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The Fracturing of the Common Law: Loss Allocation in the Comparative Negligence Era


Until recently, negligence doctrine developed largely through the evolutionary process of case law. Successive court opinions refined basic principles such as duty, breach, and causation, and affirmative defenses such as assumption of the risk and contributory negligence. Throughout this formative era, there was never any doubt that legislatures had the power to change such common law principles. Indeed, dramatic changes were made by statute in certain areas, such as workers' compensation and wrongful death. But these were exceptions; for the most part, negligence law was common law.

In the last few decades, however, legislatures have gotten heavily into the business of restructuring the common law of torts. A prime example, of course, is comparative negligence, which has been adopted by statute in many jurisdictions. Many states have also enacted statutes placing caps on noneconomic damages, creating screening panels for medical malpractice cases, and limiting the scope of the collateral source rule.

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