The Compatibility of Forward-Looking and Backward-Looking Accounts of Tort Law
15 University of New Hampshire Law Review 45-116 (2016)
72 Pages Posted: 29 Oct 2016 Last revised: 28 Dec 2016
Date Written: October 27, 2016
This Article is the first to argue that forward-looking and backward-looking accounts of tort law are intrinsically compatible with one another. This theoretical point is of great importance and will bring about a paradigm shift in tort theory — and, more generally, in legal theory. This is because the long-standing debate between corrective justice theorists and economic theorists about the purpose of tort law (with active participants including Posner, Calabresi, Coleman, Weinrib, Rawls, and countless others) is based on the universal assumption that forward-looking and backward-looking accounts of tort law are incompatible. This assumption, however, is false, and this Article explains why it is false and how so many other authors have gone wrong.
The contribution of this Article, however, is not limited to this theoretical point — it also makes important contributions in the practical domain. The practical implications of the theoretical point are great and threefold: First, removing the forward-looking/backward-looking non-issue from the table will allow us to refocus our efforts on the all-important and complex question of what the substantive legal standard of behavior should be. Second, recognition of the reason for the compatibility between the forward-looking and backward-looking aspects of tort law itself provides us with newfound insight into which factors are relevant to our determination of the best substantive legal standard. Third, this recognition of the reason for compatibility not only aids us in the determination of the best substantive legal standard now, but it provides us with an understanding of what practical changes we can make to improve society’s welfare going forward.
In sum, in addition to this Article providing groundbreaking theoretical conclusions, it also offers practical guidance and positive proposals, both of which are capable of having a tangible — and substantial — impact on society’s welfare.
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