Framing negligence

Shoham Choshen-Hillel, Ehud Guttel*, Alon Harel

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review


This article uncovers the role of framing in the determination of negligence. Negligence disputes fall into two categories: cases in which injurers inflicted harm while seeking to avoid a loss to themselves (loss frame) and those in which they were seeking to obtain a personal gain (gain frame). We develop a theoretical framework whereby the frame of the injurer's behavior shapes negligence determinations in two ways. First, people are less likely to find an injurer negligent in a loss than in a gain frame. This is because, due to loss aversion, they find behavior more reasonable if done to avoid a loss than to obtain a gain. Second, people accord greater weight to the efficiency of the injurer's behavior in a loss frame than in a gain frame. This is because a comparison between the victim's harm and the injurer's benefit is more salient when both parties face a loss (loss frame). A series of experiments supported both hypotheses as well as the underlying mechanism. We discuss the implications of our findings and suggest that they may relate to the seemingly inconsistent case law on the role of efficiency considerations in negligence cases.

Original languageAmerican English
Pages (from-to)296-339
Number of pages44
JournalJournal of Empirical Legal Studies
Issue number2
StatePublished - Jun 2022

Bibliographical note

Funding Information:
For helpful comments and suggestions, the authors thank Maya Bar-Hillel, Yochanan Bigman, Michael Borns, Christopher Engel, Yuval Feldman, Yuval Procaccia, Eyal Zamir, the Editors and two anonymous referees, as well as participants in seminars and workshops at Bucerius Law School (Hamburg), George Mason, Max Planck Institute for Research on Collective Goods, and Nottingham University. Ori Katz, Mika Guzikevits and Amitai Edri have provided excellent research assistance. The authors also thank the Aharon Barak Center (Hebrew University Faculty of Law) and the Recanati fund (School of Business Administration) for their support.

Publisher Copyright:
© 2022 The Authors. Journal of Empirical Legal Studies published by Cornell Law School and Wiley Periodicals LLC.


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