Publication Date
2010
Abstract
This article challenges the reason that led most states to abandon the "no contribution" rule Under the rule if a victim obtains a judgment against two tortfeasors but chooses even arbitrarily or out of spite to recover only from one the "chosen one" must pay the entire judgment while the other is exempt although both are liable This is the case even if the paying tortfeasor is only 1 at fault while the nonpaying tortfeasor is 99 at fault The rule has been lamented by tort reform crusaders as immoral and unfair One tortfeasor the argument goes should not bear the entire burden while the more culpable tortfeasor is exempted from liability In deviation from the prior literature the article employs economic theory to show that the "no contribution" rule that has been crowned as efficient is fair and just It adopts a contractarian approach to analyze different apportionment regimes including joint and several liability with and without contribution several liability and market share liability Relying on modern decision theory the article shows that individuals behind a veil of ignorance unaware as to whether they would be victims or injurers may in fact choose the much criticized no contribution rule In doing so the article sheds new light on a fierce and ongoing debate and concludes with a new framework for analyzing apportionment policies
Recommended Citation
J. S. Dillbary,
Apportioning Liability behind a Veil of Uncertainty,
62
Hastings L.J.
1729
(2010).
Available at:
https://scholarship.law.ua.edu/fac_articles/82