Harm Displacement and Tort Doctrine
49 Journal of Legal Studies 73 (2020)
30 Pages Posted: 27 Jan 2020 Last revised: 5 Oct 2020
Date Written: January 5, 2020
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.
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