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Responsibility In Negligence: Why The Duty Of Care Is Not A Duty “To Try”, Ori J. Herstein
Responsibility In Negligence: Why The Duty Of Care Is Not A Duty “To Try”, Ori J. Herstein
Cornell Law Faculty Publications
Even though it offers a compelling account of the responsibility-component in the negligence standard—arguably the Holy Grail of negligence theory—it is a mistake to conceive of the duty of care in negligence as a duty to try to avert harm. My goal here is to explain why and to point to an alternative account of the responsibility-component in negligence.
The flaws in conceiving of the duty of care as a duty to try are: failing to comport with the legal doctrine of negligence and failing as a revisionary account for the law; overly burdening autonomy and restricting the liberty of …