Something just feels wrong.

 Perhaps my favorite book ever is The Way of Kings, which I highly recommend. If it's on anyone's list, warning, I will be spoiling a tiny little bit but I'll change names to protect you. 

In this book there is a girl, Suzy, studying under an academic, Jane and they are discussing philosophy. The Jane decides that they need some applied learning so she takes Suzy out to the bad part of town at night while flaunting her wealth. Four men attack them and Jane kills them. The discussion then follows, who owned the risk in this situation? Jane believes that the men clearly violated her boundary in the libertarian sense and acted without regard to her security interest in the fault system sense. Suzy believes that Jane clearly intentionally murdered three people and that is not ok. On my first read I completely sided with Suzy, now I'm not so sure. 

What I do know (kinda) is that Ripstein's fault system would side with Jane. Jane exercised appropriate care. If Suzy had been injured then perhaps Jane would have been at fault for not considering appropriate care for the risk of their actions to their own health, however since that injury didn't occur, Jane is not at fault. She took all appropriate care of a reasonable person when it came to her treatment of the men. She did not provoke them in anyway, other than wearing jewelry, which a reasonable person would agree is not provoking/invading on their liberties or security. When she kills them that is definitely a invasion on their interest in liberty but they were described as willing to murder her so in a way their deaths could be them bearing the cost of their intended injury. This is where I get into the murky water because it is all about intent. If Ripstein doesn't punish Jane for her intent to go out into the night and kill someone, then can Jane punish someone else for their intent to kill her? 

Of course killing is in the context of criminal law not torts but I think you can apply the same situation if you replace kill with "negligently harms" but that just doesn't roll off the tongue quite as well. I didn't agree with Judge Hand during the Posner reading because of the reasons that Ripstein gave of the inequality of harms against the poor and setting the standard of care based on the cost of care. But under Hand's formula Jane would be liable because her prevention of the accident was incredibly cheap and the likelihood of the accident was incredibly high. And that just seems right in this situation.

So my greater critiques of the fault system is that it doesn't account for intent, though I understand the impossibility of judging actions based on intent and the disconnect between your aims and their outcomes. I agree with the idea that intent not to harm doesn't absolve you of risk and therefore liability, but intent to harm shouldn't be ignored either, even if it fits within the care of a reasonable person. 

Another idea that connects a little bit, is one of the benefits that Ripstein cites of the fault system, that is incentivizes people to sue. But people can act with the intent of being able to sue later, which doesn't seem right. Ability to sue is an important function and Posner's account of who should sue/win is so flawed in my view. But I don't think that Ripstein's account does well in practice because sometimes the incentive to sue creates a chilling effect on people's expression of their liberty, in a way that upsets the balance between liberty to act and security. I don't have an answer on how to fix that, but something to think about.