5 ms·

Nit: by definition, negligence can't be deliberate. Edit: "negligence" means you should have known of the risk. "Recklessness" means you knew of the risk but a

by morninj 10y ago

Nit: by definition, negligence can't be deliberate. Edit: "negligence" means you should have known of the risk. "Recklessness" means you knew of the risk but acted anyway.

newman314 10y ago
"Extremely careless" Sorry, could not resist.
simpsond 10y ago
https://en.m.wikipedia.org/wiki/Gross_negligence https://en.m.wikipedia.org/wiki/Gross_negligence
- morninj 10y ago
  "Gross negligence" means you really really should have known of the risk. But it's still a contradiction to say that someone was deliberately grossly negligent.
  - finnh 10y ago
    Not really, I don't think. That's basically the idea behind deniability - you kinda sort know about something, but you kinda sort make sure you never actually know about it. Gross negligence is often more along the lines of "we are 99.999% sure you are lying, but we can't prove it".
    - morninj 10y ago
      No. The Wikipedia article linked above says: In Wilson v Brett Baron Rolfe (later Lord Cranworth) said he "could see no difference between negligence and gross negligence; that it was the same thing, with the addition of a vituperative epithet."
dragonwriter 10y ago
> Edit: "negligence" means you should have known of the risk. "Recklessness" means you knew of the risk but acted anyway. No, "negligence", in law, means you failed to act according to the duty of care you owed, which can include knowing about a risk but failing to act reasonably to mitigate it as much as it can include not knowing about a risk that one reasonably should have known about. Negligence and recklessness are not mutually exclusive
- morninj 10y ago
  I'm not sure which law school taught you that, but it's just wrong. Here's a law review article that discusses the differences in mental state between negligence and recklessness: http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1561&context=dlj http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=...
  - deleted 10y ago
    [deleted]
  - ABCLAW 10y ago
    Negligence is a stand-alone tort/cause of action in civil litigation, as well as a qualifier for intention-based infractions in criminal law. The two meanings to the term are connected, but do not overlap 1:1. The poster above you is correct as to the test for negligence in civil causes of action. The likely cause of this mix-up is that false-licensing touches upon the law of misrepresentation, which contains as a subset, rules for both fraudulent misrepresentation as well as negligent misrepresentation.
  - pbhjpbhj 10y ago
    In USA law isn't wilful blindness an example of what might be considered deliberate negligence in other jurisdictions? Your link discusses the ill-defined nature of the middle ground, indeed if someone is apathetic as to whether the actions they take are negligent, those actions being deliberate, then it appears to fall in the even less well defined middle ground between recklessness and negligence. The link summarises with 3 conditions for recklessness, the first two being: >As to recklessness, the better rule to apply is that requiring a strict test, i.e., the defendant must (a) actually know the course of conduct he is about to embark upon involves the probability of death or great harm to another, and (b) choose to risk occurrence of harm. (duke.edu link, ibid ) // It primarily discusses criminal recklessness and only briefly touches on torts, as copyright infringement is, so I'm not really sure how relevant it is. Perhaps you could comment on this imagined scenario: A company deliberately includes CC-NC works (for example) in their morgue files and then neglects to check whether those works are then sold or included in the works that they chase up as infringements. Indeed they consider the problem but choose not to investigate whether they might be inadvertently charging for works that they have no rights to charge for, isn't there deliberate negligence there? They chose to avoid doing what the notional reasonable-man would consider to be necessary to avoid copyright infringement? They don't know they're infringing and so their actions aren't reckless?? TL;DR I propose that if you avoid acquiring the knowledge that would make you aware how reckless something were, you continue to be negligent just deliberately so. (Didn't read your link entirely, sorry). >"I'm not sure which law school taught you that" (morninj) // Isn't the point of the link that judges don't even the line between negligence and recklessness correctly and that state laws muddy the line considerably; that "criminal negligence" should be an oxymoron under what the author considers to be proper interpretation of the USC. However, and correct me if I'm wrong, "criminal negligence" is a charge that is currently brought quite properly in various States of the USA. IANAL just butting in with my tupenneth in the hope of getting educated.
HarryHirsch 10y ago
negligence can't be deliberate That's the problem, isn't it? Many crimes, for the law to apply, have to be committed knowingly. But if your internal controls are weak, and if cross-checking when billing is discouraged you just overbill on the chance that the customer will pay up. And you don't commit crime, only if you check and bill anyway, then it's crime! If we are arguing language, the correct words should be "criminogenic environment".
albedoa 10y ago
The basic definition [1] is not about failing to know the risk but rather failing to exercise care. Can one not deliberately fail to exercise that care? I am not versed in law, so please accept this as a request for clarification, not a debate. 1. https://en.wikipedia.org/wiki/Negligence https://en.wikipedia.org/wiki/Negligence

by morninj 10y ago

Nit: by definition, negligence can't be deliberate. Edit: "negligence" means you should have known of the risk. "Recklessness" means you knew of the risk but acted anyway.

newman314 10y ago

"Extremely careless" Sorry, could not resist.

simpsond 10y ago

https://en.m.wikipedia.org/wiki/Gross_negligence https://en.m.wikipedia.org/wiki/Gross_negligence

morninj 10y ago
"Gross negligence" means you really really should have known of the risk. But it's still a contradiction to say that someone was deliberately grossly negligent.
- finnh 10y ago
  Not really, I don't think. That's basically the idea behind deniability - you kinda sort know about something, but you kinda sort make sure you never actually know about it. Gross negligence is often more along the lines of "we are 99.999% sure you are lying, but we can't prove it".
  - morninj 10y ago
    No. The Wikipedia article linked above says: In Wilson v Brett Baron Rolfe (later Lord Cranworth) said he "could see no difference between negligence and gross negligence; that it was the same thing, with the addition of a vituperative epithet."

dragonwriter 10y ago

> Edit: "negligence" means you should have known of the risk. "Recklessness" means you knew of the risk but acted anyway. No, "negligence", in law, means you failed to act according to the duty of care you owed, which can include knowing about a risk but failing to act reasonably to mitigate it as much as it can include not knowing about a risk that one reasonably should have known about. Negligence and recklessness are not mutually exclusive

morninj 10y ago
I'm not sure which law school taught you that, but it's just wrong. Here's a law review article that discusses the differences in mental state between negligence and recklessness: http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1561&context=dlj http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=...
- deleted 10y ago
  [deleted]
- ABCLAW 10y ago
  Negligence is a stand-alone tort/cause of action in civil litigation, as well as a qualifier for intention-based infractions in criminal law. The two meanings to the term are connected, but do not overlap 1:1. The poster above you is correct as to the test for negligence in civil causes of action. The likely cause of this mix-up is that false-licensing touches upon the law of misrepresentation, which contains as a subset, rules for both fraudulent misrepresentation as well as negligent misrepresentation.
- pbhjpbhj 10y ago
  In USA law isn't wilful blindness an example of what might be considered deliberate negligence in other jurisdictions? Your link discusses the ill-defined nature of the middle ground, indeed if someone is apathetic as to whether the actions they take are negligent, those actions being deliberate, then it appears to fall in the even less well defined middle ground between recklessness and negligence. The link summarises with 3 conditions for recklessness, the first two being: >As to recklessness, the better rule to apply is that requiring a strict test, i.e., the defendant must (a) actually know the course of conduct he is about to embark upon involves the probability of death or great harm to another, and (b) choose to risk occurrence of harm. (duke.edu link, ibid ) // It primarily discusses criminal recklessness and only briefly touches on torts, as copyright infringement is, so I'm not really sure how relevant it is. Perhaps you could comment on this imagined scenario: A company deliberately includes CC-NC works (for example) in their morgue files and then neglects to check whether those works are then sold or included in the works that they chase up as infringements. Indeed they consider the problem but choose not to investigate whether they might be inadvertently charging for works that they have no rights to charge for, isn't there deliberate negligence there? They chose to avoid doing what the notional reasonable-man would consider to be necessary to avoid copyright infringement? They don't know they're infringing and so their actions aren't reckless?? TL;DR I propose that if you avoid acquiring the knowledge that would make you aware how reckless something were, you continue to be negligent just deliberately so. (Didn't read your link entirely, sorry). >"I'm not sure which law school taught you that" (morninj) // Isn't the point of the link that judges don't even the line between negligence and recklessness correctly and that state laws muddy the line considerably; that "criminal negligence" should be an oxymoron under what the author considers to be proper interpretation of the USC. However, and correct me if I'm wrong, "criminal negligence" is a charge that is currently brought quite properly in various States of the USA. IANAL just butting in with my tupenneth in the hope of getting educated.

HarryHirsch 10y ago

negligence can't be deliberate That's the problem, isn't it? Many crimes, for the law to apply, have to be committed knowingly. But if your internal controls are weak, and if cross-checking when billing is discouraged you just overbill on the chance that the customer will pay up. And you don't commit crime, only if you check and bill anyway, then it's crime! If we are arguing language, the correct words should be "criminogenic environment".

albedoa 10y ago

The basic definition [1] is not about failing to know the risk but rather failing to exercise care. Can one not deliberately fail to exercise that care? I am not versed in law, so please accept this as a request for clarification, not a debate. 1. https://en.wikipedia.org/wiki/Negligence https://en.wikipedia.org/wiki/Negligence