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The Uneasy Case for Comparative Negligence

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Author Info
Oren Bar-Gill
Omri Ben-Shahar
Abstract

This article questions, and in some contexts disproves, the validity of the efficiency justifications for the comparative negligence rule. One argument in the literature suggests that comparative negligence is the superior rule in the presence of court errors. The analysis here shows the analytical flaw in this claim and conducts numerical simulations -- a form of synthetic "empirical" tests -- that prove the potential superiority of other rules. The second argument in the literature in favor of the comparative negligence rule is based on its alleged superior ability to deal with private information. This article develops a general approach to liability rules as mechanisms that induce self-selection among actors. It then shows that self-selection can occur, not only under comparative negligence, but also under every other negligence rule. These conclusions weaken the efficiency explanation for the growing appeal of the "division-of-liability" principle within tort law and beyond. Copyright 2003, Oxford University Press.

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Publisher Info
Article provided by Oxford University Press in its journal American Law and Economics Review.

Volume (Year): 5 (2003)
Issue (Month): 2 (August)
Pages: 433-469
Download reference. The following formats are available: HTML (with abstract), plain text (with abstract), BibTeX, RIS (EndNote, RefMan, ProCite), ReDIF
Handle: RePEc:oup:amlawe:v:5:y:2003:i:2:p:433-469

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Postal: Oxford University Press, Great Clarendon Street, Oxford OX2 6DP, UK
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  1. Ram Singh, 2006. "On the Existence and Efficiency of Equilibria Under Liability Rules," NBER Working Papers 12625, National Bureau of Economic Research, Inc. [Downloadable!] (restricted)
    Other versions:
  2. repec:bep:rlecon:3:2007:2:8 is not listed on IDEAS
  3. Allan M. Feldman & Jeonghyun Kim, 2003. "Victim or Injurer:Negligence-Based Liability Rules Under Role-Type Uncertainty, With An Extension to Collisions Of Different-Sized Vehicles," Working Papers 2003-17, Brown University, Department of Economics. [Downloadable!]
  4. Ram Singh, 2005. "Comparative Causation -- A Re-examination," Working papers 139, Centre for Development Economics, Delhi School of Economics. [Downloadable!]
  5. Allan M Feldman & Ram Singh, 2008. "Comparative Vigilance," Working Papers 2008-9, Brown University, Department of Economics. [Downloadable!]
    Other versions:
  6. Giuseppe Dari-Mattiacci & Gerrit de Geest, 2004. "The Filtering Effect of Sharing Rules," Working Papers 04-17, Utrecht School of Economics. [Downloadable!]
    Other versions:
  7. Francesco Parisi & Giuseppe Dari-Mattiacci, 2003. "The Economics of Tort Law: A Précis," Working Papers 03-13, Utrecht School of Economics. [Downloadable!]
  8. Thomas J. Miceli, 2006. "On Negligence Rules and Self-Selection," Working papers 2006-26, University of Connecticut, Department of Economics. [Downloadable!]
  9. Allan M Feldman & Ram Singh, 2008. "Comparative Vigilance: a Simple Guide," Working Papers 2008-11, Brown University, Department of Economics. [Downloadable!]
  10. Francesco Parisi & Ram Singh, 2009. "The Efficiency of Comparative Causation," Working papers 179, Centre for Development Economics, Delhi School of Economics. [Downloadable!]
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This page was last updated on 2009-11-19.

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