Tsachi Keren-Paz

On Mothers, Babies and Bathwater: Distributive Justice, Tort Law and Prenatal Duties

In this article I seek to apply a general claim about tort law - that it should promote as one of its goals a better attainment of distributive justice - to the context of maternal prenatal duty. My argument is that, contrary to common belief among lawyers, the negative burden that a maternal prenatal duty of care would place on potential defendants’ autonomy, although significant, is not a convincing reason in itself to oppose such a duty. Crucial to this argument is the fact that it is the autonomy of women that is limited. Moreover, and somewhat counter-intuitively, I argue that a genuine distributive-egalitarian concern can in fact support the imposition of liability, within the limits of actual insurance coverage, when certain conditions are met, at least according to one understanding of this concern.

An Inquiry into the Merits of Redistribution Through Tort Law: Rejecting the Claim of Randomness

This Article responds to one challenge to the aspiration to incorporate distributive-egalitarian sensitivity into tort law. Arguably, any attempt to effect redistribution by means of tort law is bound to be random and, hence, unjust. There are two facets to the randomness charge: partiality of the participants and crudeness of the distributive result. I argue that the randomness charge, in both its aspects, does not provide a convincing reason to oppose infusing tort law with distributive-egalitarian sensitivity. The charge of randomness is based on two factual assumptions and one normative claim: namely, that existing tort law has no significant redistributive effect; that redistribution through tort law is especially susceptible to the charge of randomness; and that random progressive redistribution is less fair than the status quo distribution. In this Article, I challenge all three claims. I first argue that existing tort law has inevitable distributive consequences and that these consequences are predominantly regressive. I then raise four challenges to the assumption that distribution through tort law is partial, arguing that either such distribution is not partial at all or that it is no more partial than the distribution produced by alternative mechanisms: localized distributive justice; participation through insurance; the complement thesis; and no comparative randomness. Next, I develop a methodology for comparing the fairness of the post-tort litigation redistribution with that of the status quo distribution. This methodology is based on the respective proximity of these distributions to the reference point of societys ideal distributive scheme. Applying this methodology, I argue that partial progressive redistribution is fairer than the status quo distribution. Regarding the problem of partiality of participants, I maintain that any injustice that arises from treating differently members of the same group is overridden by the more egalitarian distribution achieved between the different groups, namely, that the inter-group justice outweighs the intra-group injustice. With respect to the problem of the crudeness of the distributive result, I posit that adopting a guideline for redistribution that is pro-disadvantaged rather than anti-well-to-do ensures the superiority of the partial progressive redistribution relative to the status quo. Furthermore, even under a more radical anti-well-to-do benchmark for redistribution, that superiority might still be maintained. Finally, I apply my three claims to the context of gender inequality and lost earnings. I argue that the theoretical framework developed in this Article provides support for gender-neutral damages awards for lost earnings.

Injuries from Unforeseeable Risks Which Advance Medical Knowledge – A Restitution-Based Justification for Strict Liability

In this article I examine the case for restitutionary-based strict liability towards patients who were injured from risks which were unforeseeable at the time of treatment: involuntarily, the patient has advanced knowledge which will prevent harm to future patients. This situation is analogous to necessitous interventions, so it is fair to compensate the patient for the costs she incurred in providing this benefit. The argument is based on both an emerging consensus by English restitution scholars about the appropriate scope of a common law necessity doctrine, and on comparative approach of the civilian concept of negotiorum gestio and the hybrid Israeli solution to this topic.The fact that the service was not rendered with the intention to benefit potential alternative victims is not a bar for recovery, since the intervention was both successful, ex post, and cost-justified (and hence reasonable), ex ante. Crucially, an obligation to compensate the claimant conforms to the alternative victim’s hypothetical wishes and preserves his autonomy, as it reflects incontrovertible benefit. Since the alternative victim is unidentifiable, and since imposing on him alone the financial burden to compensate the victim for her personal injury might be oppressive, an acceptable solution would be to impose the obligation on the treating physician who can spread this cost – to an extent varying with the way the health care system is funded – on potential victims who benefit from the advancement of medical knowledge, which is the necessary by-product of the claimant’s injury. This restitutionary rationale bears resemblance to two theories justifying strict liability (while being different from the third, efficiency rationale): fairness and ex-post negligence. The analogy to necessitous interventions provides justification which is both narrower, and more convincing than the two competing justifications for compensating the victim injured from unforeseeable risks which advance medical knowledge.