Posner and Tort Law

Posner has written extensively on the economic analysis of torts in his Economic Analysis of Law. This contribution highlights some of the peculiar aspects of his vision on tort law. It is stressed that for Posner tort law is a system to provide incentives to parties in the accident setting to take optimal preventive measures, but not a tool of compensation. That starting point also explains his approach to basic questions, such as the application of contributory negligence. The contribution equally provides examples of where Posner was in a way ahead of his time by discussing complicated issues that are still debated today, such as causal uncertainty and the negative consequences of limited liability of corporations for non-voluntary creditors (such as tort victims). Even though Posner’s approach is sometimes characterized by an attempt to justify the efficiency of the judge-made common law, there are several aspects in his work that have laid the grounds for the further development and refinement of the economic analysis of accident law, both by (Landes and) Posner, but also by other scholars like Shavell.