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Thursday, July 18, 2013

Two by Geistfeld

Mark Geistfeld (NYU) has posted to pieces to SSRN.  First up is The Coherence of Compensation-Deterrence Theory in Tort Law, and the abstract provides:

Courts and commentators regularly analyze tort law in the functional terms of compensation and deterrence, despite the apparent shortcomings of doing so. Why is the function of compensation only furthered in cases of negligence? Why not compensate a larger number of injured plaintiffs under a rule of strict liability? Is the function of compensation instead somehow tied to the function of deterrence? If so, what determines the relation between these two functions? What is the social policy that courts rely on to answer these questions in a principled manner? As these questions suggest, the functions of compensation and deterrence do not obviously cohere into a viable theory of tort law, making the approach incoherent and unprincipled in application according to numerous critics. In contrast to this line of criticism, this article argues that the functions of injury compensation and deterrence can be unified by an abstract tort norm of compensation, one that does not limit liability to violations of conventional morality or customary practices in the community. For historical and other reasons, compensation plausibly provides the norm by which tort law defines the obligation running between dutyholders and rightholders. When risky interactions threaten the irreparable injury of physical harm, the compensatory damage remedy does not adequately protect the rightholder’s interest in physical security. Consequently, the compensatory tort norm redirects the dutyholder’s compensatory obligation from the payment of compensatory damages to the exercise of reasonable care, yielding a default rule of negligence liability that is formulated to deter the irreparable injury of physical harm without imposing undue hardship on the dutyholder. A compensatory tort norm justifies the manner in which negligence liability furthers the function of deterrence, unifying compensation and deterrence within a coherent rationale for tort liability.

Next is Fault Lines in the Positive Economic Analysis of Tort Law, and the abstract provides:

Economists routinely engage in positive analysis to identify the efficiency properties of a practice without expressly taking any position on the normative question of whether the practice should be conducted in an efficient manner. Unlike positive economic analysis, the positive economic analysis of tort law is tied to a particular form of normative judgment. Because there is no consensus about the normative purpose of tort law, one must engage in an interpretive exercise in order to figure out the substantive rationale for tort liability. There is widespread agreement that any viable legal interpretation must first offer a minimally plausible description of the important doctrines and practices comprising the body of law in question. This question of “fit” is addressed by the positive economic analysis of tort law, making it necessarily relevant to legal interpretation. A number of critics have questioned the descriptive power of efficiency analysis, arguing that positive economic analysis cannot persuasively explain the bilateral structure of tort liability, the substantive content of important liability rules, and the form of judicial reasoning in tort cases. In this book chapter I show that the structure of tort liability does not pose a challenge to the efficiency interpretation; that challenge instead resides in the substantive content of the negligence rule and the form of judicial reasoning in negligence cases. Economic analysts have been studying a version of the negligence rule that fundamentally differs from the rule actually applied by courts. A positive analysis of the correct rule strengthens the efficiency properties of negligence liability vis-à-vis strict liability, thereby tightening the fit between allocative efficiency and the practice of tort law, but a more complete analysis of the negligence rule substantially undermines the positive claim that tort law can be plausibly interpreted as furthering a norm of allocative efficiency.


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