Tort Law and the Public Interest: Competition, Innovation, and Consumer Welfare

By Peter H. Schuck | Go to book overview

3
Tort Law in the Regulatory State

SUSAN ROSE-ACKERMAN

Regulation can be as effectively exerted through an award of damages as through some form of preventive relief. The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy. ( San Diego Building Trades Council v. Garmon, 359 U.S. 236, 247 [ 1959 ])

An award of damages to a person injured by the negligence of another is to compensate the victim, not to punish the wrongdoer.... the temptation to achieve a balance between injury and damages...is rooted in a desire to punish the defendant [and] has no place in the law of civil damages. ( McDougald v. Garber, 73 NY 2d 246, 253-255 [ 1989 ])

T ort law is "private" law. Regulation by statute is"public" law. How should the two relate to each other in a regulatory state where statutory intervention in private markets is widespread? Analysis of this question is too often based on oversimplified caricatures of the alternatives, which are seen as mutually exclusive options. In fact, the interactions are quite

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p0080

SUSAN ROSE-ACKERMAN is Ely Professor of Law and Political Economy in the Yale Law School and the Department of Political Science, and codirector of the Law School's Center for Law, Economics and Public Policy. She is the author of Corruption: A Study in Political Economy ( 1978), coauthor of The Uncertain Search for Environmental Quality ( 1974) and The Nonprofit Enterprise in Market Economies ( 1986), and editor (with others) of Knights, Raiders and Targets: The Impact of the Hostile Takeover ( 1988).

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