The Communities that Make Standards of Care Possible

Chicago-Kent Law Review, Vol. 77, No. 2, December 2001

Emory Public Law Research Paper No. 06-16

40 Pages Posted: 31 Dec 2001

Abstract

This paper argues that negligence law depends on "communities" in order to fulfill its agenda of promoting both security and freedom. Although many disciplines and discourses favor divergent understandings of the word "community," for purposes of the law the defining trait of community is group-based constraint. Communities can include various human aggregations. As far as the law understands this term, members need not have joined communities voluntarily, and the community need not have any leadership or power to change the lives of its members. Negligence law reaps benefits from the fact that certain groups exist. Their constraints make individuals less likely to hurt others (and thereby advance the "security" agenda) while sparing negligence law itself the political costs of repressing and deterring (i.e., "freedom"). In recognition of this adjuvant support, negligence law deems some group memberships relevant to its judgments about the standard of care.

"Communities" in this sense helps to answer three vexing questions about the standard of care in negligence. First, what exactly is the "objective" standard of care that courts and commentators purport to favor, and what justifies it? Second, if the objective standard of care is proper, what justifies the various subjective exceptions that courts have created? Third, should the standard of care be the same for both plaintiffs and defendants?

Keywords: Negligence, community, objective, subjective, malpractice, standard of care

Suggested Citation

Bernstein, Anita, The Communities that Make Standards of Care Possible. Chicago-Kent Law Review, Vol. 77, No. 2, December 2001, Emory Public Law Research Paper No. 06-16, Available at SSRN: https://ssrn.com/abstract=294943 or http://dx.doi.org/10.2139/ssrn.294943

Anita Bernstein (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States
718-780-7934 (Phone)

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