Law Commons^™

Harry Potter And The Trouble With Tort Theory, Scott Hershovitz

Law & Economics Working Papers

Economists argue that tort law promotes an efficient allocation of resources to safety, while philosophers contend that it dispenses corrective justice. Despite the divide, the leading tort theories share something in common: They are grounded in an unduly narrow view of tort. Both economists and philosophers confuse the institution of tort law with the rules that are distinctive of it. They offer theories of tort’s substantive rules, but for the most part ignore the procedures by which those rules are implemented. As a consequence, both miss and misconstrue much about tort law.

The problem is particularly acute for economists. They …

Coordinating Sanctions In Torts, Kyle D. Logue

Law & Economics Working Papers Archive: 2003-2009

This Article begins with the canonical law-and-economics account of tort law as a regulatory tool, that is, as a means of giving regulated parties the optimal ex ante incentives to minimize the costs of accidents. Building on this regulatory picture of tort law, the Article asks the question how tort law should coordinate with already existing non-tort systems of regulation. Thus, for example, if a particular activity is already subject to extensive agency-based regulation, regulation that already addresses the negative externalities or other market failures associated with the activity, what regulatory role remains for tort law? Should tort law in …

Low Probability/High Consequence Events: Dilemmas Of Damage Compensation, Richard O. Lempert

Law & Economics Working Papers Archive: 2003-2009

This article was prepared for a Clifford Symposium which challenged paper writers to imagine how our system of tort compensation might look in the year 2020. This paper responds to an aspect of the general challenge: to imagine a tort recovery system which would deal adequately with rare and catastrophic events. To get a handle on this problem, the paper looks closely at how the legal system compensated damages attendant on four recent events that might be considered “rare and catastrophic” – Three Mile Island, 9/11, Hurricane Katrina and the Exxon Valdez oil spill. In no case did the system …

How Liability Distorts Incentives Of Manufacturers To Recall Products, Omri Ben-Shahar

Law & Economics Working Papers Archive: 2003-2009

The nature and likelihood of harms associated with products may be revealed over time. As more information is gathered, a manufacturer must decide whether to continue selling the product as is, or to recall it. The paper shows that existing products liability law gives the manufacturers bad incentive to recall products. It shows, counter-intuitively, that as the post-recall liability becomes more severe, manufacturers would be more likely to leave products in the market longer and more often than is socially desirable. It also demonstrates that the law hurts the incentives of manufacturers to acquire better information about the riskiness of …

Pain-And-Suffering Damages In Tort Law: Revisiting The Theoretical Framework And The Empirical Evidence, Ronen Avraham

Law & Economics Working Papers Archive: 2003-2009

Should there be pain-and-suffering damages in tort law? Most legal economists who wrote on the subject that there should not be pain-and-suffering damages in tort law. A minority of scholars thought the decision of whether tort law should provide pain-and-suffering damages is an empirical, or an experimental, question that cannot be armchair-theorized. Yet, all scholars who have done empirical or experimental work to explore the desirability of pain-and-suffering damages reached the conclusion that it is undesirable. In this paper I argue that the majority view cannot serve as a policy-making aid. I side with the minority of scholars who argue …

Incidental Injuries From Exercise Of Lawful Rights, Thomas M. Cooley

Articles

In the present paper those cases will be considered in which one person suffers an injury in consequence of the exercise by another person of his legal rights. Many such cases occur in which, although the injury may be severe, the law will award no compensation, there being no tort in the case because there is an absence of that wrong the concurrence of which with damage is essential to an action. Negligence might supply the wrong, but we now speak of cases of which that is not an element.

Incidental Injuries From Exercise Of Lawful Rights, Thomas M. Cooley

Articles

In the present paper those cases will be considered in which one person suffers an injury in consequence of the exercise by another person of his legal rights. Many such cases occur in which, although the injury may be severe, the law will award no compensation, there being no tort in the case because there is an absence of that wrong the concurrence of which with damage is essential to an action. Negligence might supply the wrong, but we now speak of cases of which that is not an element.

Of The Right To Waive A Tort And Sue In Assumpsit, Thomas M. Cooley

Articles

The distinctions between an action for a tort and one upon contract are such that where the one will lie the other generally will not; but there are nevertheless some cases in which either may be brought at the election of the party injured. Thus, it is sometimes the case, that, in a business relation, the law makes it the duty of a party to observe a certain course of conduct with regard to the rights of others, where by contract he has also undertaken for the same thing; and in such a case a breach of duty is coincident …

Of The Right To Waive A Tort And Sue In Assumpsit, Thomas M. Cooley

Articles

The distinctions between an action for a tort and one upon contract are such that where the one will lie the other generally will not; but there are nevertheless some cases in which either may be brought at the election of the party injured. Thus, it is sometimes the case, that, in a business relation, the law makes it the duty of a party to observe a certain course of conduct with regard to the rights of others, where by contract he has also undertaken for the same thing; and in such a case a breach of duty is coincident …