Christopher Jaeger has posted to SSRN A Two-System Theory of Negligence. The abstract provides:
Tort law’s broad reliance on the ordinary reasonable person standard blurs meaningful distinctions between different types of negligence cases and between the different criteria used to resolve them. Drawing on psychology’s two-system theory of cognition, this Article identifies and describes two distinct types of negligence claims, formulating a two-system theory of negligence. This theory posits that negligence claims premised on failures of unconscious, “system-one” cognitive processes (like a driver’s failure to see a hazard) should be—and in fact already are—evaluated using different criteria than negligence claims premised on failures of conscious, “system-two” cognitive processes (like a manufacturer’s choice to eschew a safety feature).
Specifically, the two-system theory of negligence categorizes claims based on what the plaintiff alleges the defendant needed to do differently to avoid negligence liability: If it is something the defendant could have done with conscious effort, the plaintiff asserts a system-two claim, and if it is not, the plaintiff asserts a system-one claim. When evaluating system-one claims, judges and juries compare the defendant’s conduct with what they believe an ordinary person would have done under the circumstances. With system-two claims, their concerns shift toward the reasonable person and what they should have done under the circumstances, incorporating normative criteria that are inapplicable to system-one claims.
Two-system theory casts new light on the understudied world of system-one negligence. Many existing theories of negligence either do not engage with system-one cases or imply that they do not involve negligence at all. This Article identifies various types of system-one shortcomings that litigants regularly claim constitute negligence—from perceptual failures to slow reaction times to moments of clumsiness arising from substandard balance or coordination—and demonstrates that courts often treat these claims as viable. Further, the Article argues that imposing negligence liability for system-one shortcomings is preferable to either no liability or true strict liability.
Ultimately, this Article contends that a tort plaintiff should be free to assert system-one negligence claims, system-two negligence claims, or both within a suit, but the distinction between the claims—and the criteria that apply to each—should not be glossed over. Explicitly wrestling with whether and when defendants should face liability for system-one negligence and identifying more clearly the criteria used to evaluate those claims can improve the transparency and consistency of negligence decisions and bring the functions and boundaries of tort negligence into sharper focus.