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Introduction: Tort Law and the Insurance Crisis
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15657 |
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Section : |
MODERN THOUGHT
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| Issue
Date : |
2 / 1989 |
2,025 Words |
| Author
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Richard A. Epstein
Richard A. Epstein is the James Parker Hall Distinguished
Service Professor of Law at the University of Chicago. He is
editor of the Journal of Legal Studies and has written
extensively on issues of tort liability and tort reform. |
The distinguished set of essays on the past and future of tort law collected in this issue of THE WORLD & I should enable the concerned reader to cut through the rhetorical undergrowth surrounding modern debates over tort reform. In this brief introduction, it is impossible to cover in detail all the relevant issues in a debate that has now spanned a decade and shows no signs of abating. Nonetheless, it is possible to set out some of the key distinctions that do (or at least should) organize the social agenda. The relevant issues are conveniently grouped around two themes: Who should decide what rules will allocate the risk of harm? and What shape should those rules take? Currently, the dominant, but by no means exclusive, emphasis has been on the second of these two questions. In principle the first is probably the more important. Let me take them up in order.
The WHO
The complex system of American government is designed to divide decision-making power among various interested parties, so that no single faction or group exerts a monopoly control over the lawmaking process as a whole. For specialists in public policy, the question of division translates into the question of whether certain decisions should be made by courts, which fashion the common law rules of torts; by legislatures, which have the power to displace them by statute; or by administrative bodies, which run the complicated statutory schemes that legislatures devise.
The arguments for or against these various forms of social control are wide-ranging and inconclusive. Thus it has been argued that courts should fashion liability rules because they are free from political pressures and will therefore fashion legal rules that on average advance overall social welfare. On the other hand, judges are often drawn from highly educated elites, and therefore may be subject to conscious or unconscious class bias that places them out of step with the public at large.
In part, these judicial biases may be offset by the enormous power that popularly selected juries exercise in tort cases. Yet here too the picture is not altogether cheery, for juries may well harbor resentments of their own, which could lead them to impose excessive and unwarranted verdicts against manufacturers and physicians. These risks are present in any legal regime, but they are far more pronounced where the legal rules are so fluid and unfocused that the verdict in any case can be rendered for either plaintiff or defendant with equal
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