Book Review: Tort Liability Under Uncertainty by Porat and Stein

Ariel Porat and Alex Stein have written an exceptionally lucid, challenging and innovative book about an important legal topic: the allocation of tort liability in cases involving uncertain facts. Confining themselves to English and American tort doctrines (p 1), the authors examine the solutions that the law has already developed to the uncertainty problem, aiming to place these solutions on a principled footing and to supplement them with a comprehensive treatment of the uncertainty problem (p 11). Though the authors claim that their book provides a comprehensive and updated doctrinal picture of those solutions (p 13), they state that their primary objective is normative rather than expository: they hope to contribute by offering a systematic analysis of the problem and by identifying the ways in which it can be resolved (p 13). Of the latter, the most striking is the advocacy of their novel creation, the evidential damage doctrine which they argue should be applied to cases in which the existing uncertainty and the consequent inability of the court to determine the facts accurately result from a person's wrongful conduct (pp 1415). The intellectual posture of the authors and the most likely audience to appreciate their achievements are flagged by their sanguine embrace of ideal theoretical models and their statement that our discussion and proposals rest upon two principal theories of tort liability: that of deterrence and that of corrective justice (p 11). No room here for mixed theories of the common law that seek to capture its diversity of concerns!