Harm Displacement and Tort Doctrine

49 Journal of Legal Studies 73 (2020)

Bar Ilan University Faculty of Law Research Paper No. 20-01

30 Pages Posted: 27 Jan 2020 Last revised: 5 Oct 2020

See all articles by Yehonatan Givati

Yehonatan Givati

Hebrew University of Jerusalem - Faculty of Law

Yotam Kaplan

Bar-Ilan University - Faculty of Law

Date Written: January 5, 2020

Abstract

A large literature in law and economics analyzes the phenomenon of crime displacement and its implications for criminal law. Yet a similar phenomenon of harm displacement in the tort context has been ignored by scholars. We develop a simple model of bilateral accidents which allows for harm to be displaced by the victim. We compare the regimes of strict liability, absolute liability and negligence, and show that the possibility of harm displacement points to an advantage of strict liability and absolute liability. We use this finding to explain certain doctrinal patterns in tort law, such as strict liability for nuisance and absolute liability for intentional trespass.

Suggested Citation

Givati, Yehonatan and Kaplan, Yotam, Harm Displacement and Tort Doctrine (January 5, 2020). 49 Journal of Legal Studies 73 (2020), Bar Ilan University Faculty of Law Research Paper No. 20-01, Available at SSRN: https://ssrn.com/abstract=3514233

Yehonatan Givati

Hebrew University of Jerusalem - Faculty of Law ( email )

Jerusalem
Mount Scopus, 91905
Israel

Yotam Kaplan (Contact Author)

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900
Israel

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