Negligence Without Harm
Georgetown Law Journal, Vol. 111, pp. 187-235, 2022
49 Pages Posted: 25 Feb 2022 Last revised: 25 Jan 2023
Date Written: February 18, 2022
The colloquial phrase “no harm, no foul” captures one of the most fundamental tenets of negligence law: the tort is incomplete and there can be no legal redress without proof of actual harm. Mere exposure to risk, even when it is foreseeable and unreasonable, is not actionable. The Article dares to challenge this time-honored, deep-rooted, and highly impactful legal axiom.
Part I restates the traditional quadripartite structure of the tort of negligence, highlights the implications of the harm requirement, and briefly reviews and characterizes past attempts to circumvent it.
The Article then launches a three-pronged attack on this traditional structure:
(1) Part II uncovers the internal normative incoherence of existing negligence doctrine (where breach of a legal duty does not in itself have legal repercussions) and offers “negligence without harm” as a coherent alternative.
(2) Part III provides a fairness-based case for abolishing the harm requirement, fostering the idea that negligence, defined as exposing another person to foreseeable unreasonable risk, is a moral wrong as between the risk-creator and the risk-bearer irrespective of harm.
(3) Part IV presents an economic case for the proposed reform, arguing that if tort law aims to prevent the creation of unacceptable risks, it does not have to await harm and use the indirect, complicated, and seemingly flawed method of ordering some people to pay compensatory damages ex post in order to ensure internalization by others ex ante.
Finally, Part V supplements the theoretical analysis with a tentative scheme of legal remedies for negligence without harm.
Keywords: tort law, remedies, negligence, law and economics, law and philosophy, private law theory
JEL Classification: K00, K13
Suggested Citation: Suggested Citation