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Litigation and Regulation

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Author Info
Joshua Schwartzstein
Andrei Shleifer

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Abstract

We ask whether regulation can usefully supplement litigation in a model of optimal social control of harmful externalities. In our model, firms choose activity levels in addition to precautions. In contrast to the usual analysis, we assume that social returns to activity are higher than private returns before taking harmful externalities into account. We also assume that both courts and regulators make errors in assessing whether it is efficient for a given firm to take precautions. We show that regulation can, in some circumstances, improve resource allocation. Regulatory preemption of litigation may be efficient when social returns to activity exceed the expected harm that could result from a firm taking too few precautions. The optimal structure of law enforcement is influenced by the divergence between private and social returns to activity as well as the competence of regulators and courts.

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Paper provided by National Bureau of Economic Research, Inc in its series NBER Working Papers with number 14752.

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Date of creation: Feb 2009
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Handle: RePEc:nbr:nberwo:14752

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Find related papers by JEL classification:
D62 - Microeconomics - - Welfare Economics - - - Externalities
K13 - Law and Economics - - Basic Areas of Law - - - Tort Law and Product Liability
K40 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - General
L51 - Industrial Organization - - Regulation and Industrial Policy - - - Economics of Regulation

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Please report citation or reference errors to , or , if you are the registered author of the cited work, log in to your RePEc Author Service profile, click on "citations" and make appropriate adjustments.:
  1. Viscusi, W Kip & Moore, Michael J, 1993. "Product Liability, Research and Development, and Innovation," Journal of Political Economy, University of Chicago Press, vol. 101(1), pages 161-84, February. [Downloadable!] (restricted)
  2. Polinsky, A Mitchell, 1980. "Strict Liability vs. Negligence in a Market Setting," American Economic Review, American Economic Association, vol. 70(2), pages 363-67, May. [Downloadable!] (restricted)
  3. Png, I. P. L., 1986. "Optimal subsidies and damages in the presence of judicial error," International Review of Law and Economics, Elsevier, vol. 6(1), pages 101-105, June. [Downloadable!] (restricted)
  4. Steven Shavell, 1984. "A Model of the Optimal Use of Liability and Safety Regulation," RAND Journal of Economics, The RAND Corporation, vol. 15(2), pages 271-280, Summer. [Downloadable!] (restricted)
  5. Gary S. Becker, 1968. "Crime and Punishment: An Economic Approach," Journal of Political Economy, University of Chicago Press, vol. 76, pages 169. [Downloadable!] (restricted)
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  6. Banerjee, A.V., 1997. "A Theory of Misgovernance," Working papers 97-4, Massachusetts Institute of Technology (MIT), Department of Economics.
  7. Nicola Gennaioli & Andrei Shleifer, 2006. "Judicial Fact Discretion," NBER Working Papers 12679, National Bureau of Economic Research, Inc. [Downloadable!] (restricted)
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  8. Banerjee, Abhijit V, 1997. "A Theory of Misgovernance," The Quarterly Journal of Economics, MIT Press, vol. 112(4), pages 1289-1332, November.
  9. Viscusi, W Kip, 1991. "Product and Occupational Liability," Journal of Economic Perspectives, American Economic Association, vol. 5(3), pages 71-91, Summer. [Downloadable!] (restricted)
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Cited by:
(explanations, Please report citation or reference errors to , or , if you are the registered author of the cited work, log in to your RePEc Author Service profile, click on "citations" and make appropriate adjustments.)

  1. Immordino, Giovanni & Pagano, Marco & Polo, Michele, 2009. "Incentives to Innovate and Social Harm: Laissez-Faire, Authorization or Penalties?," CEPR Discussion Papers 7280, C.E.P.R. Discussion Papers. [Downloadable!] (restricted)
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