In our article, Negligence and Insufficient Activity, we proposed that tort scholarship has overlooked the risk that injurers will behave strategically in setting their activity levels. Whereas the standard literature has predicted that injurers who are subject to a negligence regime will often invest efficiently in care but choose excessive activity levels, we showed that they may do exactly the opposite: injurers may deliberately restrict their activity to avoid investments in socially desirable precaution. After reviewing the conditions that may give rise to the risk of insufficient activity, we examined the ways in which the legal system can minimize the costs of such behavior. We hoped that our article would spark new interest in the interplay between tort liability and levels of care and activity. We are fortunate that three prominent tort scholars have already provided important insights on both our positive argument and our policy recommendations. These responses vary in their assessments of our contribution to legal scholarship. While some find that our article addresses an "interesting omission in tort law scholarship" and highlights a "missing paradigm" that is "central to negligence doctrine," others consider it a "novel brick on a road that runs in the wrong direction." Nevertheless, and although the responses focus on different parts of the article, they share several important objections to our analysis.
David Gilo & Ehud Guttel,
Insufficient Activity and Tort Liability: A Rejoinder,
Mich. L. Rev. First Impressions
Available at: https://repository.law.umich.edu/mlr_fi/vol108/iss1/11