The (Hidden) Risk of Opportunistic Precautions

50 Pages Posted: 2 Apr 2007

See all articles by Ehud Guttel

Ehud Guttel

Hebrew University of Jerusalem - Faculty of Law

Abstract

Under the conventional tort law paradigm, a tortfeasor behaves unreasonably where two conditions are met: The tortfeasor could have averted the harm by investing in cost-effective precautions and failed to do so, and other, more cost-effective precautions were not available to the victim. Torts scholarship has long argued that making such a tortfeasor responsible for the ensuing harm induces optimal care.

This Article shows that, in applying the conventional analysis, courts create incentives for opportunistic investments in prevention. In order to shift liability to others, parties might deliberately invest in precautions even where such investments are inefficient. The Article presents two possible solutions to the problem. By instituting a combination of (1) broader restitution rules and (2) an extended risk-utility standard, legislators and judges can reform tort law to discourage opportunistic precautions and maximize social welfare.

Keywords: Torts, Hand Formula, Economic Analysis, Strategic Behavior, Negligence

Suggested Citation

Guttel, Ehud, The (Hidden) Risk of Opportunistic Precautions. Virginia Law Review, 2007, Available at SSRN: https://ssrn.com/abstract=975629

Ehud Guttel (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
135
Abstract Views
1,034
Rank
383,493
PlumX Metrics