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Does Risk to Oneself Increase the Care Owed to Others? Law and Economics in Conflict

22 Pages Posted: 10 Jan 2000  

Robert D. Cooter

University of California, Berkeley - School of Law

Ariel Porat

Tel Aviv University; University of Chicago - Law School

Date Written: 2000

Abstract

As applied by courts, the Hand Rule balances the injurer's burden of precaution and the victims' reduction in risk. In this application, risk to oneself does not increase the duty owed to others. Economists, however, use the Hand Rule to minimize social costs, which requires balancing the burden of precaution against the reduction in risk to everyone. For economists, risk to oneself counts in determining the duty owed to others. In cases where precaution reduces joint risk (risk to oneself and others), the usual legal interpretation underestimates the reduction in risk relative to the economic interpretation, often by 50%. The consequence is a lower standard of legal care than required to minimize social costs. Judges should reconceptualize the Hand Rule so that risk to oneself increases the care owed to others.

Suggested Citation

Cooter, Robert D. and Porat, Ariel, Does Risk to Oneself Increase the Care Owed to Others? Law and Economics in Conflict (2000). Journal of Legal Studies, Vol. 29, No. 1, Pt. 1, January 2000. Available at SSRN: https://ssrn.com/abstract=196688 or http://dx.doi.org/10.2139/ssrn.196688

Robert D. Cooter (Contact Author)

University of California, Berkeley - School of Law ( email )

Berkeley, CA 94720-7200
United States
510-642-0503 (Phone)
510-642-3767 (Fax)

Ariel Porat

Tel Aviv University ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel
972-3-6408283 (Phone)
972-3-6407260 (Fax)

HOME PAGE: http://www.law.tau.ac.il/Heb/?CategoryID=357&ArticleID=388

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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