Wrongfulness as a Necessary Cause of the Losses

In several Law and Economics publications in the area of tort law, emphasis is being placed on an alleged difference between strict liability and negligence. Under strict liability, an injurer is liable for the losses of the victim, irrespective of his level of care. Under negligence, the injurer is not liable if he took at least the legally required care level. According to the mainstream Law and Economics literature, this feature of negligence causes a discontinuity in the expected private costs of the injurer. In this paper, I argue that this discontinuity does not exist in reality, because courts, when applying the negligence rule, require that the negligence was a necessary cause of the accident. After all, if the model adopted in economic analyses of tort law does not reflect the essence of this body of law, it will not be able to yield correct predictions or valuable policy recommendations.