Uncertainty, the Race for Property Rights and Rent Dissipation Due to Judicial Legislation in Us Tort Law

Abstract

Some scholars who recognize threats to private property rights from the legislative process, contend that common law is fundamentally different as it establishes 'efficient' rules. Mises argued that such a sharp distinction is inappropriate. This presentation illustrates the significant and growing threat that common-law courts pose to property rights by focusing on product-liability tort law. Recent changes in tort law such as the increasing application of strict liability, growing damage awards for intangible harms and as punishment, and reduced requirements of actual causation, have made the property rights to producers' income increasingly insecure. These rights are 'up for grabs' for anyone who can establish a claim, and this has led to a race for property rights accompanied by tremendous dissipation of wealth. The findings support Mises's view and contradict claims of the efficiency of common law.