The Judicial Posner on Negligence versus Strict Liability: Indiana Harbor Belt Railroad Co. v. American Cyanamid Co.

Abstract

Judge Richard Posner's opinion in Indiana Harbor Belt Railroad is a staple of torts courses on the basic question of negligence versus strict liability. This paper critically examines the importance and problematic aspects of the opinion. But, the main conclusion is that much of his analysis was beside the point. Judge Poser was not presented with a torts case, that is, a case calling for judicial regulation of the market. Rather the parties in that case and others like it should allocate the risk of accident by contract or pay the cost of using the courts to resolve their dispute.

JEL Classification: K00, K13, K41