Abstract

Legal theorists such as Richard Epstein have opposed the use of negligence rules in accidental tort law, maintaining that they unjustly allow accident victims to bear uncompensated losses. Individual autonomy, on his view, extends over a zone of property interests, such that the legal system ought to protect individual rights to the integrity of such interests. This aspect of liberalism is understood by Epstein and others to call for a strict liability rule. Richard Posner's economic standard of fault, and its underlying norm of wealth maximization, have been criticized as antithetical to liberal values, insofar as it allows for property rights to be abrogated for the sake of economic efficiency. ;We will consider efforts made by proponents of the economic approach to tort law to reconcile the use of efficient tort rules with this liberal concern. At each turn, Posner has attempted to reconcile his efficiency norm with core liberal values. These efforts have in turn received severe criticism, primarily from Jules Coleman and Ronald Dworkin. These debates have been waged since the earlier arguments found in the second chapter, to more modern ones which we will consider in chapter three. Those latter efforts are ultimately grounded in a appeal to rational choice. I argue in both chapters that they are unsatisfactory. ;Despite these failures, I believe that at least some applications of efficient tort rules can be reconciled with a liberal concern for individual autonomy, even when such tort rules may appear to condone an outright uncompensated deprivation. This is the goal of this essay, and it constitutes the ultimate goal of the fourth and final chapter. In order to do advance this argument, I will draw upon a literature that offers a theoretical basis for liability for intentional right infringements, which invokes a norm of "respect for persons."