Jeffrey O Connell and the Compensation Principle in Accident Law: Institutional and Intellectual Perspectives

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1 J. Tort Law 2015; aop Robert L. Rabin* Jeffrey O Connell and the Compensation Principle in Accident Law: Institutional and Intellectual Perspectives Abstract: In this essay, I will attempt to locate the principles that animated the career of Jeffrey O Connell in a larger context of examining the role of compensation in accident law. In Section 1, I provide a short historical excursion to set the stage. Next, in Section 2, I will discuss how O Connell followed his initial venture involving auto no-fault with a more expansive scheme of elective nofault coverage for products and medical mishaps, which in turn was followed by his early offer proposal. In Section 3, I will briefly trace the legacy of O Connell in the present era of mass tort and disaster relief claims. A final section will offer a concluding note. Keywords: Jeffrey O Connell, accident law, compensation principle DOI /jtl Accident law: the baseline of fault liability At the dawn of the twentieth century, accident law was synonymous with tort law. There was virtually no other game in town. To be sure, among the states there were a smattering of safety measures on the books. 1 But systematic regulatory attention to creating incentives to public risk reduction in a forum other than the courthouse let alone compensating victims of harm remained dormant until the Progressive era embraced these concerns in the ensuing years. 2 1 See, e.g., LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW (3rd ed. 2005) (discussing nineteenth-century state statutes imposing safety regulations on railroads). 2 See Robert L. Rabin, Federal Regulation in Historical Perspective, 38 STAN. L. REV. 1189, (1986). *Corresponding author: Robert L. Rabin, A. Calder Mackay Professor of Law, Stanford Law School, Stanford, CA, USA, Electronic copy available at: Download Date 2/21/15 2:21 AM abstract=

2 2 R. L. Rabin Tort was another matter. By 1900, there was both a burgeoning body of common law principles throughout the United States, and the foundations of an intellectual tradition focusing on positive articulation of these principles and normative justification for this doctrinal superstructure. 3 At the center of this developing intellectual tradition was Oliver Wendell Holmes classic work, The Common Law, published in 1881, which gave pride of place along with the venerable common law areas of property and contract to tort, the more recent kid on the block. 4 Holmes takes nothing for granted in marking off for inquiry, whether there is any common ground at the bottom of liability in tort, and if so, what that ground is. 5 His focal point is harm and his port of entry is the baseline question of whether accidental harm should lie where it falls, i.e. on the victim. In a famous passage, he introduces decades ahead of his time the prospect of what would come to be called no-fault responsibility, assumed by the state, which might conceivably make itself a mutual insurance company against accidents, and distribute the burden of its citizens mishaps among all its members. 6 But this prospect is quickly dismissed by Holmes as an evil, given the fact that universal insurance can be better and more cheaply accomplished by private enterprise. 7 But here one comes to the crux of the matter for Holmes, because any such distributive principle is subject to the graver [objection] of offending the sense of justice. 8 And that sense is articulated by Holmes in his touchstone statement of what justice requires: Unless my act is of a nature to threaten others, unless under the circumstances a prudent man would have foreseen the possibility of harm, it is no more justifiable to make me indemnify my neighbor against the consequences, than to make me do the same thing if I had fallen upon him in a fit, or to compel me to insure him against lightning. 9 Holmes then surveys the themes of strict liability and negligence in the tort case law, and as the above quote suggests, he marks off fault as the principle compelled by justice considerations. The fault/foreseeability principle is the guidepost to anchoring tort in blameworthiness and critically for present 3 See John Fabian Witt, Toward a New History of American Accident Law: Classical Tort Law and the Cooperative Firstparty Insurance Movement, 114 HARV. L. REV. 690, (2001). 4 OLIVER WENDELL HOLMES, JR., THE COMMON LAW (1902). 5 Id. at Id. at Id. 8 Id. 9 Id. (emphasis added). Electronic copy available at: Download Date 2/21/15 2:21 AM abstract=

3 Jeffrey O Connell and the Compensation Principle in Accident Law 3 purposes, correspondingly relegating victim compensation to a distinctly collateral position. What later tort critics would disparage as the lottery character of fault-based liability from the vantage point of victims of accidental harm was firmly embedded by Holmes in the structure of accident law. It was just this near-seamless web of fault-based responsibility that was called into question with the rise of the workers compensation movement in the Progressive Era, two decades after Holmes wrote. 10 Indeed, in the context of industrial workplace injuries, even the secondary compensation benefits of fault-based responsibility were frequently lacking in tort: Through the substantial bars to fault recovery posed by the assumed risk, contributory negligence, and fellow servant defenses, the compensation strand of accident law was barely detectable at all. 11 As a consequence of workers compensation, the grave offense to justice that Holmes had singled out just a generation earlier departure from responsibility for accidental harm on any grounds other than blameworthiness was now a reality. Indeed, tort law was now displaced from the scene altogether in the new regime of employer responsibility for workplace accidents. Compensation had suddenly, and dramatically, risen to the fore in cases of workplace injury as the touchstone for redress of accidental harm. All was topsyturvy. To the extent that blameworthiness-based liability might serve as a tool to encourage investment in workplace safety, realization of that goal was seriously diluted by a no-fault system that assigned only partial responsibility for wage loss and no responsibility at all for non-economic loss. Correspondingly, employers were now responsible for accident costs without a trace of unreasonable conduct on their part. How was this new paradigm of responsibility to be reconciled with the dominant regime of fault-based recovery for accidental harm? In a classic contemporaneous article, a leading scholar, Professor Jeremiah Smith, raised precisely this question: If the fundamental general principle of the modern common law of torts (that fault is requisite to liability) is intrinsically right or expedient, is there sufficient reason why the legislature should make the workmen s case an exception to this general principle? On the other hand, if this statutory rule as to workmen is intrinsically just or expedient, is there sufficient reason for refusing to make this statutory rule the test of the right of recovery on 10 See generally MORTON KELLER, REGULATING A NEW SOCIETY: PUBLIC POLICY AND SOCIAL CHANGE IN AMERICA, , (1994). 11 See Lawrence M. Friedman & Jack Ladinsky, Social Change and the Law of Industrial Accidents, 67 COLUM. L. REV. 50, 58 (1967). Electronic copy available at: Download Date 2/21/15 2:21 AM abstract=

4 4 R. L. Rabin the part of persons other than workmen when they suffer hurt without the fault of either party? 12 Smith offers no answer to the question (though his bias in favor of the common law is detectable just below the surface). But he suggests, in no uncertain terms, that the incongruities he has identified will not be permitted to continue permanently without protest. 13 In this regard, Smith turned out to be a poor prophet. While an auto no-fault plan, modeled on workers compensation, was drafted by a prominent study group a decade later, 14 it would be more than a half century before Jeffrey O Connell, along with Robert Keeton, would come on the scene with the distinctive, compensation-driven auto no-fault plan that would launch O Connell s singular career. 15 Indeed, on the present-day stage, a full century beyond Jeremiah Smith s classic rendition of the incongruities, the tension he observed between blameworthiness-grounded and compensation-driven regimes survives in modern guise. Why, it is asked, should victims of September 11th have been afforded compensation-based redress while other disaster victims, let alone the unlucky victims of more routine accidental harms, remain subject to the haphazard principle from a compensation perspective of fault liability? 16 But in the 50-year gap between the advent of workers compensation and the emergence of auto no-fault roughly from 1915 to 1965 the tension boiled beneath the surface. Tort law paid virtually no heed to a reordering of its goals that would have questioned the dominance of the fault principle Jeremiah Smith, Sequel to Workmen s Compensation Acts, 27 HARV. L. REV. 235, 251 (1914). 13 Id. at 363. Writing in the context of workers compensation, a third-party financed no-fault model, Smith in fact understated the potential incongruity between no-fault and the tort system. As a first-party model of compensation, auto no-fault (among others) is not intrinsically committed to any regard for the deterrence goal. The question of how the first-party pool of compensation benefits is generated turns on the extent to which experience rating is mandated by statute or voluntarily imposed by insurers contributing to the fund. 14 See REPORT BY THE COMMITTEE TO STUDY COMPENSATION FOR AUTOMOBILE ACCIDENTS TO THE COLUMBIA UNIVERSITY COUNCIL FOR RESEARCH IN THE SOCIAL SCIENCES (1932) [hereinafter COLUMBIA REPORT]; see generally Jonathan Simon, Driving Governmentality: Auto Accidents, Insurance, and the Challenge to Social Order in the Inter-War Years, , 4 CONN. INS. L. J. 521 (1998). 15 ROBERT E. KEETON & JEFFREY O CONNELL, BASIC PROTECTION FOR THE TRAFFIC VICTIM (1965). 16 See, e.g. Robert L. Rabin & Stephen D. Sugarman, The Case for Specially Compensating the Victims of Terrorist Acts: An Assessment, 35 HOFSTRA L. REV. 901, (2007); Robert L. Rabin, The September 11th Victim Compensation Fund: A Circumscribed Response or an Auspicious Model?, 53 DEPAUL L. REV. 769, (2003). 17 See generally Robert L. Rabin, Past as Prelude: The Legacy of Five Landmarks of Twentieth Century Injury Law for the Future of Torts, in EXPLORING TORT LAW 52, (M. Stuart Madden ed. 2005). One qualification is necessary, but it is a minor one. Building on the early English

5 Jeffrey O Connell and the Compensation Principle in Accident Law 5 A brief glance at some highlights underscores the point. By broad agreement the foremost common law jurist influencing the development of accident law in the first half of the twentieth century was Benjamin Cardozo. His most renowned torts opinions, while sitting on the New York Court of Appeals, underscore the striking asymmetry between blameworthiness and compensation as first-order priorities of tort law. In MacPherson v. Buick Motor Co., 18 Judge Cardozo s great contribution was to place a thumb on the scale in favor of linking responsibility of a product manufacturer to the probability of danger if the product was negligently made irrespective of privity between the manufacturer and the injured party. But the premise remained a product negligently made: Throughout, Cardozo s focal point remains what might be expected safety-wise on the part of the defendant. Not a word is mentioned about expanding victim compensation as an animating force for lifting the privity bar. Palsgraf v. Long Island Railroad Co., 19 the other capstone of Judge Cardozo s handiwork, drives the point home in spades. Whatever the negligent conduct on the defendant s part, if the unfortunate injury victim is unforeseeable, Cardozo asserts, she is owed no duty of due care. Indeed, compensation was of so little consequence to Judge Cardozo, that in this sharply contested judgment for the defendant railroad, he assigned court costs to the penurious plaintiff as the losing party! 20 If Judge Cardozo is the leading light on tort law in the first half of the twentieth century, a strong case can be made that Justice Roger Traynor assumes the mantle in the century s latter half. And here, interestingly, the role of compensation as the perennially ignored step-sister in tort law becomes more complicated. In his landmark concurrence, in Escola v. Coca Cola Bottling Co., 21 Justice Traynor provided a twin-pronged enterprise liability rationale for assigning tort responsibility to manufacturers in defective product cases: encouraging safety incentives and achieving broad risk-spreading. The latter justification is landmark, Rylands v. Fletcher, L.R. 3 H.L. 330 (1868), and the blasting cases, see, for example, Sullivan v. Dunham, 55 N.E. 923 (N.Y. 1900), the first Restatement of Torts recognized a discrete category of ultrahazardous activities subject to strict liability in tort. RESTATEMENT OF TORTS (1934). In 1965, the Second Restatement of Torts relabeled this category abnormally dangerous activities and redefined the factors for consideration. See RESTATEMENT (SECOND) OF TORTS (1965). Strict liability, however, remained of minor significance in the development of accident law N.E (N.Y. 1916) N.E. 99 (N.Y. 1928). 20 John T. Noonan, Jr., Passengers of Palsgraf, in PERSONS AND MASKS OF THE LAW: CARDOZO, HOLMES, JEFFERSON, AND WYTHE AS MAKERS OF THE MASKS 111, 144 (1975) P.2d 436 (1944).

6 6 R. L. Rabin quite explicitly grounded in assuring compensation for the victims of defective product injuries: Those who suffer injury from defective products are unprepared to meet its consequences. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. 22 Two decades later, in the mid-1960s, a notably proactive California Supreme Court, with then-chief Justice Traynor at the helm, would reconstitute accident law on a wide variety of fronts. But apart from the products liability area, this craftsmanship would be largely through expanding the duty of due care in negligence cases, rather than embracing a compensation-based general principle of strict liability in tort claims. 23 And indeed, as has been generally recognized, apart from manufacturing defect cases, products liability for defectrelated injuries, in California and elsewhere, has been largely subjected to refinement along negligence-like lines. 24 In tort, then, the focal point of responsibility remained the conduct of the injurer rather than the consequences to the victim. In reality, even when the fault liability threshold was crossed, and the legitimacy of the tort claimant s rights thus recognized, the common law frequently promised more than it delivered, for the make-whole principle of compensation was subject to serious qualifications perhaps the most serious being the common law redress in death cases. 25 Traditionally, in the decedent s survival action loss of enjoyment of life was ignored no matter how many years of projected life might have been snuffed out. And in the wrongful death action on behalf of surviving parties, loss of companionship was similarly ignored. In both instances, the tort law professor s classroom quip, better to finish off an injury victim than to seriously injure him, had real bite. Interestingly, Justice Traynor himself revealed serious misgivings about making tort victims whole, despite his strong attachment to a proactive stance at the liability phase of an accident law case. This ambivalence comes through clearly in Seffert v. Los Angeles Transit Lines, 26 a leading California case on damages. Dissenting from the majority s adherence to the highly limited shocks 22 Id. at See, e.g. Gary T. Schwartz, The Vitality of Negligence and the Ethics of Strict Liability, 15GA. L. REV. 963, (1981). 24 See KENNETH S. ABRAHAM, THE FORMS AND FUNCTIONS OF TORT LAW (4th ed. 2012). 25 See Mark A. Geistfeld, The Principle of Misalignment: Duty, Damages, and the Nature of Tort Liability, 121 YALE L.J. 142, (2011) P.2d 337 (1961).

7 Jeffrey O Connell and the Compensation Principle in Accident Law 7 the conscience review of a jury verdict on pain and suffering, Traynor suggests that either a cap tied to previous verdicts for similar injuries or scheduled awards (along the lines of workers compensation tables) might be more sensible than freestanding make-whole assessment. 27 In sum, one finds the common law of tort strongly committed to the goal of regulating an injurer s conduct by adherence to either fault or defect-based liability, rather than establishing an eligibility criterion that would take harm suffered by the victim as its foundational premise. Nonetheless, of course, tort claims are driven by the engine of victims seeking redress and the central divide between administrative regulatory schemes proscribing risk-related conduct and the tort system is that proscribed risk and pecuniary award are singularly linked in tort. But the critical point for present purposes is the inessential character of this link. Even a judge with the pro-compensation bent of Justice Traynor was a creature of an embedded system a system intrinsically indifferent to asking a baseline question about accident law: assessing compensation in tort from the perspectives of efficiency and fairness, tort as compared to what? By the mid-1960s, Jeffrey O Connell, among others, was raising just this question; that is, viewing tort from a systemic perspective largely ignored in the decades following the advent of workers compensation. It would be a systemic perspective that served as a leit motif throughout his ensuing career. 2 From fault to compensation as a guiding principle 2.1 Auto no-fault It comes as no surprise that auto accidents became the next frontier after industrial injuries for systemically reassessing the adequacy of tort from a compensation perspective. By 1930, motor vehicle accidents accounted for more than 30,000 fatalities annually, far outstripping any other category of accidental harm. 28 The automobile had achieved the dubious distinction of successor to the workplace as the primary source of tort-type injuries. 27 Id. at (Traynor, J., dissenting). 28 JAMES M. ANDERSON ET AL., RAND, THE U.S. EXPERIENCE WITH NO-FAULT AUTOMOBILE INSURANCE: A RETROSPECTIVE 23 (2010) [Hereinafter RAND].

8 8 R. L. Rabin Once again, the gaps in victim compensation triggered a call for reform. A widely noted empirical study, the 1932 Report by the Committee to Study Automobile Accidents to the Columbia University Council for Research into the Social Sciences, responded in kind to the incongruity question of stopping short at no-fault for industrial injuries left hanging by Jeremiah Smith. Relying on the workers compensation model, the report highlighted the glaring inadequacy of tort from a compensation perspective as its underlying justification: In many respects there is a close analogy between the industrial situation where workmen s compensation has been developed and the motor vehicle situation where the application of a like principle is now being discussed. Accidents are inevitable, whether in industry or in the operation of motor vehicles. It has been accepted as sound policy that the major part of the cost of accidents to employees should be borne by the industry, and it is proposed that the major part of the cost of those caused by the operation of motor vehicles should be cast upon the persons for whose benefit the motor vehicles are being operated. The conditions calling for the application of the compensation plan are similar: The failure of the common law system to measure up to a fair estimate of social necessity. 29 In contrast to workers compensation, however, the Columbia Report failed to trigger action in the political arena. 30 But the idea would not die: Between the early 1930s and the mid-1960s, a variety of no-fault proposals were offered animated by a continuing toll of undercompensated and uncompensated auto accident victims. 31 But the political system remained unresponsive COLUMBIA REPORT, supra note 14, at A handful of states did consider legislation modeled on the Report, but none were enacted. See Frank P. Grad, Recent Developments in Automobile Accident Compensation, 50 COLUM. L. REV. 300, 318 n.79 (1950). 31 See, e.g. ALBERT A. EHRENZWEIG, FULL AID INSURANCE FOR THE TRAFFIC VICTIM 30, 43 (1954) (proposing voluntary insurance that would cover scheduled damages for personal injuries only, regardless of fault or negligence); LEON GREEN, TRAFFIC VICTIMS TORT LAW AND INSURANCE 83 9 (1958) (proposing compulsory insurance that would cover personal injury and property damages caused by a motor vehicle, regardless of fault or negligence); see also KEETON & O CONNELL, supra note 15, at (discussing earlier automobile insurance reform proposals, including the Green and Ehrenzweig plans). 32 In his 1959 inaugural address, Governor Edmund Brown suggested that auto cases ought to be removed from the courts and turned over to a compensation commission. The proposal died a quick death. See Gene Blake, New Auto Liability Plan Stirs Legal Controversy, L.A. TIMES, Mar. 15, 1968, at A6. In Canada, however, the province of Saskatchewan did adopt an auto no-fault scheme in 1946, departing from the workers compensation model by retaining tort for more serious injuries. KEETON & O CONNELL, supra note 15, at

9 Jeffrey O Connell and the Compensation Principle in Accident Law 9 Against this backdrop, Robert Keeton and Jeffrey O Connell published their landmark volume, Basic Protection for the Traffic Victim, in Basic Protection is a singular effort on three salient dimensions, each of which would serve as foundational in O Connell s later work as well, when he moved beyond auto no-fault to devise products liability, medical malpractice, and early offer alternatives to conventional tort litigation. 34 Perhaps least remembered a half-century later, Basic Protection is grounded in an intellectual debate over the merits of the common law fault system that was near its high-water mark in In staunch defense of tort, Walter Blum and Harry Kalven had just published their tour-de-force critique of no-fault plans, Public Law Perspectives on a Private Law Problem Auto Compensation Plans Supra note I make no effort to parse the respective contributions of Robert Keeton and Jeffrey O Connell to the ideas and proposals offered in Basic Protection. Suffice to say, that as I will indicate, the perspectives on compensation that are at the forefront in the book are consistent themes in all of O Connell s later work as well. 35 See, e.g. Walter J. Blum & Harry Kalven, Jr., The Empty Cabinet of Dr. Calabresi: Auto Accidents and General Deterrence, 34 U. CHI. L. REV. 239 (1967); Walter J. Blum & Harry Kalven, Jr., Public Law Perspectives on a Private Law Problem Auto Compensation Plans, 31 U. CHI. L. REV. 641 (1964); Guido Calabresi, The Decision for Accidents: An Approach to Nonfault Allocation of Costs, 78 HARV. L. REV. 713 (1965); Guido Calabresi, Fault, Accidents and the Wonderful World of Blum and Kalven, 75 YALE L.J. 216 (1965). 36 Blum & Kalven, supra note 35. To Blum and Kalven, auto no-fault warranted low grades based on three criteria: compulsion, ceilings, and costs. In my view their analysis is, in fact, superficial on each criterion. Raising issues of whether it is just to compel participation in the system, they fail to note that virtually every social insurance system in place social security benefits, SSDI, Medicare, and so on were similarly compulsory. Even more to the point, the tort system itself is compulsory in imposing a tax via liability rules that is passed on to consumers of goods and services. Raising issues of arbitrariness posed by both low and high ceilings on awards, they ignore the point that these ceilings are simply artifacts of blending no-fault with tort, rather than treating no-fault as a tort replacement scheme, as in the case of workers compensation. (Workers compensation, of course, does itself impose ceilings but only as a direct trade-off in promoting horizontal equity.) Finally, raising issues of intramural allocation of costs that is creation of supposedly incoherent risk categories they fail to note, once again, that tort liability insurance coverage suffers from the same deficit; and more acutely, they disregard that as a practical matter, no-fault plans are entirely consonant with delegating cost allocation to private insurers with all of the experience rating difficulties that similarly plague the tort system in auto cases. Based on similar intellectual premises, Blum and Kalven engaged in vigorous debate with Guido Calabresi, attacking his law-and-economics-based promotion of strict liability in tort. See supra note 35.

10 10 R. L. Rabin Keeton and O Connell offer a spirited rebuttal to their no-fault critique, emphasizing Blum and Kalven s baseline failure to discuss in comparative perspective the merits and demerits of tort. 37 But Keeton and O Connell s point-by-point rebuttal is most powerfully driven by the fundamental cleavage between Blum and Kalven s fairness goal that hinges on personal responsibility, and theirs, which is driven by a social welfare perspective: an accident law committed to promoting baseline compensation for injury victims. 38 From this latter perspective, it is a natural segue from the intellectual debate into the second salient dimension of Basic Protection a dimension that, again, would inform all of O Connell s subsequent work: a critique of the institutional inadequacies of the tort system in the real world of accident law litigation. 39 The critique underscores the linchpin of O Connell s career-long pursuit of his vision of what accident law ought to recognize first and foremost; that is, if baseline compensation of victims is one s primary concern then it is essential to look elsewhere than tort. This is the radiating theme that informs Basic Protection s five critically perceived inadequacies of tort. 40 First and foremost, that compensation falls short under tort, whether due to fault as an eligibility criterion or the financial irresponsibility of injurers. Second, that delay is intrinsic to a system in which liability and damages both require intensive case-by-case scrutiny linked once again, in Basic Protection, to the need for immediate compensation experienced by most accident victims. Third, harking back to every empirical study from the Columbia Report forward, a skewed distribution of awards: small claims being overcompensated in recognition of the nuisance value of quick disposition; large claims in turn being undercompensated either as a consequence of fault being seriously contested and/or the asymmetry in holdout resources available to the contesting parties. 41 Fourth, corresponding to delay and the individualized discretionary determinations of fault and damages, the high administrative costs inherent in tort litigation. And finally, the inducements to fraud and exaggeration of harm in a system committed to make-whole recovery, including most prominently inflating pain and suffering damages. This critique is, of course, not unique to Basic Protection; in fact, as mentioned, many of its elements are spelled out as early as the Columbia Report and indeed, in some measure, still earlier as supporting foundations in the 37 See KEETON & O CONNELL, supra note 15, at See id. at See id. at See id. at See RAND, supra note 28, at 35.

11 Jeffrey O Connell and the Compensation Principle in Accident Law 11 workers compensation movement. 42 But Keeton and O Connell comprehensively marshal the contemporaneous empirical studies supporting the critique as a staging for a concrete blueprint for reform. A detailed, legislation-ready auto nofault scheme elevated the Keeton and O Connell undertaking to serious consideration in the realm of public policy reform. 43 On this score, Basic Protection far exceeded earlier efforts to trigger a no-fault renaissance. The third, and most prominent, dimension of Basic Protection then, was the no-fault plan itself. For present purposes, I can limit myself to the bare essentials. 44 Basic Protection was modeled on existing medical payments coverage in standard motor vehicle insurance policies: This first-party coverage stands in contrast, or one might say as a complement, to the third-party liability coverage that tracks responsibility in tort. Taking the first-party tack, Basic Protection proposed mandatory first-party coverage of medical payments and wage loss up to $10,000 per person. Claims for this coverage would consequently be against one s own insurer and losses would be payable month by month as incurred. In tandem with this coverage, tort claims would be excluded for the first $10,000 of out of pocket loss and would also be eliminated for the first $5,000 in pain and suffering. 45 The collateral source rule was reversed, so that payments for out-of-pocket loss from other insurance sources were to be primary. Three aspects of the plan stand out, even from this skeletal description. First, the plan in a sense provides less than the Basic Protection volume appears to promise. Consider that both the institutional and intellectual perspectives discussed above offer an unbounded, no-holds-barred critique of the tort system. By contrast, the Basic Protection plan is two-tier; not only is the tort system retained, but it remains in place for the most serious cases of injury those that are most likely to invoke all of the shortfalls and delays in delivering compensation that animate the authors critique of tort. Second, the plan is single-minded in its focus on the compensation goal. While workers compensation is similarly committed to that objective, it is designed as a third-party insurance system as well as providing substantially higher benefits in serious injury cases (in particular, virtually unlimited 42 See KELLER, supra note 10, at See KEETON & O CONNELL, supra note 15, at See Robert E. Keeton & Jeffrey O Connell, Basic Protection A Proposal for Improving Automobile Claims Systems, 78 HARV. L. REV. 329, (1964) (presenting a summary version of the plan). 45 Optional pain and suffering coverage, on a no-fault basis for this tort exclusion, was to be made available to first-party insureds.

12 12 R. L. Rabin compensation for medical expenses). Thus, workers compensation does anticipate an incentives effect on workplace safety, especially when combined with insurance experience rating of firms. By contrast, Basic Protection adopts a firstparty design, which offers no direct safety incentives to deter errant driving. 46 Finally, what these features of the plan reveal in particular, the two-tier approach and relatively low threshold for entry into tort is a pragmatic theme that would characterize O Connell s career. The tort system is salvaged from elimination, not because of any deep-seated conviction that at some level of serious harm, fairness (or deterrence) considerations associated with tort must be given their due. But because wholesale rejection of tort was regarded as politically infeasible. Indeed, Keeton and O Connell said as much at the time, speculating that true no-fault would be doomed to founder as unable to muster the necessary widespread political support. 47 Fulfilling the promise of its pragmatic character, Basic Protection was pivotal 5 years later as a gateway to the rise of the auto no-fault movement. 48 With a substantial boost from Robert Keeton s relationship with a former student, Michael Dukakis, by then a highly influential state legislative leader, Massachusetts enacted an auto no-fault scheme reflecting the Basic Protection model. Within 6 years, 25 additional states follow suit. 49 But a strong argument can be made that the pragmatism reflected in the Basic Protection approach in the end was a critical component in its undoing. The Massachusetts plan itself featured a strikingly weaker version of Keeton and O Connell: The statute provided for recovery of medical costs and 75% of lost wages, but with a modest overall ceiling of $2,000 in no-fault benefits. Above this threshold tort was allowed, but with an exclusion again exceedingly modest of $500 in pain and suffering damages (along with a verbal threshold including death, permanent disfigurement, fractures, and other designated severe injuries that operated outside of the exclusion). This is basic protection with a vengeance. As other states entered the fold, in most instances they enacted plans that paid lip-service to no-fault, but left virtually all of the fault-based tort system intact. 50 Thus, entirely apart from the movement grinding to a halt after 1976, 46 It should be noted, however, that the plan leaves so much of the tort system intact, errant drivers would face full liability for causing serious injuries. 47 See KEETON &O CONNELL, supra note 15, at See Nora Freeman Engstrom, An Alternative Explanation for No-Fault s Demise, 61DEPAUL L. REV. 303, (2012). 49 See RAND, supra note 28, at 40 1, fig See Engstrom, supra note 48, at Indeed, some of the states enacted so-called addon plans that failed to replace any portion of the tort system. On the other side of the US Canada border, Quebec adopted a comprehensive no-fault scheme in 1977, replacing the tort

13 Jeffrey O Connell and the Compensation Principle in Accident Law 13 with roughly half the states failing to enact any version of auto no-fault, a strong argument can be made that the movement never achieved real prominence in the first place, the sole exceptions being Michigan, Florida, and New York, which enacted relatively generous no-fault benefit thresholds in their two-tier plans. 51 The fault-based system remained the dominant framework on which the tort system rested. But importantly, that veneer of continuity fails to reflect the system in practice. Ironically, bargaining in the shadow of the law that is, informal settlement practices in auto accident cases, nominally subject to the formal rules of fault liability relied heavily on no-fault proxies that were compensation-driven, rather than reflective of tort norms in resolving the vast majority of auto accident law claims. 52 But this, in turn, brings one full-circle back to the two-tier character of Basic Protection. For as I have indicated, the empirical data on auto accident awards clearly showed that high-dollar claims were correspondingly less likely to trigger de facto no-fault resolution and to systematically undercompensate (even for out-of-pocket loss). And, it was precisely these claims that were relegated to tort under the Basic Protection plan. 2.2 Elective no-fault If realpolitik constraints stood between Jeffrey O Connell s compromised version of auto no-fault and a full-blown, compensation-driven scheme that would have dispatched tort to an historical archive, he nonetheless remained committed to exploring still other options for limiting the role of tort as the mainstay of accident victim compensation. His next fully developed assault on the premises of the tort system appeared a decade later. Published in 1975, Ending Insult to Injury, was devoted to designing options to tort in cases of products liability and medical malpractice. 53 system in virtually all auto accident cases. See Jeffrey O Connell & Charles Tenser, North America s Most Ambitious No-Fault Law: Quebec s Auto Insurance Act, 24 San Diego L. Rev. 917 (1987). 51 See RAND, supra note 28, at 72 3, fig. 4.6; Engstrom, supra note 48, at See, e.g. H. LAURENCE ROSS, SETTLED OUT OF COURT: THE SOCIAL PROCESS OF INSURANCE CLAIMS ADJUSTMENTS (1970); see also Nora Freeman Engstrom, Sunlight and Settlement Mills, 86 N.Y.U. L. REV. 805, (2011) (describing going rates paid by insurance adjusters to clients of socalled settlement mills, based solely on the injuries sustained by the client). 53 JEFFREY O CONNELL, ENDING INSULT TO INJURY: NO-FAULT INSURANCE FOR PRODUCTS AND SERVICES (1975).

14 14 R. L. Rabin By the mid-1970s, tort had achieved a prominence in common law discourse that corresponded to the expansive doctrinal changes beginning in the mid-1960s. 54 The law and economics movement was in full flowering. Guido Calabresi s earlier writings were consolidated into the landmark, Costs of Accidents, a systematic argument for restructuring accident law on the foundation of strict liability in tort. 55 His thesis was forcefully challenged, in turn, by other leading academics in the law and economics movement most prominently, Richard Posner, whose utilitarian premises led him to advocate for fault liability. 56 At the same time, tort attracted the intellectual attention of scholars deeply skeptical of explaining (or justifying) tort in economic terms. Philosophically based justice themes animated the contemporaneous, widely noted work of scholars like Richard Epstein, viewing tort from a rights-based libertarian perspective, 57 and George Fletcher, articulating a fairness-grounded rationale based on principles of reciprocity of risk in intersecting activities of injurers and victims. 58 Unlike Basic Protection, in Ending Insult to Injury, O Connell showed virtually no interest in joining issue with the intellectual cross-currents that earlier had led both to spirited debate with Blum and Kalven and to attentive critiques of the foundational advocates of auto no-fault. Indeed, he is quite explicit in distancing himself from even those compensation-minded kindred spirits like Fleming James, who had broken new ground a generation earlier in promoting a compensation/insurance rationale for restructuring tort doctrine to reflect a victim-oriented perspective. 59 Since the tort process, in O Connell s view, was 54 See Guido Calabresi, A Broader View of the Cathedral: The Significance of the Liability Rule, Correcting a Misapprehension, 77 LAW & CONTEMP. PROBS. 1, 1 2 (2014); Izhak Englard, The System Builders: A Critical Appraisal of Modern American Tort Theory, 9 J. LEGAL STUD. 27 (1980); Gary T. Schwartz, Mixed Theories of Tort Law: Affirming Both Deterrence and Corrective Justice, 75TEX. L. REV. 1801, (1997). 55 GUIDO CALABRESI, THE COSTS OF ACCIDENTS: A LEGAL AND ECONOMIC ANALYSIS (1975). 56 See Richard A. Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29, 29 (1972). 57 See Richard A. Epstein, A Theory of Strict Liability, 2 J. LEGAL STUD. 151, 151 (1973). 58 See George P. Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV. 537, (1972). 59 See O CONNELL, supra note 53, at 65 7; see also Fleming James, Jr., Accident Liability Reconsidered: The Impact of Liability Insurance, 57 YALE L.J. 549 (1948) (advocating for modification of traditional tort doctrines to promote greater compensation). Likewise, Calabresi, James s foremost student, is treated with passing deference for acknowledging the secondary tort system goal of wide distribution of losses. See O CONNELL, supra note 53, at In fact, James advocated moving beyond pragmatic, compensation-oriented restructuring of tort doctrine to adoption of a compensation scheme modeled on the Columbia Report. See Fleming James, Jr., The Columbia Study of Compensation for Automobile Accidents: An Unanswered Challenge, 59 COLUM. L. REV. 408 (1959).

15 Jeffrey O Connell and the Compensation Principle in Accident Law 15 irremediably inadequate as a source of compensation, doctrinal efforts to nudge in that direction seemed to him a fruitless undertaking. Instead, he cut directly to the chase, mustering the limited empirical data (as compared to motor vehicle injuries) in support of making the case for inadequate compensation in products and medical malpractice cases. 60 Once again, O Connell recites the process-related deficiencies of tort, relying in part on illustrative courtroom dramatic displays by prominent trial lawyers. 61 And then, drawing on this prologue, he sets the stage for broadening his attack on the capacity of tort to achieve the first-order goal of adequate compensation for accident law victims: The problem of securing adequate compensation is even more pronounced for those who suffer losses, large or small, in accidents not involving automobiles. At least for auto accidents many people have long been getting paid something... True, the mal-distribution of payment is horrendous... But at least for auto accidents a large total number of people are being paid a large total sum of money... For areas such as products liability and medical malpractice, to name the two most significant areas of tort liability other than auto accidents, we have no data of the depth and quality developed for traffic accidents, but everything we know tells us how relatively niggardly and rare are payouts under these other forms of tort liability. 62 Viewing these two most significant areas of tort liability other than motor vehicle accidents as ripe for reform, O Connell proceeded to fashion a reform strategy that would provide compensation to victims in these areas as well, outside the crippling constraints of tort law. But alas, he concluded, the auto nofault model would not directly serve his purpose. Critical to the motor vehicle scenario was the readily available transferability of widespread existing thirdparty insurance coverage to first-party insurance coverage that would provide the medium for no-fault responsibility. Recall in this regard, that Keeton and O Connell had built Basic Protection coverage on the foundation of the firstparty medical payment provision offered in the standard auto liability policy. By contrast, no comparable building block insurance coverage existed for product and medical malpractice victims. But an even more daunting conceptual distinction undermined the viability, in O Connell s reluctant view, of the established no-fault model: Both in the workplace and on the highway the responsible source of accidental harm was readily identifiable. By contrast, O Connell was quick to note, the source of harm to a product or medical injury victim was far more elusive. In his own 60 See O CONNELL, supra note 53, at 20 1, See id. at Id. at 12.

16 16 R. L. Rabin illustrations, he noted that falls from ladders and burns from stoves are not readily identifiable as harms associated with the product manufacturer; and in a similar vein, disease-related after-effects are not necessarily characterized as medical provider misadventures. 63 In both instances, defining the compensable event under a no-fault system might well regress to a determination not unlike a finding of fault. How to proceed then? In an inventive turn, O Connell proposed a variation on the no-fault model that would similarly channel injuries out of the tort system, retain the focus on victim compensation, and at the same time, avoid the stumbling blocks to direct reliance on the conventional no-fault model. He labeled the proposal elective no-fault : Any enterprise should be allowed to elect, if it chooses, to pay from then on for injuries it causes on a no-fault basis, thereby foreclosing claims based on fault or a defect. Under such an option, payment would be made regardless not only of lack of fault or defect on the payer s part but also, as under no-fault auto insurance and workers compensation, regardless of any fault on the victim s part. In other words, elective no-fault liability would be true no-fault insurance, with the fault of neither the injurer nor the injured having a bearing on payment. The enterprise would be allowed to select all or, if it chose, just certain risks of personal injury it typically creates, for which it could agree to pay for out-of-pocket losses when injury results from those risks. To the extent and only to the extent a guarantee of no-fault payment exists at the time of the accident, as under nofault auto or workers compensation insurance, no claim based on fault or a defect would be allowed against the party electing to be covered under no-fault liability insurance. 64 On its face, such an election might have been proposed as a private sector initiative under existing common law without the supporting mandate of legislative enactment. But this route seemed precarious, because it involved swimming against the contemporaneous tide by turning from tort to contract: An injured party presumably would need to have expressed pre-injury consent to the offer of no-fault compensation at some point in the product distributional chain a consent that might well unravel in the face of a growing judicial distaste for hold harmless agreements. 65 In the alternative, if the offer were tendered after the time of accident contrary to O Connell s stipulation the agreement would simply track the existing possibilities for bargaining in the shadow of tort law. 63 See id. at Id. at 97. While the language is sufficiently all-encompassing to apply to other categories of accidental harm as well such as slip-and-fall and land-occupier liability injuries O Connell primarily considered applications of his proposal in the context of products and medical malpractice cases. See id. at See, e.g. Tunkl v. Regents of Univ. of Cal., 383 P.2d 441, (1963).

17 Jeffrey O Connell and the Compensation Principle in Accident Law 17 Just as before then, O Connell sought the imprimatur of a legislative mandate: Here, however, unlike auto no-fault, the tort exclusion would turn on an entirely voluntary decision on the part of prospective injurers to opt out of the tort system. No-fault lite, one might say. But it was a product that would not sell. In this instance, the political arena turned out to be unresponsive to O Connell s reform effort; elective no-fault failed to move from drawing board to legislative enactment. Interestingly, O Connell s failed reform strategy precisely corresponded with the awakening of the political system to a broadside, successful attack on tort accident law in other quarters. From the mid-1970s through the mid-1980s, almost every state enacted legislation adopting some mix of measures capping pain and suffering and/or punitive damages, restricting joint and several liability, altering the collateral source rule, and scheduling contingency fee awards. 66 This notably more successful attack on tort remedies has a two-fold explanation. In the political arena, an attack on tort grounded in headline accounts of sky-high damage awards and threats of withdrawal of products and services had far greater resonance than tinkering with the internal dynamics of the tort process. Still more critically, the successful tort reform measures in this period were buttressed by energetic lobbying efforts by high-profile economic interests. 67 In contrast, O Connell relied primarily on the power of the pen. But at a deeper level, the failure of elective no-fault to muster political support can best be explained by viewing it in the context of the earlier initial successes in sparking legislative receptivity to auto no-fault reform of accident law. As discussed above, Keeton and O Connell followed in the lineage of auto no-fault advocacy that stretched back over four decades and came after an almost constant refrain in academic circles beginning in the 1950s. 68 While Basic Protection stood out in its comprehensive approach and detailed proposal for change, those features in themselves cannot explain a movement that spread to half the states in a 5-year period. 69 Something more was afoot here. That something more begins, not surprisingly, squarely in the realm of household economics. Auto insurance premiums had been steadily rising for a 66 See Joseph Sanders & Craig Joyce, Off to the Races : The 1980s Tort Crisis and the Law Reform Process, 27 HOUS. L. REV. 207, (1990). Beginning with California s MICRA law in 1975, some states limited these measures to medical malpractice cases. See MARC A. FRANKLIN, ROBERT L. RABIN & MICHAEL D. GREEN, TORT LAW AND ALTERNATIVES 823 (9th ed. 2011). 67 See, e.g. George L. Priest, The Current Insurance Crisis and Modern Tort Law, 96 YALE L.J. 1521, 1532 n.64 (1987). 68 See KEETON & O CONNELL, supra note 15, at Nor is Keeton s relationship with Dukakis, supra Part I, a sufficient explanation.

18 18 R. L. Rabin number of years, and had reached a level of visibility in which it became a prominent strand in the consumer movement by the mid-1960s. As the RAND retrospective auto no-fault study suggests: While policymakers may have been interested in wider effects of no-fault, cost reduction was the most salient issue for most voters and legislators. Indeed, a rise in premium costs was often the impetus for politicians to consider no-fault in the first place. 70 In sharp contrast, the relationship between tort liability and the broad spectrum of consumer product prices, let alone the cost of medical services, had virtually no salience in household budgetary considerations at the time. The passthrough effects of tort liability on buyers purchasing decisions in the marketplace generated no focal point of organized consumer political support for supplanting tort law with an alternative systemic option. More generally, products as a category simply lacked the focus for organized political reform that the automobile possessed, as a central feature of American social life. Moreover, that latter focus, and the risks associated with it, had just been afforded headline attention in 1965 with the publication of Ralph Nader s Unsafe at Any Speed. 71 If products as a risk category lacked sufficient focus back in the 1970s, so too did the provision of medical services but for a different reason. At that point, the physician-patient relationship remained firmly anchored in trust and faith in expertise, rather than conjuring up arm s-length concerns about the best pathway for dealing with prospective harm. It seems fair to say that in the collective public mind product and medical safety concerns simply had no purchase at that point in time. Ironically, even though O Connell s political savviness led him to scale back from the auto no-fault model to a softer version of social welfare reform turning on voluntary initiation by prospective injurers his very temperance undercuts the appeal of the proposal on both sides of the political fence. 72 Consumer interests might well have viewed critically the prospect of product manufacturers (or for that matter medical professionals) strategically deciding which types of risks to immunize from tort liability through opting into elective no- 70 See RAND, supra note 28, at RALPH NADER, UNSAFE AT ANY SPEED (1965). 72 Indeed, contemporaneous reviewers of Ending Insult to Injury were skeptical that O Connell s proposal would catch on in a major way. See P. S. Atiyah, Book Review, 45 U CIN. L.REV. 340, 345 (1975); Walter J. Blum, Book Review, 43 U. CHI. L.REV. 217, 224 (1975); Victor E. Schwartz, Professor O Connell s No-Fault Plan for Products and Services: Have New Problems Been Substituted for Old?, 70 NW. U. L. REV. 639, (1976) (book review).

19 Jeffrey O Connell and the Compensation Principle in Accident Law 19 fault to avoid high-end risks. 73 At the same time, pro-business interests might well have been flummoxed by the scenarios of multi-defendant liability necessitating allocation of damages among co-injurers opting into elective no-fault and those remaining within the domain of tort. 74 In this regard, a seemingly straightforward reform proposal had loose-ends that undermined its political palatability. In the final accounting, it is difficult to identify the constituencies that would be energized to press for legislative adoption of elective no-fault. And correspondingly, it is perhaps critical that the political energy that had fueled the consumer environmental movement between the late 1960s and early 1970s had just about run its course by Indeed, the tort reforms enacted from the mid-1970s onward, scaling back on compensation of tort victims, might well be regarded as part and parcel of a backlash against government-initiated health and safety reform manifested more broadly in the deregulation movement that was generating growing support at the time. 76 In no way does this undermine the spirit that continued to animate O Connell s inventiveassaultonthetortsystem.asheputitinending Insult to Injury: [T]he basic premise is one accepted so long ago for work accidents and now being accepted for auto accidents: in a mechanical and complex age, where so often we are able to injure one another, unintentional lapses, along with attendant injuries, are inevitable. When those inevitable injuries occur, a sophisticated and sensitive society especially one in which insurance plays a substantial role ought to be cushioning and spreading those losses as effectively and efficiently as possible and, indeed, with a measure of courtesy and compassion. Given the literally accidental way fault arises in accidents, exhaustive attempts to analyze and prove individual fault are a fruitless business. 77 But as it turned out, a gap existed between good intentions and what politics would yield. And so, O Connell moved on Yet, this elective strategy was essential to avoiding the pitfalls of providing threshold definitions of defect and misadventure. 74 See Schwartz, supra note 72, at See Engstrom, supra note 48, at ; Robert L. Rabin, The Renaissance of Accident Law Plans Revisited, 64 MD. L. REV. 699, (2005). 76 See Rabin, supra note 2, at O CONNELL, supra note 53, at But not before revisiting the territory of auto no-fault. By the mid-1980s, conscious of the diminished enthusiasm for auto no-fault replacement of tort liability, O Connell proposed a legislative scheme under which auto insureds might be given choice of opting for either no-fault or traditional tort liability coverage. See Jeffrey O Connell & Robert Joost, Giving Motorists a Choice Between Fault and No-Fault Insurance, 72 VA. L. REV. 61 (1986). A slightly revised version of the plan, incorporated into a full-scale proposed model legislative bill, was offered in Jeffrey

20 20 R. L. Rabin 2.3 Early offers Ever the pragmatist, O Connell s next major strategic venture was a proposal that eschewed displacement of tort, and instead focused on the goal of swift and efficient compensation by creating incentives for both parties to a tort dispute to resolve their differences informally through a structured agreement that traded off unencumbered tort rights for quick settlement. Under the rubric of neo-no-fault, he unveiled his early offers proposal. As spelled out with supporting rationale in his 2008 volume with Christopher Robinette, A Recipe for Balanced Tort Reform: Early Offers with Swift Settlements, the proposal provided that: A defendant may at its option offer an injured claimant within the defined statutory period (e.g. within 180 days of a personal injury claim) a settlement of periodic payments sufficient to cover a claimant s net wage loss and medical expenses, including rehabilitation, plus a claimant s reasonable attorney s fee, but without any allowance for pain and suffering. Other insurance (so-called collateral) sources paid or payable from the claimant s own or public coverages are deducted in computing the amount of the early offer (unless the legislature decides otherwise on this point). No defendant is forced to make an early offer, and, if no offer is made, normal common-law tort principles apply as to both liability and damages. In making an early offer, however, the defendant triggers strong incentives for claimants: If the claimant accepts, that of course ends the matter. But a claimant who elects not to accept will face a higher burden of proof at trial, i.e. beyond a reasonable doubt, with the defendant also judged by a higher standard of misconduct, i.e. gross negligence. 79 Once again, this proposal might have sailed on its own bottom, without recourse to legislative authorization. But its explicit contravention of fault principles that serve as the touchstone for private negotiation undermined the prospects for private initiation of early offer proposals. This contravention of fault, however, O Connell, A Model Bill Allowing Choice Between Auto Insurance Payable With and Without Regard to Fault, 51 OHIO ST. L. J. 947 (1990). State-by-state projections of comparative cost figures if the proposal were to be adopted are provided in Jeffrey O Connell et al., The Costs of Consumer Choice for Auto Insurance in States Without No-Fault Insurance, 54MD. L. REV. 281 (1995). 79 JEFFREY O CONNELL & CHRISTOPHER J. ROBINETTE, ARECIPE FOR BALANCED TORT REFORM: EARLY OFFERS with SWIFT SETTLEMENTS, (2008). In fact, O Connell had already published a version of this proposal 25 years earlier. See Jeffrey O Connell, Offers That Can t Be Refused: Foreclosure of Personal Injury Claims by Defendants Prompt Tender of Claimants Net Economic Losses, 77NW. U. L. REV. 589, (1982). But in that earlier version, as the title of the article suggests, under most circumstances the plaintiff would have been compelled to accept the offer. Id. See also LESTER BRICKMAN, MICHAEL HOROWITZ, & JEFFREY O CONNELL, RETHINKING CONTINGENCY FEES (1994) (proposing limitations on contingency fees chargeable by plaintiffs attorneys in early offer situations).

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