Modern Tort Law and Its Reform

Abstract

In 1960, progressive members of the state judiciary, joined later by the American Law Institute, commenced upon a revolution in the conceptual basis of tort law of a dimension previously unknown in the history of civil common law. Modern tort law was transformed from a modest set of rules directed chiefly to dispute resolution into a powerful engine of social reform with the twin ambitions to reduce the accident rate by fine-tuned control of all corporate operations and to provide a system of injury compensation with benefit levels exceeding those of any compensation system in the Western world. Today, we are beginning to learn that the presuppositions upon which this conceptual revolution was built are flawed, and that this transformation of the law has adversely affected the welfare of U.S. citizens. Until modern times, tort law has been chiefly the domain of specialists. The tort law revolution of the 1960s was instituted by visionary jurists, but quietly, in part because the consequences of the revolution were not fully anticipated. In the mid-1970s, concern over the impact of tort law on national commerce began to grow, especially among affected business executives. But even through the first years of the 1980s, the problems generated by tort law were addressed seriously only by a limited audience of legal scholars and troubled corporate officers. In the early months of 1986, however, with the sudden onset of the insurance liability crisis, tort law gained the attention of the broader American public. Citizens whose public parks were closed, whose police services were suspended, who lost day care and obstetric services, who found vaccines and intrauterine devices pulled from the market, and who experienced widespread price increases because of general increases in liability insurance premiums, expressed their distress in such numbers that tort law reform catapulted to the forefront of the national public policy agenda.