Theories of Negligence

Question 1

Kant

Answer 1

• doctrine of virtue
• forces of love and respect draw us together and apart
• never treat others merely as means to an end

Question 2

Fried - Right and Wrong

Answer 2

• draws heavily from Kant
• non-utilitarian take on BPL balancing: when you balance, you’re trying to do what’s morally right
• we permit non-negligent risky conduct b/c of fairness (ex: everyone drives a car)

Question 3

What does Fried think is wrong w/ negligence?

Answer 3

• negligence = harming someone else through unreasonable risk
• means treating others as objects

Question 4

Fried View on BPL

Answer 4

• if anticipated harm outweighs the value of the ends (or if no right to ignore such harm) then it’s wrong to proceed -> if balance comes out against the conduct, it’s just as wrong to proceed as if the harm were intended
• actor violates duty not to take a risk that is undue for an insufficient goal

Question 5

2 Alternative Theories to Justify Fault-Based Liability

Answer 5

• Right/Fairness - Backwards-looking argument
• Utility - Forward-look argument
• note that disagreement between these two leads to different outcomes

Question 6

Right/Fairness View of Fault-Based Liability

Answer 6

• B should equal PL b/c there should be a mutuality of risk

- Fried - balancing test based on idea of respect for others

Question 7

Fried - Right/Fairness View of Fault-Based Liability

Answer 7

• everybody has right to impose equal risk on others, but b/c there’s no such thing as a risk meter, we use BPL formula as a proxy -> reasonable conduct is required
• if your conduct isn’t reasonable, you are drawing too much from the risk pool
• negligence = way of balancing amount of risk different parties withdraw from risk pool - means people can only impose risk where it is justified
• level of equally imposed risk = mutually acceptable, vs exceeding it can lead to fault liability

Question 8

Fried - Risk Pool

Answer 8

• all persons by virtue of their interpersonal actions have an equal stake in a common pool of risks which they may impose upon each other and which they may draw on when pursuing ends of the appropriate degree of seriousness

Question 9

Utility View of Fault-Based Liability

Answer 9

• Posner
• tort law has a goal: to bring about optimum level of safety and accidents
• regulatory aim is B=PL
• B should equal PL b/c if it’s less or more, resources are being wasted
• note that Posner argues for this in stranger relationships (vs. in non-stranger relationships, can use market approach + let parties find own BPL)

Question 10

Posner - Aim

Answer 10

• efficient allocation of resources
• optimization of BPL
• not very concerned about distribution
• no emphasis on fairness

Question 11

Posner’s Two Core Aerguments

Answer 11

• hand formula is used to define the right level of safety and accident
• negligence liability is a sufficient societal mechanism (legal institution) for getting risk to the optimal level -> efficacy of the negligence system as a regulatory system