Lytton on Reevaluating the Case Against Regulation by Litigation

Tim Lytton has posted to SSRN A Systems Theory of Tort Law:  Reevaluating the Case Against “Regulation by Litigation”.  The abstract provides:

For decades, critics of tort law have argued that lawsuits are a poor substitute for government regulation. These detractors compare the institutional capacities of courts and agencies, and they conclude that litigation is ineffective, inefficient, and illegitimate as an alternative to notice-and-comment rulemaking. In response, this Article asserts that characterizing tort law and administrative regulation as alternatives obscures their interdependence. By using systems theory to model this interdependence, the Article argues that any fair-minded assessment of tort litigation’s contribution to regulatory governance requires understanding it as part of a system. Ignoring the systemic impacts of tort litigation overlooks the subtle ways in which it enhances expertise, stakeholder participation, feedback, and learning in regulatory regimes.