英文承担风险SSRN.pdfVIP

ASSUMING THE RISK: TORT LAW, POLICY, AND POLITI CS ON THE SLIPPERY SLOPESt Eric A. Feldman * Alison Ste in** INTRODUCTION Since its inception in the mid-nin eteenth century, the tort doctrine of assumption of risk has served as legal shorthand for the idea that individuals are responsible for the consequences of their own risk-tak­ ing preferences. Indeed , one of the most famous Latin maxims in the common law corpus- v o len ti non fit injuria-indicates that those who freely take chances have only themselves to blame for their harms .! Yet this seemingly simple legal concept has been freighted with politi­ cal and moral tensions for over a century, and it has been attacked as sinister 2 and dangerously misleading.3 As Justice Felix Frank­ furter pointedly wrote, The phrase assumption of ri sk is an excelle nt illustrat ion of the extent to which uncritical use of words be devils the law. A phrase begins life as a literary expression; its fe licity leads to its lazy repeti­ tion; and repetition soon establishe s it as a legal formula, undis crim­ ina tingly used to express different and sometimes contradictory ideas.4 This Article uses a case study approach to take a fresh look at the assumption of risk doctrine. Focusing on ski accidents, it argues that f We are grateful to Tom Baker. John Fagan. Umberto [zzo. Gid eon Parchamovsky. Robert Rabin. and all of th e participants in the 15th Annual Cliff rd Symposium for their helpful comments and feedback. Timothy Von Du lm and th e rest of th e staff of the University