Legal rules affect behavior on many margins. They affect incentives to commit offenses, incentives to prosecute them, incentives to prevent them. For some offenses tort law may provide better incentives than criminal law on one of those margins and worse on another. If so, the question of what ought to be a tort and what ought to be a crime will be ambiguous, at least until we develop a theory good enough to predict not only the sign but also the size of such effects. In this post I will argue that, judged by the incentive for potential victims to prevent offenses, our rules are backwards. Things we treat as crimes, such as burglary, ought to be torts; things we treat as torts, such as auto accidents, ought to be crimes. In doing so, I hope to demonstrate one reason why figuring out whether our present allocation of offenses between the two systems is efficient is a hard problem. One difference between tort law and criminal law is that the victim of a tort suffers an injury but also...
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