Tort Law and Commonsense Justice: Convergence and Divergence

Most judges, by necessity, work case by case, addressing only the legal questions that must be decided to handle that case. For many, there’s little opportunity to reflect on how the law may change over time—either about how and why those changes may occur or about whether such changes are for the better. In this article, we analyze the links between tort law and legal practice on the one hand and psychological notions of justice on the other. We explore situations in which commonsense notions of justice have converged with legal doctrine and legal practice in tort cases, creating changes in tort law, as well as circumstances in which tort law and legal practice have diverged from commonsense justice. We think judges will enjoy having the chance to step back from day-to-day case consideration to reflect on these intriguing patterns in tort law and practice