!!Экзамен зачет 2023 год / Critique of torts

(Cite as: 37 UCLA L. Rev. 785)

force of 125. Anthony Kelly, 26, started work a month later, for $6 an hour, despite the notices. "I've got to take care of my family. I need a job, and jobs are hard to find. I've been looking for two months and couldn't find anything. It's good money." He looks forward to a $1/hour raise in six months. King, Asbestos Cloud Hanging Over Workers, N.Y. Times, Aug. 15, 1989, at B1, col 1.

[FN116]. For the latest in a long series of proposed compensation schemes, see S. SUGARMAN, DOING AWAY WITH PERSONAL INJURY LAW (1989).

[FN117]. Gwendolyn S. King, the new Commissioner of Social Security, has reversed the Reagan Administration's policy of trying to deny benefits to the disabled and has sought, instead, to enroll as many as possible of the one to two million poor estimated to be eligible for supplemental security income. "I believe very strongly that we need to do more by way of outreach" to the elderly homeless, she said. Tolchin, Social Security Chief Seeks to Expand U.S. Welfare Program, N.Y. Times, Dec. 29, 1989, at A14, col. 1.

[FN118]. In 1978 the Greater Manchester Legal Services Committee launched a scheme to encourage accident victims to file claims. See H. GENN, MEETING LEGAL NEEDS? (1982); Abel, supra note 93, at 461-67. The program was so successful that the national Law Society is seeking to extend it throughout the country. See Abel, Between Market and States: The Legal Profession in Turmoil, 52 MOD. L. REV. 285, 305 (1989).

[FN119]. See generally Abel, supra note 32. In the absence of liability for property damage, potential tortfeasors would have no reason to carry liability insurance.

[FN120]. See authorities cited supra note 22. Scots law, borrowing from Roman law, offers victims a nominal payment of "solatium" in recognition of the fact that a physical injury is also an affront.

[FN121]. For a similar recommendation from a different political perspective, see Schwartz, supra note 95, at 411.

[FN122]. See T. ISON, ACCIDENT COMPENSATION: A COMMENTARY ON THE NEW ZEALAND SCHEME (1980); G. PALMER, COMPENSATION FOR INCAPACITY: A STUDY OF LAW AND SOCIAL CHANGE IN NEW ZEALAND AND AUSTRALIA (1979); A. WIDISS, R. BOVBJERG, D. CAVERS, J. LITTLE, R. CLARK, G. WATERSON & T. JONES, NO-FAULT AUTOMOBILE INSURANCE IN ACTION: THE EXPERIENCES IN MASSACHUSETTS, FLORIDA, DELAWARE AND MICHIGAN (1977); Brahams, The Swedish 'No-Fault' Compensation System for Medical Injuries--Part I, 138 NEW L.J. 14 (1988); Friedman & Ladinsky, Social Change and the Law of Industrial Accidents, 67 COLUM. L. REV. 50 (1967).

The Health Commissioner of the State of New York has proposed a no-fault insurance scheme for medical malpractice, which would be the first in the nation. Sack, No-Fault for Doctors is Called Feasible, N.Y. Times, Mar. 1, 1990, at B3, col. 4; Sack, New York's Health Chief Suggests No-Fault Malpractice Insurance, N.Y. Times, Jan. 25, 1990, at A20, col. 1.

Pain and suffering account for 30-57% of all awards for bodily damages. W. VISCUSI, PAIN AND SUFFERING IN PRODUCT LIABILITY CASES: SYSTEMATIC COMPENSATION OR CAPRICIOUS AWARDS (1987), quoted in Schwartz, supra note 95, at 411 n.115.

[FN123]. See P. NONET, ADMINISTRATIVE JUSTICE: ADVOCACY AND CHANGE IN A GOVERNMENT AGENCY 104-07 (1969).

[FN124]. See STATE OF NEW YORK INSURANCE DEP'T, AUTOMOBILE INSURANCE . . . FOR WHOSE BENEFIT? (1970); UNITED STATES DEP'T OF TRANSPORTATION, MOTOR VEHICLE CRASH LOSSES AND THEIR COMPENSATION IN THE UNITED STATES (1971); Rosenberg & Sovern, Delay and the Dynamics of Personal Injury Litigation, 59 COLUM. L. REV. 1115 (1959).

In England, the average length of time from accident to settlement or trial was 2 3/4-3 years in County Courts, 4-5 1/4 years in District Registries, and 5-5 3/4 years in the Royal Courts of Justice. INBUCON MANAGEMENT CONSULTANTS, supra note 50, at 14.

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(Cite as: 37 UCLA L. Rev. 785)

[FN125]. It goes without saying that the Association of Trial Lawyers of America and its local affiliates oppose any compensation scheme. So, apparently, does the American Bar Association. ABA Special Comm. on the Tort Liability System, Towards a Jurisprudence of Injury: The Continuing Creation of a System of Substantive Justice in American Tort Law (1984); see also R. Hayden, The Cultural Logic of a Political Crisis: Common Sense, Hegemony and the Great American Liability Insurance Famine of 1986 (Disputes Processing Research Program Working Paper Sept. 9, 1989) (examining "common sense" origins of reform movement to combat liability insurance famine).

[FN126]. California insurers budgeted $20-23 million in their unsuccessful effort to persuade voters to adopt their no-fault initiative in the 1988 elections. Reich & Lichtblau, Insurers Set for $20-Million Effort on No-Fault Plan, Nader Group Says, L.A. Times, July 8, 1988, § 1, at 3, col. 1.

[FN127]. Reliance on private loss insurance aggravates inequality because availability and cost vary with the applicant's status. We have already seen the tragic denial of health insurance to those at high risk of AIDS. Other groups that find it difficult or expensive to obtain health insurance include those engaged in hazardous work (mining, oil drilling, logging, farming, ranching, aviation, sanitation, pest-control, work involving munitions or asbestos, and work at quarries and lumberyards), low-paying or seasonal work (involving hotels, restaurants, car washes, laundries, cleaners, entertainment, beauty salons, barber shops, bowling allies, service stations, convenience stores, golf clubs, ski resorts, camps), occupations that produce a high rate of claims (medical workers), and employers with high administrative costs (non-profits, municipalities). These categories obviously overlap with those of class, gender, and race. Freudenheim, Health Insurers, to Reduce Losses, Blacklist Dozens of Occupations, N.Y. Times, Feb. 5, 1990, at A1, col. 1.

[FN128]. Latin, supra note 92, at 686.

[FN129]. Damages may be justified as a means of promoting optimal safety even if they cannot compensate, for instance, the pain and suffering of a victim who dies soon thereafter (see De Long v. County of Erie, 60 N.Y.2d 296, 457 N.E.2d 717, 469 N.Y.S.2d 611 (1983); Yowell v. Piper Aircraft Corp., 703 S.W.2d 630 (Tex. 1986)), or the years lost by a victim who never emerges from a coma (Kolbert, Awards Curbed for Unconscious Patients, N.Y. Times, Feb. 22, 1989, at B1, col. 1).

[FN130]. Lawyers should be free to engage in solicitation, limited only by the potential client's right of privacy (restrictions on place and manner) and protections against over-reaching (such as a cooling-off period) and fraud (civil and criminal liability).

The Association of Trial Lawyers of America recently began to notify regulatory agencies of products they believed posed serious dangers. Their first target is a drain cleaner, Red Devil Lye, which they are asking the Consumer Product Safety Commission to remove from the market. Meier, Lawyers Work to Publicize Risks in Household Products, N.Y. Times, Oct. 14, 1989, at A16, col. 4.

[FN131]. Felstiner, Abel & Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming

. . . , 15 LAW & SOC'Y REV. 631 (1981).

[FN132]. The Greater Manchester Legal Services Committee's accident leaflet scheme reduced the disparity in claiming behavior between women and men, individuals in different age groups, and the unemployed and employed. H. GENN, supra note 118, ch. 2; Abel, supra note 93, at 463-67.

[FN133]. Abel, supra note 93, at 446.

[FN134]. P. HUBER, LIABILITY: THE LEGAL REVOLUTION AND ITS CONSEQUENCES (1988); Symposium on Tort Reform, 10 HAMLINE L. REV. 345 (1987); Why Reforming Our Liability System is Essential if America is to Succeed in Overseas Markets, N.Y. Times, Feb. 25, 1990, § 3, at 4 (advertisement by American International Group, an insurance underwriter). For a devastating critique of Huber, see Hager, Civil Compensation and Its Discontents: A Response to Huber, 42 STAN. L. REV. 539 (1990).

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(Cite as: 37 UCLA L. Rev. 785)

[FN135]. See Landscape of Disputes, supra note 105. On changes in the size of tort claims over time, see M. PETERSON & G. PRIEST, THE CIVIL JURY: TRENDS IN TRIALS AND VERDICTS, COOK COUNTY, ILLINOIS, 1960-1979 (1982); M. PETERSON, CIVIL JURIES IN THE 1980S: TRENDS IN JURY TRIALS AND VERDICTS IN CALIFORNIA AND COOK COUNTY, ILLINOIS (1987).

If we exclude cases against the tiny number of defendants sued by multiple plaintiffs, the increase in the number of products liability cases in recent years merely parallels the growth of the federal civil caseload. T. DUNGWORTH, supra note 96. Furthermore, courts have been constricting rather than expanding tort liability in recent years, with the result that fewer plaintiffs are recovering. Henderson & Eisenberg, The Quiet Revolution in Products Liability: An Empirical Study of Legal Change, 37 UCLA L. REV. 479 (1990). This change is visible in the reserves insurance companies set aside. St. Paul's Group set aside more than $100 million for losses in 1986, but transferred $18 million from reserves to profits in 1988. General Re Corporation set aside $529.5 million for losses in 1986, but only $164.4 million in 1988. Henriques, Friendlier Legal Climate for Insurers, N.Y. Times, Mar. 4, 1990, § 3, at 27, col. 3.

[FN136]. Evidence that tortfeasors are suboptimally safe comes from an unlikely source, the Rand Corporation, in a study funded by American Medical International. The researchers studied 182 patients who died of heart attack, stroke, or pneumonia in 12 AMI hospitals in the southern and western United States. A panel of experienced specialists examined their medical records; a majority concluded that poor care caused 27% of the deaths. Scott, Study Links 9 Common Medical Errors to Deaths, L.A. Times, Oct. 1, 1988, § 1, at 21, col. 1.

[FN137]. Commentators differ considerably as to whether the shift to no-fault plans increases accident costs. See Trebilcock, The Future of Tort Law: Mapping the Contours of the Debate, 15 CAN. BUS. L.J. 471, 475-76 (1989); Trebilcock, Incentive Issues in the Design of 'No-Fault' Compensation Systems, 39 U. TORONTO L.J. 19 (1989); sources cited supra notes 19-38; see also Swan, The Economics of Law: Economic Imperialism in Negligence Law, No-Fault Insurance, Occupational Licensing and Criminology, 67 AUSTL. ECON. REV. 92, 98 (1984). I would expect any increase under no-fault automobile insurance schemes to be attributable largely to the greater number of young men who could pay the reduced costs of automobile insurance. If society deemed this a problem, it could respond by licensing, taxing, raising insurance premiums, or policing (especially targeted at drunk driving). It also could improve public transportation.

[FN138]. I develop these ideas much more fully in Abel, A Socialist Approach to Risk, 41 MD. L. REV. 695 (1982).

[FN139]. Workers compensation legislation abolished the nineteenth-century defense. See Friedman & Ladinsky, supra note 122, at 69-71.

[FN140]. See, e.g., Henrioulle v. Marin Ventures, 20 Cal. 3d 512, 573 P.2d 465, 143 Cal. Rptr. 247 (1978) (referring to housing).

[FN141]. See, e.g., MacDonald v. Ortho Pharmaceutical Corp., 394 Mass. 131, 475 N.E.2d 65, cert. denied, 474 U.S. 290 (1985) (oral contraceptive warning insufficient); Campos v. Firestone Tire & Rubber Co., 98 N.J. 198, 485 A.2d 305 (1984) (written warning insufficient if users likely not to read English).

[FN142]. For a quintessential expression of the free market position, see Epstein, Products Liability: The Search for the Middle Ground, 56 N.C.L. REV. 643, 656-57 (1978).

[FN143]. J. RAWLS, A THEORY OF JUSTICE (1971).

[FN144]. In Graham Greene's THE TENTH MAN (1985), the occupying German army rounds up a group of 30 French citizens and tells them to select three out of their number to be executed in retaliation for a Resistance killing of a German soldier. A wealthy lawyer chosen by lottery pays a poor man to take his place. Few would find that ethically acceptable.

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[FN145]. All advanced industrialized countries except the United States and South Africa ensure that residents have access to medical care.

[FN146]. See supra note 57 and accompanying text.

[FN147]. The manager at General Motors' Buick Reatta assembly plant in Lansing, Michigan plans to work a shift on the line at least once a month. Risen, GM Managers Go on Line, L.A. Times, June 3, 1989, § 4, at 1, col. 1.

[FN148]. Cf. Marx, The Eighteenth Brumaire of Louis Bonaparte, in ESSENTIAL WORKS OF SOCIALISM 72, 72 (I. Howe ed. 1976) ("Men make their own history, but they do not make it just as they please; they do not make it under circumstances chosen by themselves, but under circumstances directly encountered, given, and transmitted from the past.").

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