Tort as a Litigation Lottery: A Misconceived Metaphor

نویسنده

  • Peter H. Schuck
چکیده

For over forty years, tort reform proponents have disparaged the tort system as a lottery, arguing that it produces arbitrary outcomes. This criticism has been offered as justification for reform proposals that would replace the tort system with some form of no-fault accident insurance. We do not oppose no-fault alternatives to tort, but this Essay is not the place to weigh the merits of one or another such proposal. Our purpose here is the more limited one of discrediting the lottery metaphor as applied to the tort system. We make three claims. First, this metaphor obscures the tort system's shortcomings more than it clarifies them. Second, no-fault accident insurance plans fail to resolve the problem of arbitrariness, regardless of how carefully the plan is designed. Third, arbitrariness is endemic in compensation systems, which all set coverage limits that create horizontal inequities among claimants with similar injuries and reduce predictability in the many borderline cases. In light of these three points, we maintain that reformers must more carefully compare the nature and sources of arbitrariness in all compensation systems before embracing any particular system. Such analysis, we believe, will discourage the kind of oversimplification that the lottery metaphor encourages. © 2010, Timothy D. Lytton, Robert L. Rabin & Peter H. Schuck. * Albert and Angela Farone Distinguished Professor of Law, Albany Law School. **A. Calder Mackay Professor of Law, Stanford Law School. *** Simeon E. Baldwin Professor of Law, Yale Law School.

برای دانلود متن کامل این مقاله و بیش از 32 میلیون مقاله دیگر ابتدا ثبت نام کنید

ثبت نام

اگر عضو سایت هستید لطفا وارد حساب کاربری خود شوید

منابع مشابه

Problems of Tort Litigation as a Means of Patient and Consumer Protection in Health Care Systems

The U.S. health care system relies on tort litigation as a means of protecting patients and consumers from medical malpractice. The system of tort litigation has contributed to the U.S. having the highest health care spending per capita of any nation, but it has not resulted in superior quality of care. This work argues that tort litigation in health care is actually detrimental to patient safe...

متن کامل

Nursing home litigation and tort reform: a case for exceptionalism.

The medical malpractice crisis that is currently spreading across the United States bears many similarities to earlier crises. One novel aspect of the current crisis is the explicit inclusion of litigation against nursing homes as a target of reform. Encouraged by the nursing home industry, policymakers are considering the extension of conventional medical malpractice tort reforms to the nursin...

متن کامل

Private enforcement: litigation as a tool to prevent obesity.

Private enforcement, or litigation, has played a historic role in protecting public health in the United States. Litigation is often employed as a means to protect public health when government regulation is absent or ineffectual. Litigation has been successfully employed to control both asbestos and tobacco and is poised for success in combating the obesity epidemic. Litigation is effective be...

متن کامل

From PI to IP: Yet Another Unexpected Effect of Tort Reform

Is there a connection between state-law tort reform and the explosive growth of U.S. intellectual property (IP) litigation? The literature has established that the number of tort claims in states with tort reform has gone down. How do personal injury (PI) plaintiff lawyers deal with the decrease in the demand for their services? Could a significant number of them end up shifting their practice ...

متن کامل

ذخیره در منابع من


  با ذخیره ی این منبع در منابع من، دسترسی به آن را برای استفاده های بعدی آسان تر کنید

برای دانلود متن کامل این مقاله و بیش از 32 میلیون مقاله دیگر ابتدا ثبت نام کنید

ثبت نام

اگر عضو سایت هستید لطفا وارد حساب کاربری خود شوید

عنوان ژورنال:

دوره   شماره 

صفحات  -

تاریخ انتشار 2011