Abstract

This article challenges the leading economic understanding of negligence rules in tort law. This economic understanding, which is meant both (1) to justify negligence rules over strict-liability rules and (2) to provide a framework for understanding whether victims or injurers should bear the costs of an accident when both parties are innocent and have behaved carefully, is repeated widely by leading law-and-economics scholars but is deeply flawed. This article explores the flaws in an attempt to take economic reasoning off the table as a serious contender for a principled basis of tort law.