Allison H. Eid


A fascinating aspect of Epstein's scholarly work is his exploration of the apparent tension between libertarian principles and utilitarian thought—an exploration that comes alive in his casebook. To Epstein, these two competing principles often coalesce to yield a single "correct" answer to a problem. In other words, the answer that arises from a desire to protect a pre-determined set of individual rights-for example, private property rights, or the right of personal autonomy often produces an outcome that is also beneficial to the overall common good. Some scholars have critiqued Epstein's work by suggesting that there is more disharmony than harmony in the relationship between the libertarian and utilitarian approaches. Who has the better argument on the point, however, is not relevant for present purposes. What is relevant is that Epstein introduces, confronts, and explores the potential for tension between the two approaches throughout his casebook in a way that provokes thoughtful and interesting classroom discussion. A second, and closely related, theme that Epstein explores in his casebook is the overwhelming importance of the older, historic common law cases to the study of torts. In fact, the book devotes almost seventy pages to the age-old debate over whether negligence or strict liability should govern unintentional harms. This historical approach reinforces Epstein's emphasis on the libertarian/utilitarian divide; indeed, the strict liability versus negligence debate roughly parallels the libertarian/utilitarian tension, with strict liability generally (although not necessarily) associated with the former and negligence generally (although not necessarily) associated with the latter. This historical grounding also gives students a basis for understanding why negligence governs some unintentional harms while strict liability governs others, and provides them with the tools to challenge the current boundaries between the two theories. Finally, a more historical approach to tort law gives students some sense of the expansion and contraction of tort liability over time-an understanding that puts "tort reform" in context.