Tort Law

A tort is a wrongful act which may be remedied by a civil lawsuit. Different theorists approach the issue of torts from different perspectives. In 1992 Jules L. Coleman and Richard A. Posner each wrote a book about his perspective on this topic.

Coleman takes the point of view of an economist and uses a market paradigm in addressing issues in the law. The market paradigm is based on two postulates: 1) the principle of rationality; and 2) the economist's conception of the perfectly competitive market as the ideal institutional embodiment of the law. The principle of rationality means that assuming no criterion of justice or fairness that cannot be derived from the principle of rationality.

Coleman writes, "The market paradigm does not deny that there can be a justified morality. Quite the contrary, It means to demonstrate that the conditions under which a morality could be justified." Coleman refers to the connection between contract law and tort law in terms of risk:

Contracts assign risk by mutual agreement; tort law assigns risk by public norm. Contrasts assign risk ex ante; tort law assigns risk ex post. If contract law is designed to facilitate the market process through which individuals freely move resources to their most highly valued uses, then tort law is a set of norms that allocate costs so as to move resources to their most highly valued uses when transaction costs make it impossible for individuals to do so through conventional market processes. To

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tort law are so general and pervasive that they are indispensable to the conception of the essence of tort law: They characterize tort law in the literal sense of providing indicia of its distinctive character. Were they completely removed, we would no longer be able to recognize what remained as tort law. Because it is impossible for us to conceive of tort law without them, a theory of tort is necessarily a theory of these features. Tort law, Coleman says, has a certain essential character, form, or structure, certain properties or attributes, and its justification as an institution depends on the way in which it orders the relationships among these central properties. He refers to Ernest Weinrib, for whom this means that the relationships among the concepts in tort law--injurer, victim, causation, and wrongdoing--mirror the ways in which these concepts are connected in the world in terms of the experience of injuring and suffering: "Thus, essential to tort law is the fact that respective victims bring suit against their particular insurers and, in the event the victim is entitled to repair for her loss, she recoups her damages from the wrongdoer." Instrumentalists believe that tort law has goals and that its defensibility

Category: Government - T