Harm Displacement and Tort Doctrine

Yehonatan Givati and Yotam Kaplan

The Journal of Legal Studies, 2020, vol. 49, issue 1, 73 - 101

Abstract: A large literature in law and economics analyzes the phenomenon of crime displacement and its implications for criminal law. Yet a similar phenomenon of harm displacement in the tort context has been ignored by scholars. We develop a simple model of bilateral accidents that allows for harm to be displaced by the victim. We compare the regimes of strict liability, absolute liability, and negligence and show that the possibility of harm displacement points to an advantage of strict liability and absolute liability. We use this finding to explain certain doctrinal patterns in tort law, such as strict liability for nuisance and absolute liability for intentional trespass.

Date: 2020
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