Torts: A Law and Political Economy CounterSyllabus

This syllabus is, in conjunction with the framing post on the Law & Political Economy Blog, a starting point for understanding the law and political economy approach to torts. The initial readings introduce both the law and economics perspective and the competing law and political economy perspective on tort. Subsequent portions of the syllabus use existing literature to apply the law and political economy perspective to concepts featured in tort classes, such as injury, proximate cause, and negligence. Given the newness of the law and political economy perspective, this syllabus is a work-in-progress: email any suggested readings to Conor Dwyer Reynolds at conor.reynolds@yale.edu. Download the full syllabus here.

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Rules of Power & Wrongs: A Law & Political Economy Approach to Tort Law

Conor Dwyer Reynolds —

The law and political economy perspective is defined by its focus on power, the ability to control and change things (especially people). From the vantage point of law and political economy, courts, markets, legislatures, and all other institutions can and must be assessed in terms of how they create and distribute power. Because power exists within and among people, the function of an institution cannot be grasped by simply looking at its formal structure, the words that define its constitutive rules. This is why, as Michael A. Wilkinson and Hjalte Lokdam have noted, the law and political economy perspective demands that institutions be seen through “a historical, conceptual and interdisciplinary lens.”

That lens may help students running through the confusing maze that is many first-year torts classes. Tort law is made up of a hodgepodge of liability rules, running from the apparently criminal (false imprisonment) to the vague (nuisance) to the obscure (abnormally dangerous activity) to a dog’s name with a t on the front (trover). The judicial opinions assigned to illuminate these rules are often written in dense, arcane legalese. If students manage to distill a judge’s reasoning from these opinions, what they often discover are idiosyncratic justifications that do not seem to hang together as a cohesive, intelligible whole.

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