Reflections on Tort and the Administrative State
34 Pages Posted: 21 Aug 2012
Date Written: Winter 2012
This essay is my contribution to a festschrift dedicated to my scholarship on tort and the administrative state. The essay aims at identifying the central themes in my work and providing supporting commentary. I mark off for discussion three discrete areas that identify pathways to which I have returned repeatedly, although not chronologically, to explore different features of the landscape.
I begin with historical perspectives on the evolution of tort and the administrative state — essays in which I have been animated by an effort to better understand the underpinnings of common law doctrine and regulatory reform in earlier eras and to explore how those norms came to be transformed over time. As a second identifiable area, I turn to scholarship in which I have analyzed the comparative institutional efficacy of tort and regulation. Some of this writing has been aimed at exploring the regulatory limits that have been imposed (or proposed) on tort; in particular, through defense claims of regulatory compliance and tort preemption. Still other scholarly work of mine in this area has focused on the design of tort and administrative compensation/benefit schemes, particularly by examining, on various occasions, the ramifications of legislative no-fault plans. As a third discrete area, I address a set of concerns that thematically cluster in my scholarship: digging beneath the surface of tort doctrine. Here, my work comes from two quite different perspectives, one of which explores the tort system from a process vantage point and the other through a social policy prism. Closely related to this work, in a traditional vein of legal scholarship, I have at times pursued doctrinal analysis as an end in itself.
Both the tort system and the administrative state have grown by leaps and bounds over the past century. Correspondingly, the opportunities for scholarship evaluating these developments, as well as tracing their roots in earlier eras, know virtually no limits. This essay is meant to indicate some of the issues that have struck me as especially worthy of thematic exploration.
Keywords: torts, administrative state, tort doctrine, regulatory compliance, preemption
JEL Classification: K13, K23
Suggested Citation: Suggested Citation