This book argues, from a normative perspective, for the incorporation of an egalitarian sensitivity into tort law, and more generally, into private law. It shows how an egalitarian sensitivity can reformulate tort doctrine, with an emphasis on the tort of negligence. Rather than a comprehensive descriptive account of existing tort law, this book pro-actively searches for new approaches and conceptual tools to meet the challenges faced by egalitarians. The understanding of tort law offered in this book will bring about better practical results in specific cases. It supports the progressive troops in the ongoing philosophical and social battles that take place in the field of tort law and also adds another voice - rich, nuanced and sensitive - to the chorus that is tort theory.
Table of Contents
Contents: Introduction; Theoretical Framework: Distributive justice; Egalitarianism; Tort law; Pulling the threads together. Normative Defence: Illegitimacy; Randomness; Excessive cost; Ineffectiveness. Applicatory Framework: The regressive nature of existing tort law; Levels of operation; Multiplicity of participants and entitlements; Direction of distributive result; Balancing egalitarianism with other policy considerations. Standard of Care: Insights from other approaches; Normative defence; Standard or duty?; Reformulating the standard of care; How does it work?; Incongruity with existing tort law. Duty of Care: The effects of egalitarianism on duty of care; Possible solutions to the problem of maternal prenatal duty; The egalitarian case against unconditional duty; Conditional duty. Discrimination as Negligence: Negligence and alternative responses to discrimination; The institutional inquiry; The conceptual and normative inquiries; Conclusion; Bibliography; Index.