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Chapter 9 includes some insights and observations from the Hon. Prof. Calabresi on the major elements of the Maimonidean theory, especially those that are similar – more or less – to contemporary tort law and economics. Calabresi discusses law, economics, and justice in our era and in Maimonides’ theory of torts, and empirical differences in the different times and their implications. Calabresi also considers the question of whether there are differences between the differential liability model presented by Maimonides, and contemporary theories of the economic analysis of tort law, expanding on deontological as opposed to utilitarian considerations according to law and economics. Calabresi deals specifically with the issue of punitive damages and discusses the innovative analysis of Maimonides compared to the multiplier approach, distributive justice as presented by Maimonides, and his optimal deterrence model. There is a great deal in Maimonides that presaged both his work in particular and sophisticated modern law and economics generally. Calabresi notes that not only can we now understand Maimonides, and the breadth of his thinking better, but we also have a clearer picture of the strengths and weaknesses of modern scholarship.
abstract. Law, and particularly tort law, serves definable human goals. Often these goals are multidimensional, and too often, those who view tort law in a goal-oriented way move quickly to a single, simple goal – whether it be economic efficiency, furthering loss spreading or anything else – and, having examined tort doctrines and cases on that basis, are properly attacked for being reductionists. The thesis of this chapter is that the pursuit of one-dimensional goals in tort law is fraught with such risks.
Generally speaking, courts are unlikely to be reductionist. Judges derive law from many sources. The problem arises from the ever-increasing incursions by federal courts into the tort process, and is worsened when the incursion is by the Supreme Court. This chapter concentrates on punitive damages. Its thesis is that punitive damages in tort law can perform at least five very different functions, and that each is a sufficient reason for a state to seek to impose exemplary awards. These objectives may reveal or include a desire to: (1) enforce societal norms, through the use of private attorney's general; (2) employ “the multiplier,” in the sense that the proper size of the deterrent assessed on those one would deter is not the harm to any one victim but rather that harm multiplied by all those victims whose harms are not likely to be charged to the injurer; (3) the “Tragic Choice” Function, such as in the Pinto case; (4) permit Recovery of Generally Nonrecoverable Compensatory Damages; and (5) permit Righting of Private Wrongs.