Vicarious Liability and Administration of Risk I

A rationalization of case law is useful to a legal historian in attempting to reveal the stimuli which induced decisions. To one interested in predicting what the courts will do tomorrow -i.e., in stating the law-or in drafting legislation, it likewise is of interest and utility, inasmuch as it furnishes possible bases for cases yet to be decided or for laws yet to be passed. We are here concerned with a rationalization, and while its utility for the former purpose is not denied, we are more particularly concerned with its utility for the latter purpose. Why Holt, J. put his seal of approval on the doctrine of vicarious liability is still a riddle. From whence came the rule and a complete exposition of its pedigree are problems as yet unanswered. The learned attempts made are admittedly ineffectual.2 Similarly, whether the rules of vicarious liability made satisfactory and effective adjustments of the economic and social conflicts in the industrial society out of which they rose is highly significant and as yet unexplored.3 Each of these problems is of great importance to every legal historian, and of immeasurable interest to all who are concerned with the history of the science of jurisprudence. But one of more immediate significance to all legal scholars--teacher, practitioner and judge-and to all social scientists is, what rationale justifies the various rules of vicarious liability in modern society? The importance of the answer to that question is at once apparent when the first court is striving to phrase the rule, when the hundredth variation of the normal situation is up for decision and the court is seeking to delimit the rule, when bases for legislation are sought, and when the economic and social effects of these social regulatory rules are measured