Wrongfulness as a Necessary Cause of the Losses - Removing an Alleged Difference between Strict Liability and Negligence
Economic Analysis of Law Review, Vol. 2, No. 2, p. 188-203, 2011
RILE Working Paper No. 2011/06
17 Pages Posted: 18 Nov 2011
Date Written: November 17, 2011
Abstract
In several Law and Economics publications in the area of tort law, emphasis is being placed on an alleged difference between strict liability and negligence. Under strict liability, an injurer is liable for the losses of the victim, irrespective of his level of care. Under negligence, the injurer is not liable if he took at least the legally required care level. According to the mainstream Law and Economics literature, this feature of negligence causes a discontinuity in the expected private costs of the injurer. In this paper, I argue that this discontinuity does not exist in reality, because courts, when applying the negligence rule, require that the negligence was a necessary cause of the accident. After all, if the model adopted in economic analyses of tort law does not reflect the essence of this body of law, it will not be able to yield correct predictions or valuable policy recommendations.
Keywords: causation, incomplete compensation, judgment proof, lawful alternative, negligence, strict liability
JEL Classification: K13, K29
Suggested Citation: Suggested Citation
Do you have negative results from your research you’d like to share?
Recommended Papers
-
By Louis Kaplow and Steven Shavell
-
By Louis Kaplow and Steven Shavell