Abstract

http://ssrn.com/abstract=1430596
 
 

Footnotes (104)



 


 



Coordinating Sanctions in Tort


Kyle D. Logue


University of Michigan Law School

July 7, 2009

U of Michigan Law & Economics, Olin Working Paper No. 09-014

Abstract:     
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 such cases be displaced or preempted?

The answer is: It depends. Sometimes, even in the presence of overlapping non-tort regulation, there is a regulatory role that tort law can play, sometimes not. If the non-tort regulatory standard is already “fully optimizing,” in the sense that the regulatory standard (a) sets both an efficient floor and an efficient ceiling of conduct and (b) is fully enforced by the regulatory authority, then tort law arguably should be fully displaced in the sense that no tort remedy should be available for harms caused by such an activity. If, however, the regulatory standard is only “partially optimizing” (for example, it is only an efficient minimum or efficient floor or it is only partially enforced), then tort law continues to have an important regulatory role to play.

This framework can be used to explain such tort doctrines as negligence per se and suggests circumstances in which there should be a corollary doctrine of non-negligence per se. It also helps to explain recent federal preemption cases involving overlapping tort and regulatory standards. Finally, the framework produces insights for how tort law might efficiently be adjusted to coordinate with overlapping social norms, which are also considered within the L&E tradition to be a form of regulation.

Number of Pages in PDF File: 59

Keywords: Tort doctrines

JEL Classification: K13

working papers series


Download This Paper

Date posted: July 8, 2009 ; Last revised: August 25, 2009

Suggested Citation

Logue, Kyle D., Coordinating Sanctions in Tort (July 7, 2009). U of Michigan Law & Economics, Olin Working Paper No. 09-014. Available at SSRN: http://ssrn.com/abstract=1430596 or http://dx.doi.org/10.2139/ssrn.1430596

Contact Information

Kyle D. Logue (Contact Author)
University of Michigan Law School ( email )
625 South State Street
Ann Arbor, MI 48109-1215
United States
734.936.2207 (Phone)
HOME PAGE: http://cgi2.www.law.umich.edu/_FacultyBioPage/facultybiopagenew.asp?ID=220

Feedback to SSRN


Paper statistics
Abstract Views: 1,251
Downloads: 158
Download Rank: 108,253
Footnotes:  104

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo5 in 0.250 seconds