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There are some differences between the negligence that attracts criminal consequences and the one that attracts consequences in terms of civil liability. These differences are also reflected in the judicial practice, respectively in the solutions pronounced by the courts in the cases whose object is acts committed as a result of the negligence of the perpetrator. Such a case, in which the two types of negligence were addressed, is presented in this article.

Car crashes killed 32,719 Americans in 2013, and injured over 2.3 million more. Traffic is likely the most pervasive form of violence most Americans encounter. Accordingly, the law devotes substantial attention to preventing that bloodshed, allocating losses, and punishing dangerous drivers. After a serious crash, two systems of law play particularly important roles: tort law and criminal law. Both provide a mechanism for sanctioning dangerous drivers and deterring future crashes. Both can apply to the same event-any given crash is potentially criminal, tortious, both, or neither. However, tort and criminal law impose different sanctions according to different standards. After a deadly crash, for example, prosecutors may bring criminal charges under general criminal laws, like criminally negligent homicide, or traffic-specific charges, such as leaving the scene of a crash. Separately, as with any accident, victims may sue in tort for negligence. Legal scholars have long understood tort and criminal law as parallel mechanisms for sanctioning private behavior. Most have also sought to keep them separate.

This Article advances a novel positive theory of tort law. The Article's core insight is that the benefit from the harm-causing activity determines the form and substance of tort liability. This finding is surprising and innovative, since tort scholars universally believe that the doctrines determining individuals 9 liability for accidents —negligence, causation, and damage—are driven by harms, not benefits. Specifically, the Article shows that our tort system operates in two modes—private and public—rather than one, as conventional accounts erroneously suggest. The mode and the rules allocating liability for accidents are determined by the type of benefit sought by the alleged tortfeasor. If the benefit is purely private, the tortfeasor will be liable for the harm whenever she exposes the victim to a nonreciprocal risk, no matter how significant that private benefit is relative to the harm. By excluding cost-benefit analysis and favoring reciprocity and equality principles, the system discourages the production of private benefits even when they are economically more valuable than the victim's safety. When the benefit accompanying the harm-causing activity is public, however, tort law adopts a strictly utilitarian approach and focuses on minimizing the sum of costs of accidents and costs of accident prevention. Liability thus is imposed based on the famous Learned Hand formula (and similar formulations): No liability will be imposed if the benefit from the activity greater than the expected harm and precautions are too costly. This insight has far-reaching implications. Scholars interpret the tort system's goal as promoting fairness and corrective justice or, alternatively, economic efficiency, but not both. The Article demonstrates that this dichotomous view is fundamentally mistaken. The case law reveals that our tort system promotes fairness and corrective justice only when it operates in the private mode, but when the system switches to the public mode, it balances victims' safety against the production of public benefits.

Our aim in this article is to provide a counterbalance to the substantial body of academic opinion supportive of the decision in the medical non-disclosure case of Chester v Afshar [2004] UKHL 41, [2005] 1 AC 134, while at the same time identifying some misconceptions that have arisen about the case. Our critique is consistent with the reasoning of the High Court of Australia in its recent decision in Wallace v Kam [2013] HCA 19, (2013) 87 ALJR 648. The article is divided into three sections. In the first section, we argue that the decision in Chester was a departure from orthodox negligence principles. In the second section, we critically examine the autonomy-based justification the majority in Chester gave for departing from those principles. And in the third section we consider a number of alternative ways in which protection could be given to the autonomy interests at stake in medical non-disclosure cases. Several more general points relating to the autonomy concept and the scope of liability doctrine in negligence law emerge from our critique. Our analysis also suggests that negligence law is ill-suited to the task of providing an appropriate legal solution to the problem of medical non-disclosure.

This article offers an understanding of the law of negligence which explains its concern with both interpersonal justice and community welfare. It argues that close attention to the structure of the duty of care inquiry and the reasoning in duty cases suggests that the law of negligence has an underlying community welfare purpose, but that purpose is not to be found in notions of deterrence, compensation or the improvement of standards of behaviour. The community welfare purpose underlying the law of negligence must be one that is more directly served by doing interpersonal justice. The best available explanation is that the law of negligence functions to maintain civil peace by providing an avenue of recourse for certain interpersonal wrongs. This analysis explains why the duty inquiry focuses primarily on considerations of interpersonal justice but, like other private law doctrines, also attends to the community welfare effects of imposing liability.

Often, injurers or victims (or both) can adopt a new technology that reduces the social costs of accidents. When adoption costs are not verifiable in court, optimal adoption decisions cannot be induced by means of an appropriate determination of negligence. Hence the parties might either over- or under-adopt. We study how due-care standards should be conditioned on the technology adopted by the parties in order to improve adoption decisions. We demonstrate that standards should be biased upwards or downwards, depending on whether the new technology reduces or increases expected harm.

This Essay is a comparative economic analysis of the disparate doctrims governing the good faith purchase of stolen or misappropriated goods. We argue that pnor treatments have misconceived the problem. An owner will take optimal precautions to prevent theft if she is faced with the loss of her goods; and a purchaser will make an optimal investigation into his seller's title if faced with the loss of the goods. An owner and a buyer cannot both be faced with the full loss, however. This presents a problem of \"double moral hazard\" and it cannot be solved in a first-best efficient way. However, the laws of the major commercial nations are less efficient than they could be. This is particularly true of current U.S. law: In the United States, an owner always can recover stolen goods, which reduces her incentive to take optimal precautions. In turn, a buyer of those goods makes a suboptimal investigation into title because the owner may never find him. We propose that the owner should be permitted to recover goods only if she satisfies a negligence standard set at the socially optimal precaution level (which we argue is feasible). This would increase her incentive to take precautions while retaining her efficient incentive to search for stolen goods. Since owner search and buyer investigation are complements, our proposal leaves unchanged the buyer's incentive to investigate. Aho, under current law, an owner who voluntanly parts with her goods cannot recover them from a good faith purchaser. This rule reduces the owner's incentive to search and so reduces the buyer's incentive to investigate. Thus, we propose that a negligence standard should apply to owners generally. We argue that the verifiability objections to a vague standard of negligence can be satisfied by the specification of rulelike proxies for owner negligence. A comparative analysis of the law of good faith purchase in the leading commercial junsdictions shows the chaotic nature of the current disparity in treatment of owners and buyers. Since today many stolen goods cross national borders, a generally applicable solution to the good faith purchase issue will further reduce the demand for stolen goods, reduce the incidence of strategic litigation, and enhance social welfare.

Regulation and the negligence rule are both designed to obtain compliance with desired standards of behavior, but they differ in a primary respect: compliance with regulation is ordinarily assessed independently of the occurrence of harm, whereas compliance with the negligence rule is evaluated only if harm occurs. It is shown in a stylized model that because the use of the negligence rule is triggered by harm, the rule enjoys an intrinsic enforcement cost advantage over regulation. Moreover, this cost advantage suggests that the examination of behavior under the negligence rule should often be more detailed than under regulation—as it frequently is in fact.

I identify a sense of ‘responsibility’ by which X is responsible for Φing iff X’s Φing was related to his capacities of rational agency in an appropriate way. I argue that the Guidance Principle (roughly: we are responsible for actions guided by our powers of rational agency when they are performed for, what we believe to be, an adequate reason, and their performance is controlled and guided by our beliefs about what reasons we have) provides a sufficient condition for responsibility, but that responsibility for negligence shows that the Guidance Principle is not necessary for responsibility. Much of the article is devoted to an analysis of negligence, and the associated duties, distinguishing between them and strict liability on the one hand and from liability arising under the Guidance Principle on the other hand. The discussion of negligence leads to a new conception of responsibility, embodied in the Rational Functioning Principle, of which the Guidance Principle is an important, but not the only component. Roughly speaking it holds us (non-derivatively) responsible for conduct which is the result of the functioning, successful or failed, of our powers of rational agency.

We propose an activity-generating theory of regulation. When courts make errors, tort litigation becomes unpredictable and as such imposes risk on firms, thereby discouraging entry, innovation, and other socially desirable activity. When social returns to activity are higher than private returns, it may pay the society to generate some information ex ante about how risky firms are and to impose safety standards based on that information. In some situations, compliance with such standards should entirely preempt tort liability; in others, it should merely reduce penalties. By reducing litigation risk, this type of regulation can raise welfare.