PRAGMATIC CONCEPTUALISM

Abstract

INTRODUCTION

Economic accounts of tort law tell us why tortfeasors face monetary sanctions for certain sorts of conduct. That is not enough, according to corrective justice theorists Jules Coleman and Ernest Weinrib.See, e.g., Jules L. Coleman, RISKS AND WRONGS (1992); Ernest J. Weinrib, THE IDEA OF PRIVATE LAW (1995). See also Arthur Ripstein, EQUALITY, RESPONSIBILITY ANDTHE LAW (1998); Richard A. Epstein, A Theory of Strict Liability, 2 J. LEGAL STUD. 151 (1973); George P. Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV. 537 (1972); Stephen R. Perry, The Moral Foundations of Tort Law, 77 IOWA L. REV. 449 (1992). Economic theoriesThe most thorough, and impressive, attempt to provide a positive theory of tort law from an economic perspective is that of William Landes and Richard Posner. William M. Landes & Richard A. Posner, THE ECONOMIC STRUCTURE OF TORT LAW (1987). See also, Guido Calabresi, THE COSTS OF ACCIDENTS (1970); Steven Shavell, ECONOMIC ANALYSIS OF ACCIDENT LAW (1987); Guido Calabresi & Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972); Ronald Coase, The Problem of Social Cost, 3 J.L. & ECON. 1 (1960). do not offer an adequate explanation of why the defendant is required to pay these monetary sanctions to the plaintiff. Perhaps some argument can be made that it is efficient to reward private parties for bringing tort actions. Yet even if this were plausible, it would make the plaintiff-driven nature of tort law a purely contingent matter. The plaintiff-defendant structure of tort law is essential to it, not merely contingent. The economic account is therefore fatally flawed, like an account of the criminal law that fails to mention the role of the state, or an account of Shakespeare’s literary genius that fails to mention his poetry. This is called the “bipolarity” critique of law and economics.