Assuming initially that negligence law does not make the distinction between durable and nondurable precautions, this Article will first explain in economic terms why the failure of courts to take into account the cost of remembering may nonetheless be efficient. A substantial body of research on the phenomenon of mindless decisionmaking ("scripting") suggests that most remembering is automatic--a nonconscious response to frequently encountered patterns of stimuli. Script theory suggests that once the behavioral script is in place, an automatic response operates at a very low cost. If so, the failure of courts to account for the cost of remembering would not be so startling. An examination of the case law in Part II of this Article, however, reveals that courts do consider the cost of remembering. The common law recognizes that not all forgetfulness is negligent and authorizes juries to find that reasonable people can forget. A close look at the case law reveals the sensitivity of the common law to the vagaries of human memory and the phenomenon of mindless decisionmaking. Nonetheless, Part III suggests that a focus on nondurable precautions may help explain the existence of negligence cases. Although the case law articulates efficient rules governing negligence in cases of forgetting, high information costs of the jury system may explain why negligence cases persists.
Paul J. Heald,
Mindlessness and Nondurable Precautions
Available at: http://digitalcommons.law.uga.edu/fac_artchop/137