Toward a Diminished Role for Tort Liability: Social Insurance, Government Regulation, and Contemporary Risks to Health and Safety

Abstract

Society approaches health and safety risks in a piecemeal fashion. Regulators attempt to control the risks in their domain as if regulations were the only factor preventing injuries at home, in the workplace, and on the highways. Similarly, the courts address accidents with rules that not only discourage, but sometimes also forbid, consideration of norms and institutions outside the tort system. Academic commentators share this blind spot, focusing on only one method of managing risks and recommending, for example, an optimal tort liability structure or an appropriate level of stringency for an administrative regulation.