Law & Economics and Tort Law: A Survey of Scholarly Opinion
Moorhouse, John C., Morriss, Andrew P., Whaples, Robert, Albany Law Review
Recent litigation brought against cigarette manufacturers,(1) software companies over potential year 2000 computer problems,(2) and a fast food restaurant for serving coffee that was allegedly too hot(3) reminds us of the importance and dynamic nature of tort law in the United States. Judging from ongoing coverage by newspapers and television, tort law is newsworthy. Yet, as with other legal issues, it is within the covers of law reviews and specialty journals in economics that much of the debate over the social utility of various tort rules and their reform takes place. In that debate law and economics exercises great influence. "Ever since the 1970s, the modern movement in economic analysis has been in full swing. That analysis has highlighted the deterrence function of tort law. Indeed, even in the works of mainstream scholars, deterrence has now assumed the role of a primary rationale for tort liability rules."(4) One example of this influence is the impact of economic analysis of tort law on the revision of the Restatement of Torts (Second) sections on products liability.(5)
In spite of the significance of tort law and the economic analysis of it, the general public, practicing attorneys, and legislators often know little about the findings and informed opinions of those scholars specializing in law and economics. The purpose of this Article is neither to review contemporary issues surrounding tort law(6) nor to gauge the extent of the influence of specialists in law and economics; our purpose is to address whether a consensus exists among these scholars about a few fundamental doctrines of tort law. Because efficiency is a major concern in the field of law and economics, each proposition raises an issue of efficiency about a tort rule. We thus framed ten propositions about how efficiently tort rules achieve their purposes.
In the following section we present our results as a whole. Next we discuss the results individually, offering brief resumes of the debates that inspired the particular questions. Finally, we offer some general conclusions based on the results taken together.
As part of a larger survey conducted during the summer of 1996,(7) we sent questionnaires to members of the American Law and Economics Association (ALEA).(8) We received useable responses to 16.2% of the 389 surveys we mailed out. Respondents were asked to classify themselves as legal scholars (on the basis of their having a law degree), as economists (on the basis of their having a Ph.D. in economics), or as both (on the basis of their having a law degree and a Ph.D. in economics). Next they were asked to note whether they agreed with each of ten propositions about tort law, using a five point scale in which i equals "strongly disagree" and 5 equals "strongly agree."(9) The percentage of those surveyed who responded to each proposition and the total distribution of responses for each proposition are reported. In addition, we calculated the average numerical scores for each of the three groups of scholars: legal scholars (Law), economists (Econ), and those with training in both (Law/Econ), for each proposition. We estimated t-statistics for each statement, to test for statistically significant differences in the mean scores of the three groups, and chi-square tests, to determine if there are statistically significant differences in the distribution of responses for each proposition within each group.(10) The results are presented in the Table.
TABLE Responses(12) 1. No fault automobile insurance is efficient. Strongly Disagree 21% 32% 20% 23% 4% Strongly Agree Percent Responding: 89% Average: 2.55 Law(13): 2.51 Econ(14): 2.67 Law/Econ(15): 2.40 2. Contributory negligence is more efficient at producing optimal behavior than comparative negligence. Strongly Disagree 7% 32% 37% 19% 6% Strongly Agree Percent Responding: 86% Average: 2. …