Two Models of Tort (and Takings)
59 Pages Posted: 12 Apr 2006
Abstract
Since the publication of The Cost of Accidents, the model of costs has been the dominant approach to tort theory. On the model of costs, tort law promotes efficiency by requiring agents to internalize the costs they impose on others when it is efficient to do so. Despite its success, the model of costs is deeply puzzling. Positive externalities are as inefficient as negative externalities. Therefore, if the model of costs provides a good explanation of tort law, one would expect that we would also have a legal regime oriented towards the recapture of the benefits we confer on others. In some instances, restitution allows the recapture of positive externalities, but compared to tort it is a trifling part of the law.
Part One of this Essay explores attempts to explain law's harm-benefit asymmetry from the perspective of the model of costs. I argue that the economic explanations offered to date are, in a variety of respects, unsatisfying. In Part Two, I explain an alternative model of torts, the model of harms. On this model, tort responds to the harms that we inflict on one another, rather than the costs that we impose on one another. I show how harms are different from costs, and I explain how conceiving of tort law as an institution concerned with harms rather than costs makes better sense of both tort doctrine and law's harm-benefit asymmetry.
Part Three explores takings jurisprudence, which exhibits its own harm-benefit asymmetry. The Constitution requires the government to pay just compensation when it takes property. Abraham Bell and Gideon Parchomovsky have argued that we ought to have a givings jurisprudence, which would require the government to impose a fair charge when it gives away property. I argue that Bell and Parchomovsky's suggestion makes sense only from the perspective of the model of costs, and that the model of harms better explains the takings jurisprudence we actually have. I show that, like tort law, constitutional takings jurisprudence responds to the harm that government inflicts when it takes property, rather than the costs it imposes.
Keywords: tort theory, takings, givings, economic analysis of law, harm, corrective justice, jurisprudence, restitution
JEL Classification: K00, K13
Suggested Citation: Suggested Citation
Do you have negative results from your research you’d like to share?
Recommended Papers
-
Who Blows the Whistle on Corporate Fraud?
By I. J. Alexander Dyck, Adair Morse, ...
-
Who Blows the Whistle on Corporate Fraud?
By I. J. Alexander Dyck, Adair Morse, ...
-
Who Blows the Whistle on Corporate Fraud?
By I. J. Alexander Dyck, Adair Morse, ...
-
Analyst Coverage and Earnings Management
By Frank Yu
-
By Krishna Palepu and Paul M. Healy
-
By Marilyn F. Johnson, Karen K. Nelson, ...
-
Do the Merits Matter Less after the Private Securities Litigation Reform Act?
-
Governance and Intermediation Problems in Capital Markets: Evidence from the Fall of Enron
By Paul M. Healy and Krishna Palepu
-
The Screening Effect of the Private Securities Litigation Reform Act
By Stephen J. Choi, Karen K. Nelson, ...