Title

Double-Edged Torts

Publication

International Review of Law and Economics

Volume

46

Page

43

Year

2016

Abstract

Traditional economic models of tort law assign determinate roles to parties, modeling their behavior as if parties knew in advance whether fate would cast them in the roles of “tortfeasors” or “victims.” However, for a large class of activities, individuals take precautions ignorant of whether they will be tortfeasors or victims, or indeed whether they will be involved in an accident at all. Further complicating the issue, there exists a category of precautions, which courts have not hitherto recognized, and which we call “hybrid precautions,” that reduce both the probability of being a tortfeasor and the probability of being a victim. In this paper, we extend the standard model to account for such cases of roleuncertainty and hybrid precaution, finding that incentives are not, as previously assumed, simply additive. We analyze and reassess the standard tort regimes under this new framework. From a policy perspective, we find that the traditional formulation of negligence fails to incentivize efficient care levels. We argue instead for a modification that does effect efficient precautionary efforts.

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