My argument will make heavy use of a distinction, introduced by Professor Bruce Ackerman, between two styles of reasoning in addressing legal issues. One is the perspective of the "Ordinary Observer," who begins his analysis by looking at the common practices of laymen and makes legal rules based on the expectation of a well-socialized member of society, without regard to whether the resulting body of law fits into any coherent pattern. Ackerman contrasts this method with that of the "Scientific Policymaker," who begins from the premise that the law should serve some goal or small group of goals and who views adjudication as an exercise in crafting rules that will help to realize those goals. I maintain that traditional tort law better fits the model of the Ordinary Observer, while the new regime in torts is largely the product of Scientific Policymaking.
Scientific Policymaking and the Torts Revolution: The Revenge of the Ordinary Observer
Available at: http://digitalcommons.law.uga.edu/fac_artchop/140