An Economic Analysis of Tort Damages for Wrongful Death
![handle is hein.journals/nylr60 and id is 1127 raw text is: NOTES
AN ECONOMIC ANALYSIS OF TORT
DAMAGES FOR WRONGFUL DEATH
In the last two decades, proponents of an economic approach to law
have had a significant impact on the thinking of legal scholars. This eco-
nomic approach has been particularly influential in the area of tort law,1
where its proponents have sparked debates over both the positive claim
that tort law is efficient2 and the normative claim that tort law should be
efficient.3 Although there is a large volume of literature discussing the
theoretical validity of both the positive and normative efficiency claims,
few authors have examined specific areas of tort law to determine
whether these claims are being, or can be, met.4 Instead, most law and
economics scholars have focused on whether, and if so which, liability
rules5 are efficient.6 This emphasis on liability rules, however, has re-
I See generally G. Calabresi, The Cost of Accidents: A Legal and Economic Analysis
(1970); R. Epstein, A Theory of Strict Liability (1980); R. Epstein, C. Gregory & H. Kalven,
Cases and Materials on Torts (4th ed. 1984); Law, Economics, and Philosophy: A Critical
Introduction, with Applications to the Law of Torts (M. Kuperberg & C. Beitz ed. 1983)
[hereinafter Law, Economics & Philosophy]; Perspectives on Tort Law 152-236 (R. Rabin ed.
2d ed. 1983); R. Posner, Economic Analysis of Law, §§ 6.1 to 6.17 (2d ed. 1977).
2 See Cooter & Kornhauser, Can Litigation Improve the Law Without the Help of
Judges?, 9 J. Legal Stud. 139 (1980); Kornhauser, A Guide to the Perplexed Claims of Effi-
ciency in the Law, 8 Hofstra L. Rev. 591 (1980); Landes & Posner, Adjudication as a Private
Good, 8 J. Legal Stud. 235, 259-84 (1979); Priest, The Common Law Process and the Selection
of Efficient Rules, 6 J. Legal Stud. 65 (1977); Rubin, Why is the Common Law Efficient?, 6 J.
Legal Stud. 51 (1977); see also Carrington, Adjudication as a Private Good: A Comment, 8 J.
Legal Stud. 303, 312-17 (1979) (responding to Landes & Posner).
3 See Coleman, Efficiency, Utility, and Wealth Maximization, 8 Hofstra L. Rev. 509
(1980) (criticizing the claim that the law should be efficient); Dworkin, Is Wealth a Value?, 9 J.
Legal Stud. 191 (1980) (criticizing the claim that legal rules should maximize wealth);
Kronman, Wealth Maximization as a Normative Principle, 9 J. Legal Stud. 227 (1980) (same);
Posner, The Value of Wealth: A Comment on Dworkin and Kronman, 9 J. Legal Stud. 243
(1980) (supporting the claim that the law should maximize wealth); see generally Efficiency as
a Legal Concern, 8 Hofstra L. Rev. 485 (1980).
4 But cf. Cooter & Kornhauser, supra note 2, at 145-50 (deriving a set of necessary condi-
tions which must inform the common law process if that process is to be efficient); Rizzo, The
Mirage of Efficiency, 8 Hofstra L. Rev. 641 (1980) (discussing the enormous informational
requirements needed to make the law efficient).
5 This Note uses the term liability rules to describe rules that govern whether the de-
fendant must compensate the plaintiff for the damage the defendant caused. Examples of lia-
bility rules are: negligence, contributory negligence, comparative negligence and strict
liability. These rules should be distinguished from damage rules, which determine what
amount the defendant must pay the plaintiff if the defendant is found liable.
6 See, e.g., R. Epstein, supra note 1, at 5-68, 133-35; Calabresi & Hirschoff, Toward a Test
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An Economic Analysis of Tort Damages for Wrongful Death
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