American Tort Law Tells Us How It Really Feels About Law and Economics

Anita Bernstein —

Funny thing about the intersection of tort and law and economics. For decades this school of thought has been ascendant in scholarship and intellectual understandings of this field, as it has throughout private law generally. No one can teach or write competently about torts without giving thought to law and economics fundamentals like cost-benefit analysis, cost as a social problem, the cheapest cost avoider, default rules, incentives, and wealth maximization.  On the one hand.

On the other hand, American tort law as practiced will stick a thumb in the eye of law and economics. Rather than defer to familiar microeconomics tenets taught in classrooms and quoted for truth in law reviews, it often refuses to learn the curriculum, disrupts order, and even refutes a few basics by not cooperating with their premises. It is worth cataloguing a few examples of these resistances:

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