Law Commons^™

The Hand Formula In The Draft "Restatement (Third) Of Torts": Encompassing Fairness As Well As Efficiency Values, Kenneth W. Simons

Vanderbilt Law Review

The definition of negligence in the draft Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft") employs a version of the Learned Hand formula. According to the chief Reporter, Professor Gary Schwartz, who is responsible for this draft, the Hand formula can accommodate both economic and fairness accounts of negligence law.

Is he correct? I will argue that he is, and that the Hand formula, suitably defined and explained, is indeed an appropriate general criterion for negligence. At the same time, however, the current Discussion Draft is deficient in some respects. It does not adequately allay the fears of …

The Trouble With Negligence, Kenneth S. Abraham

Vanderbilt Law Review

The concept of negligence dominates tort law. Most tort cases are about negligence. Much tort law scholarship over the past several decades has been about the meaning of negligence. The new draft Restatement (Third) of Torts: General Principles ("Discussion Draft") devotes the vast majority of its first volume to negligence. And the idea of negligence as a liability standard is highly attractive to both the courts and commentators.

All the attention that negligence receives is not surprising, given the unattractiveness of the alternatives. Imposing liability only when the injurer intended harm seems unduly limited, in that it absolves injurers of …

The Theory Of Tort Doctrine And The Restatement (Third) Of Torts, Keith N. Hylton

Vanderbilt Law Review

Though at times a source of controversy, the American Law Institute performs an enormous public service through its Restatement projects. One of the initial hurdles any such project confronts is whether it should aim to clarify and illuminate the law, or to push the law in a certain direction. I think the Restatement project is most productive when it aims to clarify and illuminate rather than guide or control the development of legal doctrine. Efforts to guide and control risk producing questionable interpretations of the aw, undermining the value of the Restatement in the long run. Fortunately, the Restatement of …

Cost-Benefit Analysis And The Negligence Standard, Stephen R. Perry

Vanderbilt Law Review

In his commentary on the proposed Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft"), Stephen Gilles does an excellent job of analyzing the role of cost- benefit analysis in the characterization of reasonable care in previous restatements, and also of tracing the relationship between that characterization and contemporaneous scholarly work. This is a necessary prelude to any attempt to reformulate the content of the negligence standard in a Restatement (Third), and I think that Gilles' work will prove to be exceptionally helpful in that regard. Given the limited space I have available for my own comments, however, I …

On Determining Negligence: Hand Formula Balancing, The Reasonable Person Standard, And The Jury, Stephen G. Gilles

Vanderbilt Law Review

trial practice ensure that the operational meaning of negligence is largely determined by juries in particular cases, rather than by the doctrines stated in appellate decisions (and restated in Restatements of Torts). Even if these practices are misguided, it is clear that no Restatement could repudiate them without drastically departing from the American Law Institute's ("ALI") traditional position that Restatements are predominantly positive and only incrementally normative.

On the other hand, the conception of negligence articulated in the Restatement (First) of Torts ("Restatement (First)")--which was carried over virtually unchanged into the Restatement (Second) of Torts ("Restatement (Second)"), and hence has …

The Theory Of Enterprise Liability And Common Law Strict Liability, Gregory C. Keating

Vanderbilt Law Review

The fundamental claim that the Restatement (Third) of Torts: General Principles makes about strict liability is striking and bold. The Restatement (Third) claims that there are only special instances of strict liability. Negligence is a general legal principle, but strict liability is a set of particular doctrines. Curiously, however, the Restatement (Third) also takes the position that strict liability is a unified form of liability; it characterizes strict liability as liability for the characteristic risks of an activity.' So the Restatement (Third)'s claim that strict liability is a set of special cases seems to be a claim that strict liability …

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 …

The Unexpected Persistence Of Negligence, 1980-2000, G. Edward White

Vanderbilt Law Review

In Tort Law in America: An Intellectual History, I made the general argument that the development of tort law in the nineteenth and twentieth centuries had been more influenced by ideas than previous scholars had suggested.' In making that argument I employed the terms "ideas" and "influence" at multiple levels of generality. The argument would perhaps have been better under- stood if I had more clearly particularized the specificity and generality of my claims about ideas as causal agents.

At the most specific level, I employed the term "ideas" to refer to particular doctrinal and policy proposals for tort law …