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Sharing Residual Liability: The Cheapest Cost Avoider Revisited

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  • Emanuela Carbonara
  • Alice Guerra
  • Francesco Parisi
Abstract
Economic models of tort law evaluate the efficiency of liability rules in terms of care and activity levels. A liability regime is optimal when it creates incentives to maximize the value of risky activities net of accident and precaution costs. The allocation of primary and residual liability allows policy makers to induce parties to undertake socially desirable care and activity levels. Traditionally, tort law systems have assigned residual liability either entirely on the tortfeasor or entirely on the victim. In this paper, we unpack the cheapest-cost-avoider principle to consider the virtues and limits of loss-sharing rules in generating optimal (second-best) incentives and allocations of risk. We find that loss sharing may be optimal in the presence of countervailing policy objectives, homogeneous risk avoiders, and subadditive risk, which potentially offers a valuable tool for policy makers and courts in awarding damages in a large number of real-world accident cases.

Suggested Citation

  • Emanuela Carbonara & Alice Guerra & Francesco Parisi, 2016. "Sharing Residual Liability: The Cheapest Cost Avoider Revisited," The Journal of Legal Studies, University of Chicago Press, vol. 45(1), pages 173-201.
    • Handle: RePEc:ucp:jlstud:doi:10.1086/685498
    DOI: 10.1086/685498
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    References listed on IDEAS

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    Cited by:

    1. Schaefer Hans-Bernd, 2020. "Laudatio: Francesco Parisi," Review of Law & Economics, De Gruyter, vol. 16(1), pages 1-9, March.
    2. Dieter Schmidtchen & Jenny Helstroffer & Christian Koboldt, 2015. "Replacing the Polluter Pays Principle by the Cheapest Cost Avoider Principle: On the Efficient Treatment of External Costs," Working Papers of BETA 2015-08, Bureau d'Economie Théorique et Appliquée, UDS, Strasbourg.
    3. Feldman Allan & Singh Ram, 2021. "Equilibria Under Negligence Liability: How the Standard Claims Fall Apart," Review of Law & Economics, De Gruyter, vol. 17(1), pages 1-33, March.
    4. Acciarri Hugo A. & Tohmé Fernando & Castellano Andrea, 2016. "Causal Apportionment of Tort Liability: An Efficient Approach," Review of Law & Economics, De Gruyter, vol. 12(1), pages 37-55, March.
    5. Alice Guerra & Barbara Luppi & Francesco Parisi, 2022. "Do presumptions of negligence incentivize optimal precautions?," European Journal of Law and Economics, Springer, vol. 54(3), pages 349-368, December.
    6. Parisi Francesco, 2020. "Law and Economics as We Grow Younger," Review of Law & Economics, De Gruyter, vol. 16(1), pages 1-20, March.
    7. Allan M Feldman & Ram Singh, 2021. "Equilibria under Liability Rules: How the standard claims fall apart," Working papers 315, Centre for Development Economics, Delhi School of Economics.
    8. Jain Satish K. & Kundu Rajendra P., 2015. "Decomposition of Accident Loss and Efficiency of Liability Rules," Review of Law & Economics, De Gruyter, vol. 11(3), pages 453-480, November.
    9. Ogden, Benjamin G. & Hylton, Keith N., 2020. "Incentives to take care under contributory and comparative fault: The role of strategic complementarity," International Review of Law and Economics, Elsevier, vol. 61(C).

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