Background (Fixed-Cost) Avoidance-Choices, Foreground (Variable-Cost) Avoidance-Choices, and the Economically Efficient Approach for Courts to Take in Martine-Salvage Cases: A Positive Analysis and Related Critique of Landes and Posner's Classic Study

3) efficiency of the approach the courts are reported to use to determine the payment they require marine rescuees to make to marine salvors who rescued them in situations in which the salvors could not negotiate binding prices for their services and (2) evaluates the argument that Landes and Posner used in their classic article 4 to establish the allocative efficiency of the courts’ (reported) approach to such marine-salvage cases. I want to emphasize at the outset, however, that although the Article does take SecondBest Theory into account, Second Best plays a far less important role in the analysis that follows than the reality that marine-salvage law affects the distortion in the profitability not only of relevant variable-cost (foreground) avoidance-decisions at the time of imperilment but also of relevant pre-imperilment fixed-cost (background) avoidancedecisions (which affect possible rescuers’ ability to effectuate a rescue and possible rescuees’ “need for rescue”). Marine-salvage law affects the distortion in the incentives of potential marine salvors to make not only foreground decisions on such matters as whether to attempt a rescue or the nature of the rescue-attempt to make (given the attributes and locations of their salvage ships and the quantity, attributes, and training of each of their salvage ship’s personnel) but also background decisions on such matters as whether to build a salvage ship, the attributes of any salvage ship they construct, the quantity, attributes, and training of each of their salvage-ship’s officers and crews, and the physical disposition of any salvage ships they own. Similarly, marine-salvage law affects the distortion in the incentives of potential marine rescuees to make not only foreground decisions on such matters as whether to accept offers of assistance, whether to make efforts to rescue themselves, and what type of self-rescue attempt to make (given the ship they are