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Should Liability be Based on the Harm to the Victim or the Gain to the Injurer?

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  • A. Mitchell Polinsky
  • Steven Shavell

Abstract

Should the level of liability imposed on an injurer be based on the harm he caused or instead on the gain he obtained from engaging in the harmful act? The main point of this article is that there is a strong reason to favor liability based on harm rather than gain when account is taken of the possibility of legal error. Notably, even a small underestimate of gain can lead an injurer to commit a harmful act when the harm greatly exceeds his gain, causing a large social loss. In contrast, a comparable error in the estimate of harm will not lead an injurer to engage in the harmful act when the harm significantly exceeds his gain. The general superiority of harm-based liability is shown to hold under the rules of negligence and strict liability and regardless of whether potential injurers know the error that will be made.

Suggested Citation

  • A. Mitchell Polinsky & Steven Shavell, 1993. "Should Liability be Based on the Harm to the Victim or the Gain to the Injurer?," NBER Working Papers 4586, National Bureau of Economic Research, Inc.
    • Handle: RePEc:nbr:nberwo:4586
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    References listed on IDEAS

    as
    1. Craswell, Richard & Calfee, John E, 1986. "Deterrence and Uncertain Legal Standards," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 2(2), pages 279-303, Fall.
    2. Wittman, Donald, 1985. "Should compensation be based on costs or benefits?," International Review of Law and Economics, Elsevier, vol. 5(2), pages 173-185, December.
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    Cited by:

    1. Timothy Stanley, 1995. "Radar Detectors, Fixed and Variable Costs of Crime," Law and Economics 9507002, University Library of Munich, Germany, revised 27 Dec 1995.
    2. Dan Amiram & Zahn Bozanic & James D. Cox & Quentin Dupont & Jonathan M. Karpoff & Richard Sloan, 2018. "Financial reporting fraud and other forms of misconduct: a multidisciplinary review of the literature," Review of Accounting Studies, Springer, vol. 23(2), pages 732-783, June.
    3. Giuseppe Dari-Mattiacci, 2009. "Negative Liability," The Journal of Legal Studies, University of Chicago Press, vol. 38(1), pages 21-59, January.
    4. Timothy Stanley, 1995. "Optimal Penalties for Concealment of Crime," Law and Economics 9507001, University Library of Munich, Germany, revised 27 Dec 1995.
    5. Eric Rasmusen, 1995. "``Predictable and Unpredictable Error in Tort Awards: The Effect of Plaintiff Self Selection and Signalling,''," Law and Economics 9506003, University Library of Munich, Germany.

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    More about this item

    JEL classification:

    • K10 - Law and Economics - - Basic Areas of Law - - - General (Constitutional Law)
    • K13 - Law and Economics - - Basic Areas of Law - - - Tort Law and Product Liability; Forensic Economics

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