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Vol 22 No 4 April/May 2017

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Whistleblowing: Law and Practice

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Getting Incentives Right: Improving Torts, Contracts, and Restitution

ISBN13: 9780691151595
Published: March 2014
Publisher: Princeton University Press
Country of Publication: USA
Format: Hardback
Price: £27.95

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Lawyers, judges, and scholars have long debated whether incentives in tort, contract, and restitution law effectively promote the welfare of society. If these incentives were ideal, tort law would reduce the cost and frequency of accidents, contract law would lubricate transactions, and restitution law would encourage people to benefit others. Unfortunately, the incentives in these laws lead to too many injuries, too little contractual cooperation, and too few unrequested benefits.

Getting Incentives Right explains how law might better serve the social good. In tort law, Robert Cooter and Ariel Porat propose that all foreseeable risks should be included when setting standards of care and awarding damages. Failure to do so causes accidents that better legal incentives would avoid. In contract law, they show that making a promise often causes the person who receives it to change behavior and undermine the cooperation between the parties.

They recommend several solutions, including a novel contract called "anti-insurance." In restitution law, people who convey unrequested benefits to others are seldom entitled to compensation. Restitution law should compensate them more than it currently does, so that they will provide more unrequested benefits. In these three areas of law, Getting Incentives Right demonstrates that better law can promote the well-being of people by providing better incentives for the private regulation of conduct.

Contract Law, Tort Law
Acknowledgments vii Introduction 1
I. Torts and Misalignments 13
1. Prices, Sanctions, and Discontinuities 17
2. The Injurer's Self-Risk Puzzle 32
3. Negligence Per Se and Unaccounted Risks 47
4. Lapses and Substitution 61
5. Total Liability for Excessive Harm 74

II. Contracts and Victims' Incentives 89
6. Unity in the Law of Torts and Contracts 92
7. Anti-Insurance 105
8. Decreasing Liability Contracts and the Assistant Interest 128

III. Restitution and Positive Externalities 149
9. A Public Goods Theory of Restitution 151
10. Liability Externalities and Mandatory Choices 165
11. The Relationship between Nonlegal Sanctions and Damages 187

Conclusion 207
Table of Cases 211
Table of Books and Articles 213
Subject Index 220