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Non-Utilitarian Negligence Norms And The Reasonable Person Standard, Steven Hetcher

Vanderbilt Law Review

Informal social norms play a crucial, albeit largely unheralded, role in negligence law. The reasonable person standard is an empty vessel that jurors fill with community norms. Jurors do this rather than performing cost-benefit analysis. The proposed Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft") misses both of these points. It dramatically overstates the role of utilitarian, cost-benefit analysis in the reasonable person standard, and it dramatically understates the role of non-utilitarian negligence norms in this standard. This Article will explore these twin failings of the Discussion Draft.

The negligence cause of action makes up the lion's share …