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Getting Incentives RightImproving Torts, Contracts, and Restitution$
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Robert D. Cooter and Ariel Porat

Print publication date: 2014

Print ISBN-13: 9780691151595

Published to Princeton Scholarship Online: October 2017

DOI: 10.23943/princeton/9780691151595.001.0001

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Negligence Per Se and Unaccounted Risks

Negligence Per Se and Unaccounted Risks

(p.47) 3 Negligence Per Se and Unaccounted Risks
Getting Incentives Right

Robert D. Cooter

Ariel Porat

Princeton University Press

This chapter considers cases of “negligence per se” and the problem of unaccounted risks. In general, breaching the statute constitutes “negligence per se.” When the injurer's breach of the statute harms people, courts systematically compensate the victims explicitly targeted by the legislation and not other victims, creating a misalignment. The chapter first examines the doctrine of negligence per se before discussing the problem of unaccounted risks. It then describes an approach that it argues is wrong in common law negligence: the tendency of courts to treat foreground risks created by the injurer as wrongful and impose liability accordingly, while ignoring background risks. It also explores a condition for establishing liability, known as the “causal link,” and asks why courts account for the foreground risks while disregarding the background risks.

Keywords:   negligence per se, unaccounted risks, liability, harm, misalignment, common law negligence, foreground risk, background risk, causal link

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