Torts study notes Essay

17110 Words Nov 4th, 2013 69 Pages
75 Tex. L. Rev. 1801
Texas Law Review
June, 1997
W. Page Keeton Symposium on Tort Law
MIXED THEORIES OF TORT LAW: AFFIRMING BOTH DETERRENCE AND CORRECTIVE JUSTICE
Gary T. Schwartza
Copyright (c) 1997 Texas Law Review Association; Gary T. Schwartz
Introduction
Currently there are two major camps of tort scholars. One understands tort liability as an instrument aimed largely at the goal of deterrence, commonly explained within the framework of economics. The other looks at tort law as a way of achieving corrective justice between the parties. If these are alternative camps, they are also to a large measure unfriendly camps: much of the time each treats the other with neglect or even derision. The development of each scholarly
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In the early 1970s, the work of Guido Calabresi15 and Richard Posner16 precipitated what has proved to be an explosion of scholarship analyzing tort law in economic terms and emphasizing deterrence as a primary tort objective.17 One major school of legal economists claims that economics provides a splendid and nearly complete account of the body of tort doctrine.18 *1804 As it happens, deterrence had not played a significant role in traditional tort scholarship. When Landes and Posner expounded their theory of deterrence as a basic tort objective, they reviewed the record of early tort writings to determine what support they could find for this theory; they ended up merely reporting that “with the benefit of hindsight, it is possible to find . . . prefigurings of the modern economic approach in Holmes’s chapters on tort law and

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