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Editor: Christopher J. Robinette
Widener Commonwealth Law School

Monday, March 9, 2020

Priel on Structure and Function in Tort Law

Dan Priel has posted to SSRN Structure, Function, and Tort Law.  The abstract provides:

A popular view among tort theorists is that an explanation of tort law must take account its “structure,” since this structure constitutes the law’s “self-understanding.” This view is used to both criticize competing functional accounts of tort law, especially economic ones, that are said to ignore tort law’s structure, and, more constructively, as a basis for explaining various tort doctrines. In this essay, I consider this argument closely and conclude that it is faulty. To be valid, one needs a non-question begging way of identifying the essence of tort law. I argue that law’s “self-understanding” can only make sense if it means the understanding of certain people. Examining those, I conclude that the claim of structuralists is false, for there are many people who take its function to be central. I then further show that if one wishes to understand the development of tort law’s doctrine one must take both structure and function into account. I demonstrate this claim by examining the development of the doctrine dealing with causal uncertainty and vicarious liability.

Forthcoming in the Journal of Tort Law.

https://lawprofessors.typepad.com/tortsprof/2020/03/priel-on-structure-and-function-in-tort-law.html

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