Risk, Everyday Intuitions, and the Institutional Value of Tort Law

28 Pages Posted: 6 Dec 2019

See all articles by Govind Persad

Govind Persad

University of Denver Sturm College of Law

Date Written: January 1, 2010


This Note offers a normative critique of cost-benefit analysis, one informed by deontological moral theory, in the context of the debate over whether tort litigation or a non-tort approach is the appropriate response to mass harm. The first Part argues that the difference between lay and expert intuitions about risk and harm often reflects a difference in normative judgments about the existing facts, rather than a difference in belief about what facts exist, which makes the lay intuitions more defensible. The second Part considers how tort has dealt with this divergence between lay and expert perspectives. It also evaluates how tort's approach has differed from that of public law approaches to accident law, such as legislative compensation and risk regulation by administrative agencies. Ultimately, tort's ability to recognize the value of lay intuitions supports retaining the tort perspective as part of our societal arsenal of responses to risk and harm. This ability can also support a pro-tort perspective in two practical debates in the arena of tort law: that over preemption of tort law by administrative agency judgments, and that over access to tort recovery as part of a no-fault system.

Keywords: Torts, Intuition, Regulatory legislation, Cost benefit analysis, Juries, Normativity, Administrative agencies, Health care administration

JEL Classification: K13, K23

Suggested Citation

Persad, Govind, Risk, Everyday Intuitions, and the Institutional Value of Tort Law (January 1, 2010). Stanford Law Review, Vol. 62, No. 5, 2010, Available at SSRN: https://ssrn.com/abstract=3300306

Govind Persad (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

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