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The standard of care to be applied in tort cases involving mentally disabled people has not been reconsidered in recent years. Traditional rationales for the "objective" standard are less persuasive in the context of current legal approaches to the rights of mentally ill and retarded persons. Analogies to children (especially the concept of "mental age") and to physically handicapped adults merit reexamination. The objective standard of care for mentally disabled defendants was an outgrowth of the ideology of confinement-an ideology that society has since abandoned. Adoption of a subjective standard would not right a vast number of grave injustices, nor would it dramatically ease the burdens of the courts. It would probably have no effect on the overall number of accidents in society, nor would it significantly shift the burden of their cost. But on balance, it may be seen as a modest step toward equitable treatment of the mentally handicapped before the law.

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American Bar Foundation Research Journal



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disability law

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Law Commons



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