(49) This activity-level problem assumes that injurers
damages if (1) potential injurers
are risk-averse, and (2) they do not
If one can go back in time and find an earlier choice that was itself culpable, and that in-fact and proximately caused accidental injury to another, then one can blame the injurer
for that prior choice, even if one cannot blame her for any inadvertence at the time the accident occurs.
This general idea may be of utmost importance in the field of technological or so-called man-made disasters, where there is an operator (or, in terms of tort law, a tortfeasor or injurer
) who can be held accountable for the consequences of the disaster.
The primary aim of the present article is to introduce a new model for Rule 4 that would guide legislators, regulators, and judges in deciding when to order compensation as a condition for eliminating the nuisance and when to order the injurer
to remove the nuisance first and only then collect the funds.
First, conventional law and economics explains the choice between strict liability and negligence based on the costs and incentives faced by potential injurers
and the potential injured.
Our second case is where prospective injurers
can predict actual harm perfectly and costlessly.
(9) Professor Jeffrey Helmreich defines the scope of the term "apologies" broadly for these purposes: "statements uttered by injurers
or wrongdoers to their victims with the intention that they be understood as apologies, or at least as expressions of remorse or regret over something the speaker did." Jeffrey S.
has used personal power to rob another, to establish a relationship in which the injurer
says, in effect, "I am up here and you are down there." However, from a moral perspective, it is the injured one who is "up" and the offender who is "down." When Ann as a young adult met her abuser on the street, for example, she was "up" and he was "down" in this sense.
Under Calabresi's approach, the implication is that liability may exist even if there is no injurer
. (42) But, according to Colombatto, that is the only difference between Calabresi and free-market advocates.
If the claim made in this Article holds, many plaintiffs who have suffered harms from ex-post reasonable behavior or ex-post non-defective products could successfully sue their injurers
. Why have they not yet done so?
(255.) See KAPLOW & SHAVELL, supra note 34, at 86 & n.2 (pointing first to the "incentives it creates for potential injurers
" as a way to evaluate tort law, and acknowledging in a footnote that the influence on potential victims' behavior is another "important effect").