Exploring The Domain Of Accident Law: Taking The Facts Seriously

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In the mid 1980s, there was a crisis in the availability, affordability, and adequacy of liability insurance in the United States and Canada. Mass tort claims such as the asbestos, DES, and Agent Orange litigation generated widespread public attention, and the tort system came to assume a heightened prominence in American life. While some scholars debate whether or not any such crisis still exists, there has been an increasing political, judicial and academic questioning of the goals and future of the tort system.Exploring the Domain of Tort Law reviews the evidence on the efficacy of the tort system and its alternatives. By looking at empirical evidence in five major categories of accidents--automobile, medical malpractice, product-related accidents, environmental injuries, and workplace injuries--the authors evaluate the degree to which the tort system conforms to three normative goals: deterrence, corrective justice, and distributive justice. In each case, the authors review the deterrence and compensatory properties of the tort system, and then review parallel bodies of evidence on regulatory, penal, and compensatory alternatives.Most of the academic literature on the tort system has traditionally been doctrinal or, in recent years, highly theoretical. Very little of this literature provides an in-depth consideration of how the system works, and whether or not there are any feasible alternatives. Exploring the Domain of Tort Law contributes valuable new evidence to the tort law reform debate. It will be of interest to academic lawyers and economists, policy analysts, policy professionals in government and research organizations, and all those affected by tort law reform.

E-Book Content

Exploring the Domain of Accident Law: Taking the Facts Seriously DON DEWEES DAVID DUFF MICHAEL TREBILCOCK OXFORD UNIVERSITY PRESS EXPLORING THE DOMAIN OF ACCIDENT LAW This page intentionally left blank EXPLORING THE DOMAIN OF ACCIDENT LAW Taking the Facts Seriously DON DEWEES DAVID DUFF MICHAEL TREBILCOCK New York Oxford OXFORD UNIVERSITY PRESS 1996 Oxford University Press Oxford New York Athens Auckland Bangkok Bombay Calcutta Cape Town Dar es Salaam Delhi Florence Hong Kong Istanbul Karachi Kuala Lampur Madras Madrid Melbourne Mexico City Nairobi Paris Singapore Taipei Tokyo Toronto and associated companies in Berlin Ibadan Copyright © 1996 by Oxford University Press, Inc. Published by Oxford University Press, Inc., 198 Madison Avenue, New York, New York 10016 Oxford is a registered trademark of Oxford University Press All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press. Library of Congress Cataloging-in-Publication Data Dewees, Donald N. Exploring the domain of accident law : taking the facts seriously / Don Dewees, David Duff, and Michael Trebilcock. p. cm. Includes bibliographical references and index. ISBN 0-19-508797-6 1. Torts. 2. Torts—Economic aspects. 3. Distributive justice. I. Duff, David, 1959- . II. Trebilcock, M. J. III. Title. K923.D49 1996 346.03—dc20 [342.63] 95-16343 135798642 Printed in the United States of America on acid-free paper PREFACE This book is largely motivated by two concerns. First, much of the leading scholarship in tort law over the past 20 years has been dominated by abstract theorizing and is characterized by sharp conflicts among proponents of competing normative goals for the tort system—disagreements that often reflect different empirical assumptions about the way the system works, without actually investigating the accuracy of these assumptions. Second, even where empirical issues are taken seriously,
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