely different rationales. This paper suggests that this is because the decisions that have created this landscape are motivated by less articulated rationales. An unarticulated adherence to the concept of transactional justice explains why anomalous doctrines such as 'strict liability' and the 'law of necessity' operate the way they do. But this adherence is tempered by equal awareness of the importance of reciprocal risks – the background risks of participating in society. This limiting doctrine of reciprocity explains the existence of negligence theory, and why some cases fall under a negligence standard while others fall under strict liability. The result is a more cohesive theory of liability, which allows for the intersection of two mutually limiting principles. This theory unites the various conflicting areas of tort law in US jurisprudence in a way that is conceptually logical, so that the 'exceptions' are in fact predictable outcomes of the overarching pattern.

Online publication date: Mon, 30-Nov-2009

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