Indivisible Toxic Torts: The Economics of Joint and Several Liability

Abstract

This chapter begins by defining the joint and several liability doctrines, elaborates the conditions under which it can be used, and describes the recent history of its use in toxic substance control. It investigates the extent to which this approach encourages efficient precautionary behavior by analyzing the incentives created by the precedents flowing from the court decisions. The chapter analyzes the use of the "joint and several liability" doctrine as a means of financing the restoration of contaminated waste sites. It demonstrates both the revenue-raising capabilities and the incentive effects of the current policy are sensitive to the legal context of the suit and the litigation strategy chosen by the government. Since the joint and several liability doctrine is typically applied in the cases where it is difficult or impossible to apportion the responsibility among the potentially responsible parties on anything but an arbitrary basis, indivisibility is a key aspect of the economic model.

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