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Do Exposure Suits Produce a 'Race to File'? An Economic Analysis of a Tort for Risk

  • Thomas J. Miceli

    (University of Connecticut)

  • Kathleen Segerson

    (University of Connecticut)

Conventional tort law does not allow victims of exposure to a toxic substance to seek compensation until they develop actual symptoms of illness. This may effectively bar recovery because at the time the illness arises, injurers may be judgment proof. One possible response is to allow a tort for risk that allows victims to seek expected damages at the time of exposure. However, critics charge that this could create a 'race to file' wherein victims rush to file suit to ensure that they will get a share of the injurer's limited assets. We show that such a race may or may not occur in equilibrium, and that when it does occur, not all victims choose to file at exposure if bankruptcy is an inevitable result. If bankruptcy is not inevitable, it is possible that a tort for risk will trigger bankruptcy, although a no-bankruptcy equilibrium always exists and Paretodominates the bankruptcy equilibrium. We examine the consequences of the various tort-for-risk equilibria on the compensation of exposure victims, litigation costs, and injurer care.

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Paper provided by University of Connecticut, Department of Economics in its series Working papers with number 2002-42.

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Length: 35 pages
Date of creation: Oct 2001
Date of revision: Jun 2004
Handle: RePEc:uct:uconnp:2002-42
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  1. Douglas W. Diamond & Philip H. Dybvig, 2000. "Bank runs, deposit insurance, and liquidity," Quarterly Review, Federal Reserve Bank of Minneapolis, issue Win, pages 14-23.
  2. Deneckere,R. & Peck,J., 1998. "Demand uncertainty, endogenous timing and costly waiting : jumping the gun in competitive markets," Working papers 22, Wisconsin Madison - Social Systems.
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  4. Rose-Ackerman, Susan, 1989. "Dikes, Dams, and Vicious Hogs: Entitlement and Efficiency in Tort Law," The Journal of Legal Studies, University of Chicago Press, vol. 18(1), pages 25-50, January.
  5. Kathryn E. Spier, 2002. "Settlement with Multiple Plaintiffs: The Role of Insolvency," Journal of Law, Economics and Organization, Oxford University Press, vol. 18(2), pages 295-323, October.
  6. Ringleb, Al H & Wiggins, Steven N, 1990. "Liability and Large-Scale, Long-term Hazards," Journal of Political Economy, University of Chicago Press, vol. 98(3), pages 574-95, June.
  7. Bruce A. Larson, 1996. "Environmental Policy Based on Strict Liability: Implications of Uncertainty and Bankruptcy," Land Economics, University of Wisconsin Press, vol. 72(1), pages 33-42.
  8. Fischer, Michael J, 1996. "Union Carbide's Bhopal Incident: A Retrospective," Journal of Risk and Uncertainty, Springer, vol. 12(2-3), pages 257-69, May.
  9. Thomas J. Miceli & Kathleen Segerson, 2004. "A Tort for Risk and Endogenous Bankruptcy," Working papers 2004-24, University of Connecticut, Department of Economics.
  10. Shavell, S., 1986. "The judgment proof problem," International Review of Law and Economics, Elsevier, vol. 6(1), pages 45-58, June.
  11. T. Randolph Beard, 1990. "Bankruptcy and Care Choice," RAND Journal of Economics, The RAND Corporation, vol. 21(4), pages 626-634, Winter.
  12. Schwartz, Alan, 1993. "Bankruptcy Workouts and Debt Contracts," Journal of Law and Economics, University of Chicago Press, vol. 36(1), pages 595-632, April.
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