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The Uneasy Case for Comparative Negligence

Author

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  • 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.

Suggested Citation

  • Oren Bar-Gill & Omri Ben-Shahar, 2003. "The Uneasy Case for Comparative Negligence," American Law and Economics Review, Oxford University Press, vol. 5(2), pages 433-469, August.
  • Handle: RePEc:oup:amlawe:v:5:y:2003:i:2:p:433-469
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    Citations

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    Cited by:

    1. Parisi Francesco & Singh Ram, 2010. "The Efficiency of Comparative Causation," Review of Law & Economics, De Gruyter, vol. 6(2), pages 219-245, September.
    2. De Mot, Jef & Faure, Michael & Klick, Jonathan, 2015. "Appellate caseload and the switch to comparative negligence," International Review of Law and Economics, Elsevier, vol. 42(C), pages 147-156.
    3. Feldman Allan M. & Singh Ram, 2011. "A Simple Guide to Comparative Vigilance," Asian Journal of Law and Economics, De Gruyter, vol. 2(3), pages 1-24, October.
    4. 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.
    5. Giuseppe Dari-Mattiacci & Gerrit De Geest, 2005. "The Filtering Effect of Sharing Rules," The Journal of Legal Studies, University of Chicago Press, vol. 34(1), pages 207-237, January.
    6. Gomez, Fernando & Penalva, Jose, 2015. "Tort reform and the theory of coordinating tort and insurance," International Review of Law and Economics, Elsevier, vol. 43(C), pages 83-97.
    7. Singh, Ram, 2007. "‘Causation-consistent’ liability, economic efficiency and the law of torts," International Review of Law and Economics, Elsevier, vol. 27(2), pages 179-203.
    8. Ram Singh, 2006. "On the Existence and Efficiency of Equilibria under Liability Rules," Working papers 150, Centre for Development Economics, Delhi School of Economics.
    9. Allan M. Feldman & Ram Singh, 2009. "Comparative Vigilance," American Law and Economics Review, Oxford University Press, vol. 11(1), pages 134-161.
    10. Ram Singh, 2005. "Comparative Causation -- A Re-examination," Working papers 139, Centre for Development Economics, Delhi School of Economics.
    11. Miceli Thomas J., 2006. "On Negligence Rules and Self-Selection," Review of Law & Economics, De Gruyter, vol. 2(3), pages 349-361, October.
    12. Giuseppe Dari-Mattiacci & Bruno Lovat & Francesco Parisi, 2014. "Loss-Sharing between Nonnegligent Parties," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 170(4), pages 571-598, December.
    13. repec:elg:eechap:15325_17 is not listed on IDEAS
    14. Yongmin Chen & Xinyu Hua, 2017. "Competition, Product Safety, and Product Liability," Journal of Law, Economics, and Organization, Oxford University Press, vol. 33(2), pages 237-267.
    15. 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.
    16. Guiseppe Dari Mattiaci & F. Parisi, 2003. "The Economics of Tort Law: A Précis," Working Papers 03-13, Utrecht School of Economics.
    17. Allan M Feldman & Ram Singh, 2008. "Comparative Vigilance: a Simple Guide," Working Papers 2008-11, Brown University, Department of Economics.
    18. Allan M. Feldman & Ram Singh, 2009. "Comparative Vigilance," American Law and Economics Review, Oxford University Press, vol. 11(1), pages 134-161.
    19. 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.
    20. Florian Baumann & Tim Friehe & Inga Hillesheim, 2015. "Status and Liability," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 171(2), pages 285-307, June.
    21. FRANCESCO PARISI & Ram Singh, 2009. "Efficiency Of Equilibria Under Comparative Causation," Working papers 179, Centre for Development Economics, Delhi School of Economics.

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