Berkeley Program in Law and Economics

For at least the last 50 years two ways of looking at tort law have struggled for dominance. One characterized by system-builders, as Izhak Englard so felicitously termed us; the other by those who have seen in tort law the highest manifestation of the common law tradition of responding to breaches in non-criminal, often non-contractual interpersonal relationships. In this paper, I would like to explore the relationship between these two approaches, which I will suggest, find their common law antecedents, where else but, in the forms of actions, from which so much of modern Anglo-American private law derives. I will suggest that both approaches have always been there and that they have affected and shaped each other over the centuries and continue to do so today.