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University of Cincinnati Law Review

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For decades, the American legal academy has engaged in a lively debate over the foundations of tort law. A schism between economic theorists and their critics has defined the fundamental arc of the dispute.

Richard Posner, perhaps the most well-known proponent of the law-and-economics movement, conceives of tort law as an instrument for maximizing wealth. According to this view, tort law's primary aim is to impose liability in ways that incentivize people to take cost-justified precautions that maximize societal wealth. Viewing themselves as committed to a classic form of rationality, economic theorists recognize that they cannot do anything about sunk costs and, therefore, turn their attention toward incentivizing people to take cost-justified precautions on a forward-looking basis. As Posner put it: "Rational people base their decisions on expectations of the future rather than on regrets about the past. They treat bygones as bygones."

The most prominent critique of economic tort theory argues that tort law is all about achieving corrective justice by providing remedies in response to wrongs. According to this view, tort law has a fundamentally backward-looking focus on remedying wrongs between parties who are situated bilaterally. According to Jules Coleman, the notion that people should be responsible for repairing the wrongful losses they cause others to suffer is the "principle that holds together and makes sense of tort law." For these reasons, defenders of this view reject economic theorists' forward-looking philosophy of tort liability as seeking to incentivize the taking of cost-justified precautionary behavior.



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