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The Economic Structure of Tort Law, 97 Yale Law Journal 1233 (1988)


The economic analysis of tort law, like the economic analysis of law generally, has both positive and normative dimensions. Positive economic analysis seeks to explain tort law by rationally reconstructing it: in other words, by demonstrating how and to what extent existing doctrines further economic efficiency. Normative economic analysis can be understood as making either of two claims. In its modest version, normative economic analysis makes a conditional claim: if the (or a) desirable goal of tort law is to promote economic efficiency, then the rules of liability ought to be such and such. In its ambitious version, normative economic analysis drops the conditional, turning the hypothetical into a categorical imperative: The rules of liability ought to be such and such.

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