Date of Award
Doctor of the Science of Law (J.S.D.)
Professor Richard R.W. Brooks
This thesis addresses the following questions, among others. Can two people take the exact same precautions yet face different liabilities for identical accidents? Can two people exercise the same overall care yet face different liabilities? Can a person take more precautions than the efficient level of care requires at the time of the accident, yet justifiably be found liable in negligence? More generally, is the Hand Formula economically misguided or inapplicable, at least in many real-world scenarios? Is the Restatement (Third) of Torts equally misguided or imprecise? Is orthodox economic analysis of negligence law predicated and contingent upon over-constrained and unrealistic assumptions? What are the prerequisites for the application of the conventional model of negligence adjudication? The principle issues examined include (i) Interacting precautions and multidimensional frameworks; (ii) Short-run versus long-run optimization of negligence puzzles; (iii) Pathdependencies and dynamic analysis of care measures; (iv) Non-strictly convex and discontinuous social costs functions; (v) Fluctuating and discontinuous social cost functions; (vi) Threshold effects in costs and efficiency functions; (vii) An expansive methodology to cost-benefit analysis in torts: degrees of freedom, mixed and tailored approaches.
Birger, Issar, "NEGLIGENCE AS OPTIMIZATION PUZZLES: A NEW THEORY OF NEGLIGENCE" (2015). Yale Law School Dissertations. 1.