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Common-Law Background Of Nineteenth-Century Tort Law, The , Robert J. Kaczorowski
Common-Law Background Of Nineteenth-Century Tort Law, The , Robert J. Kaczorowski
Faculty Scholarship
A century ago Oliver Wendell Holmes, Jr., examined the history of negligence in search of a general theory of tort. He concluded that from the earliest times in England, the basis of tort liability was fault, or the failure to exercise due care. Liability for an injury to another arose whenever the defendant failed "to use such care as a prudent man would use under the circumstances.” A decade ago Morton J. Horwitz reexamined the history of negligence for the same purpose and concluded that negligence was not originally understood as carelessness or fault. Rather, negligence meant "neglect or failure …
Costly Litigation And Legal Error Under Negligence, Keith N. Hylton
Costly Litigation And Legal Error Under Negligence, Keith N. Hylton
Faculty Scholarship
In this article, private enforcement under negligence when there is legal error and litigation is costly is examined. Ordover (1978) demonstrated that in a negligence regime in which there is no legal error and litigation is costly, equilibrium requires the presence of actors who refuse to obey the due-care standard. Accordingly, in such a negligence regime, an undercompliance equilibrium must result. Since the existence of litigation costs implies that the socially optimal level of care is greater than that required by the traditional Hand formula, which defines negligence as a failure to take care where the cost of taking care …