This paper sets out a public choice (rent-seeking) theory of the Due Process Clause, which implies that the function of the clause is to prevent takings through the legislative or common law process. This view of the clause's function supports a preference for expanding rather than contracting...

This essay is a series of reflections on the implications of Philip Morris for the tort reform movement. I make an effort below to find a middle ground between the positions of the plaintiff and defendant in Philip Morris. That middle ground involves largely returning to the Supreme Court's...

Theories of tort law have focused on the breach and causation components of negligence, saying little if anything about duty. This paper provides a positive economic theory of duty doctrine. The theory that best explains duty doctrines in tort law is the same as the theory that explains strict...

We present a new model of negligence and causation and examine the influence of the negligence test, in the presence of intervening causation, on the level of care. In this model, the injurer’s decision to take care reduces the likelihood of an accident only in the event that some...

This paper has two goals. The first is to present an economic theory of preemption as a choice among regulatory regimes. The optimal regime choice model is used to generate specific implications for the court decisions on preemption of products liability claims. The second objective is to...

This paper, prepared for the 2009 Monsanto Lecture in Tort Jurisprudence, explains intent standards in tort law on the basis of the incentive effects of tort liability rules. Intent rules serve a regulatory function by internalizing costs optimally. The intent standard for battery internalizes...

The traditional strict liability doctrines - liability for abnormally dangerous activities, for wild animals, for abnormally dangerous animals, and for intruding livestock - can largely be explained by a small set of rationales. The Restatement Third Draft offers six principal economic and...

The power of financial accounting to shape corporate behavior is underappreciated. Positive accounting theory teaches that even cosmetic changes in reported earnings can affect share value, not because market participants are unable to see through such changes to the underlying fundamentals, but...