Economic Theory of Tort Law
Forthcoming in: Research Handbook on Private Law Theory (Hanoch Dagan & Benjamin Zipursky eds. 2020)
16 Pages Posted: 19 Mar 2021 Last revised: 23 Mar 2021
Economic analysis of tort law is central to the rise of the law and economics movement, bringing economic thinking into the heart of legal theory. Early economic analysis of tort law accomplished this fit through insistence on several distinct features. First, law and economics scholars made a conscious effort to present their arguments to lawyers in non-technical terms. Second, they demonstrated that economics can explain areas of law that do not explicitly deal with economic issues. Third, they used economic concepts to explain specific elements of legal doctrine. Forth, they tended to assume legal doctrine is imbedded with concepts of economic efficiency. Through all these related means, early law and economics tort scholarship created a novel form of legal theory, intimately connecting legal scholarship with economic research. Once these efforts secured a foothold for economics within legal scholarship, law and economics scholars moved on to a more rigorous and less accessible form of analysis and rejected the early assumptions regarding the efficiency of tort law. Despite their obvious advantages, these later incarnations of law and economics scholarship largely gave up on the effort to provide a positive theory of tort law, which was the key element invigorating economic analysis as a legal theory.
Keywords: law and economics, economic analysis of law, tort law, private law theory, legal theory
JEL Classification: K13
Suggested Citation: Suggested Citation