The Emergence of Cost-Benefit Balancing in English Negligence Law

The subject of this Article is whether, and to what extent, modern English negligence law relies on cost-benefit balancing. Some scholars have claimed that actors are subject to liability under English negligence law when they create a substantial foreseeable risk of harm to others, without regard to the costs of avoiding that risk. A close look at the leading English decisions shows that this account is incorrect. Reasoning from the fundamental principle that negligence is a failure to act as a reasonably prudent person would have acted, the English judiciary has repeatedly endorsed the proposition that a reasonable person balances the costs and benefits of avoiding foreseeable risks of harm to others. The practical importance of this proposition varies: in some contexts, such as workplace accidents, English judges—who both find the facts and apply the law in negligence cases—routinely and explicitly engage in balancing: in other contexts, such as automobile accidents, some judges balance, while others simply imagine what a reasonable person would have done. In no context, however, is balancing forbidden and liability imposed solely for creating a substantial foreseeable risk. On the other hand, when they do balance, English judges often say that a precaution should be taken unless its costs are disproportionately (not merely marginally) greater than its benefits. English law thus makes cost-benefit balancing a major component of the reasonable person standard, while leaving substantial room for divergent intuitions about fault and responsibility

Why the Right to Elective Abortion Fails \u3cem\u3eCasey\u3c/em\u3e\u27s Own Interest-Balancing Methodology—and Why It Matters

Casey adopted a new, interest-balancing framework for the right to elective abortion while preserving the core of that right. But by declining to address whether the right to elective abortion can be justified in interest-balancing terms, Casey opened the door to unduly stringent applications of the undue-burden standard and, no less importantly, to future extensions of the right. By ruling that the state’s interest in protecting pre-viable fetal life outweighs the woman’s interest in an elective abortion, while preserving that right on stare decisis grounds, the Court could ensure that the balance it struck in Casey—and that “was central to its holding”—is maintained and consistently enforced

On Determining Negligence: Hand Formula Balancing, the Reasonable Person Standard, and the Jury

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\u27s ( 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 defined the ALI\u27s position for almost seventy years-has had an important influence on the black letter law, on appellate review of jury verdicts, and on directed verdict practice in the trial courts.\u27 Moreover, one might reasonably expect that courts will rely on the Discussion Draft\u27s provisions in choosing jury instructions in negligence cases. This expectation, however, is undercut by the large gap between con- temporary pattern jury instructions, which typically tell the jury to apply the reasonable person standard without explaining or defining it, and the Restatement and appellate cases, which typically interpret negligence in cost-benefit terms. Experience thus suggests that the Discussion Draft will have little impact on the negligence instructions juries receive. That may depend, though, on how aggressive the Discussion Draft is in recommending that courts instruct juries in accord with its formulations. In due course, I will explore what the Reporter, Gary Schwartz, has done on this score, and argue that it would be appropriate to do more

Why the Right to Elective Abortion Fails \u3cem\u3eCasey\u3c/em\u3e\u27s Own Interest-Balancing Methodology—and Why It Matters

Casey adopted a new, interest-balancing framework for the right to elective abortion while preserving the core of that right. But by declining to address whether the right to elective abortion can be justified in interest-balancing terms, Casey opened the door to unduly stringent applications of the undue-burden standard and, no less importantly, to future extensions of the right. By ruling that the state’s interest in protecting pre-viable fetal life outweighs the woman’s interest in an elective abortion, while preserving that right on stare decisis grounds, the Court could ensure that the balance it struck in Casey—and that “was central to its holding”—is maintained and consistently enforced

The Judgment-Proof Society

This article presents the first article-length treatment of the legal rules that enable uninsured and underinsured individuals to escape tort liability by sheltering their income and assets from collection. These legal barriers to collecting tort judgments include limits on wage garnishment, homestead exemptions, retirement-plan exemptions, discharge in bankruptcy, spendthrift trusts, offshore asset protection trusts, and more. Of course, indigent persons would be judgment-proof even without these rules, because they have so few assets and so little income. Contrary to the myth of personal tort liability that is standard in torts scholarship and teaching, however, these legal rules enable huge numbers of working-class, middle-class, and affluent people to be (or become) judgment-proof despite the fact that they have decent incomes and significant assets that could be used to satisfy a tort judgment. The article describes the most important of these judgment-proofing rules in depth, demonstrates that they seriously undermine the deterrence and corrective justice goals of tort law, argues that they lack any persuasive justification, proposes specific reforms to reduce the judgment-proof problem, and evaluates the political feasibility of this agenda. It also discusses the important role of liability insurance in dealing with the residual threat of personal tort liability, and suggests ways in which increased use of mandatory liability insurance could contribute to solving the judgment-proof problem