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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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Lapses and Substitution

Lapses and Substitution

(p.61) 4 Lapses and Substitution
Getting Incentives Right

Robert D. Cooter

Ariel Porat

Princeton University Press

This chapter deals with lapses of attention, for example by a driver or a doctor, and explains how a negligence rule gives injurers an incentive to substitute activities with unavoidable accidents for activities with lapses. Under current tort law, a lapse of attention will always be considered negligence and trigger liability for the resulting harm. However, the chapter shows that it should not be the case. After providing an overview of lapse defenses in prevailing law, the chapter examines the openness of liability law to the lapse defense and some activities that substitute unavoidable harm for lapses. It also explains how a lapse defense is implemented and shows how the lapse defense dampens inefficient substitution and increases collection of supporting information.

Keywords:   attention lapse, negligence, unavoidable accidents, lapses, tort law, liability, harm, lapse defense, unavoidable harm, substitution

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