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A New Theory of Negligence

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A New Theory of Negligence NEGLIGENCE AS OPTIMIZATION PUZZLES: A NEW THEORY OF NEGLIGENCE A Dissertation Presented to the Faculty of the Law School of Yale University In Candidacy for the Degree of Doctor of the Science of Law By Issar Birger Dissertation Committee Supervisor: Professor Richard R.W. Brooks Readers: Professor Ian Ayres, Professor John Fabian Witt, and Professor Ariel Porat © 2015 by Issar Birger All rights reserved 2 ABSTRACT This thesis addresses the following questions, among others. Can two people take the exact same precautions yet face different liabilities for identical accidents? Can two people exercise the same overall care yet face different liabilities? Can a person take more precautions than the efficient level of care requires at the time of the accident, yet justifiably be found liable in negligence? More generally, is the Hand Formula economically misguided or inapplicable, at least in many real-world scenarios? Is the Restatement (Third) of Torts equally misguided or imprecise? Is orthodox economic analysis of negligence law predicated and contingent upon over-constrained and unrealistic assumptions? What are the prerequisites for the application of the conventional model of negligence adjudication? The principle issues examined include (i) Interacting precautions and multidimensional frameworks; (ii) Short-run versus long-run optimization of negligence puzzles; (iii) Path- dependencies and dynamic analysis of care measures; (iv) Non-strictly convex and discontinuous social costs functions; (v) Fluctuating and discontinuous social cost functions; (vi) Threshold effects in costs and efficiency functions; (vii) An expansive methodology to cost-benefit analysis in torts: degrees of freedom, mixed and tailored approaches. 3 TABLE OF CONTENTS INTRODUCTION 10 PART I: COST-BENEFIT ANALYSIS IN NEGLIGENCE LAW A. The Economic Rational of Negligence Law and the Hand Formula 20 B. Two Approaches to the Application of Negligence Cost-Benefit Analysis 24 a. The Aggregated Approach 25 b. The Marginal Approach 28 C. Two Sugars or Just “Say When”: The Two Approaches Compared 33 D. Total Values and Negligence Inquiry 38 E. A Hidden Temporal Divergence 40 F. The Golden Standard of Negligence 43 PART II: THE CONVENTIONAL ECONOMIC MODEL OF NEGLIGENCE: FORMAL CONSTRUCTION, UNDERLYING ASSUMPTIONS AND LIMITATIONS A. The Proud Tower: The Conventional Economic Model of Negligence 47 a. Introduction 47 b. The Conventional Model: A Social Planner’s Perspective 48 B. The Two Approaches to Negligence Adjudication Revisited 53 a. General 53 b. The Aggregated Approach: 54 i. The Injurer’s Incentives 54 ii. Additional Economic Features 58 c. The Marginal Approach: 60 i. The Injurer’s Incentives 60 ii. Additional Economic Features 64 d. Interim Summary 67 4 PART III: THE ASSUMPTIONS OF THE CONVENTIONAL MODEL RELAXED AND THE FAILINGS OF THE MARGINAL APPROACH: MONOTONE CONVEXITY AND CONTINUITY A. The Blind Spot of Orthodox Economic Theory 71 B. The Underlying Assumptions Relaxed and Future Roadmap 74 C. The Monotone Convexity Assumption 78 a. The General Framework and Its Limitations 78 b. Tipping Points, Networks and Threshold Effects 80 c. Interim Summary and Alternative Metaphor 89 D. The Continuity Assumption 90 E. Illustrations and Normative Challenges 95 a. Case Study A: Local Minima Anteceding The Global Optimum 96 i. Example and Illustration 96 ii. Normative Reflections 100 b. Case Study B: Local Minima Postliminar to The Global Optimum 103 i. Examples and Illustrations 103 ii. Normative Reflections 108 F. The Anna Karenina Principle 113 PART IV: THE ASSUMPTIONS OF THE CONVENTIONAL MODEL RELAXED AND THE FAILINGS OF THE MARGINAL APPROACH: MULTIDIMENSIONAL FRAMEWORKS AND INTERACTING PRECAUTIONS A. Introduction and Future Progression 114 B. The Single Dimensionality Assumption and Multidimensional Settings 116 a. The General Framework 116 b. Foundations of Economic Interpretation: Supply Side Theory and Production Functions 125 5 c. Foundations of Economic Interpretation: Isoquants, Marginal Rate of Technical Substitution and Elasticity of Substitution 129 d. Foundations of Economic Interpretation: Cost Minimization Problems 132 e. Isoquants and Substitutions in Caselaw: The Mimoni Case 137 f. Normative Reflections: ex-ante Versus ex-post Optimization 141 g. Normative Reflections: Variable Selection 146 h. Normative Reflections: Rules versus Standards Regulation 149 C. The Orthogonatlity and Predetermincy Assumption 151 a. General Framework and Taxonomy 151 b. Independent, Complementary and Mutually Exclusive Precautions 154 i. Independent Precautions 155 ii. Complementary Precautions 156 iii. Mutually Exclusive Precautions 157 c. “No Precaution is an Island”: Interacting Precautions 158 i. Negative Synergies 161 1) Economic Foundations 161 2) Normative Reflections 164 ii. Overlaps 171 1) Economic Foundations 171 2) Normative Reflections: Distorted ex-ante Incentives 175 3) Normative Reflections: Semi-Constrained Analysis 176 4) Normative Reflections: The Predetermincy Assumption and Production Theory Revisited 183 iii. Positive Synergies 187 1) Economic Foundations 187 2) Normative Reflections: Suboptimal Precautions and Myopic Cost-Benefit Analysis 188 3) Normative Reflections: Inefficient Precautions and Myopic Cost-Benefit Analysis 195 6 4) Normative Reflections: Past Overinvestment in Inefficient Precautions and Memoryless Cost-Benefit Analysis 200 D. Commensurability of Multidimensional Frameworks 206 PART V: A NEW MODEL OF COST-BENEFIT ANALYSIS IN NEGLIGENCE LAW A. Introduction and General Principles 209 B. The Many Faces of Cost-Benefit Analysis 210 C. Mixed Approaches in Negligence Law 212 D. The Tailoring Principle and The Impossibility Theorem 218 E. Optimization Costs and The Pleading System 222 F. Note I: On Activity Level Variables 226 G. Note II: On Optimal Past-Taken Precautions 229 PART VI: CONCLUSION A. Two Lessons From Ancient Greece: Tragedy, Heroes and the Heavens 235 a. We Need a Hero! (Or Do We?) 235 b. A View of The Heavens 237 B. Negligence Law for a Complex World 238 7 LIST OF FIGURES, ILLUSTRATIONS AND TABLES FIGURES AND ILLUSTRATIONS PART II: Figure II.1: The Expected Social Costs of Accidents in the Basic Model 52 Figure II.2: The Injurer’s Costs Function under the Basic Model 56 Figure II.3: The Injurer’s Marginal Costs and Benefit Function under the Basic Model 61 Figure II.4: The Aggregated and Marginal Approaches Compared 68 PART III: Figure III.1: Syphilis Rates in Baltimore Between 1993 and 1996 86 Figure III.2: Marginal Cost and Benefit of Administering!XYZ 97 Figure III.3: Total Benefit as a Function of Administering!XYZ 98 Figure III.4: Total Expected Harm as a Function of Administering!XYZ 98 Figure III.5: Social Costs as a Function of Administering!XYZ 99 Figure III.6: Social Costs as a Function of Administering!LRL (Continuous Threshold Effects in Benefit Function) 105 Figure III.7: Total Precaution Costs, Harm and Social Cost as a Function of Precaution (Discontinuous Threshold Effects in Benefit Function) 106 Figure III.8: Total Precaution Costs, Harm and Social Cost as a Function of Precaution (Discontinuous Threshold Effect in Costs Functions) 108 PART IV: Figure IV.1: Total Production of Safety Hill 127 Figure IV.2: Isoquants along a Total Production of Safety Hill 130 Figure IV.3: Isoquants and Isocosts of Safety Production 135 Figure IV.4: Uneconomic Regions along a Total Production of Safety Function 163 Figures IV.5-7: Negative Synergies and Distorted ex-ante Incentives on the Tortfeasor 169-171 8 Figures IV.8-10: Overlapping Precautions and Distorted ex-ante Incentives on the Tortfeasor, a Semi-Constrained Analysis 179-182 Figures IV.11-13: Positive Synergies, Suboptimal Precautions and Myopic Cost- Benefit Analysis 191-194 Figures IV.14-16: Positive Synergies, Inefficient Precautions and Myopic Cost- Benefit Analysis 197-199 Figure IV.17-18: Positive Synergies, Inefficient Precautions and Memoryless Cost- Benefit Analysis 203-204 PART V: Figure V.1: Overall Complexity of Different Types of Cost-Benefit Analysis Methods 217 TABLES PART I: Table 1: Efficient Versus Optimal Precautions in Hendricks v. Peabody 36 PART IV: Table 2: Negative Synergies and Distorted ex-ante Incentives on the Tortfeasor 167 Table 3: Overlapping Precautions and Distorted ex-ante Incentives on the Tortfeasor, a Constrained Analysis 175 Table 4: Overlapping Precautions and Distorted ex-ante Incentives on the Tortfeasor, a Semi-Constrained Analysis 177 Table 5: Social Cost, Defendant’s Preference, Plaintiff Preference and Over Level of Care Compared 185 Table 6: Positive Synergies, Suboptimal Precautions and Myopic Cost-Benefit Analysis 189 Table 7: Positive Synergies, Inefficient Precautions and Myopic Cost-Benefit Analysis 196 Table 8: Positive Synergies, Inefficient Precautions and Memoryless Cost-Benefit Analysis 201! 9 INTRODUCTION Economists and legal theorists have long coalesced around “the most important question that an economic theory of negligence should answer”1—how to interpret and apply Judge Hand’s famous B < PL formula.2 A marginal approach emerged as the decisive victor of this debate, and for the last three decades was enshrined as the golden standard of negligence law. This dissertation claims that this golden standard is often wrong, must be refined in order to achieve efficiency and is better understood as a special case within a broader framework. It then suggests an alternative view of negligence as optimization puzzles, and an expansive understanding of the Hand Formula. The outcome is a full-scale
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