Assignment for Mon 11/8: pp. 187-201
Assignment for Wed 11/10: pp. 201-206

Posner is perhaps the best known exponent of the application of economic thinking to the justification of the law. As he notes, his approach is, while not utilitarian in the strictest sense, is analogous to a sort of utiliarianism. In the case of tort law, someone searching for an alternative deontological position might look to Aristotle's notion of corrective justice. In this paper, Posner argues that in fact Aristotle's view is consistent with the economic approach. Posner begins with an account of Aristotle and then of some recent views of corrective justice and tort law. Although he lays the groundwork for his own view in these discussions, he turns to it explicitly only in the last section; and I have divided the assignment unequally between the two classes so that we can spend the second class focusing on that.

Posner's account of Aristotle in section I is fairly brief, but pay close attention because of his criticisms of more recent views will refer back to it. And, as you read it, think not only about the details of Aristotle's view but also about whether you agree with these details.

In section II, Posner considers a series of views by recent writers. We will probably give little attention in class to his discussion of Coleman's views since we will read Coleman next; but, for the same reason, you should look carefully enough at what Posner says about Coleman's views here so that you can have this discussion in mind when you read Coleman. Although Posner dismisses all of these alternative views, you may not want to. Decide which of them you think is most plausible in order to have an alternative in mind when you read Posner's own account of tort law.

The last section concerns Posner's own views. There are two sides to what he says there. One is the actual content of his economic analysis; in this regard, pay special attention to the numerical examples he offers on pp. 203-204. The other side is his claim that his economic approach is in rough agreement with Aristotle's views. You should think whether or not you agree with him on each count. (Although Posner's chief interest is in tort law, he also makes a few comments about contract law on pp. 204f; it's worth thinking about what he say there since the general unwillingness of courts to require "specific performance"--see Posner for what that means--is something that the economic approach to law can explain more easily than can many other views.)