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Theory and Law
| Article
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15647 |
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Section : |
EDITORIAL
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| Issue
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2 / 1989 |
1,732 Words |
| Author
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Morton A. Kaplan
Editor and Publisher |
Our special section this month is on tort law and the insurance crisis. The distinguished contributors of the articles in this section bring in-depth knowledge of legal theory and actuarial information to their suggestions for the reform of a tort law system that has created a severe insurance crisis in the United States. Many, perhaps most, of their suggestions can significantly further efforts to cope with this crisis and to restore some important insurance protections that have lapsed--for example, for municipal playgrounds.
As they point out, among the theories that have been applied to tort law are negligence, deterrence, insurance, and moral responsibility. The insurance principle, first advocated by Justice Benjamin Cardozo, along with the "deep pockets" principle--which makes any tort-feasor, no matter how marginally at fault, liable for the entire judgment--and awards for mental suffering, have been major factors in producing the insurance crisis. The authors, therefore, search for ways to avoid those types of awards that have led to the critical situation that now prevails.
The authors suggest, among other improvements in tort law, eliminating payments for mental pain or other claims a rational person would not seek to insure against. Several of them believe that these reforms would relieve the insurance crisis. However, they fail to suggest that the idea that a particular theory of tort law must govern the field is an important cause of the present problems.
It is understandable that lawyers and other social scientists tend to search for the correct theory to govern the range of cases in a given category. This may seem
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