Tuesday, February 12, 2019

Omri Ben-Shahar Speaks on Personalized Negligence Law

At the Seminar in Private Law on February 12, 2019, Omri Ben-Shahar, the Leo and Eileen Herzel Professor of Law at University of Chicago Law School, discussed his paper “Personalizing Negligence Law” and the concept of personalized law in the age of big data.

“All human beings differ in skill and the level of risk their activities pose to others; why should we hold everyone to the same standard of care?” Ben-Shahar asked. He explained how the standard of a “reasonable person” might lead to inefficient societal outcomes, while at the same time placing too high (or too low) a burden on some members of the society. “Does it really make sense to require a senior driver with sight difficulties and a professional driver to observe the same speed limit?” he said. “The former should probably drive slower than an average person, while the latter could drive faster without increasing the risk of an accident.”

Relying on the economic analysis of law, Ben-Shahar demonstrated that under certain conditions, his theory could increase the overall efficiency of negligence law. Personalization, in Ben-Shahar’s view, would influence the level of care of both the potential injurers and the potential victims. When the courts “subjectify” the standard of care based on individual characteristics, the change in behavior will follow. “Just because we have been doing something for decades or even centuries,” Ben-Shahar argued, “it does not mean that this is the only way, or the best way.”

Outside of negligence law, the concept of “personalized rules and standards” could be applied in other areas, and increase the law’s overall efficiency and/or distributive and commutative justice. Other areas of law where personalization could be undertaken include consumer contracts and copyright or trademark issues.

Technology, in particular big data, makes personalization possible more cheaply and easily. Knowledge about an injurer’s characteristics can be accessed by judges at much lower costs than previously. We already rely on our smart devices to suggest places to eat or music to listen to; why would we not rely on them to tell us how much care to exercise, he asked.

Each spring, the Seminar in Private Law brings speakers from academia and practice to Yale Law School to present papers addressing a common theme. The 2019 Seminar is devoted to asking how technological change restructures the fundamental concepts and categories of private law. The Seminar is organized by Daniel Markovits, Guido Calabresi Professor of Private Law, and the Yale Law School Center for Private Law, which promotes teaching and research in contracts, property, and torts at Yale Law School and in the broader legal community.