‘Tort Law in the Laboratory’

Theodore Eisenberg and Christoph Engel, Unpacking Negligence Liability: Experimentally Testing the Governance Effect, 13 Journal of Empirical Legal Studies 116 (2016), available at SSRN. Empirical study of the law is important, particularly for tort law. Fundamental components of the tort system are a ‘black box’, which largely explains why the field is riven by theoretical disagreement over the purpose of tort law. The claim that tort law efficiently reduces accident costs, for example, critically depends on the extent to which the threat of tort liability deters risky actors from behaving inefficiently. The available data on accidents, however, do not directly measure the relationship, no doubt because the injury rate is affected by a large number of other interrelated factors such as changes in wealth and technology that are extraordinarily hard to disentangle, making it extremely difficult to identify the impact that tort liability has had on actual accident rates. To isolate the influence of particular factors such as the threat of tort liability, empirical study must instead turn to the laboratory, where researchers can conduct experiments that are designed to tease out the role of the varied factors that plausibly explain the accident rate – an excellent example of which is provided by Theodore Eisenberg and Christoph Engel in their article, ‘Unpacking Negligence Liability: Experimentally Testing the Governance Effect’ … (more)

[Mark Geistfeld, JOTWELL, 24 May]

First posted 2016-05-24 19:28:02

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