Charles Korsmo, ‘Tailoring the Negligence Standard and a New Model of Injurer Skill’

Abstract:
This paper develops a new economic model of negligence. The conventional law and economics model assumes that individuals possessing greater skill at a given activity experience a lower marginal cost of taking precautions against accidents – assuming, for example, that a good driver can avoid additional accidents more cheaply than a bad driver. This assumption drives many of the fundamental conclusions of economic analysis of tort law, yet is wrongheaded and misleading in many common accident scenarios. As a result, the conventional model produces predictions that are often sharply at odds with experience and standard tort doctrine. In this article, I develop an alternative model that better reflects reality and doctrine. In place of the conventional model’s assumption, the new model assumes that an individual possessing greater skill at a given activity causes fewer accidents at a given level of care – that is, a good driver causes fewer accidents than a bad driver exercising the same amount of care. This model provides a new and superior interpretation of how tort law treats disabilities and professional skill, and has the potential to change the way these important topics are conceptualized, taught, and ultimately adjudicated. The model also provides novel and startling insights into the desirability and feasibility of departing from a uniform negligence standard in favor of a standard of care that is tailored to the individual defendant. These insights open up fertile new ground for further inquiry and debate.

Korsmo, Charles, Tailoring the Negligence Standard and a New Model of Injurer Skill (March 30, 2012).

First posted 2012-05-15 07:21:05

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