Attribution

One obvious objection to a rights-based conception of the law of torts is the law of vicarious liability. According to the orthodox picture of the law, one party (an employer) who has committed no wrong is liable for the loss caused by the wrong of someone else (an employee). This is justified on the basis of one or more of a number of policy reasons. Vicarious liability is commonly described as a species of strict liability. Orthodoxy is wrong. What is attributed to the action, not the liability. The common law's rules for the attribution of words and acts have been unnecessarily and...

One obvious objection to a rights-based conception of the law of torts is the law of vicarious liability. According to the orthodox picture of the law, one party (an employer) who has committed no wrong is liable for the loss caused by the wrong of someone else (an employee). This is justified on the basis of one or more of a number of policy reasons. Vicarious liability is commonly described as a species of strict liability. Orthodoxy is wrong. What is attributed to the action, not the liability. The common law's rules for the attribution of words and acts have been unnecessarily and confusingly separated. Joint torts, agency, unlawful means conspiracy, and vicarious liability are in fact all part of the same set of rules of attribution. The doctrine respondeat superior is justified on the basis of what is commonly called the ‘master's tort’ theory.