Wednesday, August 20, 2014
Guido Calabresi (Yale, Second Circuit) has posted to SSRN A Broader View of the Cathedral: The Significance of the Liability Rule, Correcting a Misapprehension. The abstract provides:
Recent years have seen a resurgence of Torts viewed as a purely private legal arrangement: whether described in terms of compensatory justice — the right of an injured party to be made whole — or of redress for civil wrongs — the right of an injured person to get back at the one who injured him. These positions reject the approach of the system builders (to use Izhak Englard’s felicitous phrase), those who see torts as part of a legal-political-economic structure of a polity. This latter, “public,” view of torts has been dominant, at least since my first article, and Walter J. Blum and Harry Kalven’s answer to it, aptly titled "Public Law Perspectives on a Private Law Problem." It is of the relationship between these approaches, and of the inevitability of the public-law (and hence, in part, economic) view of torts that I wish to write today. In doing so, however, I mainly want to correct an error that many system builders have made: that is, of viewing the liability rule (in torts and in its cognates) as a “second best” way of mimicking markets when markets “will not work,” or “are not available.” I want to claim a more significant economic role for the liability rule, and hence for torts, than that. For reasons that will be clear in due course, I call this "A Broader View of the Cathedral."