Is Tort Law Economically Efficient?
A great deal has been written about the economic efficiency of the law, and of tort law in particular. There are arguments to be made on both sides, and I will not repeat all of them here. The argument for efficiency of tort law was first set out explicitly by Richard Posner, though it was suggested one hundred years earlier by Holmes, who referred to the common law as largely determined by “convenience”. Posner never said precisely how this efficiency property came about. Paul Rubin offered a mechanism: litigants would tend to challenge inefficient rules more than efficient rules, and as a result the inefficient rules would be overturned more often than would efficient rules. Rubin’s answer has been challenged by later articles (yes, I’ve taken part in this too). Now, it appears that the most fashionable thing to say about the topic is that the tort law may be efficient sometimes. The funny thing I find about this literature is that the simplest argument for tort law efficiency (wheth
