Document Type
Article
Publication
Loyola of Los Angeles Law Review
Year
2021
Citation Information
Michael Pappas, Prevention and Cure, 54 Loy. L. A. L. Rev. 1067 (2021), available at https://scholar.law.colorado.edu/faculty-articles/1734.
Abstract
Laws can address harms in two distinct yet intersecting ways. They may intervene to prevent harms from occurring, or they may allow harms to arise and then try to cure them.
Whether operating separately or in tandem, prevention and cure approaches pervade laws, policies, and individual actions. A landlord may exercise prevention via a "no pets " policy, or she may opt for cure by requiring pet owners to pay a damage deposit and cleaning fee. Alternatively, a combination of prevention and cure governs motorist behavior. Speed limits seek to prevent accidents while negligence liability provides compensation for accident victims. Further, climate change policies seek to prevent climate-impacts by curtailing greenhouse-gas emissions, and they attempt to cure climate-harms via disaster assistance.
Prevention and cure are ubiquitous, but their features and relationship are underexplored. This Article changes that. It investigates prevention and cure to provide a novel framework for assessing and enhancing the structure of law and policy. This informs policy design across a range of substantive areas. It identifies situations that counsel predominant prevention or cure approaches, and it uncovers mutually reinforcing prevention-and-cure combinations. Further, the Article applies the prevention-and-cure framework to explain and critique policy domains ranging from motorist behavior to climate change. This perspective particularly illuminates how the various legal and policy responses to climate change interrelate, and how they miss opportunities to align complementary prevention and cure measures. It identifies how relatively small structural changes can conjoin seemingly disparate climate-change regulations, liabilities, programs, and precautions into a cohesive policy landscape.
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