Essay on Torts study notes

17113 Words Nov 2nd, 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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School members such as Charles Gregory23 and Albert Ehrenzweig24 made no mention of any idea that liability might be justifiable as a deterrence measure. The Harper-James treatise also viewed loss distribution as the primary purpose of broadened liability.25 *1805 In general, prior to the late 1960s the few writers who did emphasize deterrence as a tort objective realized that they were swimming against the tide of prevailing opinion. In 1965, Ralph Nader supported the deterrent potential of products liability in cases involving auto design; in doing so, however, he acknowledged that “[t]he deterrence function of tort liability is now rather soundly debunked by commentators who view it largely as a myth employed in law school courses to round out a pedagogical repertory.”26 During the

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