The trouble with negligence

The concept of negligence dominates tort law. The negligence standard is so much a focus of tort theory, however, and negligence cases occupy so large a proportion of all tort claims, that it is easy to ignore how unusual negligence truly is among tort law's standards of conduct. The negligence standard is examined as it is applied in cases involving physical harm. Turning then to cases involving intangible loss, it is argued that several of the well-known exceptions to the general rule that there is no liability in negligence for intangible loss reflect this principle of demarcation. There should be a restrained - and certainly not expanding - future for the negligence standard, whose flaws even in physical injury cases should be more clearly recognized, and whose application to new claims for pure intangible loss should be resisted.