Negligence in the Air

Abstract

The article examines what has come to be known as "the risk analysis" in Anglo-American tort law and contract law. The risk analysis essentially consists of: (1) viewing negligence as a relational concept, so that a defendant is never simply negligent tout cour, but is negligent only with respect to certain persons and certain harms — other harms suffered by other persons are said not to be "within the risk" that makes the defendant negligent; and (2) the supplanting of proximate cause doctrine with doctrines of duty, the duty question being determined by the question of whether a certain person and a certain harm are within the risk that makes a defendant negligent.

The article aims to explode entirely the risk analysis. After beginning with an examination of the historical roots of the risk analysis, we then seek to show that the risk analysis is: (1) conceptually incoherent because it seeks to isolate a risk that makes someone negligent; (2) normatively undesirable because it allows quite blameworthy actors not to pay for the harms they culpably cause; and (3) descriptively inaccurate of the cases decided on the more traditional, proximate cause bases.