Does the Fault System Optimally Control Primary Accident Costs?

Abstract

For the purposes of this article, I shall assume that the sole aim of any system of accident law is the minimization of the sum of (a) accident costs and (b) the cost of avoiding accident costs. I include in the latter the "cost" in pleasure forgone of undertaking a relatively less desirable but less accident-prone activity, or—what is really the same thing—the cost of engaging in an activity in a safer but more expensive or less pleasurable way. I make this assumption for analytical purposes only. I do not for a moment believe this to be the only aim of accident law. The aim that a system of accident law be "just" or "fair" could only through a rather unhappy twisting of words—and valuation of things which cannot be valued—be made to come within my "cost" formulation. Yet fairness is ultimately a goal which any system of accident law must meet. Everything cannot be discussed at once, however, and, although I believe that the fault system can be shown to be quite "unfair" both relatively and absolutely, I will leave that demonstration to another piece.