1. Econ 522 Economics of Law Dan Quint Fall 2011 Lecture 18

2. 1 “I hear in some places, you need one form of ID to buy a gun, but two to pay for it by check. It’s interesting who has what incentives to care about what mistakes.” - XKCD Incentives

3. 2  We’ve discussed a bunch of liability rules…  No liability  Strict liability  Various versions of a negligence rule  …and the effect of each rule on incentives for:  Injurer precaution  Victim precaution  Injurer activity level  Victim activity level So far…

4. 3  Also examined how legal standard for negligence is set  Hand Rule: efficient precautions are required  Other ways: safety standards, industry norms  …and the effect of errors in implementing each rule  Strict liability rule: random errors in calculating damages have no effect, systematic errors do  Negligence rule: small errors in damages have no effect; errors in standard for negligence have strong effect; uncertainty in legal standard leads to overprecaution So far…

5. 4  What factors/complications has our simple model been leaving out?  How much money is your life worth?  But first… Up next…

6. 5 Experiment

7. 6 Relaxing the assumptions of our model

8. 7  So far, our model has assumed:  People are rational  Injurers pay damages in full  They don’t run out of money and go bankrupt  There are no regulations in place other than the liability rule  There is no insurance  Litigation is costless  We can think about what would happen when each of these assumptions is violated Our model thus far has assumed…

9. 8  Behavioral economics: people systematically misjudge value of probabilistic events  Daniel Kahneman and Amos Tversky, “Prospect Theory: An Analysis of Decision under Risk”  45% chance of $6,000 versus 90% chance of $3,000  Most people (86%) chose the second  0.1% chance of $6,000 versus 0.2% chance of $3,000  Most people (73%) chose the first  But under expected utility, either u(6000) > 2 u(3000), or it’s not  So people don’t actually seem to be maximizing expected utility  And the “errors” have to do with how people evaluate probabilities Assumption 1: Rationality

10. 9  People seem to overestimate chance of unlikely events with well-publicized, catastrophic events  Freakonomics: people fixate on exotic, unlikely risks, rather than more commonplace ones that are more dangerous Assumption 1: Rationality

11. 10  People seem to overestimate chance of unlikely events with well-publicized, catastrophic events  Freakonomics: people fixate on exotic, unlikely risks, rather than more commonplace ones that are more dangerous  How to apply this: accidents with power tools  Could be designed safer, could be used more cautiously  Suppose consumers underestimate risk of an accident  Negligence with defense of contributory negligence: would lead to tools which are very safe when used correctly  But would lead to too many accidents when consumers are irrational  Strict liability would lead to products which were less likely to cause accidents even when used recklessly Assumption 1: Rationality

12. 11  Another type of irrationality: unintended lapses  “Many accidents result from tangled feet, quavering hands, distracted eyes, slips of the tongue, wandering minds, weak wills, emotional outbursts, misjudged distances, or miscalculated consequences” Assumption 1: Rationality

13. 12  Strict liability: injurer internalizes expected harm done, leading to efficient precaution  But what if…  Harm done is $1,000,000  Injurer only has $100,000  So injurer can only pay $100,000  But if he anticipates this, he knows D << A…  …so he doesn’t internalize full cost of harm…  …so he takes inefficiently little precaution  Injurer whose liability is limited by bankruptcy is called judgment-proof Assumption 2: Injurers pay damages in full

14. 13  Owner of an oil tanker  Any accident would be an environmental catastrophe, doing $50,000,000 of harm  Upgraded navigation system would cost $225,000, and reduce likelihood of an accident from 1/100 to 1/500  Precaution reduces expected harm from $500,000 to $100,000, costs $225,000, so efficient to take precaution  If company would be forced to pay $50,000,000 after an accident, then under strict liability, would choose to buy new nav system  Suppose the business is only worth $5,000,000  If there’s an accident, pay the $5,000,000 and go out of business  Now nav system reduces expected damages from $50,000 to $10,000 – not worth the cost  So judgment-proof business would take too little precaution Example of judgment-proofness (from old final exam)

15. 14  What stops me from speeding?  If I cause an accident, I’ll have to pay for it  Even if I don’t cause an accident, I might get a speeding ticket  Similarly, fire regulations might require a store to have a working fire extinguisher  Regulations supply additional incentive to take precaution Assumption 3: No regulation

16. 15  We saw, if business is only worth $5,000,000, liability does not create enough incentive to upgrade nav system  Now suppose government passes regulation requiring modern navigation systems on all oil tankers  If business doesn’t upgrade, 1 in 5 chance of being caught by safety inspector and having to pay a $1,000,000 fine  Now, combining liability with regulation…  Upgrade: cost of new nav system is $225,000, expected damages are $10,000  private cost is $235,000  Don’t upgrade: expected damages are $50,000, expected government fine is $200,000  private cost is $250,000  Liability + regulation gives enough incentive to take precaution, even though either one alone would not be enough Continuing the example of judgment-proofness from before…

17. 16  When liability > injurer’s wealth, liability does not create enough incentive for efficient precaution  Regulations which require efficient precaution solve the problem  Regulations also work better than liability when accidents impose small harm on large group of people Assumption 3: No regulation

18. 17  We assumed injurer or victim actually bears cost of accident  When injurer or victim has insurance, they no longer have incentive to take precaution  But, insurance tends not to be complete Assumption 4: No insurance

19. 18  Insurance reduces incentive to take precaution  Moral hazard  Insurance companies have ways to reduce moral hazard  Deductibles, copayments  Increasing premiums after accidents  Insurers may impose safety standards that policyholders must meet Assumption 4: No insurance

20. 19  If litigation is costly, this affects incentives in both directions  If lawsuits are costly for victims, they may bring fewer suits  Some accidents “unpunished”  less incentive for precaution  But if being sued is costly for injurers, they internalize more than the cost of the accident  So more incentive for precaution  A clever (unrealistic) way to reduce litigation costs  At the start of every lawsuit, flip a coin  Heads: lawsuit proceeds, damages are doubled  Tails: lawsuit immediately dismissed  Expected damages are the same  same incentives for precaution  But half as many lawsuits to deal with! Assumption 5: Litigation costs nothing

21. 20 More twists on liability

22. 21  Vicarious liability is when one person is held liable for harm caused by another  Parents may be liable for harm caused by their child  Employer may be liable for harm caused by employee  Respondeat superior – “let the master answer”  Employer is liable for unintentional torts of employee if employee was acting within the scope of his employment Vicarious Liability

23. 22  Gives employers incentive to...  be more careful who they hire  be more careful what they assign employees to do  supervise employees more carefully  Employers may be better able to make these decisions than employees…  …and employees may be judgment-proof Vicarious Liability

24. 23  Vicarious liability can be implemented through…  Strict liability rule: employer liable for any harm caused by employee (as long as employee was acting within scope of employment)  Negligence rule: employer is only liable if he was negligent in supervising employee  Which is better? It depends.  If proving negligent supervision is too hard, strict vicarious liability might work better  But an example favoring negligent vicarious liability… Vicarious Liability

25. 24  Suppose you were harmed by accident caused by two injurers  Joint liability: you can sue them both together  Several liability: you can sue each one separately  Several liability with contribution: each is only liable for his share of damage  Joint and several liability: you can sue either one for the full amount of the harm  Joint and several liability with contribution: the one you sued could then sue his friend to get back half his money Joint and Several Liability

26. 25  Joint and several liability holds under common law when…  Defendants acted together to cause the harm, or…  Harm was indivisible (impossible to tell who was at fault)  Good for the victim, because…  No need to prove exactly who caused harm  Greater chance of collecting full level of damages  Instead of suing person most responsible, could sue person most likely to be able to pay Joint and Several Liability

27. 26  Negligence with a defense of contributory negligence was dominant liability rule in common law countries  Negligent injurer is liable, unless victim was also negligent  Example: a car going 60 mph hits a car going 35 in a 30-mph zone  Since victim was also negligent, injurer is not liable  Last 40 years, most U.S. states have adopted a comparative negligence rule  Usually through legislation, sometimes through judicial decision  Appealing from fairness point of view  But any negligence rule leads to efficient precaution  So how do we explain the move? Back to Comparative Negligence

28. 27  Evidentiary uncertainty  Given a legal standard for negligence, x n …  …and an actual level of precaution taken, x…  still uncertainty in whether the court will find negligence  Evidentiary uncertainty, like random errors in setting x n, leads to over-precaution…  …but comparative negligence partly mitigates this Comparative Negligence and Evidentiary Uncertainty

29. 28 Comparative negligence and evidentiary uncertainty x $ p(x) A wx wx + p(x) A x*  Comparative negligence mitigates effect of evidentiary uncertainty Any negligence ruleSimple negligence, evidentiary uncertainty Comparative negligence, evidentiary uncertainty

30. 29 Perfect Compensation

31. 30  Perfect compensatory damages (D = A)  Returns victim to original level of well-being  (Works like insurance)  And sets correct incentive for injurers  But in some cases, hard to determine level  Might be no price at which you’d be willing to give up a leg  Certainly no price at which a parent would be indifferent toward losing a child Perfect compensation

32. 31  Recommended jury instructions, Massachusetts:  “Recovery for wrongful death represents damages to the survivors for the loss of value of decedent’s life. There is no special formula under the law to assess the plaintiff’s damages…  It is your obligation to assess what is fair, adequate, and just.  You must use your wisdom and judgment and your sense of basic justice to translate into dollars and cents the amount which will fully, fairly, and reasonably compensate the next of kin for the death of the decedent.  You must be guided by your common sense and your conscience on the evidence of the case…”  And from California:  “…You should award reasonable compensation for the loss of love, companionship, comfort, affection, society, solace or moral support.” Perfect compensation

33. 32  Most people would rather be horribly injured than killed  Which means killing someone does more damage than injuring someone  But compensatory damages tend to be lower for a fatal accident than an accident which crippled someone  When someone is badly injured, may require huge amount of money to compensate them  In wrongful-death case, damages compensate victim’s loved ones, but no attempt to compensate victim  So these damages tend to be smaller One other odd feature of compensatory damages…

34. 33 What’s a life worth?

35. 34  Assessing damages in a wrongful death lawsuit requires some notion of what a life is worth  Safety regulators also need some notion of what a life is worth  Kip Viscusi, The Value of Risks to Life and Health  Regulators need to decide “where to draw the line” What’s a life worth? $72,000,000,000Proposed OSHA formaldehyde standard $ 104,200,000EPA asbestos regulations $ 89,300,000OSHA asbestos regulations $ 1,300,000Car side door protection standards $ 200,000Airplane cabin fire protection Estimated cost per life savedRegulation

36. 35  Let w be starting wealth, D death, p probability  There might be some amount of money M such that p u(D) + (1 – p) u(w + M) = u(w)  When p = 1, this breaks down not because you can’t equate death with compensation, but because the second term vanishes  So how do we find M?  Ask a bunch of people how much money they would need to take a 1/1000 chance of death?  Can’t do a lab experiment where you actually expose people to a risk of death!  Clever trick: impute how much compensation people require from the real-life choices they make Kip Viscusi, The Value of Risks to Life and Health

37. 36  Lots of day-to-day choices increase or decrease our risk of death  Choose between Volvo and sports car with fiberglass body  Take a job washing skyscraper windows, or office job that pays less  Buy smoke detectors and fire extinguishers, or don’t  “Hand Rule Damages”  Hand Rule: precaution is cost-justified if cost of precaution < reduction in accidents X cost of accident  Suppose side-curtain airbags reduce risk of fatal accident by 1/1000  If someone pays $1,000 extra for a car with side-curtain airbags, it must mean that $1,000 < 1/1000 * value of their life  or, they value their life more than $1,000,000 Kip Viscusi, The Value of Risks to Life and Health

38. 37  Viscusi surveys lots of existing studies which impute value of life from peoples’ decisions  Many use wage differentials  How much higher are wages for risky jobs compared to safe jobs?  Others look at…  Decisions to speed, wear seatbelts, buy smoke detectors, smoke cigarettes  Decision to live in very polluted areas (comparing property values)  Prices of newer, safer cars versus older, more dangerous ones  Some used surveys to ask how people would make tradeoffs between money and safety  Each paper reaches some estimate for implicit value people attach to their lives Kip Viscusi, The Value of Risks to Life and Health

39. 38 What does Viscusi find?

40. 39 24 studies based on wage differentials Implicit value of life

41. 40 7 studies using other risk-money tradeoffs 4.0 Prices of new automobilesAutomobile accident risks, 1986 2.0 Purchase price of smoke detector Fire fatality risks without smoke detectors, 1968-1985 0.7 Estimated monetary equivalent of effect of risk info Cigarette smoking risks, 1980 0.8 Property values in Allegheny Co., PA Mortality effects of air pollution, 1978 0.6 Purchase price of smoke detectors Fire fatality risks without smoke detectors, 1974-1979 1.2 Estimated disutility of seat belts Automobile death risks, 1972 0.07 Value of driver time based on wage rates Highway speed-related accident risk, 1973 Implicit Value of life ($ millions) Component of the Monetary Tradeoff Nature of Risk, Year

42. 41 6 studies based on surveys 1.2 Series of contingent valuation questions, New Zealand survey, 1989-1990 Traffic safety 2.7 (median) 9.7 (mean) Interactive computer program with pairwise auto risk-living cost tradeoffs until indifference achieved, 1987 Automobile accident risks 3.8 Willingness to pay for risk reduction, U.K. survey, 1982 Motor vehicle accidents 3.4 (pay), 8.8 (accept) Willingness to pay, willingness to accept change in job risk in mail survey, 1984 Job fatality risk 15.6 Mail survey willingness to accept increased risk, small (30) U.K. sample, 1975 Airline safety and locational life expectancy risks 0.1 Willingness to pay question, door-to-door small (36) Boston sample Improved ambulance service, post-heart attack lives Implicit Value of Life ($ millions) Survey Methodology Nature of Risk

43. 42  Wide range of results  Most suggest value of life between $1,000,000 and $10,000,000  Many clustered between $3,000,000 and $7,000,000  Even with wide range, he argues this is very useful:  “In practice, value-of-life debates seldom focus on whether the appropriate value of life should be $3 or $4 million…  However, the estimates do provide guidance as to whether risk reduction efforts that cost $50,000 per life saved or $50 million per life saved are warranted.”  “The threshold for the Office of Management and Budget to be successful in rejecting proposed risk regulations has been in excess of $100 million.”  C&U: NHTSA uses $2.5 million for value of traffic fatality  Current: EPA $9.1 MM, FDA $7.9 MM, Transpo Dept $6 MM Kip Viscusi, The Value of Risks to Life and Health

44. 43 Punitive damages

45. 44  Damage awards vary greatly across countries, even across individual cases  We saw last week:  As long as damages are correct on average, random inconsistency doesn’t affect incentives (under either strict liability or negligence)  But, if appropriate level of damages isn’t well-established, more incentive to spend more fighting Inconsistency of damages

46. 45  What we’ve discussed so far: compensatory damages  Meant to “make victim whole”/compensate for actual damage done  In addition, courts sometimes award punitive damages  Additional damages meant to punish injurer  Create stronger incentive to avoid initial harm  Punitive damages generally not awarded for innocent mistakes, but may be used when injurer’s behavior was “malicious, oppressive, gross, willful and wanton, or fraudulent” Punitive damages

47. 46  Calculation of punitive damages even less well-defined than compensatory damages  Level of punitive damages supposed to bear “reasonable relationship” to level of compensatory damages  Not clear exactly what this means  U.S. Supreme Court: punitive damages more than ten times compensatory damages will attract “close scrutiny,” but not explicitly ruled out Punitive damages

48. 47  Stella Liebeck was badly burned when she spilled a cup of McDonalds coffee in her lap  Awarded $160,000 in compensatory damages, plus $2.9 million in punitive damages  Case became “poster child” for excessive damages, but… Example of punitive damages: Liebeck v McDonalds (1994) (“the coffee cup case”)

49. 48  Stella Liebeck dumped coffee in her lap while adding cream/sugar  Third degree burns, 8 days in hospital, skin grafts, 2 years treatment  Initially sued for $20,000, mostly for medical costs  McDonalds offered to settle for $800  McDonalds serves coffee at 180-190 degrees  At 180 degrees, coffee can cause a third-degree burn requiring skin grafts in 12-15 seconds  Lower temperature would increase length of exposure necessary  McDonalds had received 700 prior complaints of burns, and had settled with some of the victims  Quality control manager testified that 700 complaints, given how many cups of coffee McDonalds serves, was not sufficient for McDonalds to reexamine practices Liebeck v McDonalds (1994)

50. 49  Rule in place was comparative negligence  Jury found both parties negligent, McDonalds 80% responsible  Calculated compensatory damages of $200,000  times 80% gives $160,000  Added $2.9 million in punitive damages  Judge reduced punitive damages to 3X compensatory, making total damages $640,000  During appeal, parties settled out of court for some smaller amount  Jury seemed to be using punitive damages to punish McDonalds for being arrogant and uncaring Liebeck v McDonalds (1994)

51. 50  We’ve said all along: with perfect compensation, incentives for injurer are set correctly. So why punitive damages?  Example…  Suppose manufacturer can eliminate 10 accidents a year, each causing $1,000 in damages, for $9,000  Clearly efficient  If every accident victim would sue and win, company has incentive to take this precaution  But if some won’t, then not enough incentive  Suppose only half the victims will bring successful lawsuits  Compensatory damages would be $5,000; company is better off paying that then taking efficient precaution  One way to fix this: award higher damages in the cases that are brought What is the economic purpose of punitive damages?

52. 51  Punitive damages should be related to compensatory damages, but higher the more likely injurer is to “get away with it”  If 50% of accidents will lead to successful lawsuits, total damages should be 2 X harm  Which requires punitive damages = compensatory damages  If 10% of accidents lead to awards, damages should be 10 X harm  So punitive damages should be 9 X compensatory damages  Seems most appropriate when injurer’s actions were deliberately fraudulent, since may have been based on cost- benefit analysis of chance of being caught This suggests…

53. 52 Some empirical observations about tort system in the U.S. (won’t get to this)

54. 53  In 1990s, tort cases passed contract cases as most common form of lawsuit  Most handled at state level: in 1994, 41,000 tort cases resolved in federal courts, 378,000 in state courts in largest 75 counties  Most involve a single plaintiff (many contract cases involve multiple plaintiffs)  Among tort cases in 75 largest U.S. counties…  60% were auto accidents  17% were “premises liability” (slip-and-fall in restaurants, businesses, government offices, etc.)  5% were medical malpractice  3% were product liability U.S. tort system

55. 54  Punitive damages historically very rare  1965-1990, punitive damages in product liability cases were awarded 353 times  Average damage award was $625,000, reduced to $135,000 on appeal  Average punitive damages only slightly higher than compensatory  In many states, punitive damages limited, or require higher standard of evidence  Civil suits generally require “preponderance of evidence”  In many states, punitive damages require “clear and convincing” evidence U.S. tort system

56. 55  Medical malpractice  New York study in 1980s: 1% of hospital admissions involved serious injury due to negligent care  Some estimates: 5% of total health care costs are “defensive medicine” – procedures undertaken purely to prevent lawsuits  Some states have considered caps on damages for medical malpractice U.S. tort system

57. 56  Product liability  Recent survey of CEOs: “liability concerns caused 47% of those surveyed to drop one or more product lines, 25% to stop some research and development, and 39% to cancel plans for a new product.”  Liability standard for product-related accidents is “strict products liability”  Manufacturer is liable if product determined to be defective  Defect in design  Defect in manufacture  Defect in warning U.S. tort system

58. 57  Most vaccines are weakened version of disease itself  Make you much less likely to acquire the disease  But often come with very small chance of contracting disease directly from vaccine  Salk polio vaccine wiped out polio, but caused 1 in 4,000,000 people vaccinated to contract polio  1974 case established maker had to warn about risk  Since then, some people were awarded damages after their children developed polio from vaccine  If liability can’t be avoided, built into cost of the drug  And discourages companies from developing vaccines Vaccines

59. 58  Since health risks of asbestos understood, over 600,000 people have brought lawsuits against 6,000 defendants  DES (drug administered to pregnant women in 1950s)  Impossible to establish which firm produced dose given to a particular woman  California Supreme Court introduced “market share liability”  Class action lawsuit  Small, dispersed harms – no plaintiff might find it worthwhile to sue  Class action suits allow large lawsuits with lots of plaintiffs  Give more incentive for precaution against diffuse harms  But… Mass torts

60. 59  Critics claim juries routinely hand out excessive awards and tort system is out of control…  …but actually it functions reasonably well  Outside of occasional, well-publicized outliers, damage awards are generally reasonable…  …and liability has led to decreases in accidents in many industries Cooter and Ulen’s overall assessment of U.S. tort system

61. 60 “A tort plaintiff succeeded in collecting a large damage judgment. The defendant’s attorney, confident that the claimed injury was bogus, went over to the plaintiff after the trial and warned him that if he was ever seen out of his wheelchair he would be back in court on a charge of fraud. The plaintiff replied that to save the lawyer the cost of having him followed, he would be happy to describe his travel plans. He reached into his pocket and drew out an airline ticket – to Lourdes, the site of a Catholic shrine famous for miracles.” To wrap up tort law, a funny story from Friedman…