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The Future of Tort Law
| Article
# : |
15670 |
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Section : |
MODERN THOUGHT
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| Issue
Date : |
2 / 1989 |
5,504 Words |
| Author
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Michael J. Trebilcock
Michael J. Trebilcock is director of the Law and Economics
program of the University of Toronto Faculty of Law. He was
formerly a visiting scholar at the University of Chicago
(1976) and Yale (1985) law schools. |
The recent cirsis in the availability, affordability, and adequacy of liability insurance, and the widespread public attention that has been generated in a number of huge mass tort claims such as the asbestos, DES, and Agent Orange litigation have precipitated much anguished political, judicial, and academic soul-searching as to the goals and future of the tort system.
In evaluating the performance of the present tort system, it is obviously necessary to be clear on the criteria upon which it is to be evaluated. Unfortunately, controversy begins with this very threshold question. First, there is fundamental disagreement as to what goals the tort system is designed or can be made to serve. Second, even where there is agreement on objectives, there is often controversy or at least profound uncertainty as to what the empirical evidence proves as to how well the tort system achieves those objectives or how much better or worse alternative systems are likely to be in promoting those same objectives.
Law and economics scholars, drawing on concepts of economic efficiency, tend to stress the deterrent objectives of the tort system. Both existing legal doctrine and proposed reforms are evaluated in terms of incentives they are to create for the taking of cost-justified precautions. It is argued that one can reduce accident and avoidance costs by taking precautions aimed at controlling negligent behavior.
Scholars who adopt a less individualistic, more communitarian perspective on tort law (such as many critical legal studies scholars) tend to view most accidents as the inevitable by-product of the activities (e.g. motoring, manufacturing)
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