Disgorgement Damages for Accidents
本文提出一种新型损害赔偿规则，即返还性损害赔偿，其金额等于侵权人因未采取预防措施所获收益除以责任概率，旨在以最小责任提供有效激励，并比较了其与传统补偿性损害赔偿在信息要求和激励效果上的差异。
Under the usual tort rules, damages for an accident equal the victim’s loss (compensation). This paper departs from current law by proposing damages equal to the injurer’s gain from untaken precaution divided by the probability of liability. Known as disgorgement damages for accidents (DDA), it is the minimum liability necessary to provide injurers with efficient incentives for care. We distinguish three forms of DDA with different information requirements and the same incentive effects. Because DDA is smaller than compensation, it typically induces more activity by injurers and less activity by victims. Calculating DDA generally requires different information than calculating compensation. Consequently, some imperfections in information cause courts to distort incentives for care under compensatory damages and not under DDA, while others have the opposite effect. Furthermore, the smaller disgorgement damages compared with compensation damages can shrink or magnify the distortion in incentives for care caused by courts’ and injurers’ errors.