In this paper I will be discussing George P. Fletcher’s “paradigm of reciprocity”. I will discuss what two issues the paradigm specifies and how they are treated by the paradigm. I will assess how the treatment of the issue is different from that of the wealth maximization approach. I will also look at how the paradigm makes sense of both fault and strict liability. Lastly in this paper I will discuss why I agree with Fletcher’s stance and a criticism one might have for it.
Fletcher’s paradigm of reciprocity is a model that describes when liability for an act is shifted from one party to another – in the case of tort liability from victim to defendant. The paradigm discusses two issues. The first issue is whether or not the victim has a right to recovery from an injury. The outcome of the first issue – whether or not the victim has a right to recovery – is dependent on both the actions of the victim and the danger posed by the defendant at the time of the injury. If the actions of the victim posed as much danger to the defendant as the actions of the defendant posed to the victim then there would be no transference of liability. Both parties would be at fault in this case. However, if the actions of the victim did not pose as much danger to the defendant as the actions of the defendant posed to the victim then liability would be transferred to the defendant. When the danger that each party exhibits on one another is unequal there has to be transference of liability. This leads into the second issue that is discussed by the paradigm.
The second issue is whether or not the defendant has an obligation to reimburse for an injury. The outcome of this second issue depends whether or not it is rational for the defendant to have to pay. The rationality of this decision comes from being able to decide or distinguish if the defendant is the sole perpetrator of the action. If one cannot distinguish whether the defendant is the sole perpetrator compared to others than it is not fair to put the burden of liability on the defendant. These approaches of the paradigm are different from a wealth maximization approach.
The wealth maximization theory is different from the two issues discussed above because it is concerned with maximizing social wealth. The other theories are not concerned with maximizing social wealth. Rather they are concerned with the facts that relevant to the case at hand. The issues brought up by the paradigm determine fault through the guidelines that they set. On the other hand with wealth maximization fault being found is dependent on whether or not wealth was maximized. In this case the “Learned Hand Formula” would be helpful in finding fault. With the “Learned Hand Rule” fault is transferred to the defendant if and only if the costs of precautions that they could have taken was less than the expected cost of damage. In such a case the wealth was not maximized because more money was lost in damages than would have been lost in taking...