The Culture of Modern Tort Law

Abstract

In this speech, I would like to address a feature of legal regimes in general that is too often ignored in the study of how law operates. Though I believe that the concept is relevant to many different areas of law, I shall focus on modern tort law. I wish to address what I will call the "culture" of our modem law of torts. By culture, I mean a set of attitudes and expectations embedded in the conceptual basis of the law that is only captured in a limited way by the principal legal doctrines of the area of law themselves. I believe that those of us who work in the field of law and economics, especially, have neglected the broader impact of the culture of modem law. As a consequence, we have failed to understand the significant consequences that have derived from the shift in the culture of tort law that occurred in the 1970s and 1980s from what is typically called the regime of "negligence" to the regime of increased responsibility for risk identified with the adoption of the standard of strict products liability. I have argued separately, including in this forum,1 that the strict liability idea extends far beyond the products field. Here, I want to examine that extension more carefully.