Ben-Shahar borrows from a rich private-law tradition to explore the treatment of odious debt as a problem analogous to allocation of liability in private law. Drawing on the economic analysis of private law, it develops insights as to the structure of an optimal liability scheme. Under this approach, liability is imposed not on the basis of some intrinsic judgment as to the parties' relative blameworthiness, but rather in a forward-looking fashion, on parties who are best suited to take actions to prevent the loss. In addition, liability is imposed on a magnitude tailored to induce an optimal level of precautionary measures.
Omri Ben-Shahar & Mitu Gulati,
Partially Odious Debts?,
70 Law and Contemporary Problems
Available at: http://scholarship.law.duke.edu/lcp/vol70/iss4/3