On the standard conception, the primary fault underlying a negligence claim is the actors failure to take a reasonable precaution against the risk of harm. To be sure, tort law demands compensation for negligently-caused harm and normally does not provide a remedy for negligence unless the negligence results in harm. Still, it is the negligent act that determines the actors fault. In other words, the state of affairs in which the negligent act does not occur is clearly preferable to that in which the actor negligently causes harm but pays The determination that an actor is negligent is made from an ex ant perspective, considering the foreseeable risks from the actor's conduct and the foreseeable benefits(in the form of risk-reduction) from the actors taking a precaution. Negligence depends on foresight, not hindsight; on the reasonably apparent state of the world at the time of the action at issue, not on the actual state of the world at that time. Moreover, although negligence necessarily involves risk-creation, negligence might or might not cause harm The standard conception treats negligence as an evaluative criterion, and as a conclusive judgment of fault. If an actor is negligent, then he should have acted differently. By creating an "unreasonable"risk of harm, or failing to take a reasonable" precaution against harm, he is necessarily unjustified in acting he did. And if harm follows, he will be liable in damages. By contrast knowingly"or "intentionally" creating a risk of harm, even a very high risk of harm, need not be an unjustified act. (Intentionally or knowingly harming a person can be justified by self-defense, for example. Put differently, lack of See Simons, The Hand Formula, supra note 1=, at 905. Accordingly, negligence liability (even in tort law) is best understood as a property rule, not a liability rule, insofar as the tortfeasor is not deemed entitled to cause harm so long as he pays. See Guido Calabresi A Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089(1972). Similarly, tort liability for negligence is better viewed as a sanction, not a price. Robert Cooter, Prices and Sanctions, 84 Colum L.Rev.1523,1538(1984) A qualification: actors are sometimes liable for negligent omissions even when they have not created the risk of harm ider parents' du children,s health and safety. )In such cases, the actor has a duty to use reasonable care to reduce the risk of harm Page 5 of 57 Simons, Dimensions of Negligence 8/7/02On the standard conception, the primary fault underlying a negligence claim is the actor’s failure to take a reasonable precaution against the risk of harm. To be sure, tort law demands compensation for negligently-caused harm, and normally does not provide a remedy for negligence unless the negligence results in harm. Still, it is the negligent act that determines the actor’s fault. In other words, the state of affairs in which the negligent act does not occur is clearly preferable to that in which the actor negligently causes harm but pays compensation.3 The determination that an actor is negligent is made from an ex ante perspective, considering the foreseeable risks from the actor’s conduct and the foreseeable benefits (in the form of risk-reduction) from the actor’s taking a precaution. Negligence depends on foresight, not hindsight; on the reasonably apparent state of the world at the time of the action at issue, not on the actual state of the world at that time. Moreover, although negligence necessarily involves risk-creation,4 negligence might or might not cause harm. The standard conception treats negligence as an evaluative criterion, and as a conclusive judgment of fault. If an actor is negligent, then he should have acted differently. By creating an “unreasonable” risk of harm, or failing to take a “reasonable” precaution against harm, he is necessarily unjustified in acting as he did. And if harm follows, he will be liable in damages. By contrast, “knowingly” or “intentionally” creating a risk of harm, even a very high risk of harm, need not be an unjustified act. (Intentionally or knowingly harming a person can be justified by self-defense, for example.) Put differently, lack of 3 See Simons, The Hand Formula, supra note 1=, at 905. Accordingly, negligence liability (even in tort law) is best understood as a property rule, not a liability rule, insofar as the tortfeasor is not deemed entitled to cause harm so long as he pays. See Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089 (1972). Similarly, tort liability for negligence is better viewed as a sanction, not a price. Robert Cooter, Prices and Sanctions, 84 Colum. L. Rev. 1523, 1538 (1984). 4 A qualification: actors are sometimes liable for negligent omissions even when they have not created the risk of harm. (Consider parents’ duties with respect to their children’s health and safety.) In such cases, the actor has a duty to use reasonable care to reduce the risk of harm. Page 5 of 57 Simons, Dimensions of Negligence 8/7/02