‘Is Less Really More? Abraham and Kendrick on Getting Rid of Affirmative Duties’

Kenneth S Abraham and Leslie Kendrick, There’s No Such Thing as Affirmative Duty, Virginia Public Law and Legal Theory Research Paper No 2018-59, available at SSRN. When it comes to inherited scholarly categories and taxonomies, a prominent strand of modern American tort scholarship pursues a particular kind of deflationary agenda. The First and Second Restatements divided the law of negligence into sub-rules distinguished by spurious differences (for example, the section on ‘type of negligent acts’ distinguished between ‘Use of Incompetent or Defective Instrumentalities’ and ‘Want of Preparation’). The Third Restatement combined many rules that could be brought under a more general description – the laundry list of types of negligent acts has been radically pruned, leaving just a handful, such as ‘negligent failure to warn’ … (more)

[Anthony Sebok, JOTWELL, 23 January]

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