The Legal And Economic Analysis Of Negligence

The traditional method to determine negligence in tort law tends to the view of legal interpretation. At the same time, we also should see that the legal analysis has many uncertain limitations due to the defects of the law itself, the rapid socio-economic development and diversification of people’s life. To seize the real value of the legal issues behind the economic analysis is worth us to learn and learn from. As the Brandeis judge said:"One legal worker does not study economics and sociology, he easily becomes a threat to society." So it is very necessary to introduce the economics analysis method to the legal studies. Justice Holmes once said:"the life of the law is not logic, but is experience.","knowing rational legal perhaps is jurists, but the future belongs to the specialization of statistics and economics." Thus the research method of negligence can not only stay above their value judgments or qualitative research, but also stay above quantitative analysis and efficiency analysis. Around the learned hand formula, the core of negligence liability based on the analysis of law and economics, This paper analysis what imputation principle is more conducive to the prevention of the violation occurred, fills the damage of the victim, reducing the total cost of social from single and bilateral prevention, even the game matrix. Then we draw a conclusion that the negligence liability is suit for the bilateral prevention tort cases, for it can give more conducive promotion of two parties to take preventive measures to reduce the occurrence of violations. Strict liability can reduce the amount of activity and the level of activity of the perpetrator to compensate for the limitations in information costs and management costs. We also test this conclusion in a specific cases, then we know it is perfect that the prevention of the negligence liability bilateral desirability. But there are also some limitations in the Hand formula, such as it is very difficult to measure the variable value, it’s not applicable when the nature of the left and right sides of the Hand Formula is different, it’s inadequate that the economic analysis capabilities of our judges, even more, it only consider the neutral risk. Even though, it can supply a clear number of standard to make the perpetrator know how to do enough to avoid their behavior objective the standard of judgment, but it can be used in the property infringement of the public field. Suggest that typed reasonable person standard and orderly applicable negligence criteria. We could use the regulations, the reasonable person standard and the method of economic analysis to determine the behavior of the person’s fault.