Volume 3, Issue 1

Richard Epstein, over a long and distinguished career, has offered inspired insights into how a legal system should be framed to serve the goals of those it governs. In that pursuit, he has relentlessly applied a sharp logic — call it Epstein’s Razor — to shave away the detritus of complexity and confusion that surround perplexing problems, leaving standing only truths unscathed by competition among ideas. Over decades of diverse writings on law and political theory, highlighted by his elegant Simple Rules for a Complex World, Professor Epstein offers a vision of law constructed on the view that simplicity in law is good — that legal rules have become too numerous and complex and that, if law were set more firmly on elemental principles, the planet would be a better place to live.

Epstein’s strict liability model of tort law, first stated in 1973, relied on arguments derived from the history of the common law, starting with the late medieval period and extending into the nineteenth century. Since that seminal article was published, legal historical scholarship has deepened our understanding of earlier tort law and brought many new sources to bear, and it has also uncovered a pervasive if quiet Romanistic influence on doctrinal development. None of this new work overturns Epstein’s historical intuitions, and his strict liability theory can continue to claim support in the practices of the older common law.

Professor Epstein has long promoted replacing tort-based malpractice law with a new regime based on contracts. In Mortal Peril, he grounded his normative arguments in favor of such a shift in the positive, doctrinal history of charitable immunity law. In this essay, in three parts, I critique Professor Epstein's suggestion that a faulty set of interpretations in charitable immunity law led to our current reliance on tort for malpractice claims. First, I offer an alternative interpretation to Professor Epstein’s claim that one group of 19th and early 20th century cases demonstrates a misguided effort to protect donor wishes. Rather, I maintain that these cases make more sense when understood in the context of trust law. Second, I argue that another group of cases — cases based on indigent patients' implied waivers of tort rights in exchange for charitable services — is not best understood as being based on implied contracts, as Professor Epstein claims. Rather, these cases are better understood as enforcing tort privileges that arise from the charitable status of the defendant. Finally, I critique Professor Epstein’s contention that a charity’s ability to waive immunity for some or all plaintiffs reveals that immunity doctrine more comfortably fits with contract theories than tort theories.

The article begins with a puzzle about Richard Epstein. Coining the phrase “the Cold War in Torts” to refer to the battle between Negligence (represented by Richard Posner) and Strict Liability (represented by Guido Calabresi), the article asks, “where does Richard Epstein fit into the Cold War in Torts?” Strict liability is usually depicted as an ally of liberals, but Epstein seems to be both more conservative than Posner and more enamored of strict liability than Calabresi. How can this be? This puzzle is joined by several others: is Epstein a law and economist or a corrective justice theorist or both? How can the anti-government author of Takings be an advocate of a tort law ready to have the state imposing strict liability left and right in private law? These problems and several others turn out to be readily explicable when the depth and historical subtlety of Epstein’s views are taken seriously and also when his approach to interpretive questions of tort doctrine are carefully separated from his normative views on various policy questions. The greatest challenge presented by Epstein’s tort scholarship stems from his 1973 article A Theory of Strict Liability and Professor Stephen Perry’s well known critique of that article, The Impossibility of General Strict Liability. The questions presented are: (a) whether a paradigms-centered conception of causation in torts is worth seeking; (b) whether such a conception of causation must utilize a notion of responsibility that is normatively rich, rather than value-free; and (c) whether a normatively rich, paradigms-based conception of causation and responsibility yields a theoretical framework importantly different from the negligence-based conception of tort law put forward by Posner, and Prosser before him. The last half of the article answers “yes” to all three of these questions, utilizing Epstein’s 1973 article as a source of insights for a powerful and historically rooted wrongs-based framework in tort theory.

In this extensive article I revisit my earlier writings from the 1970s that deal with tort liability in both stranger and consensual arrangements. On the former, I examine Stephen Perry’s 1988 critique of my work, and more recent contributions by Joshua Getzler and Benjamin Zipursky, to defend the view that a rigorous conception of causation under a theory of strict liability is neither logically impossible nor practically unworkable. In so doing, I reexamine the earlier efforts by writers such as Joseph Beale and H.L.A. Hart and Tony Honoré on causation in order to show how some controversial moves within their theories can be clarified without having to resort to the standard views of causation that work off the notion of “but for” causes. In addition, I explain, in connection with the critique of Jill Horwitz, why some form of a negligence system remains appropriate for medical malpractice cases. In these consensual cases, doctrines of charitable immunity for nonprofit institutions often removed the need to investigate the basis of liability. But once those were removed, a contractual system, which in practice would never embrace a strict liability rule, would often turn to some form of negligence, often coupled with institutional changes, such as arbitration and explicit limitations on contractual damages.