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Uncertainty Over Causation and the Determination of Civil Liability

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  • Steven Shavell

Abstract

Situations in which there is uncertainty over the cause of harm are studied (e.g., was the lung cancer due to normal exposure to medical x-radiation, to smoking, to exposure to carcinogens discharged by a chemical plant?); and the effects on incentives to reduce risk of various ways of treating such uncertainty under the liability system are identified using a theoretical model of the occurrence of harm. The main points are these. Use of a threshold probabilit' of causation (e.g., 50%) as a criterion for determining liability may adversely affect behavior: parties might face a diminished burden of liability (if their probability of causation systematically fell below the threshold) and thus do too little to reduce risk; or they might face an extra burden (if their probability were systematically above the threshold), and thus do too much. Second, the best all or nothing criterion for determining liability (a criterion under which a party is fully liable if at all liable) is different in form from a threshold probability criterion. Third, liability in proportion to the probability of causation is superior to all other criteria and results in socially ideal behavior.These points are demonstrated and analyzed in two types of case: where the uncertainty involves a party versus natural or "background" factors; and where it involves which party among several was the author of harm. The importance of the points is shown to depend on the type of case, and as well on the form of liability (strict liability or the negligence rule).The interpretation of the analysis and important qualifications to it are discussed in a concluding section.

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Bibliographic Info

Paper provided by National Bureau of Economic Research, Inc in its series NBER Working Papers with number 1219.

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Date of creation: Oct 1983
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Handle: RePEc:nbr:nberwo:1219

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Cited by:
  1. Thomas J. Miceli & Kathleen Segerson, 2005. "Do Exposure Suits Produce a "Race to File"? An Economic Analysis of a Tort for Risk," RAND Journal of Economics, The RAND Corporation, vol. 36(3), pages 613-627, Autumn.
  2. Stremitzer, Alexander & Tabbach, Avraham, 2009. "Insolvency and Biased Standards--The Case for Proportional Liability," Working Papers 75r, Yale University, Department of Economics.
  3. Cooter, Robert D., 1996. "The theory of market modernization of law," International Review of Law and Economics, Elsevier, vol. 16(2), pages 141-172, June.
  4. Francesco Parisi & Giuseppe Dari-Mattiacci, 2003. "The Economics of Tort Law: A Précis," Working Papers 03-13, Utrecht School of Economics.
  5. Thomas J. Miceli & Kathleen Segerson, 2007. "Punishing the Innocent along with the Guilty: The Economics of Individual versus Group Punishment," The Journal of Legal Studies, University of Chicago Press, vol. 36(1), pages 81-106, 01.
  6. Qi Zhou, 2009. "Economic analysis of the legal standard for deceit in English tort law," European Journal of Law and Economics, Springer, vol. 28(1), pages 83-102, August.
  7. Young, Robert & Faure, Michael & Fenn, Paul, 2004. "Causality and causation in tort law," International Review of Law and Economics, Elsevier, vol. 24(4), pages 507-523, December.
  8. Feess, Eberhard & Ossig, Sonja, 2007. "Reimbursement schemes for hospitals, malpractice liability, and intrinsic motivation," International Review of Law and Economics, Elsevier, vol. 27(4), pages 423-441, December.
  9. Giuseppe Dari-Mattiacci & Gerrit De Geest, 2005. "The Filtering Effect of Sharing Rules," The Journal of Legal Studies, University of Chicago Press, vol. 34(1), pages 207-237, 01.
  10. Bartsch, Elga, 1996. "Enforcement of environmental liability in the case of uncertain causality and asymmetric information," Kiel Working Papers 755, Kiel Institute for the World Economy.
  11. Schweizer, Urs, 2009. "Legal damages for losses of chances," International Review of Law and Economics, Elsevier, vol. 29(2), pages 153-160, June.
  12. Eberhard Feess & Gerd Muehlheusser & Ansgar Wohlschlegel, 2009. "Environmental liability under uncertain causation," European Journal of Law and Economics, Springer, vol. 28(2), pages 133-148, October.
  13. Paul Burrows, 1999. "A Deferential Role for Efficiency Theory in Analysing Causation-Based Tort Law," European Journal of Law and Economics, Springer, vol. 8(1), pages 29-49, July.
  14. Schweizer, Urs, 2008. "Legal Damages for Losses of Chances," Discussion Paper Series of SFB/TR 15 Governance and the Efficiency of Economic Systems 235, Free University of Berlin, Humboldt University of Berlin, University of Bonn, University of Mannheim, University of Munich.
  15. Dietrich Earnhart, 1998. "Civil Litigation, Access to Government-Held Information, and Coordination of Public and Private Enforcement in the Czech Republic," European Journal of Law and Economics, Springer, vol. 6(2), pages 113-141, September.

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