In many circumstances, the total harm caused by everyone is verifiable, and the harm caused by each individual is unverifiable. For example, the environmental agency can measure the total harm caused by pollution much easier than it can measure the harm caused by each individual polluter. In these circumstances, implementing the usual liability rules or externality taxes is impossible. We propose a novel solution: Hold each participant in the activity responsible for all of the excessive harm that everyone causes. By “excessive harm” we mean the difference between the total harm caused by all injurers and the optimal total harm. We call this rule “total liability for excessive harm.” We show that total liability for excessive harm creates incentives for efficient precaution and activity level. Consequently, actual harm is not excessive and actual liability is nil. For example, the environmental agency can set a target for clean air and announce that each factory is liable for pollution by all factories that exceeds the target. Since the liability rule causes the factories to hit the target, they pay no damages. Thus the environmental agency gains control over emissions without having to monitor individual polluters, and the polluters do not have to pay damages or conform to bureaucratic regulations.
Injury and Tort Law
Date of this Version
Robert Cooter and Ariel Porat, "Total Liability for Excessive Harm" (July 2004). Tel Aviv University Law Faculty Papers. Working Paper 4.