Electronic Resource
Berkeley, Calif.
:
Berkeley Electronic Press (now: De Gruyter)
Theoretical inquiries in law
3.2002, 2, art3
ISSN:
1565-1509
Source:
Berkeley Electronic Press Academic Journals
Topics:
Law
Notes:
The article examines what has come to be known as "the risk analysis"in Anglo-American tort law and contract law. The risk analysisessentially consists of: (1) viewing negligence as a relational concept,so that a defendant is never simply negligent tout cour, but is negligentonly with respect to certain persons and certain harms -- other harmssuffered by other persons are said not to be "within the risk" that makesthe defendant negligent; and (2) the supplanting of proximate causedoctrine with doctrines of duty, the duty question being determined bythe question of whether a certain person and a certain harm are withinthe risk that makes a defendant negligent.The article aims to explode entirely the risk analysis. After beginningwith an examination of the historical roots of the risk analysis, wethen seek to show that the risk analysis is: (1) conceptually incoherentbecause it seeks to isolate a risk that makes someone negligent; (2)normatively undesirable because it allows quite blameworthy actorsnot to pay for the harms they culpably cause; and (3) descriptivelyinaccurate of the cases decided on the more traditional, proximatecause bases.
Type of Medium:
Electronic Resource
URL:
http://www.bepress.com/til/default/vol3/iss2/art3
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