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 23: Alternatives and complements: Liability and regulation as remedies for physical injury

Richard A. Epstein


Complex societies have many objectives, the foremost of which is protecting individuals against bodily injury (here defined to include death) and property loss or damage. The purpose of this chapter is to explore how tort liability and direct government regulation can be combined to minimize losses, financial and otherwise, from these two sources. In its simplest articulation, the choices fall along two dimensions. The first is whether the intervention should take place prior to the occurrence of the harm, or only after it occurs. The first of these options operates from the ex ante perspective. The second relevant distinction is whether the remedy in question should be done through private action or by direct public regulation. This choice operates from the ex post perspective. It is easy to see how these choices can be arrayed in a two-by-two matrix, in which government regulation falls in the northeast quadrant and tort law falls in the southwest. The northwest box with injunctions and the southeast box with fines fill in the grid.

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