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Optimal Deterrence and Accidents: To Fleming James, Jr., 84 Yale Law Journal 656 (1975)


Much recent writing on the fault system and on strict liability has concerned itself with the goal of minimizing primary accident costs, that is, the sum of accident costs and of accident prevention costs. Perhaps because this literature has been genuinely interdisciplinary, the writers have frequently seemed simply to be firing past each other. Words like "negligence," "contributory negligence," or "strict liability" have been used in different senses by different authors, and light and misunderstanding in roughly equal parts have predictably resulted.

Because I too have been guilty of using these concepts in ways which could be misinterpreted, I think it worthwhile to try to explain what I view the fault system and strict liability to mean in terms of the goal of minimizing accident and accident prevention costs. For short I shall call this goal "optimal deterrence." A clear mapping of the concepts will be an appropriate tribute to my teacher, Fleming James, Jr., whose work has combined lucidity with originality to an extraordinary degree. Should I fail and simply add another bit of mud to the waters, I will at least have demonstrated how very rare are Jimmy's qualities as a scholar and writer.

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