When a plaintiff has been negligent in the sense that he should have acted otherwise, should the same criterion of negligence apply that would apply if he were creating risks only to others? Indeed, are there any persuasive reasons not to apply a radically different criterion of negligence? Moreover, should the plaintiff's recovery be diminished, outside the category of assumption of risk, even when the plaintiff has not been negligent? What are the justifiable criteria and limits of such plaintiff strict (...) responsibility? There are reasons for caution before concluding that a victim's self-regarding conduct is negligent. A victim often deserves special sympathy in the light of his special predicament, choosing between two evils, the immediate costs of which he must personally bear. Indeed, it might appear that the law is unfair or unduly onerous when it places significant demands on a victim with respect to his own self-regarding behavior. On the other hand, we should not forget that the victim's “duty” to use reasonable care is merely conditional: it applies only in case the victim seeks a remedy against the tortfeasor. (shrink)

This essay provides an overview of the crime/tort distinction. It first investigates some of the fundamental differences between criminal law and tort law in doctrine and legal structure. It then explores some important similarities and differences in normative perspectives between the two doctrinal fields. This typology should prove analytically useful for examining some of the specific issues at the borderline of crime and torts—such as the proper scope of punitive damage liability and the question whether criminal law as well as (...) tort law should vary legal sanctions simply because of the fortuitous occurrence of harm. (shrink)