Mistakes, Misunderstandings and Misalignments
26 Pages Posted: 11 Dec 2011 Last revised: 5 Mar 2012
Date Written: December 8, 2011
In a recent paper appearing in the Yale Law Journal Ariel Porat argues that the tort of Negligence is beset by a range of significant misalignments that threaten to induce inefficient behavior. He argues that at least some times these misalignments can be justified on grounds of either corrective or distributive justice. In this paper, which is to appear in an upcoming issue of the current volume of the YLJ on line, I argue that Porat is working with an unhelpful notion of misalignment, that tort law has its own internal conception of alignment; that Porat misunderstands the relationship between the elements of the tort of Negligence as well as the nature of the standard remedy for Negligence. I then show that none of his examples are misalignments in the tort of Negligence at all, and that a better understanding of the nature of the tort of Negligence would have saved him from the confusions that have led to his deeply mistaken conclusions. Along the way, I argue that many of the confusions that beset Porat's argument are familiar in the law and economics of tort literature as a general matter; and that the time has long passed when those working within a law and economics tradition of tort law can allow themselves to run so fast and loose in their mistaken understandings of the elements of a tort, the nature of liability in torts, and most importantly, the relationship between the two. Porat's essay is the focus, but the argument is meant to run more broadly and deeply.
Absolutely nothing I say in this paper depends in the slightest on being committed to thinking that a corrective justice view of tort law is right or even better than alternatives to it. My entire argument depends on properly understanding the nature of alignment in tort and not in the slightest on endorsing any particular theory of tort law.
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