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The issue between Mr. Gregory and me is after all a surprisingly narrow one. Both of us believe that a comprehensive scheme of social insurance for accidents is a better ultimate solution of the problem of civil liability than the principle that recovery must be based on fault. We divide only on the question of what to do in the meanwhile. Mr. Gregory would perfect the fault principle and refine its implications even though that might take us farther away from our ultimate goal, while I should evaluate a rule of law, existing or proposed, partly in the light of its tendency to take us nearer to or farther from our goal, and I should think this consideration weightier than questions of fault. That leads into an inquiry which seems sordid, perhaps even unethical, to Mr. Gregory; but I do not view it in that light. I must look behind the trappings of verbiage and rationalization to see how the rule is really working out, how it affects litigants singly and in the mass, where its incidence truly is. And then, perhaps, I must seek to justify a rule in terms of premises that do not find open acceptance in our jurisprudence, so that, if my position prevails, a moderately good rule will be perpetuated by the courts for expressed reasons which are demonstrably bad.
Date of Authorship for this Version
Contribution Among Joint Tortfeasors: Replication, 54 Harv. L. Rev. 1178 (1941)