Economic Analysisof Tort Law[1] (original) (raw)

Economic Analysis of Tort Law: Austrian and Kantian Perspectives

2004

ECONOMIC ANALYSIS OF rOIIT LAW 375 15 ethics, represented by Kantian critiques of the standard approach to tort law in law and economics scholarship. When cases are decided by notions of justice rather than efficiency, judges would not be burdened with the thorny task of calculating all the economic cgnsequences of their decisions. Because a deontological standard does nor face the same difficulties, it offers a clear substitute to the wealth-maximization standard.

The Positive Economic Theory of Tort Law

Oxford Research Encyclopedia of Economics and Finance

Tort law is part of the common law that originated in England after the Norman Conquest and spread throughout the world, including to the United States. It is judge-made law that allows people who have been injured by others to sue those who harmed them and collect damages in proper cases. Since its early origins, tort law has evolved considerably and has become a full-fledged “grown order,” like the economy, and can best be understood by positive theory, also like the economy. Economic theories of tort have developed since the early 1970s, and they too have evolved over time. Their objective is to generate fresh insight about the purposes and the workings of the tort system. The basic thesis of the economic theory is that tort law creates incentives for people to minimize social cost, which is comprised of the harm produced by torts and the cost of the precautions necessary to prevent torts. This thesis, intentionally simple, generates many fresh insights about the workings and eff...

New Philosophical Foundations of Tort Law

In this critical piece I take stock of current understandings of five basic distinctions in the theoretical study of tort law: First, a meta-theoretical distinction between the law's self-presentation and a commitment to epiphenomenalism; second, between the formal and the substantive theory of the morality of tort law; third, between corrective and distributive justice; fourth, between ideal and non-ideal tort theory; and finally, between culpability and justice (or equality). The law of torts is widely recognized as one key pillar of private law, which is to say the law that governs the terms of horizontal interactions among persons. Whereas contract law governs certain types of consensual interactions, the law of torts mainly occupies itself with involuntary forms interactions and, in particular, the duties that attach to those whose activities render vulnerable the legitimate interests of other people, including those who are outside the privity of a joint enterprise. In that, tort law amalgamates otherwise discrete torts into one unity, namely, the law of torts. For the past several decades, the theoretical study of tort law has proceeded by implicit or explicit rejection of the thought that the law at issue just is a purely contingent political fact. Instead, the positive law of torts is better understood as a rich repository of conceptual and normative insights capable of placing some constraints on what lawmakers can do and on what private persons can demand from one another. According to this theoretical tradition, the doctrines that the legal community and others commonly understand as tort law's are (at least potentially) microcosms of fundamental normative principles. Thus, the law of torts has been closely studied and sophisticatedly reconstructed, using philosophical, economic, and certain other established methodologies, in an effort to articulate the character, general principles, and normative commitments that underlie the rights and the duties that figure in this body of law. To this extent, The Philosophical Foundations of the Law of Torts (John Oberdiek ed., OUP 2014) provides a collection of illuminating essays on important questions—though certainly not all of these are, in fact, foundational ones—concerning the organizing ideas and normative ideals that underlie the law of torts. Indeed, John Oberdiek has assembled nineteen thoughtful essays and provided an extremely helpful introduction which together  Tel Aviv University, Buchmann Faculty of Law. The paper is an extended version of a critical comment published with the Notre Dame Philosophical Reviews (Januray 21, 2015) available at http://ndpr.nd.edu/news/55240-philosophical-foundations-of-the-law-of-torts/

The Economics of Tort Law: A Precis

SSRN Electronic Journal, 2003

In the discussion papers series the Koopmans Institute publishes results of ongoing research for early dissemination of research results, and to enhance discussion with colleagues.

The Problems of Justice in the Economic Analysis of Law

SSRN Electronic Journal, 2000

This paper addresses the problems of efficiency as an ethical criterion in the approach of the Law and Economics and the problems from its consequentialism from the standpoint of the Austrian School of Economics. The paper clarifies the approach of the Austrian School of Economics regarding a theory of justice and argues that changes in property rights can only happen by consent and not by an arbitrary decision of the Courts based on efficiency (wealth maximization). The paper argues that efficiency, as an ethical criterion is a poor guide for policy and judicial decisions because it can create "moral monstrousness".

Law and Economics and Tort Law: A Survey of Scholarly Opinion

1998

INTRODUCTION Recent litigation brought against cigarette manufacturers,(1) software companies over potential year 2000 computer problems,(2) and a fast food restaurant for serving coffee that was allegedly too hot(3) reminds us of the importance and dynamic nature of tort law in the United States. Judging from ongoing coverage by newspapers and television, tort law is newsworthy. Yet, as with other legal issues, it is within the covers of law reviews and specialty journals in economics that much of the debate over the social utility of various tort rules and their reform takes place. In that debate law and economics exercises great influence. "Ever since the 1970s, the modern movement in economic analysis has been in full swing. That analysis has highlighted the deterrence function of tort law. Indeed, even in the works of mainstream scholars, deterrence has now assumed the role of a primary rationale for tort liability rules."(4) One example of this influence is the impac...

Justifications and Excuses in the Economic Analysis of Tort Law

In the economic analysis of tort law, scant attention is paid to justifications and excuses. An injurer invoking a justification argues that he did not act wrongfully. Excuses imply that the injurer acted wrongfully, but that his act cannot be imputed to him. If torts are described in general terms, on an abstract level, the possible role of justifications and excuses is larger than if the tort is subjectively defined. After all, the specific circumstances of the case that could lead to the conclusion that the injurer should not be liable are already incorporated in a subjectively defined tort, so that there is no separate function for justifications and excuses anymore. In this paper I argue that the use of general, abstract norms is preferable to applying subjective concrete norms. This generalization saves on administrative costs, it might lead to a better allocation of resources and it can provide better care and activity incentives. In circumstances where the objective norm would lead to undesirable outcomes, due to the specific circumstances of the case, justifications can serve as a correction. I analyze force majeure, necessity, necessary self-defense, legal duty or legal authority, authorized legal order, permission of the victim, assumption of risk and acting in the general interest. I argue that most, but not all, justifications make economic sense. In situations where the general norm provides correct incentives but where the specific injurer at hand would not change his behaviour as result of specific circumstances, excuses might avoid liability and hence save on administrative costs. I analyze mental or physical disability or illness, excusable error regarding the law or the facts, self-defense with excessive force and unauthorized official order. I conclude that most of the analyzed excuses are problematic from an economic point of view.