Twentieth Century Tort Theory

Abstract

This article analyzes twentieth-century tort scholarship in terms of a five-sided debate between compensation-deterrence theory, enterprise liability theory, economic deterrence theory, social justice theory, and individual justice theory. It surveys, parses, and analyzes the central interpretive and prescriptive claims made by each of these theories, exploring and exposing to criticism their underlying assumptions and commitments. The article concludes with a plea for greater theoretical self-consciousness among tort scholars, and for a shift in focus away from the strict-liability v. negligence debate.

Keywords: Calabresi, Coase, corrective justice, history, interpretive, negligence, Posner, pragmatism, prescriptive, private law, strict liability, theory, torts, Weinrib