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Causation and the incentives of multiple injurers

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  • Lando, Henrik
  • Schweizer, Urs

Abstract

Under the but-for requirement of causation, a tort injurer cannot be held liable for more than the difference between the loss the victim would have suffered if the injurer had not been negligent, and the loss that is in reality suffered. We ask whether this causation requirement yields efficient precaution in the context of two or more injurers. Contrary to a widely accepted view, we find that but-for causation may lead to the existence of an inefficient Nash-equilibrium. We characterize when this may occur and compare those instances with precedent in which courts have not required but-for causation. Moreover, we ask whether alternative concepts of causation do better than but-for causation in terms of incentives. We find that while both the NESS-test and the Shapley provide optimal incentives when injurers act simultaneously, there are reasons for considering the Shapley-value as the more satisfactory concept of causation.

Suggested Citation

  • Lando, Henrik & Schweizer, Urs, 2021. "Causation and the incentives of multiple injurers," International Review of Law and Economics, Elsevier, vol. 68(C).
    • Handle: RePEc:eee:irlaec:v:68:y:2021:i:c:s0144818821000508
    DOI: 10.1016/j.irle.2021.106026
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    References listed on IDEAS

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    1. Grady, Mark F, 1990. "Multiple Tortfeasors and the Economy of Prevention," The Journal of Legal Studies, University of Chicago Press, vol. 19(2), pages 653-678, June.
    2. Van Huyck, John B & Battalio, Raymond C & Beil, Richard O, 1990. "Tacit Coordination Games, Strategic Uncertainty, and Coordination Failure," American Economic Review, American Economic Association, vol. 80(1), pages 234-248, March.
    3. Keith Hylton & Haizhen Lin & Hyo-Youn Chu, 2015. "Negligence and two-sided causation," European Journal of Law and Economics, Springer, vol. 40(3), pages 393-411, December.
    4. Keith N. Hylton, 2013. "Causation in tort law: A reconsideration," Chapters, in: Jennifer H. Arlen (ed.), Research Handbook on the Economics of Torts, chapter 4, pages 97-113, Edward Elgar Publishing.
    5. Parisi Francesco & Singh Ram, 2010. "The Efficiency of Comparative Causation," Review of Law & Economics, De Gruyter, vol. 6(2), pages 219-245, September.
    6. Urs Schweizer, 2020. "But-for Causation and the Implementability of Compensatory Damages Rules [“Re-Examining Liability Rules When Injurers as Well as Victims Suffer Losses,”]," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 36(2), pages 231-254.
    7. Jain, Satish K. & Kundu, Rajendra P., 2006. "Characterization of efficient simple liability rules with multiple tortfeasors," International Review of Law and Economics, Elsevier, vol. 26(3), pages 410-427, September.
    8. Ram Singh, 2004. "‘Full’ Compensation Criteria: An Enquiry into Relative Merits," European Journal of Law and Economics, Springer, vol. 18(2), pages 223-237, September.
    9. Allan M. Feldman & Ram Singh, 2009. "Comparative Vigilance," American Law and Economics Review, Oxford University Press, vol. 11(1), pages 134-161.
    10. Samuel FEREY & Pierre DEHEZ, 2016. "Overdetermined Causation Cases, Contribution and the Shapley Value," LIDAM Reprints CORE 2755, Université catholique de Louvain, Center for Operations Research and Econometrics (CORE).
    11. Dehez, Pierre & Ferey, Samuel, 2013. "How to share joint liability: A cooperative game approach," Mathematical Social Sciences, Elsevier, vol. 66(1), pages 44-50.
    12. Young Robert & Faure Michael & Fenn Paul, 2007. "Multiple Tortfeasors: An Economic Analysis," Review of Law & Economics, De Gruyter, vol. 3(1), pages 111-132, May.
    13. Urs Schweizer, 2017. "Efficient Compensation: Lessons from Civil Liability," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 173(1), pages 54-70, March.
    14. Kornhauser, Lewis A & Revesz, Richard L, 1990. "Apportioning Damages among Potentially Insolvent Actors," The Journal of Legal Studies, University of Chicago Press, vol. 19(2), pages 617-651, June.
    15. Samuel Ferey & Pierre Dehez, 2016. "Multiple Causation, Apportionment, and the Shapley Value," The Journal of Legal Studies, University of Chicago Press, vol. 45(1), pages 143-171.
    16. Omri Ben-Shahar, 2009. "Causation and Foreseeability," Chapters, in: Michael Faure (ed.), Tort Law and Economics, chapter 3, Edward Elgar Publishing.
    17. Daniel Carvell & Janet Currie & W. Bentley MacLeod, 2012. "Accidental death and the rule of joint and several liability," RAND Journal of Economics, RAND Corporation, vol. 43(1), pages 51-77, March.
    18. Miceli, Thomas J. & Segerson, Kathleen, 1991. "Joint liability in torts: Marginal and infra-marginal efficiency," International Review of Law and Economics, Elsevier, vol. 11(3), pages 235-249, December.
    19. Kahan, Marcel, 1989. "Causation and Incentives to Take Care under the Negligence Rule," The Journal of Legal Studies, University of Chicago Press, vol. 18(2), pages 427-447, June.
    20. Milgrom, Paul & Roberts, John, 1990. "The Economics of Modern Manufacturing: Technology, Strategy, and Organization," American Economic Review, American Economic Association, vol. 80(3), pages 511-528, June.
    21. Tom H. Tietenberg, 1989. "Indivisible Toxic Torts: The Economics of Joint and Several Liability," Land Economics, University of Wisconsin Press, vol. 65(4), pages 305-319.
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    More about this item

    Keywords

    But-for causation; Multiple sufficient causation; NESS-test; Shapley apportionment; Compensation principle;
    All these keywords.

    JEL classification:

    • K13 - Law and Economics - - Basic Areas of Law - - - Tort Law and Product Liability; Forensic Economics
    • D02 - Microeconomics - - General - - - Institutions: Design, Formation, Operations, and Impact

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