Madden on Historical Efficiency Themes in Tort Law

M. Stuart Madden, formerly of Pace University School of Law, has published Efficiency Themes in Tort Law From Antiquity in Adelaide Law Review 34 (2013): 231.  Here is the abstract:

As human societies developed, a bedrock necessity was the identification of expectations and norms that protected individuals and families from wrongful injury, property damage, and takings. Written law, dating to the Babylonian codes and early Hebrew law emphasized congruent themes. . Such law protected groups and individuals from physical or financial insult, depredation of the just deserts of labor, interference with the means of individual livelihood, and distortion of the fair distribution of wealth.

Hellenic philosophers assessed the goals of society as being the protection of persons and property from wrongful harm, protection of the individual’s means of survival, discouragement of self-aggrandizement, and the elevation of individual knowledge that would carry forward and perfect such principles. Roman law was replete with proscriptions of forced takings and unjust enrichment, and went so far as to include rules for ex ante contract-based resolution of potential disagreement. Unwritten customary law within the Western world and beyond perpetuated these tenets, based at once in morality and aversion to wasteful behavior.

In addition to the corrective justice-morality underpinnings of the law governing civil wrongs, or torts, the common law has nurtured rules implicating economic and efficiency themes. Efficiency themes enjoy a conspicuous place in modern tort analysis: from the risk-utility analysis and implicit social cost evaluations of numerous common law courts in accident cases, to the translation of the negligence formula of Judge Learned Hand into a basic efficiency model, to the increasing number of judicial opinions that rely explicitly upon economic analysis.