Epstein's Tort Theory: a Critique

IN three articles published in this journal between 1973 and 1975, my colleague Professor Richard Epstein set forth an ambitious normative theory of tort law.' Among the distinctive features of this theory were the author's insistence that strict liability based on causal principles should be the prima facie standard of liability, that notions of liberty rather than of economic efficiency should be the foundation of tort law, and that the imposition of affirmative tort duties (e.g., on a bystander to warn or otherwise assist a stranger in distress) was improper. Although the theory set forth in these articles deserves and has received recognition as an original contribution to tort scholarship, it contains, I believe, fundamental inconsistencies quite apart from those, relating to Epstein's use of causal concepts, discussed by Professor Borgo in his article in this issue.2 Recently Epstein published in this journal a fourth a r t i ~ l e , ~ which purports merely to apply the theory developed in the earlier articles to nuisance law but which, I believe, changes the theory. In this paper I will attempt to trace the evolution and, as it seemq&o me, the contradictions in Epstein's approach. Although Professor Epstein and I differ, of course, in the importance we ascribe to economic factors in tort law,4 this paper will not criticize Epstein