【劳动法】用人单位责任(法学外文英文文献翻译稿中英对照)

A. Deterrence of Inefficiency

Behavior is inefficient insofar as it results in a net loss to society.This loss occurs when the costs of the behavior exceed the benefits. One of the goals of our legal system is to discourage inefficient behavior by causing the decision-maker to suffer (that is, internalize) the adverse consequences his behavior imposes on others. [FN8] When the decision-maker bears both the benefits and burdens of his behavior, he will, one expects, behave in a way that maximizes his net benefits and thus in an efficient manner. This goal of deterrence, accomplished through imposition of the costs of inefficient behavior on the decision-maker, underlies the rules for liability in negligence and strict liability.

The negligence standard, provided by Judge Learned Hand's classic formula in United States v. Carroll Towing Co., [FN9] first decides what behavior is inefficient and then imposes the costs of that behavior on the decision-maker. There is negligence when the benefit (B) of the conduct is less than the probability (P) of loss (L) from this conduct. [FN10] In algebraic terms, negligence exists where B < P x L. (P x L) is the expected cost of the conduct. [FN11] When the benefit of the conduct is less than its expected cost, the conduct is inefficient because it produces a net loss for society. The expected cost of this inefficient *1068 conduct is imposed on the decision-maker by subjecting him to damages every time an injury is caused by his negligent conduct. [FN12] When the decision-maker is forced to consider the expected cost along with the benefit of his conduct, he is encouraged, by reason of the loss that he would suffer, to refrain from the negligent conduct. Theoretically under the Hand formula, the rational individual who would be subjected to damages if he were negligent will not act when B < P x L. On the other hand, when B > P x L, the decision-maker's conduct is not negligent and he is encouraged, by reason of the benefit he would enjoy, to engage in the nonnegligent conduct.

Strict liability also generates efficient results. Stricc liability does not decide what behavior is inefficient. It imposes liability on the decision-maker for harm caused, whether it is negligent or not. The decision-maker, however, is forced to consider the expected cost of his conduct along with its benefit in a way that produces the same results as in negligence. When the decision-maker would be negligent (B < P x L), he is encouraged to refrain from the negligent conduct because his costs would exceed his benefits. When he would not be negligent (B > P x L), he is encouraged to engage in the conduct even though, contrary to the case of negligence, he is forced to pay its costs. In the latter instance the conduct produces a net benefit for the decision-maker because his expected cost is still less than his benefit.

The following example illustrates the deterrent effect of negligence and strict liability on inefficient behavior. Assume that a landlord is considering the purchase of a $120 mat for a slippery common hallway and that the mat has a life of one year. Without the mat, it is expected that people will fall six times and injure themselves to the extent of $100 per fall over the lifetime of the mat. Under these circumstances, either a negligence or strict liability rule would induce the landlord to purchase the mat. If she does not buy the mat, the benefit to the landlord is the $10 per month she will save from the cost of the mat, while the expected cost is a 50% chance (P) of injury each month [FN13] at a $100 cost (L). The expected cost of $50 (50% of $100) per month exceeds the benefit of $10 per month, and thus the landlord would be negligent not to buy the mat. Under a negligence standard, knowing that she will be liable in damages for any injury caused by her negligence, the landlord thus is encouraged to buy the mat. Under a strict liability standard, the landlord would be held liable merely for causing harm; however, the calculation and resulting deterrence of inefficiency would be the same.

Because damages would be imposed on the user if he used Process Y, he is deterred from using it and encouraged to use Process Z. This result is efficient because the conduct that is deterred would have produced a net loss for society. Conversely, if Process Y is $300/day cheaper to use than Process Z, the nuclear energy user is encouraged to use Process Y, whether under negligence with no liability for damages or under strict liability with liability for damages that nevertheless are less than benefits received. This result also