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Conservative & Libertarian Legal Scholarship: Torts

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IV. Torts

Foundational Materials

FOUNDATIONS OF TORT LAW (Saul Levmore, ed., 1993); PERSPECTIVES ON TORT LAW (Robert L. Rabin, ed., 1995); RICHARD EPSTEIN, TORTS (Introduction to Law Series, 1999). These are useful collections of classic articles in the field, edited for beginning students.

Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972). This landmark article discusses three types of legal rules-identified in the title-that can be used by a society to protect rights (“entitlements”). It asks (and answers) why a society would ever choose a liability rule (i.e., tort law) rather than a property rule to allocate resources. (Hint: The answer has to do with the concept of “market failure.”) The article also contains a good explanation of the Coase Theorem and of Calabresi’s views on the role of transactions costs in economic efficiency analysis (as he set out more fully in THE COSTS OF ACCIDENTS (1970)). The article concludes by applying the three-rule framework to pollution control and criminal law.  Michael I. Krauss, Property Rules vs Liability Rules, ENCYCLOPEDIA OF LAW AND ECONOMICS, (B. Bouckaert & G. De Geest, eds., 1999). This chapter explicates the significance of the Calabresi-Melamed contribution to conservative and libertarian tort theory.

Economic Theory of Tort Law

For an overview of the law and economics literature on various aspects of tort law, consult Chapter 6 of RICHARD POSNER, ECONOMIC ANALYSIS OF LAW (see infra p. 73).

WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW (1987); STEVEN SHAVELL, ECONOMIC ANALYSIS OF ACCIDENT LAW (1987). These two books present an extensive economic analysis of tort law. Jules L. Coleman, The Structure of Tort Law, 97 YALE L.J. 1233 (1988), is a very good review essay that discusses both these books. Coleman provides additional, interesting points of his own. 

RICHARD POSNER, The Ethical and Political Basis of the Efficiency Norm in Common Law Adjudication, 8 HOFSTRA L. REV. 487 (1980) is a self-conscious defense of Kaldor-Hicks efficiency as a normative basis for tort adjudication. PHILOSOPHICAL FOUNDATIONS OF TORT LAW (David Owen, ed., 1995) contains several powerful rebuttals including Dworkin’s classical response.

Theoretical Models of Tort

John C.P. Goldberg, Symposium: Twentieth-Century Tort Theory, 91 GEO. L.J. 513 (2003).  An argument that tort law is a divided field with no unifying theory and only loose connectedness between five principal theories: traditional account, compensation-deterrence, enterprise liability, economic deterrence, and social justice.

Richard A. Epstein, Causation and Corrective Justice: A Reply to Two Critics, 8 J. LEGAL STUD. 477 (1979). Professor Epstein explains his theory of tort liability (“corrective justice”) and addresses criticisms of that theory. He engages in a detailed discussion of the causation element present in all tort theories.

Michael I. Krauss, Tort Law and Private Ordering, 35 ST. LOUIS U. L.J. 623 (1991). A searching examination of the common-law moral foundations of both contract and tort law which explains why both are vital in a free society. After identifying the property-rights justifications for both forms of law, Professor Krauss proceeds to explain how contemporary tort law has abandoned its moral underpinnings by attenuating the requirements of legal fault and true proximate causation. The result, argues Krauss, is a legal system that eschews the traditional function of tort law (compensating the victim of another’s morally culpable behavior) in favor of a system that serves as a tool for social engineering and redistribution of wealth. Modern American tort law prohibits parties from voluntarily assuming risks ex ante, instead always allocating the risk to one party. Krauss concludes that this coerced “insurance” against injuries is both economically stifling and morally vacuous.

Products Liability

PETER W. HUBER, LIABILITY: THE LEGAL REVOLUTION AND ITS CONSEQUENCES (1988). Traces the intellectual history of the transformation of products liability law over the last half-century and critiques the workings of the current doctrines in the area.

Richard A. Epstein, The Unintended Revolution in Product Liability Law, 10 CARDOZO L. REV. 2193 (1989). An excellent historical account of the rise of strict product liability law and an accessible explanation of the anti-contractual, economically inefficient effects of modern products law. Epstein also discusses the prospects for legislative reform of products law, concluding that the future appears dim for product manufacturers and consumers alike.

H.E. Frech III, State-Dependent Utility and the Tort System as Insurance: Strict Liability versus Negligence, 14 INT’L REV. L. & ECON. 261 (1994). Explores the “insurance” function of strict products liability, and concludes that using tort liability as insurance is economically inefficient, because it ignores consumer preferences and forces overinsurance. Professor Frech concludes that a negligence standard would be a better solution, if not a perfect one.

Michael D. Green, The Schizophrenia of Risk-Benefit Analysis in Design Defect Litigation, 48 VAND. L. REV. 609 (1995). After surveying the development of strict products liability law in the past few decades, this article turns to a thorough discussion of the “risk/utility” test frequently used in design defect cases. Professor Green presents two versions of the risk/utility test: the rigorous economics-based approach and the looser, “reasonableness” approach. Green carefully explains the benefits and problems associated with the economic approach, concluding that it is the superior one.

Michael I. Krauss, Product Liability and Game Theory: One More Trip to the Choice-of-Law Well, 2002 B.Y.U. L. REV. 759 (2002).  An argument that the expansion of product liability arises from the manifestation of a Prisoner’s Dilemma between local plaintiffs suing out-of-state defendants.  However, Prof. Krauss argues against a uniform national standard as the best resolution and favors a “state of first retail sale” rule that incorporates both federalist and game theory considerations in its conclusion.

James A. Henderson, Jr. & Aaron D. Twerski, Doctrinal Collapse in Products Liability: The Empty Shell of Failure to Warn, 65 N.Y.U. L. REV. 265 (1990). Explores what the authors call the “lawless discretion” given to juries in failure-to-warn products cases. The authors discuss several inherent problems with failure-to-warn cases, not the least of which is establishing causation. The authors then call for reform of the failure-to-warn jurisprudence, to place some measure of control on failure-to-warn cases and to give manufacturers some guidance in product labeling.

Damages

PAUL H. RUBIN, TORT REFORM BY CONTRACT (1993). Makes the case that buyers and sellers should be permitted “to specify contractually the level or type of damages that will be paid if any accident occurs.” Argues that both buyers and sellers have an incentive to agree to reduce the size of possible damage payments, and that such contracts would solve many of the problems now ascribed to the tort system.

Edward J. McCaffrey, Daniel J. Kahneman & Matthew L. Spitzer, Framing the Jury: Cognitive Perspectives on Pain and Suffering Awards, 81 VA. L. REV. 1341 (1995). An empirical and experimental investigation of how juries approach the compensation decision in tort lawsuits. “Does it matter whether juries are made to view the situation of a plaintiff in a personal injury action from an ex ante or an ex post perspective, relative to the injury? Do juries conceptualize the loss of free will associated with being injured as part of the damages . . . ? How do actual jury instructions account for the inevitable choice of perspective in these matters?” The authors’ basic conclusion is that “framing effects do indeed have large impacts on non-pecuniary damage awards.” For example, “[a]n ex ante/selling price perspective at least doubles awards compared to an ex post/making whole baseline.”

Ronen Avraham, Putting a Price on Pain-and-Suffering Damages: A Critique of the Current Approaches and a Preliminary Proposal for Change, 100 NW. U.L. REV. 87 (2006).  A critique of the dominant four approaches to treating pain-and-suffering damages and a new proposal entitled Non-binding Age-Adjusted Multipliers that provides a reasonable benchmark for juries when deciding awards, but allows juries to determine awards based on unique circumstances, and would likely narrow award deviations on the majority of cases.

Readings on Other Individual Topics in Tort Law

Richard A. Epstein, The Path to The T.J. Hooper: The Theory and History of Custom in the Law of Tort, 21 J. LEGAL STUD. 1 (1992). Examines Learned Hand’s famous admiralty decision, The T.J. Hooper, and its importance to all areas of tort law-from malpractice to products liability. Professor Epstein argues that industry custom should be much more respected by courts, because that custom is implicitly incorporated into consensual agreements between market participants. Ignoring industry custom, according to Epstein, results in inefficient recoveries by plaintiffs who have knowingly assumed the risk of their injuries.

David A. Hyman, Rescue Without Law: An Empirical Perspective on the Duty to Rescue, 84 TEX. L. REV. 653 (2006).  The first empirical work on the duty to rescue, a topic that has long invited theories and strong convictions by law professors, which finds that in the real world, rescue is the rule – even if it is not in the law.

George L. Priest, Lawyers, Liability, and Law Reform: Effects on American Economic Growth and Trade Competitiveness, 71 DEN. U.L. REV. 115 (1993). Analyzes the impact of tort law on the American economy, and offers three specific suggestions for tort reform that will promote economic growth and U.S. trade competitiveness.

George L. Priest, “The Culture of Modern Tort Law,” 34 Val. U. L. Rev. 573 (2000).  An argument that a major cultural change has occurred in the last twenty years that is shifting torts jurisprudence from the predominant negligence standard of much of the twentieth century to an accepted strict liability standard.  The shift has vastly expanded legal liability and has the danger of converting the United States into a more redistributive, less productive society.

George L. Priest, The Current Insurance Crisis and Modern Tort Law, 96 YALE L.J. 1521 (1987). Argues that the mid-1980s upheaval in the insurance markets was largely the result of “judicial compulsion of greater and greater levels of provider third-party insurance for victims.” This trend, by “systematically undermin[ing] insurance markets” has the following paradoxical effect: “continued expansion of tort liability on insurance grounds leads to a reduction in total insurance coverage available to the society, rather than to an increase.” In addition, “the parties most drastically affected . . . are the low-income and the poor, exactly the parties that courts had hoped most to aid” in expanding tort liability. For a broader historical and philosophical perspective see George L. Priest & David G. Owen, The Invention of Enterprise Liability: A Critical History of the Intellectual Foundations of Modern Tort Law, 14 J. LEGAL STUD. 461 (1985).

Gary T. Schwartz, The Ethics and the Economics of Tort Liability Insurance, 75 Cornell L. REV. 313 (1990). Examines the issue of whether tort liability insurance promotes or frustrates the goals of tort law. Professor Schwartz examines three possible goals of tort law, and discusses the effects of insurance on these ethical and economic goals. He concludes that insurance may or may not be economically efficient, but that its availability is justified because it furthers the most important goal of tort law: victim compensation. Schwartz argues that insurance allows an injured victim to receive more compensation for his injuries than the defendant could provide, and that premiums responsive to risky behavior also serve tort law’s deterrence rationale.

Joel D. Eaton, The American Law of Defamation through Gertz v. Robert Welch, Inc. and Beyond: An Analytical Primer, 61 VA. L. REV. 1349 (1975). In this historical review of defamation law, Eaton surveys the development of libel actions in the United States. Drawing a line of demarcation at the Gertz case, the author discusses how the Supreme Court redrew the existing libel landscape in 1964. He makes no value judgments about the efficacy of the Gertz ruling, seeking instead to survey the “definitional, procedural, and doctrinal” issues stemming from the Court’s decision on that day.

Last updated January 2009

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