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Full-Text Articles in Law
Arkansas, Meet Tarasoff: The Question Of Expanded Liability To Third Persons For Mental Health Professionals, J. Thomas Sullivan
Arkansas, Meet Tarasoff: The Question Of Expanded Liability To Third Persons For Mental Health Professionals, J. Thomas Sullivan
Faculty Scholarship
No abstract provided.
Negligence And Two-Sided Causation, Keith N. Hylton, Haizhen Lin, Hyo-Youn Chu
Negligence And Two-Sided Causation, Keith N. Hylton, Haizhen Lin, Hyo-Youn Chu
Faculty Scholarship
We extend the economic analysis of negligence and intervening causation to "two-sided causation" scenarios. In the two-sided causation scenario the effectiveness of the injurer's care depends on some intervention, and the risk of harm generated by the injurer's failure to take care depends on some other intervention. We find that the distortion from socially optimal care is more severe in the two-sided causation scenario than in the one-sided causation scenario, and generally in the direction of excessive care. The practical lesson is that the likelihood that injurers will have optimal care incentives under the negligence test in the presence of …
Information And Causation In Tort Law: Generalizing The Learned Hand Test For Causation Cases, Keith N. Hylton
Information And Causation In Tort Law: Generalizing The Learned Hand Test For Causation Cases, Keith N. Hylton
Faculty Scholarship
This paper discusses the economics of causation in tort law, describing precise implications for precautionary incentives when courts are and are not perfectly informed. With precautionary incentives identified, we can ask whether the causation inquiry enhances welfare, and if so under what conditions. Perhaps the most important innovation applies to the Hand Formula. When causation is an issue, the probability of causal intervention should be part of the Hand test, and the generalized Hand test offers a method of distinguishing significant classes of causation cases. I close with implications for the moral significance of causation and for economic analysis of …
Negligence, Causation, And Incentives For Care, Keith N. Hylton, Haizhen Lin
Negligence, Causation, And Incentives For Care, Keith N. Hylton, Haizhen Lin
Faculty Scholarship
We present a new model of negligence and causation and examine the influence of the negligence test, in the presence of intervening causation, on the level of care. In this model, the injurer's decision to take care reduces the likelihood of an accident only in the event that some nondeterministic intervention occurs. The effects of the negligence test depend on the information available to the court, and the manner in which the test is implemented. The key effect of the negligence test, in the presence of intervening causation, is to induce actors to take into account the distribution of the …
New Private Law Theory And Tort Law: A Comment, Keith N. Hylton
New Private Law Theory And Tort Law: A Comment, Keith N. Hylton
Faculty Scholarship
This comment was prepared for the Harvard Law Review symposium on “The New Private Law,” as a response to Benjamin Zipursky’s principal paper on torts. I find Zipursky’s reliance on Cardozo’s Palsgraf opinion as a foundational source of tort theory troubling, for two reasons. First, Cardozo fails to offer a consistent theoretical framework for tort law in his opinions, many of which are difficult to reconcile with one another. Second, Palsgraf should be understood as an effort by Cardozo to provide greater predictability, within a special class of proximate cause cases, by reallocating decision-making power from juries to judges. It …
Minnesota Negligence Law And The Restatement (Third) Of Torts: Liability For Physical And Emotional Harms, Michael K. Steenson
Minnesota Negligence Law And The Restatement (Third) Of Torts: Liability For Physical And Emotional Harms, Michael K. Steenson
Faculty Scholarship
The purpose of this article is to provide a foundation for judges and lawyers, primarily in Minnesota, who are seeking to understand how the Third Restatement’s approach to negligence law fits with Minnesota negligence law. The first Part of the article examines the approach of the Third Restatement. Because decisions in other states applying the Third Restatement will be important for courts in Minnesota and elsewhere in deciding whether to apply the Third Restatement, the second Part examines early reports on the Third Restatement in Iowa, Nebraska, Arizona, Wisconsin, Tennessee, and Delaware.
Duty In Tort Law: An Economic Approach, Keith N. Hylton
Duty In Tort Law: An Economic Approach, Keith N. Hylton
Faculty Scholarship
Theories of tort law have focused on the breach and causation components of negligence, saying little if anything about duty. This paper provides a positive economic theory of duty doctrine. The theory that best explains duty doctrines in tort law is the same as the theory that explains strict liability doctrine. The core function of both sets of doctrines is to regulate the frequency or scale of activities that have substantial external effects. Strict liability aims to suppress or tax activities that carry unusually large external costs. Duty doctrines, especially those relieving actors of a duty of care, serve several …