Epstein's Theory of Strict Tort Liability

Abstract

Alan Brudner recently observed that a significant tendency within contemporary legal scholarship has been “the movement toward comprehending private law in terms of non-legal ‘perspectives’ that reduce to surface rhetoric the discourse by which private law articulates and understands itself”. This is most obviously true of the economic analysis of law, and not simply in so far as it introduces a vocabulary that is unfamiliar to the lawyer. For the perspective which has informed the most influential currents within that movement is fundamentally aggregative in orientation, so that legal doctrines developed within a bilateral adjudicative framework, focusing on justice between two parties, are inevitably cast in a subordinate and instrumental role. Economic approaches seek to explain the law from a standpoint outside of the law's own framework, and to reveal a deep rationale for particular legal doctrines which would not be transparent to the lawyers and judges who developed those doctrines.