346. Oren Bar-Gill, Does Uncertainty Call for Comparative Negligence?, 12/2001; subsequently published as "The Uneasy Case for Comparative Negligence?" in American Law and Economics Review, Vol. 5, 2003, 433-469.
Abstract: The comparative negligence rule promoted as being both more just and more efficient than the traditional contributory negligence doctrine has come into dominance in American tort law. This paper questions one of the main efficiency-based arguments put forward in support of the rule - that, in the presence of judicial error, comparative negligence is generally superior. The analysis shows that this argument is invalid. This conclusion weakens the efficiency basis for current proposals to expand the reach of the comparative fault principle within tort law and beyond.