Abstract

Increasingly, commentators complain of two major deficiencies in modern tort law: (1) that liability concepts such as "negligence" or "duty" are so vacuously defined as to permit inadvertent subjectivity and error to hinder proper case adjudication; (2) that tort is too slow in recognizing newly discovered risks and properly compensating nascent classes of injury. We accordingly report on the Kiodynamic Theory, an emerging philosophy that overcomes these twin deficiencies and sharpens understanding of poorly articulated tort intuitions. Kiodynamics contends causation is the cornerstone of tort, and that all risks are, at core, causal propositions. Contrary to its many everyday definitions, the word "risk" has a single exact meaning in Kiodynamic Theory. A risk, unlike uncertainties, must be objectively known to be causally possible ("epistemically possible"). Put differently, Kiodynamics prescribes that a specific alleged stimulus must be objectively known to cause a particular harm. Second, and in the only notable break with traditional tort intuition, some Kiodynamic proponents advocate permitting compensation only for injuries arising from "significant" risks: those that are (1) widespread and (2) also likely to be injurious. Similar to common regulatory practice, the prescriptive "significant risk" constraint seeks to sensibly prioritize risk deterrence, given limited judicial resources. Third, Kiodynamic Theory invokes decision analysis - the method for formal, quantitative risk analysis universally familiar to risk analysts - to elucidate risk tradeoffs and make decisions about a risk's costs and benefits. With its empirical grounding, decision analysis improves upon other cost-benefit models, which are typically too theoretical or assumption-laden for practical use. Finally, courts have long desired and intuitively but unsuccessfully sought an objective method for apportioning liability for a single injury among multiple alleged tortfeasors. Kiodynamic Theory is the first tort theory to formally present such a method.

Date of this Version

January 2005

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