Negligence and Insufficient Activity: The Missing Paradigm in Torts

61 Pages Posted: 17 May 2009

See all articles by David Gilo

David Gilo

Tel Aviv University - Buchmann Faculty of Law

Ehud Guttel

Hebrew University of Jerusalem - Faculty of Law

Date Written: May 17, 2009

Abstract

Conventional wisdom in tort law maintains that the prevention of undesirable risks mandates restriction of harmful conduct. Against this widely held conviction, this Article shows that undesirable risks often stem from insufficient, rather than excessive, activity. Because negligence only requires investments in cost-justified care, parties might deliberately limit their activity so that the size of the ensuing risk would be lower than the cost of welfare-enhancing precautions. Parties’ incentives to strategically restrict their activity levels have striking implications for the inducement of efficient harm-prevention. The overlooked paradigm of insufficient activity calls for the imposition of a new form of tort liability, justifies the application of controversial regulatory rules currently being challenged before the Supreme Court, and supports overturning the standard guidelines concerning the choice between negligence and strict liability.

Keywords: Negligence, Level of Activity, Level of Care, Hand Formula, Strict Liability, Pollution, Environmental Protection, Strategic Behavior

Suggested Citation

Gilo, David and Guttel, Ehud, Negligence and Insufficient Activity: The Missing Paradigm in Torts (May 17, 2009). Michigan Law Review, Forthcoming . Available at SSRN: https://ssrn.com/abstract=1406171

David Gilo

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel
+972-3-6406299 (Phone)

Ehud Guttel (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

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