Revus, Issues 36, 37 and 39.

• Gregory C. Keating, Principles of risk imposition and the priority of avoiding harm
• Mark F. Grady, Justice luck in negligence law
• Mark A. Geistfeld, Cost-benefit analysis outside of welfarism
• Dan Priel, Do societies prioritize harm prevention?
• Gregory C. Keating, Between absolutism and efficiency. Reply to Professors Geistfeld, Grady, and Priel

In his opening article, professor Keating argued that quite often safety regulations protect against physical harm and health injury by requiring potential defendants to take more than efficient precautions. These demanding standards of care are rational, contrary to what the economic perspective might suggest, for in general there is an asymmetry between the costs of devastating physical injuries and the economic benefits derived from the untaken precautions.

These ideas are discussed by three critical contributions. In “Justice luck in negligence law”, Professor Mark F. Grady qualifies Keating’s proposal as normative, and claims that it is inconsistent with the actual practice of US Courts. In order to apply Keating’s preferred rules, the system should be reformed to prevent juries from “forgiving” negligence, as they do on many occasions where perfect compliance is deemed to be too costly. This might lead us to eliminate juries altogether when the impulse to “forgive” is likely to be strong.

Next, in “Cost-benefit analysis outside of welfarism” Professor Mark A. Geistfeld highlights that Keating’s rejection of the cost-benefit analysis is unwarranted. Keating seems to identify cost-benefit analysis with welfarist or utilitarianist positions. However, cost-benefit analysis is just a methodology absolutely compatible with a liberal-egalitarian framework. In this way, Geistfeld tries to show that the more demanding standards of care pointed out by Keating in cases where the prospects of physical harm are at stake fit perfectly well within the cost-benefit framework.

Finally, Professor Dan Priel’s contribution “Do societies prioritize harm prevention?” challenges the very idea that the avoidance of significant risk of physical harm plays a privileged role in actual tort doctrine. According to Priel, the main normative concern of tort law rules is with the distribution of losses. In fact, he argues, it is not obvious that societies do prioritize in general the avoidance of losses. Moreover, he claims that is not clear at all that prevention should be advanced as a goal when the associated costs of doing so are too high.

This highly stimulating and enlightening debate is completed with Professor Keating’s reply to professors Grady, Geistfeld, and Priel.