The spread of the comparative negligence rule in the United States

Public choice and tort reform

“…Second, the process of jurisdictional choice by plaintiffs can itself have important implications for the law's contours as plaintiffs chose friendly jurisdictions where they win favorable verdicts that establish precedents for the courts in other jurisdictions (Fon & Parisi, 2003). For students of tort reform, the fact that tort law is formulated at the state level provides rich datasets for hypothesis testing (see, for example, Landes & Posner, 1987;Curran, 1992;Rubin & Bailey, 1994;Rubin, Curran & Curran, 2001;Helland & Tabarrok, 2003).…”

“…Possible explanatory variables include the number of attorneys in a state, measures of business presence as well as other standard economic and public choice predictors, such as income per capita and party control of the state's executive and legislative branches. Empirical analyses of the determinants of the elimination of privity by states (Landes & Posner, 1987;Bailey & Rubin, 1994) and of the adoption of comparative negligence (Curran, 1992) have been undertaken, but other policy changes have not yet been studied systematically. 6.…”

The Filtering Effect of Sharing Rules

“…It has been argued that comparative negligence, by distributing the loss between the parties, reduces the effect of errors and results in 4 For a discussion of the literature on (implicit) sharing rules in other areas of tort law, law enforcement, and in marriage law and employment regulation we refer to section 5. 5 See Curran (1992), Restatement (Third) of Torts: Products Liability sec. 17 (1998), and Restatement (Third) of Torts: Apportionment of Liability (1999) for a perspective on American law.…”

Courts and the Tort-Contract Boundary in Product Liability

“…In a regime of contributory negligence, any contribution made by the victim to causing the accident (for example, by product misuse) will release the injurer from liability. In a regime of comparative negligence (which is common in the United States today 15 ) the victim is compensated in proportion to the fraction of the accident caused by the injurer.…”