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Abstract:
This article explores different dimensions of the concept of negligence in the law. The first sections focus on the fundamental distinction between conduct negligence (unreasonable creation of a risk of harm), a conception that dominates tort law; and cognitive negligence (unreasonable failure to be aware of a risk, either through inadvertence or mistake), a conception that is much more important in criminal law. The last major section identifies five significant institutional functions served by a legal negligence standard: expressing a legal norm in the form of a standard rather than a rule; personifying fault; empowering the trier of fact to give content to the standard; creating a secondary legal norm parasitic on a primary legal norm; and distinguishing grades of fault. These functions reveal the distinctive significance of negligence, but also disclose numerous problems that the use of such a legal standard can pose.

Careful analysis of these different dimensions of negligence clarifies certain misconceptions and has important implications. For example, the question whether "negligence" is an appropriate minimum standard of liability (e.g., for criminal punishment) is unanswerable until we identify the type of negligence at issue (conduct or cognitive) and its role in norm-definition (providing a general standard of liability for harm-creation or, instead, merely an interstitial standard applying only to some elements of a crime). Similarly, comparing negligence to supposedly "more serious" forms of fault, such as recklessness, knowledge, and purpose, is treacherous and sometimes amounts to comparing apples and oranges.

A better understanding of the different conceptions of negligence and of the distinctive institutional functions of a legal negligence standard can facilitate the development of more coherent, and more justifiable, fault criteria in criminal law, torts, and other legal domains.

negligence, risk, reasonable, reasonableness, fault

Abstract:
The draft Restatement Third of Torts' definition of negligence employs a version of the Learned Hand formula. According to the chief Reporter, the Hand formula can accommodate both economic and fairness accounts of negligence law.

Is he correct? I argue that he is, and that the Hand formula, suitably defined and explained, is indeed an appropriate general criterion for negligence. The draft Restatement is also correct in largely rejecting a "reasonable person" criterion of negligence. At the same time, however, the current draft is deficient in some respects. It does not adequately allay the fears of those who worry that the Hand formula will inevitably receive a narrow economic interpretation. It should more clearly underscore that negligence is a species of fault. And it should clarify the unavoidable value judgments inherent in a negligence determination, value judgments that are no less necessary or desirable when the Hand formula is employed to make that determination. At the end of this paper, I suggest some specific Restatement language that might remedy these deficiencies.

With respect to the evaluative dimension of negligence, the paper examines four different approaches: willingness-to-pay, utilitarian preference-satisfaction, social welfare maximization, and nonutilitarian (or not exclusively utilitarian). The last two are the most plausible and most consistent with actual doctrine.

A determination that an actor is negligent reflects a value judgment at two levels. It expresses the judgment that the actor should have done something different, in light of the foreseeable risks of his conduct. It also presupposes value judgments about the relevant marginal advantages and disadvantages of taking such a precaution. The task of conscientiously identifying and clarifying the appropriate value judgments is not easy, but it is unavoidable if negligence is to remain a justifiable ground of tort liability.

Abstract:
Despite calls for the abolition of assumption of risk, and for its "merger" within comparative fault, the doctrine survives in some jurisdictions, and its spirit endures in most, if not all. The consensual rationale underlying assumption of risk is distinctive, important, and not easily reducible to the paradigm of victim fault. That rationale helps shape many of the no duty and limited duty rules in negligence law. Moreover, a similar rationale also underlies consent to an intentional tort. To be sure, whether the victim acted "reasonably" seems to be more relevant when the injurer is a negligent rather than an intentional tortfeasor. But this difference largely reflects only contingent, empirical differences in the typical fact pattern when a victim "consents" to negligence as opposed to an intentional tort.

Whether a formal defense of assumption of risk of an injurer's negligence should also be retained, however, is a close question. An affirmative answer is most plausible in two narrow categories - when the victim fully prefers the risk, and when the victim insists on a relationship with the injurer. A plaintiff fully prefers a risk if he actually favors the tortious option that defendant provided to the nontortious option that defendant could have provided. (Suppose a passenger encourages a driver to speed.) And a plaintiff insists on a relationship if he requests that defendant permit him to confront a tortious risk when defendant could decline a continuing relationship. (Suppose a stranded motorist requests a ride from a drunk driver.)

But the traditional view that a victim should obtain no recovery if he voluntarily and knowingly elects to confront a risk is excessively broad and is not justified by the state's legitimate interests in furthering or respecting human autonomy.

assumption of risk, contributory negligence, comparative fault

Abstract:
The Model Penal Code approach to mens rea was a tremendous advance. The MPC carefully defines a limited number of mens rea terms, firmly establishes element analysis in place of offense analysis, and recognizes that the doctrine of mistake is part and parcel of the basic analysis of mens rea.

However, a revised Code could improve the drafting of the mens rea provisions in a number of respects:

* Clarify how to distinguish result, circumstance, and result elements

* Simplify the definitions of knowledge and purpose

* Perhaps eliminate the category of mens rea as to conduct

* Clarify the fact/law distinction, and especially the distinction between two types of mistakes of law - mistakes of governing law and mistakes of legal element - that the MPC treats differently

* Clarify the meaning of the "reasonable person" test

* Clarify the definition of willful blindness

Moreover, more fundamental questions arise with the central concept of recklessness. A reckless actor is one who must be
aware of a "substantial and unjustifiable" risk; are these independent or interdependent requirements? What type or degree of consciousness is required? Of what, precisely, must the actor be aware? Does a strict "consciousness" requirement undermine the rule that ignorance of law is no excuse? And should consciousness extend to "latent" knowledge that the actor could call up if he were to consider the matter even for a moment?

Furthermore, does the MPC hierarchy always work? Is knowledge really always worse than recklessness? Is recklessness always worse than negligence? Should culpable indifference or a
similar mental state be added to the hierarchy? Are the MPC categories too cognitive, or too descriptive, or too rigid? Finally, the conclusion examines some theoretical and pragmatic implications of the analysis.

mental state, mens rea, criminal law, Model Penal Code, reckless, recklessness

Abstract:
What is the proper role of cost-benefit analysis in understanding the tort concept of negligence or reasonable care? A straightforward question, you might think. But it is a question that manages to elicit groans of exasperation from those on both sides of the controversy.

For most utilitarians and adherents to law and economics, the answer is obvious: to say that people should not be negligent is to say that they should minimize the sum of the costs of accidents and the costs of preventing accidents. Under the economic formulation of the famous Learned Hand test, they should take a precaution if but only if the marginal costs (or burden, B) of that precaution are less than its marginal benefits (in the form of reduced risks of injury, measured by multiplying the probability (P) of the injury times the magnitude (L) of the injury if it occurs). If B>PxL, it would be absurd to require the greater expenditure, B.

For many advocates of a fairness, corrective justice, rights-based, or contractualist perspective, the opposite answer is equally obvious. Permitting a person to impose risks of harm on others merely because he would thereby obtain a benefit (or would otherwise incur a burden) greater than the discounted value of the harm he might inflict, amounts to authorizing him to dump the costs of his risky activities on innocent victims. To permit this type of sacrifice of individuals on the altar of aggregate social welfare is morally abhorrent.

Both sets of criticism have important elements of truth. Neither an unqualified cost-benefit analysis nor an unqualified rights-based rejection of tradeoffs is defensible - either as a description of tort doctrine and practice or as a normative prescription. However, a qualified (sensitive) consequentialist approach can accommodate legitimate criticisms of cost-benefit analysis: the consequentialist can launder preferences, and can consider the distribution of risk both in the social welfare calculus and in determining whether to compensate. At the same time, a qualified (tough-minded) deontological approach can accommodate the legitimate need to recognize tradeoffs: the deontologist can permit intrapersonal but not interpersonal aggregation of risks and benefits, can apply the concept of threshold deontology to risky activity, and can consider individual rather than population risk. I conclude that the formulation of the Learned Hand test found in the Restatement Third of Torts is broad enough to encompass each of these qualified approaches.

negligence, cost-benefit, reasonable, reasonable care, risk, Learned Hand, corrective justice

Abstract:
The conventional mental state or culpability categories recognized in the criminal law are purpose, knowledge, recklessness, and negligence. Should the law also recognize as an additional category some version of "culpable indifference"? Yes, according to a number of scholars; and some courts have also recognized this category, especially in the context of depraved heart murder. Culpable indifference can describe a modestly culpable mental state, sufficient for manslaughter liability (or, with respect to a circumstance element, roughly equivalent in seriousness to cognitive recklessness). It can also identify a more aggravated form of culpability, sufficient for murder (or, with respect to a circumstance element of an offense, roughly equivalent in seriousness to knowledge).

But some critics raise an important objection: punishing those who display culpable indifference punishes for "character" rather than for "acts," and is no more justifiable than punishing a person for a free-floating mental state (for example, punishing a pure bystander who takes perverse delight in another's commission of a crime). By contrast, punishment for acts accompanied by the more conventional mental states of purpose, knowledge, and recklessness supposedly is not subject to this objection.

This paper explores when culpable indifference is indeed especially problematic in punishing merely for an attitude disconnected from conduct, and when it is not. The connection problem, we will see, is much more manageable on some formulations of culpable indifference. At the same time, this problem is hardly unique to culpable indifference; connection problems arise to a surprising extent with the conventional mental states of purpose, knowledge, and recklessness, as well.

Two types of culpable indifference standards are distinguished. The first is a cognitive counterfactual criterion, and it asks whether the actor would have chosen to create a risk even if he had a higher degree of confidence (than he actually had) that it would result in harm. This approach must be carefully circumscribed in order to avoid the "punishment merely for character" objection. The second type of culpable indifference standard is an idealized counterfactual criterion, and it asks whether (and to what extent) the actor's conduct falls short of what an idealized, non-indifferent person would do. This approach does not pose the "punishment for character" objection; however, it raises serious problems of vagueness. To some extent, these problems can be overcome by articulating more specific, multiple criteria of culpable indifference (for example, the actor's intent to create a risk, or his participation in an immoral or illegal activity, or, as a mitigating factor, his efforts to avoid harm).

punishment, mental state, mens rea, blame, culpability, recklessness, concurrence

Abstract:
The reasonable person test is often employed in criminal law doctrine as a criterion of cognitive fault: Did the defendant unreasonably fail to appreciate a risk of harm, or unreasonably fail to recognize a legally relevant circumstance element (such as the nonconsent of the victim)? But it is sometimes applied more directly to conduct: Did the defendant depart sufficiently from a standard of reasonable care, e.g. in operating a motor vehicle, that he deserves punishment? A third version of the reasonable person criterion, which has received much less attention, asks what degree of control a reasonable person would have exercised. Many criminal acts occur in highly emotional, stressful, or emergency situations, situations in which it is often both unrealistic and unfair to expect the actor to formulate beliefs about all of the facts relevant to the legality or justifiability of his conduct. A "reasonable degree of self-control" criterion is sometimes the best criterion for embracing these contextual factors.

In self-defense, for example, it is conventional to ask whether the actor believes, and whether a reasonable person would believe, each of the following facts: (a) an aggressor was threatening him with harm, (b) that harm would be of a particular level of gravity, (c) his use of force in response would prevent that harm, (d) the level of responsive force he expects to employ would be of a similar level of gravity, (e) if the force was not used, the threatened harm would occur immediately, and (f) no nonviolent or less forceful alternatives were available whereby the threat could be avoided. United States law typically requires an affirmative answer to each of these questions. Yet in many cases, an actor threatened with harm will actually have no beliefs at all about most of these matters. It would be unfair to deny a full defense to all such actors. At the same time, we should still hold such an actor to a normative standard of justifiable behavior. Specifically, this essay suggests that we reformulate the reasonableness criterion and require this type of actor to exercise a reasonable degree of self-control in response to a threat of force.

Crime, Criminal Law, Self-Defense, Justification, Culpability, Reasonable Person

Abstract:
This article makes six points. First, under any plausible normative perspective, the distinction between mistake (and ignorance) of criminal law and mistake of fact must at least sometimes be drawn. Second, the fundamental distinction is between a mistake about the state's authoritative statement of what is prohibited ("M Law"), and a mistake about whether that prohibitory norm is instantiated in a particular case ("M Fact"). Third, when an actor makes a mistake about an evaluative criterion whose content the fact-finder has discretion to elaborate, it is impossible both to allow this discretion and to faithfully realize a jurisdiction's policy of treating M Fact and M Law differently. Fourth, the claim that every unreasonable M Fact is really a M Law elides important differences between the two kinds of mistake. Fifth, various borderline objections, such as the famous Mr. Fact/Mr. Law example, do not undermine the fundamental distinction, although in rare instances, they do constitute genuine counterexamples that do not effectuate the principles and policies that the distinction ordinarily serves; and even here, they are exceptions that prove (the rationale for) the rule. Sixth, specification or evolution of a criminal law norm, such as the criterion for nonconsent in rape law, can convert a legally relevant M Fact into a legally irrelevant M Law. This phenomenon does not undermine the fundamental distinction between these types of mistake; to the contrary, it reveals the significance of that distinction.

Mistake of law, Mistake of fact, Crime, Punishment

Abstract:
Some intentional tort doctrines have developed in intriguing ways since the Restatement Second was published, and other doctrines remain contentious or obscure. For example, disagreement persists about whether the tort of battery requires merely the (single) intent to make a nonconsensual contact, or the (dual) intent both (1) to contact and (2) either to harm or to offend. The single intent view is much more plausible; the dual intent view cannot make much sense of the liability of well-intentioned doctors for battery if they exceed the patient's consent, or the liability of pranksters, or the well-accepted doctrine of apparent consent.

From a broader perspective, we should beware of the simplistic picture of intentional law in which "intentional wrongdoers" are those who exhibit the most serious level of fault, relative to the fault of negligent and strictly liable tortfeasors. Although doctrinal and practical consequences do follow from the bare characterization of a tort as intentional, in many contexts this simple view distorts the underlying legal phenomena, or fails to offer a plausible justification.

The first ("apples and oranges") problem is with the assumption that "intentional" torts invariably or systematically exhibit a more serious degree of fault than torts of negligence display. Many actual tort doctrines, including even battery, belie this assumption.

The second problem is (a lack of) generality: intentional tort law is not organized into a series of straightforward umbrella rules, e.g., prohibiting intentionally causing physical harm, intentionally causing emotional harm, and intentionally causing economic harm. Nor would streamlining intentional tort doctrine in this manner be realistic or justifiable (e.g., the distinct protections in such varied torts as false imprisonment, invasion of privacy, and defamation cannot be understood as merely salient instances of a general norm against unjustified intentional causation of emotional harm).

Third, the hierarchy of fault is imperfect. Not all intentional torts involve fault; some are better characterized as imposing a kind of strict liability. And others contain a complex set of fault requirements that in aggregate approximate negligence, or are no more culpable than negligence.
Three possible responses to these problems include:
(1) More explicitly distinguish multiple fault elements within a single tort doctrine (as is commonly done in modern criminal statutes employing the analytic structure of the Model Penal Code);
(2) Develop distinct standards for intentional tort doctrine and for ancillary doctrines such as the insurance exclusion for intentional torts;
(3) Recognize intentional torts as an alternative paradigm of tort doctrine, in stark contrast to the reasonableness paradigm that has come to dominate much of tort law in the last century.

tort, liability, intent, intentional, intentional tort, battery, fault

Abstract:
In a recent article, Professors Alon Harel and Gideon Parchomovsky propose to widen the focus of criminal law beyond the culpability of the offender and the wrongdoing he commits. Criminal law, they believe, should also encompass the state's special egalitarian duty to protect the interests of the most vulnerable victims of crime. They offer this suggestion for two reasons - to give a convincing justification of bias crime legislation, which they claim a retributivist approach cannot do; and, more broadly, to remedy retributivism's supposedly inadequate attention to the interests of crime victims.

Although these egalitarian goals are worthy, the authors' suggestion is largely unnecessary and potentially dangerous. It is largely unnecessary because the authors greatly understate the ability of the retributive paradigm (1) to justify bias crime legislation, and (2) to incorporate egalitarian principles, including the protection of especially vulnerable victims. Yet the proposal is potentially dangerous. Some forms of egalitarianism - including the duty to protect the vulnerable that they endorse - permit or even require convicting defendants who are not blameworthy. To that extent, the egalitarian demand is in conflict with retributive values. To be sure, the state does have a duty to promote egalitarian goals, and has many legitimate means for doing so. But sometimes we must decline to pursue these goals through the instrument of criminal law, if we care about giving offenders their just deserts.

Abstract:
"The Logic of Egalitarian Norms" was prompted by a recent article by Christopher J. Peters, "Equality Revisited," 110 Harv. L. Rev. 1210 (1997), arguing that the concept of equality is self-contradictory and sometimes leads to absurd results, such as the multiplication of wrongs or wasteful "leveling down" of social benefits. Peters' view is shared by other recent skeptical commentators who question the value of egalitarian norms or who worry that such norms are often misleading. The article defends egalitarian logic against such skepticism in a wide variety of legal domains.

Abstract:
The traditional strict liability doctrines - liability for abnormally dangerous activities, for wild animals, for abnormally dangerous animals, and for intruding livestock - can largely be explained by a small set of rationales. The Restatement Third Draft offers six principal economic and fairness-based rationales for strict rather than negligence liability: providing the injurer an incentive to optimize (1) the level of care and (2) the level of the activity; and recognizing the justice of requiring the injurer to pay when his activity (3) creates a nonreciprocal risk, (4) affords him a nonreciprocal benefit, (5) is the exclusive cause of the harm, or (6) when the community's sense of fairness supports strict liability. The Draft also rejects (7) loss-spreading as a rationale in this context. With the notable exception of (5), exclusive causation, this is a defensible and plausible set of rationales. However, the actual strict liability doctrines endorsed in the Draft are narrower in scope than the robust logic of these rationales would imply. This mismatch is probably best explained by judicial reluctance to impose strict liability unless the effects of such liability are modest. At the same time, from a wider perspective, the supposed contest between strict liability and negligence approaches is overstated, for each approach contains traces of the other.

Restatement Third of Torts, traditional strict liability, strict liability, negligence liability, level of care, level of activity, nonreciprocal risk, nonreciprocal benefit, causation, abnormally dangerous activity

Abstract:
In this detailed recapitulation and review of Peter Westen's new book, The Logic of Consent, I commend Westen for a rigorous and illuminating analysis of the concept of consent in criminal law. Westen helpfully distinguishes factual from legal consent, factual attitudinal from factual expressive consent, and imputed consent from prescriptive consent, and he demonstrates the relevance of these distinctions to sexual assault legislation and judicial decisions.

At the same time, the review offers a number of important suggestions and criticisms:

- Westen's framework cannot readily explain two significant contemporary approaches to nonconsent - the 'No' means 'no' and the Only 'yes' means 'yes' approaches - because it cannot explain why a jurisdiction might choose to treat the conduct and mental state of S in these situations as not amounting to legal consent.

- Westen's definitions of force and resistance, while elegant, are procrustean: he presupposes that force is just a term of art for all unlawful pressures that induce S's acquiescence, and that resistance is essentially a term of art for any option available to S by which she could avoid both x and A's threat. These very broad definitions are disconnected from the history of sexual assault and from the normative controversies that these terms continue to provoke.

- The provocative argument that a jurisdiction's wrongful force requirement entails, as a logical corollary, a duty to resist is fallacious. A jurisdiction might have good reason to prohibit wrongful threats only of a certain type or degree of harm, but also good reason not to impose an affirmative duty on a victim of an immediate violent threat to resist even if she could thereby avoid suffering the same type or degree of harm. Accordingly, the choice set over which factual consent ranges should not include options of affirmative action that the victim S could choose. Otherwise, we will be presupposing a controversially stringent duty to resist.

- The terminology of factual consent creates significant confusion, which Westen understates. Moreover, the subcategory of factual consent in which S is indifferent to whether x occurs is somewhat problematic, and involves only a weak sense of choice.

- The category of factual expressive consent (FEC) should be divided into two separate categories, factual subjectively expressed consent and factual observed consent.

- The FEC category is too crude, because it does not permit a jurisdiction to choose a mens rea other than negligence with respect to S's factual attitudinal consent. More generally, although a jurisdiction might indeed wish to characterize FEC as pertaining to mens rea, it also might have reason to characterize FEC (or some variant of FEC) as constitutive of the actus reus.

- The claim that retrospective consent essentially dissolves the harm of sexual assault is unpersuasive. For it is an open and normatively contestable question whether we should always give priority to what S today views as having been in her best interests over what she viewed as in her interests in the past.

- The so-called fictions of constructive, informed, and hypothetical consent often do not deserve to be so characterized. For although these categories do not involve persons who consented to x in Westen's prescriptive sense, they frequently involve scenarios in which S does consent in a significant sense, either to a social activity that includes x, or to the risk of x; or they involve a subject who would have consented but did not have the capacity to do so. Thus, these forms of consent at the very least bear a family resemblance to Westen's core category of prescriptive consent. Indeed, informed consent to a risk of x can be defined in precisely parallel fashion to prescriptive consent to x itself (incorporating the same criteria of factual and legal consent, suitably modified).

rape, sexual assault, consent, assumption of risk, informed consent, resistance, duty to resist

Abstract:
This essay investigates moral and legal responsibility for negligence. Negligence has many meanings; the essay considers the creation of an unjustified and low probability risk of causing harm. The common-sense moral precept that one should not be negligent reflects neither a coldly calculating economic or utilitarian conception, nor an absolutist deontological conception that ignores all costs or disadvantages of taking precautions against risk. Rather, ordinary moral judgments, informed by plausible nonutilitarian and deontological moral principles, can make sense of the duty not to act negligently. And a pluralistic balancing approach can recognize the breadth of values expressed in these judgments and principles. In law, norms of negligence often express private moral norms, but they also have distinctive institutional features. In the realm of Anglo-American tort doctrine, principles of fault, rather than of corrective justice, offer the better interpretation and more convincing deontological justification.