We found a match
Your institution may have access to this item. Find your institution then sign in to continue.
- Title
THE ROLE OF TORT THEORY IN THE THIRD RESTATEMENT OF TORTS: AN EXPLANATION AND DEFENSE.
- Authors
Simons, Kenneth W.
- Abstract
In a recent article, Professors and Restatement Reporters Nora Freeman Engstrom and Michael D. Green strongly deny that tort theory is useful in the crafting of Restatements. They also deny that tort theory has had much useful to offer to judges who formulate and revise tort doctrine. Although some of their criticisms have merit with respect to some types of tort theory, their central argument is unpersuasive. One pervasive kind of tort theory is indeed extremely valuable4namely, a theory that identifies the normative principles that justify tort doctrine. To be plausible, that normative theory must be pluralistic and must encompass a range of distinct rights, principles, and values. But it should also acknowledge the law9s institutional and pragmatic constraints. And, if it is to be useful in a Restatement, the theory needs to be relatively noncontroversial and largely consistent with past legal practice. However, these qualifications do not undermine the point that tort doctrine is supported by a coherent and plausible set of normative principles.
- Subjects
TORTS; TORT theory; EXPLANATION
- Publication
Southwestern Law Review, 2024, Vol 52, Issue 3, p428
- ISSN
1944-3706
- Publication type
Article