The Missing Theory of Variable Selection in the Economic Analysis of Tort Law

This Article raises an issue that has only been tangentially addressed in the economic literature on tort law: which accident inputs should a court examine when determining liability and which should it take as given? Economic theory yields no a priori answer to this question. Without an answer to this question, the economic analysis of tort law yields indeterminate prescriptions. This Article proposes an analytical framework-a continuum from long-run to short-run accident inputs-to help understand the problem.

Many conventional doctrines of tort law map onto this continuum, and it helps make clear the tradeoffs a court faces in choosing tIle scope of its tests.