Document Type
Article
Publication Date
2008
ISSN
1555-5879
Publisher
De Gruyter Publishing House
Language
en-US
Abstract
In spite of its tenure as the prevailing economic theory of strict liability, the proposition that strict liability should be preferred to negligence when it is desirable to reduce injurers' activity levels rather than victims' activity levels raises a few questions. First, when should we prefer to reduce injurers' activity levels rather than victims'? Second, why should we not hold both victim and injurer strictly liable? This paper provides a model that answers these questions more effectively than the prevailing economic model. The model presented here offers specific predictions that are consistent with the detailed law on strict liability and the appearance of strict liability in pockets rather than as an across-the-board default rule. The choice between strict liability and negligence depends on the degree to which there is a reciprocal exchange of risk among actors, and the extent to which benefits, in addition to risks, are externalized.
Recommended Citation
Keith N. Hylton,
A Positive Theory of Strict Liability
,
in
4
Review of Law & Economics
153
(2008).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/662
Working paper available on SSRN
Comments
Updated with published version of paper on 9/23/22
Working paper available on SSRN