Research Handbook on the Economics of Torts
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Research Handbook on the Economics of Torts

Edited by Jennifer H. Arlen

This pioneering Handbook contains specially-commissioned chapters on tort law from leading experts in the field. This volume evaluates issues of vital importance to those seeking to understand and reform the tort law and the litigation process, taking a multi-disciplinary approach, including theoretical economic analysis, empirical analysis, socio-economic analysis, and behavioral analysis. Topics discussed include products liability, medical malpractice, causation, proximate cause, joint and several liability, class actions, mass torts, vicarious liability, settlement, damage rules, juries, tort reform, and potential alternatives to the tort system. Scholars, students, legal practitioners, regulators, and judges with an interest in tort law, litigation, damages, and reform will find this seminal Handbook an invaluable addition to their libraries.
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Chapter 8: Economic analysis of joint and several liability

Lewis A. Kornhauser


A plaintiff sometimes has a common claim against multiple parties. In some of these instances, each defendant may be jointly and severally liable for the plaintiff’s harm. In others, the liability of each defendant is several only. Under joint and several liability, each defendant is liable for the entire harm though the total (judicial) recovery by the plaintiff is limited to the total harm. Under several-only liability, by contrast, each defendant is responsible for only her portion or share of the harm. The regime of joint and several liability has great practical importance as well as significant and subtle legal and economic consequences that were largely unnoticed prior to the use of economic analysis. Prior to the economic analyses of joint and several liability, conventional wisdom identified two major differences between regimes of joint and several liability and regimes of several-only liability. First, joint and several liability reallocates the cost of potential insolvency of a defendant from plaintiff to the solvent defendant. Second, under several-only liability, the plaintiff must collect from each (losing) defendant, while under joint and several liability, the plaintiff need only collect from a single defendant.

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