|Billings Learned Hand über Haftungsrecht – Lexikon der Argumente
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Tort Law/Lerned Hand/Miceli: The use of tort liability to internalize harmful externalities is a straightforward extension of the theory of Pigovian taxation. The main difference is that tort law is administered privately through the judicial system rather than publicly by a regulatory authority. In the context of a simple externality model, however, there is no difference (at least in terms of deterrence) between a tax and an equivalent imposition of liability. Example:
Negligence law/Versäumnisrecht: (...) the first use of an explicitly mathematical model of negligence was by a judge in the famous case of U.S. v. Carroll Towing Co.*
In that case, Judge Learned Hand proposed his eponymous test for determining negligence, which says that an injurer who fails to take care should be found negligent if B
Hand test: To see how the Hand test creates incentives for efficient behavior in this setting, suppose that taking care is efficient in the above sense, or that B
The key point is that a negligence rule creates efficient incentives for potential injurers regarding accident prevention because it creates a threshold of behavior - the so-called “due care” standard - that shields them from liability if they meet that standard.
Liability/negligence: The importance of [the] distinction in the way negligence and strict liability work becomes apparent when the simple accident model is extended to allow victims as well as injurers to take precaution - that is, by making it a “bilateral” rather than “unilateral” care model. Moral hazard: In bilateral care contexts, imposing strict liability on injurers is not generally efficient because, although it induces efficient injurer care, victims have little or no incentive to be careful due to the moral hazard problem.
Solution: In contrast, the negligence rule potentially creates incentives for both injurers and victims to invest
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in efficient accident prevention.
Negligence rule: The negligence rule (...) induces efficient prevention by both injurers and victims because it combines the two methods for creating efficient incentives. Specifically, it sets a threshold level of care so that the injurer can avoid liability by meeting the threshold (as described above), and it simultaneously imposes full damages on the victim, thus eliminating the moral hazard problem. >Negligence law/Miceli.
* 159 F.2d 169 (2d. Cir. 1947).
1. Posner, Richard (1972). “A Theory of Negligence.” Journal of Legal Studies 1: 29-96.
Miceli, Thomas J. „Economic Models of Law“. In: Parisi, Francesco (ed) (2017). The Oxford Handbook of Law and Economics. Vol 1: Methodology and Concepts. NY: Oxford University Press.
|Learned Hand, Billings
Francesco Parisi (Ed)
The Oxford Handbook of Law and Economics: Volume 1: Methodology and Concepts New York 2017