Backwards and Forwards with Tort Law

2019 ◽  
pp. 103-132
Author(s):  
John Gardner
Keyword(s):  
Economic Analysis ◽  
Tort Law ◽  
Theory Of Value

This chapter argues that there can be no successful type of objection to an economic analysis of tort law. Coleman’s attempts to make good such objections are the best we have, but still they fail. That is because legal economists can in principle account for any norm that can be accounted for. To show that their explanation fails we are always reduced in the end to arguing that they got their costings wrong, and once the argument gets to that point then the war is over. If we want to defeat the economic analysis of tort law in a less pyrrhic way, we have no alternative but to mount a different type of objection to it. We must establish that the economic analysis rests on a bad theory of value. This we do by exploring what really matters in life, for what really matters in life is also, by and large, what really matters in law.

Distribution of Risk of Harm in Delictual Responsibility From the Standpoint of Economic Analysis of Law

2020 ◽  
Vol 27 (2) ◽  
pp. 119-130
Author(s):  
Maryna Velykanova
Keyword(s):  
Property Rights ◽  
Economic Analysis ◽  
Risk Sharing ◽  
Basis Property ◽  
Cost Effective ◽  
Well Being ◽  
Tort Law ◽  
Tort Liability ◽  
Economic Analysis Of Law ◽  
Systematic Analysis

Damage to property and (or) non-property rights of persons occurs quite often. The right to compensation for such damage is indisputable. However, civil doctrine ambiguously addresses the issue of risk sharing in tort obligations. Therefore, the purpose of this paper is to discuss approaches to the distribution of risk of harm in delictual responsibility and to determine their effectiveness from an economic and legal standpoint. The paper, based on economic and systematic analysis using dialectical, comparative, logical-dogmatic and other methods, including economics, describes the approaches to determining the purpose of tort law and its ability to ensure effective distribution of risk of harm. It has been proven that tort law can have direct regulatory consequences by restraining behaviour and sharing risks. It is concluded that the task of tort law is the optimal distribution of risk of harm between the perpetrator and the victim and to ensure the implementation of risky activities only if its social value justifies the risk. Based on the economic analysis of tort law, it has been substantiated that the distribution of the risk of damage in tort liability is carried out through the institutions of insurance and liability. Insurance is cost-effective when it comes to compensation for damage. However, only liability, in addition to the function of compensation, can also perform the function of preliminary prevention of harm. Therefore, the risk of causing harm in tort liability is mainly borne by the person who caused the damage. In obligations to compensate for damage caused by a source of increased danger, a person who on the appropriate legal basis (property rights, other property rights, contracts, leases, etc.) owns a vehicle, mechanism, other object, the use, storage or maintenance of which creates an increased danger, bears such risk even in the absence of guilt in causing harm. The grounds for imposing such risk on the victim are his intention or force majeure. It is this approach to the distribution of harm risk in tort liability that is fair and cost-effective and contributes to public well-being

Causal Apportionment of Tort Liability: An Efficient Approach

2016 ◽  
Vol 12 (1) ◽  
Author(s):  
Hugo A. Acciarri ◽  
Fernando Tohmé ◽  
Andrea Castellano
Keyword(s):  
Economic Analysis ◽  
Causal Reasoning ◽  
Tort Law ◽  
Tort Liability ◽  
Mainstream Economic ◽  
Efficient Approach ◽  
Alternative Framework ◽  
Standard Conception

AbstractMainstream economic analysis of Tort Law assumes that efficiency cannot be formally assured by allocating liability according to causal apportioning. In this paper we will present some ways to escape from the full scope of this claim. We start by reviewing the standard conception of causality in the economic analysis of Tort Law, to show how some underlying assumptions influence the currently held view on the relation between causal apportioning and efficiency. Then, we revisit those assumptions to see how plausible they actually are. In the light of this discussion we introduce an alternative framework of causal reasoning in Tort Law. We will show how our model yields a way of allocating liability in terms of a causal apportioning rule. The outcomes obtained through this procedure are closer to efficiency than those prescribed by the mainstream.

scholarly journals Information and Causation in Tort Law: Generalizing the Learned Hand Test for Causation Cases

2014 ◽  
Vol 7 (1-2) ◽  
Author(s):  
Keith N. Hylton
Keyword(s):  
Economic Analysis ◽  
Tort Law ◽  
Moral Significance ◽  
Hand Test ◽  
Causal Intervention

AbstractThis paper discusses the economics of causation in tort law, describing precise implications for precautionary incentives when courts are and are not perfectly informed. With precautionary incentives identified, we can ask whether the causation inquiry enhances welfare, and if so under what conditions. Perhaps the most important innovation applies to the Hand Formula. When causation is an issue, the probability of causal intervention should be part of the Hand test, and the generalized Hand test offers a method of distinguishing significant classes of causation cases. I close with implications for the moral significance of causation and for economic analysis of tort law.

The Medical Malpractice Litigation System

2021 ◽  
pp. 51-74
Author(s):  
Michael J. Saks ◽  
Stephan Landsman
Keyword(s):  
Adverse Events ◽  
Economic Analysis ◽  
Medical Malpractice ◽  
Great Majority ◽  
Tort Law ◽  
Malpractice Litigation ◽  
Legal Response ◽  
System P ◽  
Litigation Process ◽  
Tort System

“The Medical Malpractice Litigation System” provides a description of the conventional legal response to negligent adverse events. First, it discusses the origins, nature, and purposes (usually given as compensation and deterrence) of the tort system; explains the economic analysis of tort law (including the concept of negligence), and describes some of the specialized rules that apply only to medical malpractice torts. Most of the chapter is a data-based walk-through of the stages of the malpractice litigation process, including the proportion of cases that enter and proceed through each stage: initiation of claims (including attorney screening), pretrial disposition, trials, verdicts, compensation awards, and adjustments following verdicts. The evidence shows that the great majority of negligently caused injuries never enter the system, trials are rare, and negotiation plays so great a part that the system is best characterized as one of “litigotiation.”

scholarly journals Filtering Tort Accidents

2020 ◽  
Author(s):  
Jef De Mot ◽  
Ben Depoorter ◽  
Thomas J Miceli
Keyword(s):  
Decision Making ◽  
Economic Analysis ◽  
Tort Law ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Erroneous Decision ◽  
Institutional Aspects ◽  
Filtering Effect ◽  
Judicial Error ◽  
Liability Standards

Abstract Conventional wisdom in the economic analysis of tort law holds that legal errors distort incentives, causing behavior to depart from the optimum. If potential injurers know that courts err, they may engage in less or more than optimal precaution. This article revisits the effect of judicial error on the incentives of potential injurers by identifying a heretofore-neglected filtering effect of uncertainty in settings of imperfect judicial decision-making. We show that when courts make errors in the application of the liability standards, uncertainty about erroneous decision-making filters out the most harmful torts but leaves unaffected less harmful accidents. Our insight applies to various procedural and institutional aspects of legal adjudication, including the randomization of case assignment, the strength of precedent, and the use of standards versus rules.

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