Years ago, Bruce Ackerman contrasted two competing perspectives on law, that of the "ordinary observer" and that of the "scientific policymaker."' The perceptions and discourse of the "ordinary observer," Ackerman explained, start from the common practices and language of laymen. The "scientific policymaker" takes the realization of particular objectives-efficient precaution against risks of accidental injury and death, for example-as her end and uses the law as an instrument toward that end. Clashes between these two perspectives are endemic to our legal culture. Nowhere in the law of accidents is that conflict sharper than in cases where the risks imposed threaten severe and irreparable injury.
A powerful and influential tradition of thought asserts that reasonable care in the law of negligence is, and ought to be, economically efficient care. When Learned Hand devised his famous "formula" for determining the amount of care due, Richard Posner argues, he was both "adumbrating, perhaps unwittingly, an economic meaning of negligence," and attempting nothing more novel than to "make explicit the standard that the courts had long applied." Judge Hand, as Robert Cooter and Thomas Ulen explain, "set the legal standard of care by explicitly balancing the benefits and costs of precaution, just as an economist would have done .... So conceived, reasonable care is the level of precaution that minimizes the combined costs of preventing and paying for accidents, thereby maximizing the wealth at society's disposal. Precaution should be taken until a penny more spent to prevent accidents yields less than a penny's reduction in expected accident costs. \ The economic interpretation of reasonable care has been enormously influential, but it remains deeply problematic. It equates reasonable care with rational care, and spells rationality out in economic terms. The average reasonable person thinks and acts as a single, economically rational actor would, if she bore both the costs and the benefits of precaution. An unreasonable person, by contrast, gives more weight to the benefits she gains by imposing risks on others than to the costs that her risks impose on others. Put this way, the economic interpretation of due care seems almost innocuous. Reasonable people, surely, take the costs and benefits of alternative courses of action into account in deciding what to do, and reasonable people weigh those costs and benefits impartially. If anything is unreasonable, assuming that my interests are objectively more important than someone else's-just because they are my interests-is unreasonable.
Gregory C. Keating,
Pressing Precaution Beyond the Point of Cost-Justification,
56 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol56/iss3/1