An Economic Theory of Comparative Negligence

Abstract

ONE of the central problems in the economic analysis of tort law is to determine the proper rules for allocating loss when both parties have engaged in wrongful conduct that has helped bring that loss about. In addressing this problem, most recent scholarship has been directed to the question of how to make an all-or-nothing allocation between plaintiff and defendant, usually in the guise of asking when the contributory negligence defense should bar a cause of action that is itself based on proof of the defendant's negligence. The academic inquiry is in some sense oddly conceived, as the clear direction in the modern cases is away from treating recovery for harm in this all-or-nothing manner. Indeed, the rule that treats contributory negligence as a total bar for recovery presently is operative only in a minority of states covering just over one-quarter of the population, and in precious few jurisdictions abroad. In the meantime, various systems of comparative negligence, which do divide damages between the plaintiff and defendant, have grown enormously in importance, so they now cover almost three-quarters of the American population, much of the rest of the industrialized world, and, in peacetime, virtually all ships at sea.' Notwithstanding its recent surge to dominance,