An Alternative to the Basic Causal Requirement for Liability under the Negligence Rule
The primary causal requirement that must be met for a negligent party to be held liable for a harm is a demonstration that the harm would not have occurred if the party had not been negligent. Thus, for a speeding driver to be found liable for harm done in a car accident, it must be shown that the accident would not have happened if the driver had obeyed the speed limit. The main point made here is that this basic causal requirement may be difficult to satisfy and hence may interfere with the discouragement of negligence. Therefore, an alternative and usually easier-to-meet causal requirement is proposed—that the harm would not have occurred if the party not been engaged in his activity (if the driver had not been driving).
I thank John Goldberg, Marcel Kahan, Louis Kaplow, A. Mitchell Polinsky, and David Rosenberg for advice and comments on this article, Daniel Belgrad, Tuhin Chakraborty, Heather Pincus, and Lisa Wang for able research assistance, and the John M. Olin Center for Law, Economics, and Business at Harvard University for research support. The views expressed herein are those of the author and do not necessarily reflect the views of the National Bureau of Economic Research.