New Directions in Liability Law

By Walter Olson | Go to book overview

Overdeterrence and the Problem of
Comparative Risk

WALTER OLSON

Of all the goals of the liability revolution, the most promising is that of reducing the rate of accidents. The modern tort system may, as its critics charge, fall short in every other respect. It may be an inefficient means of providing money to injury victims. It may depart drastically from legal precedent and from widely shared ideas of moral fault; it may dampen the spirit of enterprise and innovation; and it may be cumbersome and capricious in its workings. But if it deters needless accidents and injuries, many will find its expenses and burdens to be worth tolerating. Most people would like society to pay a high price to avoid injuries, more, perhaps, than the prospective victims of accidents themselves would be willing to spend if it were up to them.

The case for liability as a means of risk deterrence is clear, intuitive, and up to a point unassailable. Unless the victims of oil spills can go to court to win compensation, tanker owners will be less careful than they ought to be, and too often oil that should have been sent through pipelines or conserved will be shipped by sea. (To put it more formally, both the level of care and the level of activity will be suboptimal.) Some other form of regulatory control will have to be exerted over tanker owners if they are to be given proper incentives. But even a well-thoughtout effort along these lines —perhaps embodied in a thousand-page rule manual for tanker captains — is apt to be clumsy, intrusive, and incomplete compared with the sublimely simple rule: "Pay when you spill."

The costs of underdeterrence, then, are plain enough. The symmetrical risks in the other direction are less obvious. Why not make tanker owners pay fifty times the cost of the harm done by the oil they spill? The answer must be that the public would then face too small a risk of oil spills or, put more commonsensi‐ cally, would spend too much on prevention and pay too much at the gasoline pump. Injuries are not a positive good, but reducing them beyond a certain point would require society to give up too much of other values.

What are these other values that are being given up when the law is too stringent, when it deters too much? A general answer to that question requires an

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