Tort Law

Tort, Not Contract: An Argument for Reevaluating the Economic Loss Rule and Classifying Building Damage as “Other Property” When It Is Caused by Defective Construction Materials

J. Brandon Sieg

The economic loss rule (ELR) precludes bringing a tort action for economic loss, such as lost profits, when the parties’ expectations are governed by a contract.  The thesis of this Note is that building damage caused by defective construction materials should not be considered economic loss under the ELR… Read More »

Harry Potter and the Trouble with Tort Theory

Scott Hershovitz

Imagine that upon graduation from Hogwarts School of Witchcraft and Wizardry, Harry Potter goes to law school. As a 1L, he takes torts from a professor with an economist’s view of the institution. She teaches Potter that tort law aims to minimize the sum of the costs of accidents and… Read More »

Commensurability and Agency

Alon Harel & Ariel Porat

In this Editorial we focus our attention on two concerns for Law and Economics (LE). The first relates to commensurability and the second focuses on agency. Both concerns are central to LE. The first concern questions the dominant method LE uses for making substantive decisions. The second concern challenges… Read More »

Bonding Limited Liability

Robert J. Rhee - University of Maryland School of Law

Limited liability is the essential attribute of the corporate form. Although abolishing limited liability is politically infeasible, the rule is troubling as to tort creditors. Unlike contract creditors, they are not factors of production in the “nexus of contracts.” Tort law is the wrench in the smooth machinery of the… Read More »

Regulating Privatized Government through § 1983

Richard Frankel Earle Mack School of Law at Drexel University

My article, Regulating Privatized Government through § 1983, argues that courts are improperly interpreting 42 USC § 1983 to grant private entities subject to the statute an exemption from respondeat superior liability.  This problem has arisen in the increasingly common context where governments contract out core public functions to private companies, and when,… Read More »

Doctors Who Want Their Medical Malpractice Exculpatory Agreements Enforced Should Use Confidential Contracts

Matthew J.B. Lawrence - Law Clerk for Judge Ginsburg (D.C. Circuit)

Whether patients should be able to contract out of the malpractice system has been a hotly debated subject in law and economics and health law literature.  Advocates of patient choice argue that if the cost of having the option to bring a malpractice suit truly outweighs the benefit to a… Read More »

Regulating Funny: Humor and the Law

Laura E. Little - Temple University Beasley School of Law

Chuck makes a joke.  The joke hurts Gladys, who complains, “That’s not funny!”  If Gladys presses her view, ascribing blame and demanding redress, a court matches her hurt with rules of law.  Carried to its logical conclusion, this legal process regulates Chuck’s joke, sending a message about whether society likes… Read More »

Federalism Accountability: “Agency-Forcing” Measures

Catherine M. Sharkey - N.Y.U. School of Law

Federal preemption of state tort law is a multifaceted topic. In Federalism Accountability: “Agency-Forcing” Measures, I tackle the federalism dimension of the contentious preemption debate: Congress’s and federal agencies’ respective abilities to serve as loci of meaningful debate with state governmental entities about the impact of federal regulatory schemes on… Read More »

Through the Looking Glass: A Response to Professor Dan Markel’s Retributive Damages

Sheila B. Scheuerman - Charleston School of Law

This Editorial is a response to Dan Markel’s Legal Workshop Editorial: Retributive Damages as Intermediate Public Sanctions: A Synopsis.
In Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction, Professor Markel intentionally situates his… Read More »

Retributive Damages as Intermediate Public Sanctions: A Synopsis

Dan Markel - Florida State University College of Law

Punitive damages’ complex and rapidly evolving nature has unsurprisingly attracted the attention of scholars from a variety of disciplines.  But what are punitive damages for?  In terms of normative answers, a number of scholars, such as Professors Polinsky and Shavell, think that extra-compensatory damages should focus on advancing the goal… Read More »