Commentary on “Towards a Market in Unmatured Tort Claims”: A Long Way Yet to Go

Abstract

Professor Cooter has written an interesting and provocative paper but it constitutes an introduction to its subject, not a full treatment of it. The paper makes two claims: First, tort law forces potential victims to purchase excessive insurance against accidents. People will voluntarily insure against only those accidents that will increase their marginal utility for money, but the law requires full compensation for all tortious injuries. When the potential injurer is a seller, who reflects anticipated tort liabilities in prices, the law thus requires potential victim buyers to purchase excessive insurance. This claim is correct but not original. The first formal proof appeared in a 1977 article by Cook and Graham and has since been reproved by several scholars, including Sam Rea and, most recently, me. It is unnecessary to discuss the point again here. Cooter's second claim is that the law should be changed to permit a market for unmatured tort claims (UTCs) to form. My comment analyzes this second claim.