From: matt@smoke.brl.mil (Matthew Rosenblatt)
Newsgroups: misc.legal
Subject: Re: Roe v. Wade for Men!
Summary: Strict vs. negligence-based liability
Keywords: Fornication Liability Insurance?
Date: 15 Oct 92 18:58:56 GMT
Organization: U.S. Army Ballistic Research Lab, APG MD.

In article <1992Oct13.005118.24990@cfctech.cfc.com> kevin@cfctech.cfc.com 
(Kevin Darcy) writes:

>If he was negligent, say, if he didn't bother with 
>birth control AT ALL, then perhaps there would be room for assessing 
>a hefty measure of child support.   [Kevin Darcy]

That would be liability based on negligence, which is one of the
bases of liability used by our legal system.

>The problem with the current system is that it 
>defeats the usual system of incentives and disincentives by simply treating 
>EVERY man as equally liable, and EVERY woman as having limited liability, 
>regardless of the circumstances of conception.   [Kevin Darcy]

In other words, the man is subject to "strict liability."  Strict
liability is another basis of liability used by our legal system.
It appears, for example, in the law of product liability.  Originally,
a manufacturer could escape liability for an injury caused by a defect
in his product if he could show that he did everything reasonable to
prevent foreseeable injury.  If he did that, the loss from the injury
fell upon whoever was injured.  "Strict liability" makes him pay for
the injury even if he did everything reasonable to prevent it, because
he has "deep pockets" and it is considered more "just" to make him pay
even though he is not at fault than to let the injury "lie where it
falls" on the "little guy" who is injured.  Manufacturing products
is an "inherently risky activity" which, statistically, is going to
result in some expected number of injuries.  The only way to avoid
the manufacturers' "strict liability" is never to have begun 
manufacturing products at all.

Those who set up the system of "strict liability" for manufacturers
did so in the knowledge that manufacturers would buy insurance to 
cover their liability.  The cost of that insurance is naturally
passed on to anyone who buys products made by that manufacturer.
Each customer pays a little more (Vice President Dan Quayle would
argue that it's quite a bit more) so that those unlucky customers
who are injured will recover their damages from the insurance company.

In the case of men who conceive children, there isn't even a way
to buy insurance that would cover the cost of supporting those
children after they are born.  But no birth control method is 
100% effective in keeping sexual intercourse from conceiving
children; sexual intercourse is therefore an "inherently risky
activity" that, statistically, is going to conceive some expected
number of children who will need support.  The rule of "strict
liability" is applied because is it considered more unjust 
for a child to have to go without his father's support 
than for a man who takes imperfect precautions against conception 
to have to pay such support.  The only way for a man to avoid the 
"strict liability" for supporting the children he may conceive 
is to stop engaging in sexual intercourse.  For unmarried men, 
this amounts to picking some less risky hobby than fornication.

>In short, the current laws are IMPRACTICAL, in addition to being 
>out-and-out inequitable. They actually make things WORSE than having 
>no laws at all, IMHO (since in the absence of statutes, I'd expect 
>the woman could still sue the man for support in the civil courts, 
>where there would be ample opportunity to make INTELLIGENT liability 
>determinations).   [Kevin Darcy]

Ha!  Does Mr. Darcy think that "strict liability" in product injury
cases is nothing but a creature of statute law?  On the contrary!
Much if not most of it is judge-made law, handed down by civil courts.
The judges in the civil courts are the same ones who regularly nail
fathers to the wall in divorce and custody cases.  Is Mr. Darcy
really willing to trust these judges to tell a man, "Well, you
did everything reasonable to keep this child from being conceived,
so you're exempt from supporting him"?

And let me remind Mr. Darcy that what he considers "inequitable,"
_viz.,_ the fact that the woman has a "way out" of liability not
available to the man, is also judge-made law: a decision by the
U. S. Supreme Court that invalidated the prior laws of 50 States,
under which the woman had no more "way out" than the man did.
The statutes were just, whereas the judge-made law in this area
is legalized EVIL; is Mr. Darcy really surprised that inequity
results from legalized evil?

					-- Matt Rosenblatt
                                        (matt@amsaa.brl.mil)

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