Searching for United States Tort Law in the Antipodes

Abstract

The basic arguments of this essay are that U.S. tort law has had surprisingly little influence in the Antipodes and that this can best be explained by structural and systemic differences between the various societies we are concerned with and their respective legal systems. I must begin by commenting on the meaning of the term "tort law," which I have elsewhere described as a "loose federation of causes of action." Unlike contract or property law, which may plausibly be portrayed as being informed by a single overarching concept, tort law lacks a convincing unifying theory, despite the best efforts of tort scholars from Oliver Wendell Holmes onwards, and including, most recently, those who variously argue that the cement of tort law (or, even more ambitiously, private law) is to be found in the concepts of "corrective justice," "rights," "wrongs,"  or "civil recourse." Because of the heterogeneity of the legal phenomena we call "torts," I think it wise to confine this paper to one, albeit probably the most socially significant, aspect of the subject: tort liability for personal injury resulting from negligence.