Liability Externalities and the Law: A Comment on Cooter and Porat

Abstract

Robert Cooter and Ariel Porat have offered a simple model of tort liability with sensible reform proposals. Their focus is in on damage levels, and how those levels can be modified to reflect the socially desirable level of externalization. However, to the extent that there is any gain to be achieved by modifying damage awards, it would be better to secure this gain through other approaches, such as adopting a more careful analysis of factual causation or reducing the likelihood of judicial error.