Justice Luck and the Law of Negligence

Abstract

Juries possess the power to forgive even obvious negligence and frequently exercise it. Judges and courts facilitate this disposition of cases and regularly affirm juries' decisions to forgive negligence. This practice creates a problem for corrective justice theories of negligence, which commonly assert that the purpose of negligence law is to repair harm. This reparative purpose is not achieved in the many cases in which juries forgive negligence. In addition, juries impose negligence liability on many acts and omissions that are not wrongs in any moral sense. Negligence liability is best understood not as a moral system, but as a "stochastic tax." Someone whose negligence has been forgiven by a jury has experienced "justice luck."

Keywords: Negligence, Justice Luck, Compliance Luck, Breach of Duty, Legal Precedent, Forgiveness, Stochastic Tax, Durable Precaution, Nondurable Precaution, Precaution Plans, Cost-Benefit Analysis

JEL Classification: K13, K40, K41, K42