• Selected
• Entire List

Abstract:
Economic analysis has long been employed for the study of tort liability. This paper revisits the main contributions to the subject emphasizing the inherent impossibility for tort liability to set perfectly efficient first-best incentives to take precaution for all parties to an accident and the need to choose among second best outcomes. The paper provides a pathfinder through the literature in various areas of tort law and economics.

Abstract:
Tort law has been one of the first fields of law to be analysed from an economic point of view. After the early works by Calabresi (1961) and Trimarchi (1959a, 1959b, 1961) most scholars have devoted their efforts to studying the economics of tort law. Noteworthy are the books by Calabresi (1970), Shavell (1987), Landes and Posner (1987), Miceli (1997) and some well-known books on Law and Economics by Polinsky (1989), Posner (1998), Kaplow and Shavell (2002), Cooter and Ulen (2000). In this chapter I will give a survey of the main results obtained over time.

Tort, damage, compensation, liability, fault, negligence, precaution, care, activity level, risk

Abstract:
Vicarious liability, secondary liability and mandatory insurance are three systems to attain judgment-proof or disappearing injurers' precaution through the direct control of a second party (the vicariously liable principal, the secondary liable party, or the insurer). In this way, the legal system delegates control over some injurers to private entities. Such mechanisms generate monitoring costs. In this paper, we consider who bears the cost of such monitoring and the effect thereof on the equilibrium level of precautions under different liability rules. We use these findings to explain some of the patterns in the coupling of substantive standards of liability and legal regimes of delegated control.

vicarious liability, secondary liability, insurance, negligence

Abstract:
In ancient societies, rules of communal responsibility permitted the imposition of retaliatory sanctions on a wrongdoer's clan. These rules followed the collective ownership structure of early communities. Over time, notions of personal responsibility emerged, terminating the transfer of responsibility from one member to the whole clan. This paper intends to provide an economic explanation for this transition.

communal liability, tort, ancient law, primitive society, group liability

Abstract:
In this paper we revisit Tullock's (1980) paradox and consider a rent-seeking game in which parties face increasing returns to effort. We allow parties to randomize their strategies and give them an exit option. Given the mixed participation strategies of the parties, valuable rents may occasionally remain unexploited. We consider such a lost-treasure effect as an additional cost of rent-seeking and examine how the expected value of such a lost rent varies with changes in the parameters of the problem.

rent-seeking, rent dissipation, Tullock's paradox

Abstract:
The presence of multiple sellers in the provision of (nonsubstitutable) complementary goods leads to outcomes that are worse than those generated by a monopoly (with a vertically integrated production of complements), a problem known in the economic literature as complementary oligopoly and recently popularized in the legal literature as the tragedy of the anticommons. We ask the following question: how many substitutes for each complement are necessary to render the presence of multiple sellers preferable to a monopoly? Highlighting the asymmetries between Cournot (quantity) and Bertrand (price) competition and their dual models, we show that the results crucially depend on whether firms compete by controlling price or quantity. Two substitutes per component are sufficient when firms choose price. However, when firms choose quantity, the availability of substitutes, regardless of their number, is ineffective. Considering more complex cases of multi-complementarity, we ask the related question of how many complements need to be substitutable and offer comments on equilibrium prices and quantities under different scenarios.

D43, D62, K11, L13

Abstract:
The presence of multiple sellers in the provision of (non-substitutable) complementary goods leads to outcomes that are worse than those generated by a monopoly (with a vertically integrated production of complements), a problem known in the economic literature as complementary oligopoly and recently popularized in the legal literature as tragedy of the anticommons. We ask the following question: how many substitutes for each complement are necessary to render the presence of multiple sellers preferable to monopoly? Highlighting the asymmetries between Cournot (quantity) and Bertrand (price) competition and their dual models, we show that the results crucially depend on whether firms compete by controlling price or quantity. Two substitutes per component are sufficient when firms choose price. However, when firms choose quantity, the availability of substitutes, regardless of their number, is ineffective. Considering more complex cases of multi-complementarity, we ask the related question of how many complements need to be substitutable and offer comments on equilibrium prices and quantities under different scenarios.

Anticommons, complementary inputs, oligopoly, antitrust, competition

Abstract:
Should loss of earnings be compensated? The established law and economics wisdom considers pure economic loss as a transfer of wealth from the victim to a third party, whose earnings increase as a consequence of the accident. Such transfers do not amount to a social loss and, hence, should not be compensated. We revisit these arguments and show that the social loss should be calculated by taking into account that: (a) pure economic loss often involves impairment costs resulting from the fact that valuable resources cannot be temporarily used; and (b) the third-party earnings come at the cost of increased capacity. This increased capacity mitigates the expected harm and, hence, is a form of precaution. By taking into account these factors, we show that most pure economic loss cases do result in a socially relevant loss. In addition, we argue that the absence of a social loss is a necessary, but not sufficient, condition for the denial of compensation. The victim (or a third party) may have actually paid for protection against purely private losses. Thus, compensation should be awarded irrespective of whether national law treats the case under tort or contract (where compensation is undisputed). Finally, we offer considerations on the optimal design of liability rules.

economic loss, financial loss, tort, damage, compensation

Abstract:
Limited liability may result in inefficient accident prevention, because a relevant portion of the expected harm is externalized on victims. This paper shows that under some restrictive conditions further limiting liability by means of a liability cap can improve caretaking.

insolvency, judgment proof, liability, bankruptcy, liability cap

Abstract:
This study emphasises the divergence between the legal approach to pure economic loss and the economic one, and focuses on the latter. Traditional economic theory is grounded on the divide between social and private loss and is employed in formulating policy recommendations for an efficient outcome. However, it fails to explain why pure economic loss cases are treated differently in different legal systems. This study suggests that pure economic loss should be regarded as the internalisation of positive externalities through a mechanism (tort law) primarily designed for negative externalities. The pure economic loss problem is a problem of choosing between second-best solutions, because tort law generally fails to provide first-best internalisation of both types of externalities. Within this framework, some new hypotheses on the comparative law and economics of pure economic loss will be discussed.

Abstract:
In this paper, we study a two-stage rent-seeking game. In the first stage, contestants compete a-la-Tullock; in the second stage, the winner can resell the rent a-la-Coase. We consider a complete information Tullock game in which the contestants have different valuations for the rent. The analysis focuses on the ex ante effects of a secondary market on efforts, payoffs, rent-dissipation and rent-misallocation. We show that the secondary market, while correcting possible misallocations, may exacerbate rent dissipation. In some situations, the increase in rent dissipation more than offsets the allocative advantage, so that a secondary market might reduce welfare. We further show how the effect of ex post tradeability on welfare depends on the parties' bargaining power and valuations of the rent, also considering the case of endogenous bargaining power.

Rent-seeking, asymmetric rent valuations, rent-dissipation, rent-misallocation

Abstract:
Incomplete contracts and laws often lead to disputes. Before a dispute arises, parties can adopt an arbitration clause. If they choose to do so, future disputes are resolved before an arbiter. Otherwise, parties will choose between settlement and litigation after a dispute has risen. We analyze variables that might dictate the parties' choices: the uncertainty of the case, the merit of the case, the costs of litigation, the probability of a dispute, and the amount at stake. Our results contrast with existing literature, which does not distinguish between contracts, where arbitration clauses are feasible, and torts, where they are not feasible. For example, we find that policies that reduce litigation in torts, such as a litigation tax, might increase litigation in contracts. Finally, we note that arbitration clauses are akin to making a contract more complete ex ante, while settlement amounts to renegotiating a contract ex post. Using this framework, we derive implications for theories of litigation and incomplete contracts.

arbitration, settlement, litigation, tort, contract

Abstract:
There is extensive literature on whether courts or legislators produce efficient rules, but which of them produces rules efficiently? Is there an optimal mix of litigation and legislation? The law is inevitably subject to a certain degree of uncertainty ex ante; uncertainty makes the outcomes of trials difficult to predict and, hence, prevents parties from settling disputes out of court. Conversely, the law is necessarily certain ex post: litigation fosters the creation of precedents that reduce uncertainty. We postulate that there is a natural balance between the degree of uncertainty of a legal system (kept under control by litigation) and its litigation rate (sustained by uncertainty). We describe such equilibrium rates of litigation and uncertainty in a formal model, study how they are affected by two different policies - litigation fees/subsidies and legislation - and compare the costs and benefits of the legislative and the judicial process of lawmaking. We then extend the analysis to explore the implications of this approach.

incompleteness of law, complexity of law, litigation, judge-made law, legislation

Abstract:
Negative and positive externalities pose symmetrical problems to social welfare. The law internalizes negative externalities by providing general tort liability rules. According to such rules, those who cause harm to others should pay compensation. In theory, in the presence of positive externalities, negative liability should apply: those who produce benefits should be paid a compensatory award by the gainers. Nevertheless, the legal system does not display such general negative liability rules. Rather, it tackles the problem of internalizing positive externalities by implementing a set of different and often indirect solutions. My explanation for this asymmetry in legal remedies rests on three features of a negative liability regime, relating to intent, incentives and evidence. These features explain the scope and design of restitution rules, liability for nonfeasance and other mechanisms for the internalization of positive externalities.

liability, positive externality, enrichment, restitution, nonfeasance

Abstract:
The recent debate on what criteria ought to guide social decisionmaking has focused on consistency: it has been argued that criteria contradicting one another - namely, welfare and fairness - should not be simultaneously employed in order for policy assessment to be consistent. In this article, I raise the related problem of completeness - that is, the question of whether or not a set of consistent criteria is capable of providing answers to all social decision problems. If not, as I suggest might be the case, then the only way to decide otherwise undecidable issues is to simultaneously employ both welfare and fairness, which implies a certain degree of inconsistency within the system.

completeness, consistencey, efficiency, fairness,values

Abstract:
The correct functioning of liability may be plagued by error in determining damages and in setting due care. This paper revises the literature on the topic and makes a distinction between those situations in which these two types of errors occur irrespective of each other and those in which they occur jointly. Three liability rules are considered: strict liability, the standard version of simple negligence without causation rule and the Grady-Kahan model of simple negligence with causation rule. It is shown that these liability rules perform differently only if the two types of errors occur separately. If they occur jointly, all liability rules yield the same equilibrium level of precaution.

tort, negligence, strict liability, causation

Abstract:
This paper shows that the least cost avoider approach in tort is not necessarily the optimal way to attain least cost avoidance when accidents can be avoided by either of two parties. When parties do not observe each other's costs of care at the time of the accident and are unable to determine which party is the least cost avoider, they fail to anticipate the outcome of the adjudication. Under these circumstances, accident avoidance becomes a commons problem because care by each individual party reduces the prospect of liability for both parties. As a result parties suboptimally invest in care. We show that regulation removes this problem and is superior to tort liability both when parties act simultaneously and when they act sequentially. We further examine how different liability rules perform in this respect.

tort, fine, precaution cost liability, last clear chance, least cost avoider

Abstract:
This paper characterizes the choice between centralization and decentralization as a risk-return trade-off and examines it in a model that integrates ideas from committee-decisionmaking and portfolio theories. Centralization, by pooling expertise, rarely yields erroneous decisions; however, when it fails, the consequences are global. In contrast, in a decentralized system, erroneous decisions are more frequent but their consequences are locally confined. We assess the relative desirability of (de-)centralization in various scenarios with independent versus interdependent risks. We further discuss the robustness of the model and the relevance of our results for policymaking.

centralization, decentralization, federalism, Condorcet Jury Theorem, risk diversification

Abstract:
This paper presents a general rent-seeking model in which participants decide on entry before choosing their levels of efforts. The conventional wisdom in the rent-seeking literature suggests that the rent dissipation increases with the number of potential participants and with their productivity of effort. In this paper, we show that this result of the rent-seeking literature is far from general and applies only when participants are relatively weak and enter the game with certainty. In the presence of strong competitors, the expected total dissipation actually decreases, since participation in the game is less frequent. We further consider the impact of competitors' exit option, distinguishing between "redistributive rent-seeking" and "productive rent-seeking" situations. In redistributive rent-seeking, no social loss results from the fact that all competitors exit the race. In productive rent-seeking, instead, lack of participation creates a social loss (the "lost treasure" effect), since valuable rents are left unexploited. We show that the lost-treasure effect perfectly counterbalances the reduction in rent dissipation due to competitors' exit. Hence, unlike redistributive rent-seeking, in productive rent-seeking the total social loss remains equal to the entire rent even when parties grow stronger or the number of players increases.

Rent-seeking, rent dissipation, Tullock's paradox

Abstract:
This article studies the optimal scope of negligence, considering which of the parties' precautionary measures should be included in the determination of negligence and which instead should be omitted. The analysis shows that the optimal scope of negligence balances the reduction of accident costs with the administrative costs of the system. This approach also provides insights on the notions of care and activity level and their boundaries, and on the choice between strict liability and negligence.

activity level, care, precaution, negligence, evolution of liability.

Abstract:
This study shows that the effects of judgment proofness on precaution depend on whether the injurer can reduce the probability of the accident, the magnitude of the harm, or both. Different legal solutions to the problem are examined: punitive damages, average compensation, undercompensation, accurate compensation and negligence. We find that when the injurer can only reduce the probability of the accident, negligence with average compensation is the best solution, but negligence with perfectly compensatory damages is the desirable solution if the injurer can only or also affect the magnitude of the harm.

Insolvency, judgment proof, liability, bankruptcy

Abstract:
When tort liability and regulation are jointly applicable, judges have a tendency to be more demanding than regulators. Liability standards are generally more stringent than regulatory ones: violation of a regulatory standard is normally considered negligence per se while compliance with regulation does not automatically relieve the injurer of tort liability. While under an imperfectly working tort liability system - i.e. a tort law system whose prevention function is undermined by judgment proof or disappearing defendants - injurers take too little precaution, it will still often be the case that only major violations (and not minor violations) are rewarding. Mathematically, this will occur when the injurer's expected expenses function exhibits two local minima, one at the socially optimal level of care and the other below that level. Regulation set below the optimal level can make the latter unfeasible, thereby enabling liability to induce socially optimal outcomes.

insolvency, judgment proof problem, disappearing defendant, bankruptcy, regulation

Abstract:
In this paper, we argue that social decisionmaking is subject to a fundamental conflict between consistency and completeness. We show that a consistent welfarist method of policy assessment, that is, one that never violates the Pareto principle, may be incomplete in the sense of being incapable of providing a solution to important social welfare problems.

Individualistic social welfare, Interdependent preferences

Abstract:
Sharing rules have a filtering effect on violations: they prevent the most harmful violations and let the least harmful ones occur. We show under what conditions the filtering effect improves social welfare and argue that this may explain why, in most areas of the law, sharing rules are, in general, preferred to rules that entirely burden one party. Our analysis applies to comparative negligence, communal liability, the allocation of police investigation efforts, contract remedies for non-verifiable breaches such as those that may occur in marriage and employment contracts, and to the distribution of shares in partnerships.

comparative negligence, law enforcement, divorce, employment contracts, theory of the firm

Abstract:
An annullable penalty is a sanction that is applied unless monitoring takes place and the agent is found non-shirking. An annullable bonus is a bonus that the agent receives unless he has been monitored and found shirking. Annullable penalties and bonuses stand in contrast with normal penalties and bonuses, which are only applied if monitoring has taken place. While real-life examples of annullable penalties are rare (an example is a sanction for which the burden of proof is reversed), there is a clear and often-discussed example of annullable bonuses: efficiency wages. Under efficiency wages all employees receive a bonus (an overpayment), except for those who have been monitored and found shirking.

This paper analyses under what conditions annullable bonuses or penalties make economic sense. On the one hand, annullable bonuses and penalties have a degree of ineffectiveness that is absent in their normal counterparts: the penalty paid by or the bonus paid to non-monitored agents does not improve their incentives. This ineffective part not only makes the expected sanction or bonus higher than necessary but creates an implicit tax on low monitoring levels and hence distorts monitoring choices. On the other hand, the annullable variants may change the ex post incentives of the agents (to come up with evidence) and the principal (to monitor as promised). As a result, annullable bonuses (such as efficiency wages) can be rational choices when the principal cannot credibly commit to paying bonuses with a certain probability, and annullable penalties can make sense when the agent needs an incentive to reveal information, or not to obstruct monitoring.

effectiveness of sanctions, contract remedies, carrots and sticks, annullable penalties

Abstract:
Although a punishment can be applied only once, the threat to punish can be repeated several times. This is possible because, when parties comply, the punishment is not applied and can thus be used to support a new threat. We refer to this feature of sticks as the "multiplication effect". The same is not possible with promises to reward, since carrots are used up every time a party complies; hence, at each round a new reward is needed. We show that the multiplication effect of sticks has pervasive consequences in economics and law, and provides a unified explanation for seemingly unrelated phenomena such as comparative negligence, legal aid, the dynamics of riots and revolutions, the use of property rules, the commons problem, and the most-favorednation clause in settlement negotiations.

law enforcement, comparative negligence, divide-and-conquer, revolutions, legal aid

Abstract:
This article identifies the conditions under which potentially insolvent injurers over-invest in precaution. We show that this may happen only with respect to precautionary measures that reduce the probability of the accident. No such result occurs if precaution only reduces the magnitude of the harm. Contrary to the literature, we find that overprecaution may also occur when precaution is non-monetary. The reason is that overprecaution can be due not only to the implicit precaution-subsidy effect (the fact that care-taking reduces the injurer's exposure to liability when precaution is monetary) but also to a substitution effect between precaution that reduces the probability of accidents and precaution that reduces the magnitude of the harm. Finally, we find that when the injurer's wealth is sufficiently low, precautions may actually be lower when they are monetary than when they are non-monetary, despite the implicit precaution subsidy in the former case.

insolvency, judgment proof problem, liability, bankruptcy, overprecaution

Abstract:
In this paper, we analyze two ways in which liability can be reduced: caps (the judgment proof problem) versus proportional reductions (the disappearing defendant problem). We show that these two problems have different incentive effects and hence yield dissimilar levels of social welfare. Moreover, when they occur simultaneously, they may have offsetting effects. We also show that the negligence rule with cause-in-fact may yield lower (rather than greater) levels of social welfare than strict liability. Finally, we analyze the optimal setting of the negligence standard. Our model encompasses different precaution technologies as well as monetary vs. non-monetary precautions.

insolvency, judgment proof, strict liability, negligence, disappearing defendant

Abstract:
We present a dynamic model of noncontractual litigation in which the parties' decision whether to litigate depends on information produced by courts and, vice versa, the courts' involvement in the lawmaking process depends on the cases proposed by the parties. Thereby, we integrate in one model the two main functions of the judiciary (adjudication and lawmaking) and study their interplay. Our model offers a dynamic, cyclical perspective on the evolution of the legal system over time and sheds new light on the causes for high litigation rates and on judge-made law versus statutes.

incompleteness of law, litigation, legislation, adjudication, judge-made law

Abstract:
Lowering the standard of negligence below the first-best socially optimal level has been shown by Ganuza and Gomez (2004) to increase the level of care taken by judgment proof injurers. In this paper, I consider a more complex model of negligence in which cause in fact is taken into account, and I show that this conclusion holds when the injurer's care reduces the magnitude of the accidental harm but not when the injurer's care reduces the probability of the accident. Thus, such soft negligence strategies aimed at tackling the adverse effects of judgment proofness need to be conditioned to the accident prevention technology available to injurers.

insolvency, judgment proof, liability, insolvency, cause in fact, soft negligence

Abstract:
In this paper we study price competition, equilibrium market configurations and entry when firms compete in vertically-di¤erentiated markets producing complementary goods. We consider two complements and start from a configuration where the market for one complement is a duopoly, whereas the other is a monopoly. In such framework, when products are highly di¤erentiated, the low-quality duopolist is always pushed out. We then allow for competition between complements on both sides of the market: one of the duopolists starts to produce also the other complement and decides whether to offer its two products as a bundle or to allow consumers to combine them with complements from other producers. We prove that this strategy always allows the low-quality duopolist to stay in the market, no matter if the duopolist producing both complements is the high or the low-quality one. Moreover, this strategy always increases consumer surplus, even when the duopolist sells the two complements only as a bundle.

complements, bundling, anticommons, antitrust, integration, vertical differentiation

Abstract:
While carrots and sticks create in principle identical marginal incentives, they are not randomly used in legal enforcement systems. This paper tries to draw a broader picture of their nonequivalence than previous contributions. It analyzes the fundamental characteristics of carrots and sticks and derives general rules on their optimal use. If a benevolent principal is fully informed about the agents’ effort costs, she will only use sticks, as they are not meant to be applied, thus minimizing transaction costs and risks. In addition, sticks cause less distributional distortions when the agents are sufficiently homogenous with respect to effort costs and benefits. However, these comparative advantages of sticks weaken as the complexity of the situation increases (the principal is less informed or agents are heterogeneous). Moreover, sticks are inherently more dangerous tools in the hands of non-benevolent principals since enforcement under carrots is always Pareto efficient while enforcement under sticks is not even necessarily Kaldor-Hicks efficient. Our analysis suggests that, as society becomes more complex (labor more specialized, preferences more heterogeneous, and decisions more decentralized), carrots will be used more frequently.

negative sanctions, positive sanctions, reward, bonus, complexity

Abstract:
Many accidents result in losses that cannot be perfectly compensated by a monetary payment. Moreover, often injurers control the magnitude rather than the probability of accidents. We study the characteristics of optimal levels of care and distribution of risk under these circumstances and show that care depends on the aggregate wealth of society but does not depend on wealth distribution. We then examine whether ordinary liability rules, regulation, insurance, taxes and subsidies can be used to implement the first-best outcome. Finally, our results are discussed in the light of fairness considerations (second best).

accidents, risk, wealth, care, bodily injury

Abstract:
A crucial step in economic development is the depersonalization of business, which enables an enterprise to operate as a separate entity from its owners and managers. Until the emergence of a de iure depersonalization of business in the 19th century, business activities were eminently personal, with managing partners bearing unlimited liability. Roman law even restricted agency. Yet, the Roman legal system did develop a form of de facto depersonalized business entity, which, although in a radically different way, exhibited all the distinctive features of modern corporations (continuity, direct agency, limited liability, and entity shielding). Business was depersonalized by making the fulcrum of the company a nonperson: the slave. Paradoxically, limited liability was achieved by extending the liability of the master to include assets managed by the slave (the peculium), in contrast with an earlier principle that the slave owner was not responsible for transactions by his slave. On the question why de iure depersonalization emerged only over a thousand years after the Roman experience, we discuss three hypotheses: (i) a cultural hypothesis, (ii) a technological hypothesis and (iii) a biased-evolution-of-remedies hypothesis.

depersonalization, limited liability, entity shielding, Roman law, slave

Abstract:
This article shows that the least-cost avoider approach in tort is not necessarily the optimal way to attain least-cost avoidance when accidents can be avoided by either of two parties. When parties do not observe each other's costs of care at the time of the accident and are unable to determine which party is the least-cost avoider, they fail to anticipate the outcome of the adjudication. Under these circumstances, accident avoidance becomes a commons problem because care by each individual party reduces the prospect of liability for both parties. As a result, parties suboptimally invest in care. We show that regulation removes this problem and is superior to tort liability both when parties act simultaneously and when they act sequentially. We further examine how different liability rules perform in this respect. (JEL K13, K32)

Abstract:
In this paper we analyse two ways in which liability can be reduced: caps (the judgment proof problem), and proportional reductions (the disappearing defendant problem). We show that these two problems have different incentive effects and hence yield dissimilar levels of social welfare. Moreover, when they occur simultaneously they may have offsetting effects. We also show that the negligence rule with cause-in-fact may yield lower (rather than higher) levels of social welfare than strict liability. Finally, we analyse the optimal setting of the negligence standard. Our model encompasses different precaution technologies as well as monetary v. non-monetary precautions.