Logue on Coordinating Sanctions in Torts

Kyle D. Logue (Michgan) has posted “Coordinating Sanctions in Torts” on bepress.  Here is the abstract:

This Article begins with the canonical law-and-economics account oftort law as a regulatory tool, that is, as a means of giving regulatedparties the optimal ex ante incentives to minimize the costs ofaccidents. Building on this regulatory picture of tort law, the Articleasks the question how tort law should coordinate with already existingnon-tort systems of regulation. Thus, for example, if a particularactivity is already subject to extensive agency-based regulation,regulation that already addresses the negative externalities or othermarket failures associated with the activity, what regulatory roleremains for tort law? Should tort law in such cases be displaced orpreempted? The answer is: It depends. Sometimes, even in the presenceof overlapping non-tort regulation, there is a regulatory role thattort law can play, sometimes not.

For one example, if the non-tort regulatory standard is already“fully optimizing,” in the sense that the regulatory standard (a) setsboth an efficient floor and an efficient ceiling of conduct and (b) isfully enforced by the regulatory authority, then tort law arguablyshould be fully displaced in the sense that no tort remedy should beavailable for harms caused by such an activity. If, however, theregulatory standard is only “partially optimizing” (for example, it isonly an efficient minimum or efficient floor or it is only partiallyenforced), then tort law continues to have an important regulatory roleto play.

This framework can be used to explain such tort doctrines asnegligence per se and suggests circumstances in which there should be acorollary doctrine of non-negligence per se. It also helps to explainrecent federal preemption cases involving overlapping tort andregulatory standards. Finally, the framework produces insights for howtort law might efficiently be adjusted to coordinate with overlappingsocial norms, which are also considered within the L&E tradition tobe a form of regulation.

ADL