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Regulation and the Law of Torts

Susan Rose-Ackerman

Tort law is law. Regulation by statute is public law. How should the two relate to each other in a regulatory state where statutory intervention in private markets is widespread? Both tort and statutory law have regulatory effects. Thus economic policymakers should examine the links between these legal regimes in substantive areas where both systems operate. I argue in this paper that statutes should generally dominate so long as agencies can use rulemaking to shape policy. Common-law torts should be limited to areas of activity not covered by statutes and to situations in which courts can complement the statutory scheme with a supplementary enforcement and compensation mechanism. However, if the implementation of a statutory scheme

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