tandard economic analysis views strict liability as preferable to negligence because it is easier to administer and leads to better risk reduction: strict liability induces injurers not only to optimally invest in precaution but also to optimally adjust their activity levels. Standard analysis thus views the prevalence of negligence as unjustifiable on efficiency grounds. This Article challenges the conventional wisdom and clarifies an efficiency rationale for negligence by spotlighting the information-production function of tort law.
Tort Law
For comments on an earlier version, we are deeply grateful to Guilherme Almeida, Fiery Cushman, Mihailis Diamantis, Ivar Hannikainen, Scott Hershovitz, Brian Leiter, James Macleod, Roseanna Sommers, Andy Summers, Kevin Tobia, John Witt, Ben Zipursky, and Gideon Yaffe. Katya Botchkina provided excellent research assistance and her philosophical suggestions were immensely helpful to us in drafting Part VI.
A few days before Christmas 1924, William Markowitz sold an air rifle to Richard Kevans. Markowitz should not have made that sale.
I am grateful to Lee Fennell, Daniel Hemel, Ariel Porat, and Claire Horrell for rewarding conversations and suggestions.
Richard Posner was certainly the most able judge in the history of tort law and in the development and deployment of law and economics.
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