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How do you decide whether one person is justly accountable for wrongs that another person commits? Or an "accident"? Is it not Fletcher v. Rylands, redux? Do we measure the social utility of the conduct that gave rise to the wrong or the "accident" and then try to balance it against the gravity of the damage done? Can that be done on a case-by-case basis without subjecting litigants to the tyranny of the Chancellor's foot length? (What occurred here?)
Or is that whole methodology inept? Should we instead ascertain simply which party is in a better position to spread the risk? But why do we want to spread the risk? Should that be decided case by case? Assume, arguendo, that Nugent is not secretly complicitous with the computer program uploaders, and assume that too for Frena in the Playboy case and for MAPHIA. Now, consider in each of these cases, starting with the Netcom case, why you would want to spread the risk of loss. Is this, too, an inept methodology?
This page was last updated 4/6/98