All Pay Liability

We could raise government revenue much more efficiently than we now do, with less damage to the economy for any given amount of revenue raised. For example, we could tax fixed characteristics like height instead of income, we could tax traffic congestion a lot more, and we could do better at taxing pollution, including carbon. Recently I posted on a more efficient system of property taxes, that allows more revenue to be raised at a lower cost. Today, I’ll post on a more efficient system of accident liability, which similarly raises more revenue at a lower cost.

Some don’t want me to talk about these things. They hope to “starve the beast” by drying up government revenue sources. That seems to me a lost cause, the sort of logic that pushed radicals toward generic destruction, hoping that eventually the masses would get fed up and revolt. I instead expect a better world overall if governments adopt more efficient policies, including more efficient tax policies.

Regarding accident liability, we want a system that will encourage good levels of care and activity by all who can influence accident rates. For example, regarding car accidents we want drivers to pick good car models, speeds, sleep, and maintenance frequencies. We also want them to take into account the possibility of hurting others via accidents when they choose how often they drive. In addition, we want a system that induces fewer actual court cases, which are expensive, and that asks courts to make fewer judgements, in which they might err.

The simplest system is no liability. Courts just don’t get involved. This has the lowest possible rate of court cases, namely zero. It creates good incentives for accident victims to set their care and activity levels well, but gives rather poor incentives for others to set such things well.

The next simplest system is strict liability. This induces good care and activity by potential injurers, but not from potential victims. It also induces a high rate of court cases; nearly every accident results in a lawsuit. While the parties might settle out of court, if a case goes to trial the court must determine responsibility, i.e., who caused the accident, and how much damages the victim suffered as a result.

Relative to strict liability, systems of negligence cut the rate of court cases, but at the cost of asking courts to make more judgements. As with strict liability, courts must judge who is responsible and victim damage levels. But in addition, courts must also ask themselves if that injurer took enough care to prevent the accident. For each of visible parameter, the courts must judge both the actual level of care taken, and the optimal level of care.If the injurer took enough care overall, that injurer does not owe damages. And if that no damages situation is the usual case, there are fewer court cases, as there are fewer lawsuits.

In practice, however, courts can only look at a small number of injurer choice parameters visible enough to them, such as driving speed. Far more parameters, including all injurer activity level parameters, remain invisible, and so are not considered. Negligence doesn’t create good incentives to set all those less visible parameters.

There are standard variations on these systems, such as allowing contributory negligence on the part of the victim. But all of these systems fail to induce optimal levels of care and activity in someone. We have long known, however, of a simple system that gets pretty much all of these things right, and in addition only asks courts to judge who is responsible for an accident and victim damage levels. (I didn’t invent this system; it is mentioned in many law & econ texts.) In this simple system, courts do not need to consider anyone’s actual or ideal levels of care or activity.

This simple system is to make all responsible parties pay the damage levels of all other parties hurt by the accident. The trick is that they pay all of these amounts to the government, instead of to each other. As each party now internalizes all of the damage suffered by all of the parties, they should choose all their private care and activity levels well. And the government gets more revenue to boot.

The big problem with this all-pay liability system is that none of these responsible parties, including the victims, want to report this accident to the government. They’d all rather pretend it didn’t happen. So the government needs some other way to find out about accidents. In dense areas where they government already has access to mass surveillance systems, they can just use those systems. In other areas, governments might offer bounties to third parties who report accidents, and put strong penalties on those who fail to report their own accidents. Or the system might revert to other liability rules in contexts where governments might otherwise detect accidents too infrequently.

With all-pay liability, we expect a lawsuit for every accident. But in that suit the courts only need to judge who is responsible and victim damage levels. No other judgements need be made. So if we could find simple streamlined ways to make these judgements, this system might not be that expensive to administer. And then we’d have both better accident prevention and more available government revenue.

(Yes, people might want to buy insurance against the risk of making these payments. Yes, if multiple parties could coordinate to prevent accidents together, this system might induce them to spend too much on prevention. Hopefully we could identify such efforts and treat them differently.)