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The Negligence Dualism


When Oliver Wendell Holmes synthesized the writs of trespass and trespass on the case, he left out of his gloss of modern accident law an extremely important part, namely, the strict liability that everyone faces for routine errors, such as failing to check one’s blind spot before changing lanes.

One proof of how poorly the language of negligence fits the strict liability that actually exists for routine “compliance errors” is the debate among legal historians about whether the modern tort rule governing accidents is less strict than the classical English rule. As I develop in the article, the modern accident rule is, in reality, strikingly similar to the ancient accident rule. Holmes’s neglect of the strict liability component of the modern negligence rule has hindered our understanding of both it and the classical accident rule.

When we see clearly what the strict-liability component of the modern negligence rule is, it opens a new window on negligence theory.

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