Document Type

Article

Publication Title

Yale Law Journal

Abstract

In this Article, we show that many different classes of rules of apportionment are being applied by common law courts and advocated by commentators. The question of which rules to apply in particular situations is fraught with confusion. This Article's conclusion that several common law rules of apportionment are not efficient has more than merely descriptive significance. First, in the absence of overriding goals, the legal system should favor efficient rules; while efficiency might not be the only relevant goal, it clearly is a cognizable one. Thus, the efficiency properties of joint and several liability should be considered in evaluating the recent efforts by several state legislatures to limit joint and several liability in the name of tort reform. Second, the Supreme Court's current interest in economic analysis suggests that the development of the common law, or at least of the federal common law, will be affected by the efficiency properties of competing legal rules. Section I describes the model implicit in the remainder of our analysis. Section II defines the classes of apportionment rules currently employed by courts. Sections III and IV discuss the efficiency of such rules under negligence and strict liability, respectively. Section V discusses the efficiency of no-contribution rules under both negligence and strict liability, and compares it with that of rules of apportionment. Section VI analyzes the effects of departures from the social optimum in the determination of the standard of care under negligence. The Appendix provides formal proofs for various propositions.

First Page

831

DOI

https://doi.org/10.2307/796581

Volume

98

Publication Date

1989

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