On the Economic Inefficiency of a Liberal-Corrective-Justice- Securing Law of Torts

This article is a companion to Professor Markovits’s article, Liber-alism and Tort Law. In that article, he articulated a vision of what lib-eralism means and its implications for the content of a liberal-corrective-justice-securing law of torts. Liberalism values most highly individuals having and seizing the opportunity to lead a life of moral integrity. A tort law system in a liberal, rights-based society will therefore, above all, offer redress for violations of this right to live a life of moral integrity.In this article, Markovits reviews his conception of liberalism and its tort-law implications and then describes twelve reasons why a liberal-corrective-justice-securing tort law will not maximize economic efficien-cy. These reasons are rooted in liberalism’s (1) overall “goal” of allow-ing all members of society to pursue a life of moral integrity above every-thing else, (2) the distinction between choices based on the desire to in-flict pain and degradation on others versus choices made for other rea-sons, and (3) the notion that harming others is different from not helping others. Thus, the choices that people make and the decisions made by courts in response to these choices will often be based on factors that do not maximize economic efficiency, but rather support the pursuit of a life of moral integrity.

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