Unloved: Tort in the Modern Legal Academy

Abstract

In The Idea of Private Law, Ernest Weinrib argues that tort law is "just like love." By this, he means that tort law is best understood formally, for what it is, rather than functionally, for what it does. Formalist theory is presented as a stark alternative to the instrumentalist theories that have dominated modern American torts scholarship. This essay argues that Weinrib's approach is, in one important and revealing respect, of a piece with those that he criticizes. Specifically, by conveying an attitude of fatalistic acceptance toward tort law, it partakes of the generally unsympathetic disposition maintained by the vast majority of modern tort scholars toward their subject. For Weinrib, no less than for Calabresi, Coleman, Epstein, and Posner, tort law remains "unloved."