Judge-made risk regulation and tort law

Although the tale about tort law and risks is almost as old as time itself, the concept of judge-made risk regulation is an odd one out in the world of tort law scholarship. Traditionally, tort law practitioners and (most) scholars understand the tort law system as an individual dispute resolution mechanism with its very raison d’etre to do justice in a bipolar relationship between the plaintiff and the defendant.1 According to this conception, tort law offers a victim the possibility to hold the wrongdoer accountable for his alleged wrongful behavior and when he or she does so, a civil judge allocates the responsibilities in relation to the risks involved between the proceeding parties.2 The judge determines the extent to which the plaintiff or the defendant is ex ante responsible for the management of the risk and whether the defendant ex post has to compensate the victim for the costs of the negative consequences of a risk that has materialised. [...]