Outline - Torts - III - TRANSITION - POLICY ARGUMENTS

Torts (2005 Fall)

III. TRANSITION - POLICY ARGUMENTS

1. “A-Type” Arguments – Incomplete Privilege of Necessity
   1. Moral
      1. “As between two innocents, the one who caused the harm should pay.”
      2. Avoid unjust enrichment
   2. Economic
      1. Incomplete privilege discourages carelessness toward another’s property since defendant pays for harm no matter what.
      2. Keeping the privilege “incomplete” ensures that the defendant will minimize the overall social loss rather than just his own losses.
   3. Social Policy – “We should subsidize dock owners because otherwise people will be discouraged from going into the docking business.”
   4. Administrability
2. “B-Type” Arguments – Absolute Privilege of Necessity
   1. Moral
      1. Let losses lie where they fall (Holmes)
      2. Liability should follow moral blame or fault. The defendant is not morally blameworthy.
   2. Economic
      1. If we make the defendant pay when it wasn’t morally blameworthy, we will create a disincentive for the defendant to “do the right thing”.
      2. We don’t want to discourage people from indulging in normal activity for fear that any action will result in liability for damage.
   3. Social Policy – “We should subsidize ship owners because otherwise people will be discouraged from going into the shipping business.”
   4. Administrability