Monday, April 16, 2007

Best on the History of Comparative Negligence

Arthur Best, Univ. of Denver, has posted an abstract for a new article, Impediments to Reasonable Tort Reform: Lessons from the Adoption of Comparative Negligence. The article itself is not posted, but it can be found at 40 Indiana L. Rev. 1 (2007) . Here's the abstract:
A generation ago, tort law's majority approach to treating negligence by plaintiffs changed from the contributory negligence doctrine to various comparative negligence doctrines. Almost all of the courts that made the change adopted the pure form of comparative negligence. Where legislatures made the change, the vast majority chose modified forms of the doctrine. This Article shows that legal scholars had argued strongly in favor of the pure form. It also uses a hypothetical form of modified comparative negligence (“symmetrical” or “balanced”) to show that the forms of modified comparative negligence actually adopted fail to remedy the unfairness they ostensibly were designed to address
To help understand contemporary tort reform debates, the Article seeks to explain the discrepancies between scholarly recommendations and legislative actions and between the stated goals of legislation and the actual statutory systems adopted. It suggests that scholarly articles unwisely used extreme examples to illustrate the flaws of the contributory negligence doctrine. Partial remedies, such as the modified forms of comparative fault, can redress the problems shown in extreme examples. The use of extreme examples may pave the way for weak societal responses, particularly if legislatures are motivated to resist full-scale reform. Another fundamental framing issue was treatment of payments by defendants and loss-bearing by plaintiffs as different, even though they are each examples of allocation of losses related to accidental injuries. Treating plaintiffs and defendants differently (as the modified comparative negligence systems do) was facilitated by this fundamentally illogical world view.