Research Handbook on Economic Models of Law
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Research Handbook on Economic Models of Law

Edited by Thomas J. Miceli and Matthew J. Baker

One of the great successes of the law and economics movement has been the use of economic models to explain the structure and function of broad areas of law. The original contributions to this volume epitomize that tradition, offering state-of-the-art research on the many facets of economic modeling in law.
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Chapter 4: Regulation versus liability: a behavioural economics perspective

Kathleen Segerson and Tsvetan Tsvetanov


Much of the field of law and economics focuses on the design and evaluation of alternative ways of reducing accident risks. In the context of environmental or safety risks, two alternative approaches are regulation and legal liability for damages. Regulations are designed to control directly decisions that affect either the probability of an accident or the damages that would result if an accident were to occur. They are invoked ëex ante,í i.e., before an accident occurs. In contrast, liability is invoked ëex post,í i.e., after an accident occurs, but anticipation of the imposition of liability can create incentives for changes in behavior that reduce accident risks. In practice, a combination of the two is often used. For example, in the U.S. the risks associated with hazardous waste disposal are controlled both through the regulation of disposal-related activities under the Resource Conservation and Recovery Act (RCRA) and through the imposition of legal liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). There is a large literature within the field of law and economics comparing the welfare effects of reducing environmental or safety risks through regulation versus liability. This dates back to the early work by Shavell (1984a, 1984b). It identifies potential tradeoffs in the use of liability versus regulation (see, for example, Shavell 1993).

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