This article shows that extant rights-based theories of accident law contain a gaping hole. They inadequately address the following question: What justifies using community standards to assign accident costs in tort law?
In the United States, the jury determines negligence for accidental harm by asking whether the defendant met the objective reasonable person standard. However, what determines the content of the reasonable person standard is enigmatic. Some tort theorists say that the content is filled out by juries using cost benefit analysis while others say that juries apply community norms and conventions. I demonstrate that what is missing from this exchange is a theory that adequately justifies using a particular way of filling out the content of the objective reasonable person standard. Rights-based theories are particularly guilty of ignoring what I call the central normative concern. That concern is what criterion should determine the amount of precaution an individual must use to avoid being justifiably assigned others’ accident costs.
To identify this problem I focus on rights-based theories of accident law. After showing how several rights-based theories of accident law inadequately address the central normative concern, I briefly outline a theory of assigning accident costs that has the potential for offering the best answer to the central normative concern. The most important aspect of this theory, called democratic community standard theory, is that it provides a justification for using community standards to adjudicate tort claims. This justification employs Kantian political theory based on how free and equal individuals would choose to assign accident costs.
Hall, Gregory J., "Rights-Based Theories of Accident Law" (2011). Faculty Scholarship at Penn Law. 376.