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Does Tort Law Deter?

35 Pages Posted: 27 May 2011  

W. Jonathan Cardi

Wake Forest University - School of Law

Randy Penfield

University of Miami

Albert Yoon

University of Toronto - Faculty of Law

Date Written: 2011

Abstract

For nearly four decades, economic analysis has dominated academic discussion of tort law. Courts also have paid increasing attention to the potential deterrent effects of their tort decisions. But at the center of each economic model and projection of cost and benefit lies a widely-accepted but grossly under-tested assumption that tort liability, in fact, deters tortious conduct. This article reports the results of a behavioral science study that tests this assumption as it applies to individual conduct.

Surveying over 700 first-year law students, the study presented a series of vignettes, asking subjects to rate the likelihood that they would engage in a variety of potentially tortious behaviors under different legal conditions. Students were randomly assigned one of four surveys, which differed only in the legal rules applicable to the vignettes. In summary, the study found that although the threat of potential criminal sanctions had a large and statistically significant effect on subjects’ stated willingness to engage in risky behavior, the threat of potential tort liability did not. These findings call into question widely-accepted notions about the very foundations of tort law.

Suggested Citation

Cardi, W. Jonathan and Penfield, Randy and Yoon, Albert, Does Tort Law Deter? (2011). Wake Forest Univ. Legal Studies Paper No. 1851383. Available at SSRN: https://ssrn.com/abstract=1851383 or http://dx.doi.org/10.2139/ssrn.1851383

W. Jonathan Cardi (Contact Author)

Wake Forest University - School of Law ( email )

P.O. Box 7206
Winston-Salem, NC 27109
United States

Randy Penfield

University of Miami

Coral Gables, FL 33124
United States

Albert Yoon

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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