‘I Can Explain That’

James Goudkamp and John Murphy, The Failure of Universal Theories of Tort Law, 21 Legal Theory 47 (2015), available at SSRN. Richard Posner has claimed that tort law is best understood as a means of incentivizing actors to take cost-efficient precautions against inflicting losses on others. ‘Not so!’ says Ernest Weinrib, who insists that tort is an embodiment of corrective justice. Against both, Robert Stevens maintains that tort law defines and vindicates rights we have against each other. How are we to decide which of these theories, if any, offers the best interpretation of tort law? In their provocative article, The Failure of Universal Theories of Tort Law, Professors Goudkamp and Murphy make a basic, important, yet oft-ignored point: to assess the validity of an interpretive theory, one must be clear on the object of interpretation … (more)

[John Goldberg, JOTWELL, 29 November]

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