Publication Details

J. Goudkamp & J. Murphy, 'Divergent Evolution in the Law of Torts: Jurisdictional Isolation, Jurisprudential Divergence and Explanatory Theories' in A. Robertson & M. Tilbury(eds), The Common Law of Obligations: Divergence and Unity (2016) 279-299.


Since the fi rst wave of law-and-economics scholarship in the United States in the early 1970s, scholars have spent a tremendous amount of time trying to come to grips with tort law from a theoretical perspective. Richard Posner was on the crest of that wave, and his voluminous writings 1 revolutionised how tort law is understood. He contended that tort law (as well as the law generally) is best explained on the ground that it maximises societal wealth. Posner, writing together with William Landes, asserted that ' the common law of torts ' should be accounted for ' as if the judges who created the law through decisions operating as precedents in later cases were trying to promote effi cient resource allocation ' . 2 Many scholars, especially in the United States, remain in the thrall of Posner ' s economic model.