No-Fault and Beyond
For alternatives to tort, what types of questions are fair game?
Insurance
For a given fact pattern:
- How does insurance affect (or not affect) the tort litigation?
- How does insurance change incentives of the parties?
- How does insurance change our assessment of the fairness and efficacy of a particular tort law rule?
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Workers’ Compensation
For a given fact pattern:
- Can the plaintiff pursue a tort claim or is workers’ compensation the exclusive remedy?
- What can the plaintiff recover from workers’ compensation compared to tort?
- With multiple defendants, what are the plaintiff’s options for redress?
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Policy Questions
For a given aspect of tort law:
- How does an alternative to tort fare at addressing a particular problem compared to tort law?
- Should tort law adopt this policy or rule from an alternative to tort?
- In crafting law that addresses personal injury and accidents, what should our values and goals be? What rules should we adopt?
Three Types of Policy Questions
- Explicit (e.g., asking your thoughts on a proposed statutory scheme)
- Common law development
- Substantive tort law rules asks for court to make a policy determination
How to answer a policy question?
- Pay attention to the task specified in the question
- Know that doctrinal rules tell you what the law is, but your job is to argue for what the law should be
- Policy questions are thorny, difficult, wicked problems and should be treated as such
- There are always tradeoffs, costs and benefits
- Not all values can be maximized
- Your job is to argue for the optimal balance, not to argue that all goals have been achieved
- Opportunity to bring in theory (corrective justice, law and econ, etc.), but good answers ground that theory in the particulars of the question.
| - | Negligence | Strict Liability | Intentional Torts | Workers’ Comp |
|---|---|---|---|---|
| Type of conduct | - Fault | - Dangerous activities - Products | - Intentional harm | - Workplace injuries |
| Causal connection | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Injury must be “work-related” |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Comparative fault - Assumption of risk | - Consent - Self defense - Necessity | - Employee was outside “scope of employment” |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments) |
No-Fault Systems / Compensation Funds
Common features:
- Narrow category of injury
- Reduced fact-finding and proof requirements
- Fixed recovery amounts
- Insurance-like funding rather than individual defendant-to-plaintiff payouts
| - | Torts | Workers’ Comp | No-Fault Funds |
|---|---|---|---|
| Type of conduct | - Fault - Dangerous activities - Products - Intentional harm | - Workplace injuries | - Specific injuries |
| Causal connection | - Factual cause - Proximate cause | - Injury must be “work-related” | - Limited proof required |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Employee was outside “scope of employment” | - Few defenses available |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments) | - Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available at all |
9-11 Fund
Unique characteristics:
- created after the harm is finished, not in anticipation of harm
- individualized approach to economic loss
- tort-like awards for noneconomic loss (later refined into formulas)
- low administrative costs
| - | Torts | Workers’ Comp | No-Fault Funds | 9-11 Fund |
|---|---|---|---|---|
| Type of conduct | - Fault - Dangerous activities - Products - Intentional harm | - Workplace injuries | - Specific injuries | ??? |
| Causal connection | - Factual cause - Proximate cause | - Injury must be “work-related” | - Limited proof required | ??? |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Employee was outside “scope of employment” | - Few defenses available | ??? |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments) | - Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available at all | ??? |
| - | Torts | Workers’ Comp | No-Fault Funds | 9-11 Fund |
|---|---|---|---|---|
| Type of conduct | - Fault - Dangerous activities - Products - Intentional harm | - Workplace injuries | - Specific injuries | - 9-11 terrorist attacks |
| Causal connection | - Factual cause - Proximate cause | - Injury must be “work-related” | - Limited proof required | ??? |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Employee was outside “scope of employment” | - Few defenses available | ??? |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments) | - Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available | -??? |
| - | Torts | Workers’ Comp | No-Fault Funds | 9-11 Fund |
|---|---|---|---|---|
| Type of conduct | - Fault - Dangerous activities - Products - Intentional harm | - Workplace injuries | - Specific injuries | - 9-11 terrorist attacks |
| Causal connection | - Factual cause - Proximate cause | - Injury must be “work-related” | - Limited proof required | - Injury happened in “zone of danger” of the terrorist attacks |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Employee was outside “scope of employment” | - Few defenses available | ??? |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments) | - Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available | ??? |
| - | Torts | Workers’ Comp | No-Fault Funds | 9-11 Fund |
|---|---|---|---|---|
| Type of conduct | - Fault - Dangerous activities - Products - Intentional harm | - Workplace injuries | - Specific injuries | - 9-11 terrorist attacks |
| Causal connection | - Factual cause - Proximate cause | - Injury must be “work-related” | - Limited proof required | - Injury happened in “zone of danger” of the terrorist attacks |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Employee was outside “scope of employment” | - Few defenses available | - Terrorism |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments) | - Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available | ??? |
| - | Torts | Workers’ Comp | No-Fault Funds | 9-11 Fund |
|---|---|---|---|---|
| Type of conduct | - Fault - Dangerous activities - Products - Intentional harm | - Workplace injuries | - Specific injuries | - 9-11 terrorist attacks |
| Causal connection | - Factual cause - Proximate cause | - Injury must be “work-related” | - Limited proof required | - Injury happened in “zone of danger” of the terrorist attacks |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Employee was outside “scope of employment” | - Few defenses available | - Terrorism |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments) | - Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available | - Full economic damages up to 98th percentile of wage earners - Noneconomic losses compensated in full |
New Zealand
Total tort reform Common law torts for accidental injury are abolished All accidental injuries now covered under a no-fault scheme: — unlimited medical expenses — fixed compensation for lost earnings — lump sums for lost body parts and pain and suffering
Doing Away with Tort Law
Stephen D. Sugarman
Proposal:
- No more tort law
- Compensation: Expanded safety net (public and private)
- Deterrence: Regulatory state
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Muss Es Sein? Not Necessarily, Says Tort Law
Anita Bernstein
A defense of tort law as progressive. How so?
Compared to all other fields of law, tort law
- empowers the vulnerable to challenge the powerful
- gives plaintiffs space for creative pleading
- imposes individual accountability on the powerful
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