Academic

Gardner on Tort Theory

By Lawrence Solum

John Gardner (University of Oxford - Faculty of Law) has posted Backwards and Forwards with Tort Law (LAW AND SOCIAL JUSTICE, J. Keim-Campbell, M. O'Rourke & D. Shier, eds., MIT Press) on SSRN. Here is the abstract:

Here I am concerned with Jules Coleman's challenge, in his book The Practice of Principle, to the attempts of some economists of law to defend, in economic terms, certain core doctrines of the law of torts. The core doctrines in question are (a) that a tort is a wrong and (b) that the remedial duties of tort law (especially to pay damages) are duties to repair the wrong (or the damage that forms part of it). Although I share the view that economists of law typically work with a bad theory of value, I doubt Coleman's contention that their bad theory of value disables them from defending these doctrines in terms of it. Along the way I doubt the contrasts that are sometimes drawn between 'justificatory' and 'explanatory' theories of tort, and between 'normative' and 'positive' economics.

Highly recommended.

Full post as published by Legal Theory Blog on May 01, 2009 (boomark / email).