Tort generally leaves private parties entirely free to bargain within the framework, and within the entitlements conferred upon them by such rules. Beyond that, nondisclaimability makes tort entitlements one of the things that determines and fairly distributes the balance of bargaining power. A fairness perspective naturally makes one skeptical of limiting liability to negligence. The only difference between strict liability and negligence is that the former pins the bad luck on the unlucky injurer, the latter pins the bad luck on the unlucky victim. Fairness calls not for such loss shifting, but for distributing the costs of nonnegligent accidents across those who impose, or benefit from the imposition of, nonnegligent risks of the kind that issued in the injury at hand.
Nonreciprocal risks are a different matter, even in the world of ungeneralized harms.
Nonreciprocal risks impair the security of victims more than they benefit their liberty, because nonreciprocal risks are ones whose imposition is not part of a normal life. For most people, then, the value of a right to impose a nonreciprocal risk is generally less than the disvalue of having to bear exposure to one. The payment of compensation to the victims of nonnegligent but nonreciprocal risk compensates for this underlying asymmetry of benefit and restores mutuality of benefit, so far as practicable. When we enter Holmes s new world of interrelated and generalized harms the character of nonnegligent accidents and the effects of strict liability change markedly. Moreover, nonnegligent harm which, in contrast to mere risk, devastates the lives and liberty of victims is no longer a matter of unpredictable misfortune.