© 2002 by Oxford University Press
Uncertainties in tort liability for uncertainty
1 Hofstra University School of Law, New York, USA
In Tort Liability under Uncertainty, Ariel Porat and Alex Stein build upon the proposition that tort law values accurate fact-finding as a means of avoiding unfairness to parties and reducing inefficiencies due to over-deterrence or under-deterrence. Courts should base their judgements on findings that are true, and order compensatory awards that are set neither too high nor too low. But certain types of case challenge this ideal by exhibiting considerable uncertainty in fact-finding. Such cases are notorious in tort law, and judges have addressed the problems with a variety of doctrinal theories (such as res ipsa loquitur) and a variety of procedural devices (such as shifting the burdens of production or persuasion). The aim of the authors is ‘to place these solutions on a principled footing and to supplement them with a comprehensive treatment of the uncertainty problem’ (p. 11). The resulting book makes a very important contribution to our thinking about how to handle uncertainty in those cases.
The critical first chapter sets up the main topic of the book, and also provides a favourable framework for the authors' preferred solution. That framework presupposes a fairly simple notion of fact-finding uncertainty. In the second half of this review essay, I shall raise some questions about the wisdom of imposing this conceptual framework on the problem, and about their proposed solution to the cases. First, however, I shall describe the major contents of the book, assuming for the time being the usefulness of the authors' framework.
Received 26 June 2002. Revised 12 July 2002. Accepted 12 July 2002.