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Torts and Rights$
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Robert Stevens

Print publication date: 2007

Print ISBN-13: 9780199211609

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199211609.001.0001

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(p.92) 5 Fault
Torts and Rights

Robert Stevens

Oxford University Press

Central to the claim of some economists, such as Richard Posner — that the law of torts is best explained in terms of economic efficiency — is the Learned Hand Formula for calculating when conduct constitutes negligence. This chapter illustrates the manifold defects in this approach. Only by including rights as part of the story can the complex range of differing standards of fault found within the common law be explained. Absolute rights, requiring all others to refrain from conduct which posed any risk to us, are impossible to contemplate. In drawing the line between my rights and your liberty of action, the law neither should nor does employ a utilitarian balancing approach. Where the right arises from a voluntary assumption of responsibility by claimant to defendant, as in bailment, the duty imposed is non-delegable. In the context of contributory fault and in determining whether a contribution should be made, the approach to fault is considered.

Keywords:   Posner, Learned Hand, Voluntary Assumption of Responsibility, non-delegable duties, contributory fault, contribution

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