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The Uneasy Case for Comparative Negligence

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  • Oren Bar-Gill
  • Omri Ben-Shahar
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    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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    Bibliographic 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

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    Handle: RePEc:oup:amlawe:v:5:y:2003:i:2:p:433-469

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    Cited by:
    1. 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.
    2. Ram Singh & Francesco Parisi, 2010. "The Efficiency Of Comparative Causation," Working Papers id:2681, eSocialSciences.
    3. G. Dari Mattiacci & G.G.A. de Geest, 2004. "The Filtering Effect of Sharing Rules," Working Papers 04-17, Utrecht School of Economics.
    4. Allan M Feldman & Ram Singh, 2008. "Comparative Vigilance: a Simple Guide," Working Papers 2008-11, Brown University, Department of Economics.
    5. Allan M Feldman & Ram Singh, 2008. "Comparative Vigilance," Working Papers 2008-9, Brown University, Department of Economics.
    6. Kim, Jeonghyun & Feldman, Allan M., 2006. "Victim or injurer, small car or SUV: Tort liability rules under role-type uncertainty," International Review of Law and Economics, Elsevier, vol. 26(4), pages 455-477, December.
    7. Miceli Thomas J., 2006. "On Negligence Rules and Self-Selection," Review of Law & Economics, De Gruyter, vol. 2(3), pages 349-361, October.
    8. Pablo Salvador-Coderch & Nuno Garoupa & Carlos Gómez-Ligüerre, 2009. "Scope of liability: the vanishing distinction between negligence and strict liability," European Journal of Law and Economics, Springer, vol. 28(3), pages 257-287, December.
    9. Ram Singh, 2005. "Comparative Causation -- A Re-examination," Working papers 139, Centre for Development Economics, Delhi School of Economics.
    10. FRANCESCO PARISI & Ram Singh, 2009. "Efficiency Of Equilibria Under Comparative Causation," Working papers 179, Centre for Development Economics, Delhi School of Economics.
    11. Ram Singh, 2006. "On the Existence and Efficiency of Equilibria under Liability Rules," Working papers 150, Centre for Development Economics, Delhi School of Economics.
    12. G. Dari Mattiacci & Francesco Parisi, 2003. "The Economics of Tort Law: A Précis," Working Papers 03-13, Utrecht School of Economics.

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