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The Complexity of the Policy Problem
If there were just a single injury for policymakers to consider, then once that injury had occurred, the only relevant policy questions would pertain to equity. That is, the size of the pie would already be determined by the fact of the injury, and the remaining issues would involve what punishment (if any) the injurer deserved and what compensation (if any) the victim deserved.(1)

In reality, of course, policymakers are concerned not with a single injurious event but with many such events over time--which gives rise to the efficiency question of minimizing the total cost associated with future injuries. That total includes not only the costs of the injuries themselves (in medical care, pain, decreased worker output, and so on) but also:

Prevention costs (the costs of efforts to avoid injuries, which tend to raise the prices of goods and services);

Transaction costs (the costs of legal and administrative resources, such as attorneys' fees);

Indirect costs to the economy (for example, from the disruptions caused by layoffs and bankruptcies); and

Uncertainty costs (the burden of uncertainty for potential victims and potential injurers--since driving the rate of injuries down to zero would be ruinously expensive, if not impossible--as well as the transaction costs of reducing that burden through insurance or other risk-spreading mechanisms).
That sketch of the policy goals suggests the difficulties that policymakers face in seeking to address the personal and social costs of injuries. One potential problem is trade-offs between equity and efficiency. For example, a particular conception of fairness might hold that certain victims should not be considered responsible for exercising some forms of care, although it would be more efficient if they did so. Even within the single goal of efficiency, policymakers may have trouble identifying the best approach, given that each approach might have different effects on injury costs, prevention costs, transaction costs, indirect costs, and uncertainty costs and that the relative importance of those costs might vary from one type of injury to another.

Under ideal market conditions, much of the policy problem--the part concerning injuries associated with economic activities--could be solved easily. In particular, market forces would achieve the efficiency goal for such injuries by minimizing the sum of the related costs: producers and employers would respond to consumers' and workers' preferences by taking all cost-effective measures to make their products and workplaces safer, and risk-averse people would buy insurance to eliminate the financial uncertainty surrounding the remaining risks. Any equity goals involving additional compensation of injury victims could be met through a government program of income transfers.(2)

In reality, the results produced by market forces can only approximate the efficient outcome, and the accuracy of that approximation depends in large part on how well potential victims understand the risks they face.(3) Some risks (such as long-latency illnesses that result from exposure to new chemical substances) become apparent only years or decades after they are introduced into the economy. Other risks, though recognized by experts, are largely unknown or are not accurately taken into account because of biases in the way people process information about risk and uncertainty.

Incomplete information or understanding about risk raises the possibility that government intervention--through regulations or liability rules--can improve on the efficiency of market outcomes. There is no guarantee that it will do so, however. Whether it does depends on the strengths and weaknesses of the particular interventions, as discussed below.

Liability Rules in Principle
The various forms of strict-liability and negligence standards used by the courts encourage potential injurers to exercise care and result in compensation to victims in different ways and to different extents. Neither type of standard, however, reliably induces optimal levels of care and participation by both injurers and victims, even in theory. Also, both types are prone to inefficiency in their effects on the distribution of risk.

In its purest form, strict liability compensates all victims except those judged to have caused the injury themselves or to have knowingly and voluntarily "assumed the risk" of exposure to a particular hazard. Strict liability thus gives potential injurers an incentive to make all socially efficient changes in the level or form of their activities, because they know they will face the full cost of almost any resulting harm (see Table 2). It may have a very different effect on potential victims, however. To the extent that they expect to be fully or almost fully compensated for their losses (which is more likely to occur in cases involving only property damage, not personal injury or death), strict liability gives potential victims little or no incentive to take reasonable precautions of their own.

Lawsuits Consumer Fraud

(St. Paul, Minn.: West Group, 1999), p. 926.
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26, no. 2 (June 1997). 18. George L.
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Instead of pursuing only a selected subset of the alleged injurers (often just the single party with the deepest pockets) and shifting the costs of dealing with the remaining parties to that selected group, plaintiffs must sue everyone from whom they hope to collect damages.
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This basically means that the victim is being accused of knowingly exposing themselves to the harm that ultimately injured them. Although one cannot consent to everything, e.g., murder, consent (if proven) can help the defendant defeat the victim's case. Finally, victims may be accused of contributing to their own injuries.
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Class Action Lawsuits Consumer Fraud Class Actions Securities Lawyers - Complaint Center

T.S. 320 (Oct. 21, 1994), and thus defines the scope of the United States' obligations under the treaty. See Relevance of Senate Ratification History to Treaty Interpretation, 11 Op. O.L.C. 28, 32-33 (1987).
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