Content area
Full text
Abstract
Legal realism tells common-law judges to take nothing for granted: "Discretion is everywhere," the realist proclaims, "for rules become law only at the judge's say so." Over the past half-century, the law-and-economics movement has answered that realist challenge in two ways: first, by justifying inherited common-law doctrines in the valueneutral terms of economic efficiency and, second, by providing judges with the analytical tools necessary to pursue that neutral objective when the law runs out. This Article is among the first to ask whether that project has succeeded in the context of modern tort law. Beginning with the Supreme Court's recent decision in Air & Liquid Systems Corp. v. DeVries, it scrutinizes a broad cross-section of tortlaw cases with an eye to whether common-law judges actually deploy the economist's toolkit. The results are dim. Judges regularly neglect the incentive effects of their decisions and craft rules that make us all worse off by economic lights. Legal realism is partly to blame, as it encourages judges to favor their own redistributive impulses over a concern for the common good. For those who favor an efficient system of tort adjudication, this Article invites further reflection on whether formalism might do a better job than the prevailing realist orthodoxy of promoting social welfare.
Introduction
"[T]he great [common-law] judge-the Holmes, the Cardozo-is the man (or woman) who has the intelligence to discern the best rule of law for the case at hand and then the skill to . . . distinguish[] one prior case . . . from another . . . until (bravo!) he reaches the goal-good law."1 Here, the late Justice Scalia-renowned for following neutral interpretive principles no matter the destination-extols the virtues of results-oriented judging. The contrast is striking. And it reveals the notion, deeply entrenched in our legal culture, that the common law plays by a different set of jurisprudential rules. The great common-law judge asks not what the law is, but what it ought to be, and "how . . . any impediments to the achievement of that result [might] be evaded[.]"2
That popular conception of the common law reflects the iron grip of American legal realism over our contemporary legal sensibilities. Today, it is assumed, virtually without question, that judges enjoy considerable...