Kornhauser, Lewis A.; Revesz, Richard L. --- "Joint and Several Liability" [2009] ELECD 290; in Faure, Michael (ed), "Tort Law and Economics" (Edward Elgar Publishing, 2009)

Book Title: Tort Law and Economics

Editor(s): Faure, Michael

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847206596

Section: Chapter 4

Section Title: Joint and Several Liability

Author(s): Kornhauser, Lewis A.; Revesz, Richard L.

Number of pages: 25

Extract:

4 Joint and several liability
Lewis A. Kornhauser* and Richard L. Revesz**


4.1 Introduction
The law and economics analysis of the comparison of joint and several
liability with several only (non-joint) liability examines the relative incen-
tives for both deterrence and settlement generated by the two rules and
their fairness. Section 4.2 provides a brief background of the legal regimes.
Sections 4.3 and 4.4 compare, respectively, the settlement and deter-
rence effects of the two rules. Section 4.5 considers the fairness of the two
regimes.

4.2 Legal regimes
The rule of joint and several liability may apply to any situation in which
the plaintiff 's injury arises from the actions of multiple parties. Under joint
and several liability, if the plaintiff litigates against many defendants and
prevails against only one, it can recover its full damages from that defend-
ant; if the plaintiff prevails against all defendants but some are insolvent,
it can recover its full damages from the solvent defendants; and if the
plaintiff prevails against all defendants and all are solvent, it can nonethe-
less choose to recover its full judgment from any defendant or to recover a
portion from each. In contrast, under several only (non-joint) liability, the
plaintiff can recover from a losing defendant only the share of the damages
attributable to that defendant.
For joint and several liability, the legal regime needs to be specified
further. As shown in Kornhauser and Revesz (1993), the various choices
presented ...