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Herstein on the Duty of Care and a Duty "to Try"

By Lawrence Solum

Ori J. Herstein (Cornell University - School of Law) has posted Responsibility in Negligence: Why the Duty of Care is Not a Duty 'To Try' (The Canadian Journal of Law and Jurisprudence, Vol. 23, No. 2, pp. 403-428, July 2010) on SSRN. Here is the abstract:

Even though it offers a compelling account of the responsibility-component in the negligence standard ? arguably the Holy Grail of negligence theory ? Professor John Gardner is mistaken in conceptualizing the duty of care in negligence as a duty to try to avert harm. My goal here is to explain why and to point to an alternative account of the responsibility component in negligence.

The flaws in conceiving of the duty of care as a duty to try are: failing to comport with the legal doctrine of negligence and failing as a revisionary account for the law; overly burdening autonomy and restricting the liberty of thought; adversely affecting the prevention of negligent harm ? the essence of the negligence standard ? and, raising severe probative difficulties. Moreover, the duty of care also does not give rise to what I call a de facto duty to try.

The duty of care is better construed to require only certain conduct and not trying. Returning to the primary appeal and motivation for exploring the validity of equating the duty of care with a duty to try ? searching for the responsibility-component in the negligence standard ? I argue that the responsibility-component in negligence does not take the form of an obligation to try but rather has a conditional form, manifested in the conditions of applicability of the negligence standard. In other words, the negligence standard comprises a conduct-based as opposed to a combined action-/intent-based duty (such as a duty to try) as its duty of care, a duty that only applies to actors who possess the capacity to intentionally or knowingly comply with it, or, put differently, possess the capacity to try.

Full post as published by Legal Theory Blog on September 07, 2010 (boomark / email).