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In this paper, I disagree with the premise that all tort rules can be meaningfully classified as either compensatory or deterrent. I argue that most tort rules are both and that "the compensation and deterrence goals ascribed to the tort system cannot be separated.” I then explore the impact on the Louisiana tort choice of law code of this alternative understanding of tort law. My analysis begins with the proposition that all tort rules are loss-allocating. A liability rule shifts the loss from the injured victim to the tortfeasor; conversely a rule of no liability means that the loss, no matter how real, will be borne by the victim. All tort rules determine who will bear a loss and thus all are loss-allocating. In addition to all tort rules being loss-allocating, I believe that most affect conduct. The reason is directly tied to loss-allocation. Loss-allocation creates incentives for those who must bear the loss to behave differently than they would if they did not bear the loss. To the extent people respond to incentives, tort rules will affect conduct II As I note later in the paper, these effects on conduct may not always be intended by the lawmaker, and in particular situations, the conduct effect of two different rules may be quite small. Nonetheless, I believe there are few situations in which one can conclude that a tort rule is inherently loss-allocating but not conduct-regulating.

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60 La. L. Rev. 1251-1258 (2000)

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Torts Commons