Enabling torts, negligent entrustment. Psychologist etc.
Defenses- evolved from on/off trifecta to more muddy flexibile sliding scales.
Coase theory, necessity and SL
Nuisance, abnormally dangerous and vicarious liability, what are the pockets today or strict liability.
WC? Define the compensable event. Non-negligence rule
some products liability.
Some regulations with federal preemption.
Contract and private insurance and regulatory states as tort alternatives. Tort means twisted, but is the law of general wrongs in the world not covered by crim, contract, and regulatory state. Take step back, think of tort as accident law, law of wrongs, how some are covered and some aren’t by this safety net of the law.
Asbestos is a little like the vaccine cases, clear symptoms. Create tables.
Could focus just on the injury, like the New Zealand system. Treat as social insurance by government. Or force companies to pay into compensation fund that is distributed through bureaucratic process. Sacrifice some efficiency to lower transaction costs.
Large damage awards create a distributive justice problem. Damage caps on pain and suffering for medical malpractice, supply of doctors increases by 2% when you use the flawed method. Corrected the approach, doctors increase by 6-10%. More access to medical care at lower cost, more access to doctors. Whereas large awards benefit very few people. Although large jury awards seems to be victim friendly, caps can help provide more care to others. Drs. Spread the losses to their customers. And Drs. Say not deterred by tort law since seems random and insurance pays anyway.
Who responds to legal incentives, drs. Are good cost avoiders, and responsive to legal rules. So are lawyers, psychologists, industry. Know the law/rules or hire lawyers to tell them the rules.
Death of contract, death of tort: contract law was being overridden by regulation and statutes. Today, really seems more like the death of tort law. Contract law is expanding over tort law. Blood vs. Money. Courts more willing to allow contracts that adjust tort law procedures, getting out of courts and into arbitration or worker’s compensation. Private insurance is another factor. Regulation and the public welfare state in another thing cutting off state tort law using preemption, Geier.
Medical malpractice (asbestos), hurricane Katrina vs. 9/11. Could have pockets of social welfare for disasters, like Katrina and 9/11. Put communities back on their feet and substitute for tort law.
Mandatory first party homeowners insurance to move the cases out of the courts. Have insurance figure out with lower costs whether misused.
But because people are covered by their auto insurance, people ask for their own insurance coverage and avoid torts system for smaller accidents.
Could have more social insurance. Europe doesn’t have a torts crisis. Torts create piecemeal compensation. Reliance on tort law may create a society of litigiousness by not creating social insurance.
Punitive damages could still allow people to opt out of these programs and enter court, but split up the punitive damages, 1/3 to P, 1/3 to state in tax, and 1/3 for trust for similarly situated victims.
Give more space for people to contract out of torts/ mix libertarian with social.
Pyramid
First principles
Tort law is bad at compensation. The state is better at distributing more broadly. But contracts are better for compensation by letting people contract around courts. Maybe not for recklessness or negligence, but for small damage.
Tort law is good at individualized deterrence, if not general deterrence.
Good at individual corrective justice
Good at social redress- One person’s sociopath is another person’s crusader for justice. Jury declares what is right and wrong. In Vosburg v. Putney, the Jury had a gut sense that kicking was wrong and B had certain rights. Common sense expressed a core notion of personal responsibility for kicking someone, and a personal right not to be kicked. Doesn’t matter whether it deters, doesn’t matter that Vosburg never collected money because money can’t compensate for loss of leg anyway, but it was a social statement. Jury repository of common sense.
Regulation has the problem of independence vs. capture. Workers’ comp captured by business. Boards made people go through longer process to delay compensation. Special interests and repeat players have a harder time capturing the decentralized tort law and court. Unions also capture agencies.
Judicial elections are a way to capture judges
We put down juries, but juries are the last uncapturable bastion. One-time players. A stand in for the community, a democratic voice. Real risks to democracy are concentrated party. Juries protect against absolute power.
Since jury can’t be captured, more certain to avoid capture.
Even though many cases emphasize best cost avoider, accident avoider and collective justice, ultimately tort law is better at corrective justice and the state should take the collective justice efficiency goals. Leave fairness to tort. Let the legal realist take over leg reg and let fairness doctrinalists take over the courts for torts
