"Liability and Environment" by Prof. Lucas Bergkamp analyzes the role of law, in particular civil liability, in controlling environmental pollution and risk. In modern environmental policy, liability has become a popular instrument. In this book, Prof. Bergkamp takes a fresh look at civil liability for environmental harm in an inter- and transnational context. Over the last decades, environmental regulations have mushroomed, and liability exposure for environmental harm has expanded significantly. At the international, EC, and national level further proposals for onerous strict environmental liability regimes are pending. The "polluter pays principle," which is an articulation of the "cost internalization" theory in the environmental area, is believed to justify such liability regimes. Applying an instrumental approach to law, Prof. Bergkamp aims to redefine the role of liability in the heavily regulated environmental area. He shows that in the regulatory state liability for environmental harm is not required by the polluter pays principle, is an uncertain and unreliable instrument for achieving prevention, results in an inefficient insurance scheme, and plays a dubious role in adjusting activity levels. Based on an analysis of the basic characteristics of alternative legal instruments, Prof. Bergkamp concludes that civil liability should play a more modest, limited role in an environmental law system dominated by public law. Where deterrence is the objective, objective fault liability can play a useful role as a sanction for violations of applicable standards. Where deterrence is not the objective, first party insurance or other public law regimes should be preferred over liability rules. In addition to civil liability of private parties, "Liability and Environment" discusses state liability under international, EC, and national law. Under international and EC law, breach of a primary obligation triggers a state's liability. Prof. Bergkamp argues that this rule should be applied also to liability of private parties. In the environmental area, a business' primary obligations are spelled out in detailed permit conditions, regulations and statutes. According to Prof. Bergkamp, only if a polluter breached a primary obligation, he should be liable for environmental harm. The system that Bergkamp advocates is an objective fault liability regime, in which public environmental law defines the standard of care for both government and industry. "In rebuilding our civil liability system, we should keep in mind that what we believe to be good for industry should be good for every one (or it is not good for anyone), and what is good for private parties should be good for the state (or it is not good for either). In rebuilding our civil liability system, the international law of state responsibility, which is unpolluted by risk spreading and activity level considerations, will guide us a long way." "Liability and Environment" covers also current trends and co
{"title":"Liability and Environment","authors":"L. Bergkamp","doi":"10.2139/SSRN.266365","DOIUrl":"https://doi.org/10.2139/SSRN.266365","url":null,"abstract":"\"Liability and Environment\" by Prof. Lucas Bergkamp analyzes the role of law, in particular civil liability, in controlling environmental pollution and risk. In modern environmental policy, liability has become a popular instrument. In this book, Prof. Bergkamp takes a fresh look at civil liability for environmental harm in an inter- and transnational context. Over the last decades, environmental regulations have mushroomed, and liability exposure for environmental harm has expanded significantly. At the international, EC, and national level further proposals for onerous strict environmental liability regimes are pending. The \"polluter pays principle,\" which is an articulation of the \"cost internalization\" theory in the environmental area, is believed to justify such liability regimes. Applying an instrumental approach to law, Prof. Bergkamp aims to redefine the role of liability in the heavily regulated environmental area. He shows that in the regulatory state liability for environmental harm is not required by the polluter pays principle, is an uncertain and unreliable instrument for achieving prevention, results in an inefficient insurance scheme, and plays a dubious role in adjusting activity levels. Based on an analysis of the basic characteristics of alternative legal instruments, Prof. Bergkamp concludes that civil liability should play a more modest, limited role in an environmental law system dominated by public law. Where deterrence is the objective, objective fault liability can play a useful role as a sanction for violations of applicable standards. Where deterrence is not the objective, first party insurance or other public law regimes should be preferred over liability rules. In addition to civil liability of private parties, \"Liability and Environment\" discusses state liability under international, EC, and national law. Under international and EC law, breach of a primary obligation triggers a state's liability. Prof. Bergkamp argues that this rule should be applied also to liability of private parties. In the environmental area, a business' primary obligations are spelled out in detailed permit conditions, regulations and statutes. According to Prof. Bergkamp, only if a polluter breached a primary obligation, he should be liable for environmental harm. The system that Bergkamp advocates is an objective fault liability regime, in which public environmental law defines the standard of care for both government and industry. \"In rebuilding our civil liability system, we should keep in mind that what we believe to be good for industry should be good for every one (or it is not good for anyone), and what is good for private parties should be good for the state (or it is not good for either). In rebuilding our civil liability system, the international law of state responsibility, which is unpolluted by risk spreading and activity level considerations, will guide us a long way.\" \"Liability and Environment\" covers also current trends and co","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114293730","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
About three-quarters of secondary schools are reluctant to vigorously enforce smoking bans due to various social pressures; ten percent of these schools do not have bans at all. Empirically, school-based smoking regulations appear, at best, ineffective at reducing teenage smoking and, more likely, may actually increase participation. Only schools which vigorously enforce bans have a lower smoking participation. In sum, teenage smoking participation appears to be non-monotonic in the level of enforcement. This paper develops an exchange model that explains this non-monotonic pattern. Smoking bans provide an exchange opportunity to less popular students. Less popular students who begin smoking validate the risk-taking behavior of existing teenage smokers who, in exchange, provide friendship to the newcomers. The enforcement itself becomes the glue which holds the group together. Teenage smoking bans, unless vigorously enforced, increase teenage smoking participation. An increase in self-esteem and other non-smoking related qualities, however, undermines the trading channel, which can help combat teenage smoking. Numerous pieces of empirical evidence, culled from the empirical social psychology literature, are consistent with all of the key predictions of the model.
{"title":"The Exchange Theory of Teenage Smoking and the Counterproductiveness of Moderate Regulation","authors":"Kent A. Smetters, Jennifer Gravelle","doi":"10.3386/W8262","DOIUrl":"https://doi.org/10.3386/W8262","url":null,"abstract":"About three-quarters of secondary schools are reluctant to vigorously enforce smoking bans due to various social pressures; ten percent of these schools do not have bans at all. Empirically, school-based smoking regulations appear, at best, ineffective at reducing teenage smoking and, more likely, may actually increase participation. Only schools which vigorously enforce bans have a lower smoking participation. In sum, teenage smoking participation appears to be non-monotonic in the level of enforcement. This paper develops an exchange model that explains this non-monotonic pattern. Smoking bans provide an exchange opportunity to less popular students. Less popular students who begin smoking validate the risk-taking behavior of existing teenage smokers who, in exchange, provide friendship to the newcomers. The enforcement itself becomes the glue which holds the group together. Teenage smoking bans, unless vigorously enforced, increase teenage smoking participation. An increase in self-esteem and other non-smoking related qualities, however, undermines the trading channel, which can help combat teenage smoking. Numerous pieces of empirical evidence, culled from the empirical social psychology literature, are consistent with all of the key predictions of the model.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131028355","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
J. Rovira, W. Viscusi, F. Antoñanzas, Joan Costa-Font, W. Hart, Irineu de Carvalho Filho
Previous studies of smoking risk beliefs have focused almost exclusively on risks to the smoker. Using an original set of survey data from Spain, we examine the public's perceived risks from exposures to environmental tobacco smoke. The risk categories considered included lung cancer, heart disease, life expectancy loss, and low birth weight for children of smoking mothers. Risk beliefs were quite high, often dwarfing scientific estimates of the risk. The results are consistent with overestimation of risks from highly publicized, low probability events.
{"title":"Smoking Risks in Spain: Part Ii - Perceptions of Environmental Tobacco Smoke Externalities","authors":"J. Rovira, W. Viscusi, F. Antoñanzas, Joan Costa-Font, W. Hart, Irineu de Carvalho Filho","doi":"10.2139/ssrn.255890","DOIUrl":"https://doi.org/10.2139/ssrn.255890","url":null,"abstract":"Previous studies of smoking risk beliefs have focused almost exclusively on risks to the smoker. Using an original set of survey data from Spain, we examine the public's perceived risks from exposures to environmental tobacco smoke. The risk categories considered included lung cancer, heart disease, life expectancy loss, and low birth weight for children of smoking mothers. Risk beliefs were quite high, often dwarfing scientific estimates of the risk. The results are consistent with overestimation of risks from highly publicized, low probability events.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117107672","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
F. Antoñanzas, W. Viscusi, J. Rovira, Francisco J. Brana, F. Portillo, Irineu de Carvalho Filho
Survey evidence for the Spanish population indicates that perceptions of lung cancer risk and life expectancy loss due to smoking are similar to estimates found in the United States. This paper also presents new evidence on the relative lung cancer risk for smokers, the perceived risk of lung disease for smokers, the heart disease risk for smokers, and the relative heart disease risk for smokers, all of which indicate substantial risk perceptions. Risk beliefs are particularly high for younger respondents, but are lower for better educated respondents.
{"title":"Smoking Risks in Spain: Part I - Perception of Risks to the Smoker","authors":"F. Antoñanzas, W. Viscusi, J. Rovira, Francisco J. Brana, F. Portillo, Irineu de Carvalho Filho","doi":"10.2139/ssrn.239972","DOIUrl":"https://doi.org/10.2139/ssrn.239972","url":null,"abstract":"Survey evidence for the Spanish population indicates that perceptions of lung cancer risk and life expectancy loss due to smoking are similar to estimates found in the United States. This paper also presents new evidence on the relative lung cancer risk for smokers, the perceived risk of lung disease for smokers, the heart disease risk for smokers, and the relative heart disease risk for smokers, all of which indicate substantial risk perceptions. Risk beliefs are particularly high for younger respondents, but are lower for better educated respondents.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"37 3","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131774964","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Current estimates of regulatory benefits are too low, and likely far too low, because they ignore a central point about valuation - namely, that people care not only about their absolute economic position, but also about their relative economic position. We show that where the government currently pegs the value of a statistical life at about $4 million, it ought to employ a value between $4.7 million and $7 million. A conservative reading of the relevant evidence suggests that when government agencies are unsure how to value regulatory benefits along a reasonable range, they should make choices toward or at the upper end. We begin by showing that the nation is nearing the end of a first-generation debate about whether to do cost-benefit analysis, with a mounting victory for advocates of the cost-benefit approach. The second-generation debate, now underway, involves important issues about how to value costs and benefits. Conventional estimates tell us the amount of income an individual, acting in isolation, would be willing sacrifice in return for, say, an increase in safety on the job. But these estimates rest on the implicit, undefended, and crucial assumption that people's well-being depends only on absolute income. This assumption is false. Considerable evidence suggests that relative income is also an important factor, suggesting that gains or losses in absolute income are of secondary importance unless they alter relative income. When a regulation requires all workers to purchase additional safety, each worker gives up the same amount of other goods, so no worker experiences a decline in relative living standards. The upshot is that an individual will value an across-the-board increase in safety much more highly than an increase in safety that he alone purchases. Regulatory decisions should be based on the former valuation rather than the latter. When the former valuation is used, dollar values should be increased substantially - conservatively, by 25 to 50 percent. Upward revisions of such magnitude clearly have important implications for a broad range of policy debates currently informed by cost-benefit analysis. We also show that an understanding of the importance of relative position suggests a rationale for various nonwaivable contractual terms in employment law, such as health care, parental leave, job security, and leisure. These terms, which have been attacked as welfare-reducing by many economists, give people important benefits with little or no impact on relative economic position. As with regulations that boost workplace safety, such contract terms may therefore be much more attractive when purchased by all than when purchased in isolation.
{"title":"Cost-Benefit Analysis and Relative Position","authors":"C. Sunstein, R. Frank","doi":"10.2139/ssrn.237665","DOIUrl":"https://doi.org/10.2139/ssrn.237665","url":null,"abstract":"Current estimates of regulatory benefits are too low, and likely far too low, because they ignore a central point about valuation - namely, that people care not only about their absolute economic position, but also about their relative economic position. We show that where the government currently pegs the value of a statistical life at about $4 million, it ought to employ a value between $4.7 million and $7 million. A conservative reading of the relevant evidence suggests that when government agencies are unsure how to value regulatory benefits along a reasonable range, they should make choices toward or at the upper end. We begin by showing that the nation is nearing the end of a first-generation debate about whether to do cost-benefit analysis, with a mounting victory for advocates of the cost-benefit approach. The second-generation debate, now underway, involves important issues about how to value costs and benefits. Conventional estimates tell us the amount of income an individual, acting in isolation, would be willing sacrifice in return for, say, an increase in safety on the job. But these estimates rest on the implicit, undefended, and crucial assumption that people's well-being depends only on absolute income. This assumption is false. Considerable evidence suggests that relative income is also an important factor, suggesting that gains or losses in absolute income are of secondary importance unless they alter relative income. When a regulation requires all workers to purchase additional safety, each worker gives up the same amount of other goods, so no worker experiences a decline in relative living standards. The upshot is that an individual will value an across-the-board increase in safety much more highly than an increase in safety that he alone purchases. Regulatory decisions should be based on the former valuation rather than the latter. When the former valuation is used, dollar values should be increased substantially - conservatively, by 25 to 50 percent. Upward revisions of such magnitude clearly have important implications for a broad range of policy debates currently informed by cost-benefit analysis. We also show that an understanding of the importance of relative position suggests a rationale for various nonwaivable contractual terms in employment law, such as health care, parental leave, job security, and leisure. These terms, which have been attacked as welfare-reducing by many economists, give people important benefits with little or no impact on relative economic position. As with regulations that boost workplace safety, such contract terms may therefore be much more attractive when purchased by all than when purchased in isolation.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"78 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116313659","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper focuses both on the competition process and the firms' liability in environmental protection and the demonstration is made by comparing two models of safety investment. The first one shows sensitive players to their environmental liability: they seek to minimize the technologies accident risk while the second one corresponds to a much more standard choice. The players' main preoccupation is about their market share even if they care about liability. Then, from a very simple duopolistic competition model with strict liability, we show, first, that the way the firms assess the environmental question is not neutral on their expected performances. Second, that the associated level of technology to the liability concern - i.e. a high level of care or a low one - have a different impact on profitability. Consequently, the competitors' general attitude, their beliefs and the institutional rules have strong effects on the environmental investment assessments. More precisely, the enforcing rule the players will adopt will play directly on the performance, not only of one firm, but on the whole set of industrial firms.
{"title":"Environmental Liability and Technology Choice: A Duopolistic Analysis","authors":"G. Mondello, M. Tidball","doi":"10.2139/ssrn.235010","DOIUrl":"https://doi.org/10.2139/ssrn.235010","url":null,"abstract":"This paper focuses both on the competition process and the firms' liability in environmental protection and the demonstration is made by comparing two models of safety investment. The first one shows sensitive players to their environmental liability: they seek to minimize the technologies accident risk while the second one corresponds to a much more standard choice. The players' main preoccupation is about their market share even if they care about liability. Then, from a very simple duopolistic competition model with strict liability, we show, first, that the way the firms assess the environmental question is not neutral on their expected performances. Second, that the associated level of technology to the liability concern - i.e. a high level of care or a low one - have a different impact on profitability. Consequently, the competitors' general attitude, their beliefs and the institutional rules have strong effects on the environmental investment assessments. More precisely, the enforcing rule the players will adopt will play directly on the performance, not only of one firm, but on the whole set of industrial firms.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"141 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122858999","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The purpose of this paper is to quantify the property value impacts of a change in environmental quality by using the hedonic price model. In particular, we focus on the impact of the presence of landfills on nearby residential real estate prices. We combine elements of an urban location choice and hedonic pricing model to estimate the effects of the presence of multiple environmental disamenities on residential real estate prices. We explicitly account for temporal effects by including housing transactions in areas with both open and closed landfills, and control for information effects. In addition, we treat property taxes and prices as being simultaneously determined. Our analysis suggests that closing landfills will not necessarily mitigate property value impacts.
{"title":"Property Value Impacts of an Environmental Disamenity","authors":"D. Hite, W. Chern, F. Hitzhusen, A. Randall","doi":"10.2139/ssrn.290292","DOIUrl":"https://doi.org/10.2139/ssrn.290292","url":null,"abstract":"The purpose of this paper is to quantify the property value impacts of a change in environmental quality by using the hedonic price model. In particular, we focus on the impact of the presence of landfills on nearby residential real estate prices. We combine elements of an urban location choice and hedonic pricing model to estimate the effects of the presence of multiple environmental disamenities on residential real estate prices. We explicitly account for temporal effects by including housing transactions in areas with both open and closed landfills, and control for information effects. In addition, we treat property taxes and prices as being simultaneously determined. Our analysis suggests that closing landfills will not necessarily mitigate property value impacts.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"176 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-04-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122407617","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this paper we analyze trading behaviour in an economy with substantial individual heterogeneity and individual agent- specific endowment risks. We establish that markets can be made effectively complete with a very small number of assets. In particular, if full insurance contracts are available, agents will only actively trade in two assets: a mutual fund and a bond. We also establish that contrary to standard results in the insurance demand literature, agents' optimal insurance demand can include in equilibrium full insurance in the presence of insurance prices which are actuarially unfair and that this demand will be independent of the correlation of insurance payments and the payments of other assets. Finally, we introduce asymmetric information concerning agents' risks into the economy and we show that adding a restriction on agents' possible insurance trades rather than introduce additional inefficiencies serves to ensure the attainability of efficient net trades.
{"title":"Optimal Insurance Trading: Full Insurance with Unfair Prices and Asymmetric Information","authors":"Jose S. Penalva","doi":"10.2139/ssrn.230605","DOIUrl":"https://doi.org/10.2139/ssrn.230605","url":null,"abstract":"In this paper we analyze trading behaviour in an economy with substantial individual heterogeneity and individual agent- specific endowment risks. We establish that markets can be made effectively complete with a very small number of assets. In particular, if full insurance contracts are available, agents will only actively trade in two assets: a mutual fund and a bond. We also establish that contrary to standard results in the insurance demand literature, agents' optimal insurance demand can include in equilibrium full insurance in the presence of insurance prices which are actuarially unfair and that this demand will be independent of the correlation of insurance payments and the payments of other assets. Finally, we introduce asymmetric information concerning agents' risks into the economy and we show that adding a restriction on agents' possible insurance trades rather than introduce additional inefficiencies serves to ensure the attainability of efficient net trades.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131102575","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper explores two central questions in the tort law of accidents--the choice between negligence and strict liability, and the level of reasonable precaution--from a fairness perspective. The first part of the paper develops the idea that liability rules are fair when they are ex ante and, over the long run, to the advantage of all those they affect, even those who fare worst under them. The second part of the paper investigates the choice between negligence and strict liability, taking into account two competing conceptions of fairness. One influential conception takes reciprocity or nonreciprocity of risk to be the master test of fairness, holding that accident costs are fairly distributed when the risks which give rise to accidents are fairly distributed. Another influential conception holds that the accident costs of risky activities should be spread among all those who benefit from the activity, ideally in proportion to their degree of benefit. This conception takes the distribution of harm--of the costs of accidents themselves--to be central. Part two of the paper argues that this second conception of fairness is preferable, and that it gives us good reason to believe that enterprise liability is prima facie fairer than negligence liability. Part three of the paper takes up the question of reasonable care, investigating the fair level of precaution. This part of the paper focuses particularly on the question of what fairness requires when an activity imposes a significant risk of serious injury. When an injury is serious--when the harm it does substantially impairs the pursuit of a normal life and when that harm cannot be repaired--fairness cannot be achieved by redistributing accident costs after the injury. Fairness must be achieved, if it can be achieved, by pitching the level of precaution at an appropriately high point ex ante. The paper argues that fairness requires pushing the level of precaution beyond the wealth maximizing point when substantial risks of serious injury are at issue. Fairness requires reducing such risks to the point where further reduction would threaten the activity that engenders them, the point where the long-run health of the activity would be jeopardized. The fourth and final section of the paper examines the connections between fairness and the forms of justice. Taking issue with the dominant position in contemporary tort theory, section four argues that justice (as fairness) in tort accident law is primarily a question of distributive justice, and only secondarily a matter of corrective justice.
{"title":"Fairness and Two Fundamental Questions in the Tort Law of Accidents","authors":"Gregory C. Keating","doi":"10.2139/ssrn.200778","DOIUrl":"https://doi.org/10.2139/ssrn.200778","url":null,"abstract":"This paper explores two central questions in the tort law of accidents--the choice between negligence and strict liability, and the level of reasonable precaution--from a fairness perspective. The first part of the paper develops the idea that liability rules are fair when they are ex ante and, over the long run, to the advantage of all those they affect, even those who fare worst under them. The second part of the paper investigates the choice between negligence and strict liability, taking into account two competing conceptions of fairness. One influential conception takes reciprocity or nonreciprocity of risk to be the master test of fairness, holding that accident costs are fairly distributed when the risks which give rise to accidents are fairly distributed. Another influential conception holds that the accident costs of risky activities should be spread among all those who benefit from the activity, ideally in proportion to their degree of benefit. This conception takes the distribution of harm--of the costs of accidents themselves--to be central. Part two of the paper argues that this second conception of fairness is preferable, and that it gives us good reason to believe that enterprise liability is prima facie fairer than negligence liability. Part three of the paper takes up the question of reasonable care, investigating the fair level of precaution. This part of the paper focuses particularly on the question of what fairness requires when an activity imposes a significant risk of serious injury. When an injury is serious--when the harm it does substantially impairs the pursuit of a normal life and when that harm cannot be repaired--fairness cannot be achieved by redistributing accident costs after the injury. Fairness must be achieved, if it can be achieved, by pitching the level of precaution at an appropriately high point ex ante. The paper argues that fairness requires pushing the level of precaution beyond the wealth maximizing point when substantial risks of serious injury are at issue. Fairness requires reducing such risks to the point where further reduction would threaten the activity that engenders them, the point where the long-run health of the activity would be jeopardized. The fourth and final section of the paper examines the connections between fairness and the forms of justice. Taking issue with the dominant position in contemporary tort theory, section four argues that justice (as fairness) in tort accident law is primarily a question of distributive justice, and only secondarily a matter of corrective justice.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129370537","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A guard is disclosed for guarding the nip between a pair of rolls in a power roll mill to prevent the mill operator's fingers from being crushed between the rolls. The guard comprises an upstanding plate pivotally mounted transversely between the opposite side frame members of the rolling mill in front of the pair of rolls being guarded. The top of the guard is flat and is located adjacent and below the normal path for the infeed of a sheet of material being formed between the rolls in order that an operator's fingers which support the underside of the sheet will engage the guard and be prevented from entering the roll nip. The guard plate is depressibly supported at its opposite ends by a pair of upright tubular rocker arms which are pivoted at their base and are biased to a central neutral position. At least one microswitch is provided adjacent one of the rocker arms which is in electric circuit with an electric motor which drives the power rolls to turn the motor on and off. An actuator for the switch projects into contact with the rocker arm and is actuated by pivotal movement of the rocker arm to either side of its neutral position in order to open the microswitch and thus to stop the electric motor.
{"title":"The Value of Information in Efficient Risk Sharing Arrangements","authors":"Edward Schlee","doi":"10.2139/ssrn.237644","DOIUrl":"https://doi.org/10.2139/ssrn.237644","url":null,"abstract":"A guard is disclosed for guarding the nip between a pair of rolls in a power roll mill to prevent the mill operator's fingers from being crushed between the rolls. The guard comprises an upstanding plate pivotally mounted transversely between the opposite side frame members of the rolling mill in front of the pair of rolls being guarded. The top of the guard is flat and is located adjacent and below the normal path for the infeed of a sheet of material being formed between the rolls in order that an operator's fingers which support the underside of the sheet will engage the guard and be prevented from entering the roll nip. The guard plate is depressibly supported at its opposite ends by a pair of upright tubular rocker arms which are pivoted at their base and are biased to a central neutral position. At least one microswitch is provided adjacent one of the rocker arms which is in electric circuit with an electric motor which drives the power rolls to turn the motor on and off. An actuator for the switch projects into contact with the rocker arm and is actuated by pivotal movement of the rocker arm to either side of its neutral position in order to open the microswitch and thus to stop the electric motor.","PeriodicalId":168354,"journal":{"name":"Torts & Products Liability Law","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123055651","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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