Summary And Implications

Abstract

Abstract Over the past 20 years or so, tort scholarship has been dominated by theoretical debates about the appropriate normative goals of the tort system and the doctrinal implications that each entails. These debates have centred around three major goals: deterrence, compensation, and corrective justice. We believe that these debates cannot be resolved in the abstract, but require close attention to empirical evidence on how the tort system, and alternatives to it, actually perform. We believe that the central normative question should not be which of these goals, or values, is superior to which other, but rather which legal or policy instruments are best equipped to vindicate which values. In other words, we accept the legitimacy of all of these goals and focus our analysis on identifying the means that best achieve each goal. In this respect, the empirical evidence has convinced us that a single instrument, the tort system, cannot successfully achieve all three of the major goals claimed for it, and attempting to use it in pursuit of objectives for which it is not well suited is both costly and damaging to its ability to perform well with respect to other goals that it is better able to realize. Almost a century ago, the tort system was abandoned for workplace accidents and replaced by an administrative workers’ compensation system to perform the compensation function with a regulatory system emerging to deter some types of hazardous workplace behavior. Since the middle of this century, no-fault compensation systems have been adopted in various jurisdictions to compensate victims of automobile accidents, complementing regulatory systems for reducing risks to motorists. We endorse these moves and propose extensions of them with three caveats: compensation schemes must be separately funded in each of the accident areas; premiums for compensation schemes must be risk-rated to preserve deterrence incentives; and tort should not be entirely displaced, but should have a residual role in cases of egregious behavior causing serious harm.. However, we do not see these compensation schemes operating in the areas of product or environmental injuries.