An Alternative to the Basic Causal Requirement for Liability Under the Negligence Rule

Harvard Law School John M. Olin Center Discussion Paper No. 1100 03/2023

31 Pages Posted: 14 Apr 2023

See all articles by Steven Shavell

Steven Shavell

Harvard Law School; National Bureau of Economic Research (NBER)

Multiple version iconThere are 2 versions of this paper

Date Written: March 28, 2023

Abstract

The primary causal requirement that must be met for a negligent party to be held liable for a harm is a demonstration that the harm would not have occurred if the party had not been negligent. Thus, for a speeding driver to be found liable for harm done in a car accident, it must be shown that the accident would not have happened if the driver had driven at a reasonable speed. The main point made here is that this basic causal requirement may be difficult to satisfy and hence may interfere with the discouragement of negligence. Therefore, an alternative and usually easier-to-meet causal requirement is proposed — that the harm would not have occurred if the party had not been engaged in his activity (if the driver had not been driving).

Keywords: Tort law, causation, deterrence, uncertainty

JEL Classification: K1, K13

Suggested Citation

Shavell, Steven, An Alternative to the Basic Causal Requirement for Liability Under the Negligence Rule (March 28, 2023). Harvard Law School John M. Olin Center Discussion Paper No. 1100 03/2023, Available at SSRN: https://ssrn.com/abstract=4402406 or http://dx.doi.org/10.2139/ssrn.4402406

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