Indeterminate Risk and Tort Reform: Comment on Calabresi and Klevorick

Abstract

IN collaboration with coauthor Alvin Klevorick, Guido Calabresi has extended his earlier analysis of negligence and strict liability rules' to take into account the temporal dimension in product cases. More specifically they ask whether liability ought to be based on a finding of defect as viewed from time of trial as contrasted with time of product sale. Calabresi and Klevorick engage in this enterprise at a time when the tort system (and its regulatory cousins, including the Environmental Protection Agency and Occupational Safety and Health Administration) are increasingly strained by scientific uncertainty about health and safety risks, such as DES, Agent Orange, asbestos, toxic wastes, and radiation poisoning. Of course, it is just such cases-in particular, those involving chemical and toxic substances-that most starkly pose issues of whether after-acquired information about health risks or technological advances ought to influence tort liability rules. Hence the Calabresi-Klevorick analysis could hardly be more timely. While the authors do not purport to derive a best approach from their multifaceted analysis of liability rules, they detect a discernible movement from a liability system based on case-by-case determinations of unreasonableness (ex ante risk-benefit analysis under the Learned Hand formula) to two forms of nonfault liability: category-wide strict liability and ex post risk-benefit analysis. Without counting cases, I will question whether such a movement is in fact occurring. Recent developments in the two most influential product liability jurisdictions-