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Getting Incentives RightImproving Torts, Contracts, and Restitution$
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Robert D. Cooter and Ariel Porat

Print publication date: 2014

Print ISBN-13: 9780691151595

Published to Princeton Scholarship Online: October 2017

DOI: 10.23943/princeton/9780691151595.001.0001

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The Injurer’s Self-Risk Puzzle

The Injurer’s Self-Risk Puzzle

Chapter:
(p.32) 2 The Injurer’s Self-Risk Puzzle
Source:
Getting Incentives Right
Author(s):

Robert D. Cooter

Ariel Porat

Publisher:
Princeton University Press
DOI:10.23943/princeton/9780691151595.003.0003

This chapter considers a misalignment due to courts' ignorance of the injurer's self-risk when they set the standard of care. In setting the standards of care, courts consider the risks the injurer created toward others, and systematically exclude the risks the injurer created for himself. Thus courts set the standard of care for driving in light of the danger to others, without accounting for the danger to the driver. The chapter explains why courts should determine liability by reference to the risk imposed by the injurer on others and himself. It first considers the Hand Rule or Learned Hand formula, applied by courts to determine the negligence of the injurer, before discussing the “net burden” interpretation of the Hand Rule. It then presents four paradigmatic examples, based on real cases, that illustrate the pervasiveness of joint risks in law. It concludes by analyzing several objections that could be raised against the self-risk argument.

Keywords:   misalignment, self-risk, standards of care, risks, liability, Learned Hand formula, negligence, net burden, joint risks

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