An Economic Theory of Comparative Negligence
![handle is hein.journals/legstud14 and id is 55 raw text is: AN ECONOMIC THEORY OF COMPARATIVE
NEGLIGENCE
DAVID HADDOCK and CHRISTOPHER CURRAN*
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 modem cases is away from treat-
ing 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 coveringjust 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 impor-
tance, so they now cover almost three-quarters of the American popula-
tion, much of the rest of the industrialized world, and, in peacetime,
virtually all ships at sea.' Notwithstanding its recent surge to dominance,
* Yale Law School and Emory Law and Economics Center, and Emory University
Department of Economics. We received many useful remarks during a presentation at the
American Economic Association meetings, and in seminars at Emory University, the Uni-
versity of Iowa, North Carolina State University, Ohio State University, and the University
of Rochester. We also benefited from discussions with William Carney, Robert Cooter (who
anticipated many of our results), Gerald Dwyer, Dorsey D. Ellis, David Flath, Cotton
Lindsay, Stephen Margolis, and J. Huston McCulloch, as well as detailed comments from an
anonymous referee.
Alvis v. Ribar, 85 I11. 2d 1,421 N.E.2d 886 (1981). Outside the United States compara-
tive negligence applies in one state in Australia and in Austria, Canada, England, France,
Germany, Japan, New Zealand, the Philippines, Poland, Portugal, Russia, Spain, Switzer-
land, and Turkey. A summary of Admiralty Law may be found in United States v. Reliable
[Journal of Legal Studies, vol. XIV (January 1985)]
© 1985 by The University of Chicago. All rights reserved. 0047-2530/85/1401-0006$01.50
49](ViewImageLocal?handle=hein.journals/legstud14&div=8&collection=journals&method=preview&ext=.png&size=3)
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An Economic Theory of Comparative Negligence
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