Torts study notes
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 group and the explanations for their attitudes toward each other are dealt with in Part I below. The debate within tort scholarship can be both compared and contrasted with scholarly discussions concerning the law of crimes. In the modern era many analysts have emphasized deterrence as a primary goal of the criminal law. Others have evaluated the criminal law in terms of the goal of justice--not corrective justice, but rather the justice of retribution. Yet while discussions among criminal law scholars are frequently contentious, these scholars generally recognize that each school of thought--deterrence and retribution--is enduring and deserving of respect. Furthermore, leading scholars have developed mixed theories of the criminal law, which affirm the relevance of both deterrence and retribution. My review of the criminal law literature is set forth in Part II. In Part III, I propose we take seriously a mixed theory of tort law, which can attend to both deterrence and corrective justice. In suggesting this, I review a limited number of tort doctrines and show how the combination of deterrence and justice can provide a better or fuller explanation for these doctrines than can either theory standing on its own. In this
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 group and the explanations for their attitudes toward each other are dealt with in Part I below. The debate within tort scholarship can be both compared and contrasted with scholarly discussions concerning the law of crimes. In the modern era many analysts have emphasized deterrence as a primary goal of the criminal law. Others have evaluated the criminal law in terms of the goal of justice--not corrective justice, but rather the justice of retribution. Yet while discussions among criminal law scholars are frequently contentious, these scholars generally recognize that each school of thought--deterrence and retribution--is enduring and deserving of respect. Furthermore, leading scholars have developed mixed theories of the criminal law, which affirm the relevance of both deterrence and retribution. My review of the criminal law literature is set forth in Part II. In Part III, I propose we take seriously a mixed theory of tort law, which can attend to both deterrence and corrective justice. In suggesting this, I review a limited number of tort doctrines and show how the combination of deterrence and justice can provide a better or fuller explanation for these doctrines than can either theory standing on its own. In this