Alexander Lemann, ‘Assumption of Flood Risk’

… Drawing on tort doctrine, and particularly the defense of assumption of risk, I argue that there is instead a set of deeply moral instincts underlying our response to flood risk. The doctrine of assumption of risk assigns responsibility for the realization of risks not when our decisions to confront them are objectively rational, but rather when they are made freely, with meaningful knowledge of the risk and a choice of whether to accept it. These ideas, I argue, can already be detected in the rate structure of the NFIP, and yet they are largely ignored in the broader policy debate about how best to share the burden of flood risk. If tort law represents a distillation and application of our common moral intuitions about risk and responsibility, it can shed light on how this complex problem should be resolved.

Lemann, Alexander, Assumption of Flood Risk (2018). Arizona State Law Journal, forthcoming; Marquette Law School Legal Studies Paper No 18-27.

First posted 2018-12-29 07:17:58

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