Private Law Theory

Christina Carmody Tilley, Tort Law Inside Out, 126 Yale Law Journal 1321 (2017). Christina Tilley’s new article on the purpose of tort law is audacious. It boldly claims that other tort theorists have got it wrong: tort law is not primarily concerned with efficiency or morality but instead (spoiler alert!) is all about constructing community. Aligning herself with a group of scholars called the New Doctrinalists, she purports to find this overarching community-constructing purpose embedded within tort doctrine itself and in the process contends that other theories, including civil recourse theory, are really external theories (hence the title, Tort Law [From the] Inside Out). She canvasses tort cases from the colonial period to the present in an attempt to demonstrate that “community” has always played a central role in tort law, even as communities in the US have undergone dramatic change … (more)

[Martha Chamallas, JOTWELL, 6 June]

First posted 2017-06-06 11:22:15