‘A Benefit Theory of Tort Law’

Alex Stein, The Domain of Torts, 117 Columbia Law Review 535 (forthcoming 2017), available at SSRN. Scholars seeking to interpret the common law of torts typically take a position on the merits of fairness or rights-based rationales for liability as contrasted to welfarist or efficiency-based rationales. Rejecting this fairness versus efficiency framework, Alex Stein defends an original thesis in his forthcoming article, The Domain of Torts: fair tort rules do not contradict or stand in tension with efficient tort rules; each type of rule instead ‘implement[s] different regulatory mechanisms – private and public – and appl[ies] to different kinds of accidents’ (p 541). Tort law is comprised of both fair and efficient tort rules that govern different domains, eliminating any conflict between them. Although I’m not persuaded, Stein’s article requires one to consider important issues from a fresh perspective and deserves to be widely read … (more)

[Mark Geistfeld, JOTWELL, 12 May]

First posted 2017-05-13 09:23:26

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