Contributory or Comparative: Which is the Optimal Negligence Rule?

In this article, the authors examine whether contributory or some form of comparative negligence is the superior rule based on the goals of tort law. The authors conclude pure comparative negligence is the preferable rule. From a compensation perspective, pure comparative negligence compensates the most tort victims. From a corrective justice perspective, pure comparative negligence, unlike the other rules, requires tortfeasors to correct their wrongs in all cases.

Finally, the authors use statistical analyses to determine if any of the rules has a stronger deterrent effect than the others. Based on claims data for automobile accidents in the various jurisdictions, the authors conclude there is no statistically significant difference in the deterrent effect created by any of the rules.