Article by Martin A. Kotler
For two decades after the publication of The Problem of Social Cost in 1960, economic analysis dominated American tort scholarship. The past dozen years, however, have witnessed an increasing attack on “law and economics,” and, while it is arguably too early to announce the movement's demise, the sheer volume and variety of criticism evidence the fact that American tort law is momentarily between paradigms. Because everyone recognizes that some type of framework or model is essential if one wishes to understand tort law as something more than a series of unrelated decisions on widely disparate problems, contemporary tort scholarship has become a search for a unifying underlying value, “first principle,” or model.
Proposals for descriptive paradigms typically fall into one of two major types. The first, best described as a “single value” approach, seeks a single normative principle and explores tort law in terms of the extent to which legal doctrine advances or fails to advance the particular value underlying this principle. The law and economics movement's focus on “wealth maximization” is the most obvious, and perhaps the only, example of this approach.
The second type, described here as a “synthesis paradigm,” combines principles commonly thought of as separate and tries to demonstrate that they actually operate together to constitute a single value. Thus, for example, Professors Attanasio and Cooter have each attempted, in different ways, to show how the utilitarian values of the economists and the value of individual autonomy can be merged into a unified whole.
This Article undertakes the rather untidy, but I hope descriptively accurate, task of attempting to demonstrate that the system simultaneously pulls in different directions, seeking both autonomy and efficiency. Efficiency, however, represents a secondary or default goal that is promoted primarily, though not entirely, when it is inexpedient, impossible, or unnecessary to promote the primary goal of autonomy.
Complicating matters and obscuring the pre-eminence of autonomy, however, is the fact that the conception of autonomy has changed over a period of time. This has occurred as the relative weight given to autonomy's component parts—ownership over one's body and private property—has shifted. Although at one time protection of autonomy was understood primarily in terms of protection of private property rights, now the societal and legal perception of autonomy focuses on the protection of one's bodily integrity.
About the Author
Martin A. Kotler. Emeritus Professor, Widener University School of Law. B.A., 1972, The George Washington University; J.D., 1975, University of California, Hastings College of the Law; LL.M., 1984, J.S.D., 1989, New York University School of Law.
Citation
67 Tul. L. Rev. 347 (1992)