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Do injurers’ insolvency and victims’ reluctance to sue affect accident prevention in the same way? Are these circumstances less of a problem under the negligence rule than under strict liability? We argue, contrary to the literature, that the answer is, in most cases, negative and make three main points. First, the judgment proof problem and the disappearing defendant problem are shown to have different effects on injurers’ behavior and hence yield dissimilar levels of social welfare. Second, when these two problems occur simultaneously they may have offsetting effects. Third, the negligence rule is superior to strict liability only under some conditions, which are not always satisfied when cause in fact is considered. In this case, we find that social welfare under negligence may actually be less than, the same as, or greater than under strict liability. Our model encompasses different precaution technologies as well as monetary vs. non-monetary precautions. DISAPPEARING DEFENDANTS V. JUDGMENT PROOF INJURERS: UPGRADING THE THEORY OF TORT LAW FAILURES Giuseppe DARI-MATTIACCI a, b* , Barbara M. MANGAN c a Universiteit van Amsterdam, ACLE, Roetersstraat 11, 1018WB Amsterdam, The Netherlands b George Mason University School of Law, 3301 Fairfax Drive, Arlington, Virginia 22201, USA c Utrecht School of Economics, Vredenburg 138, 3511 BG Utrecht, The Netherlands

Disappearing Defendants v. Judgment Proof Injurers: Upgrading the Theory of Tort Law Failures