!!Экзамен зачет 2023 год / Reality in economic analisys of tort law

(Cite as: 42 UCLA L. Rev. 377)

[FN317]. Baseball players have been quoted as making somewhat similar statements: a batting average of only

.300 can turn a player into a star.

[FN318]. This is implicit in Donohue, supra note 6, at 1066-1067.

[FN319]. As far as auto no-fault is concerned, the primary policy argument in its favor is that it assures compensation to all auto accident victims, regardless of the cause of their accidents. In her first paper, Devlin mentioned as a possible benefit of no-fault the point that it increases "insurance coverage" for "a portion of the driving population." See Devlin 1990, supra note 89, at 199 n.19. Reasoning, however, that the magnitude of this benefit cannot be quantified, id., Devlin ignored this benefit in declaring that no-fault is "clearly . . . inefficient." Id. at 200. In her later paper, she takes a more guarded position, acknowledging that "before policy implications emerge . . . , all costs and benefits must be evaluated." See Devlin 1992, supra note 89, at 514.

[FN320]. See, e.g., A. Schwartz, supra note 42, at 362-67, 404-11.

[FN321]. See Danzon, supra note 296, at 226. Danzon assumes that victims have a basic need for insurance, and that malpractice liability and first-party insurance are the alternative techniques for delivering insurance benefits. She then notes that first-party insurance consumes as overhead 20 cents of every dollar coming into the system, while the overhead of the tort system is 60 cents. Danzon hence concludes that the malpractice system provides the benefits of compensation/insurance in a comparatively expensive way: 40 extra cents on the dollar. Under her analysis, malpractice law needs to achieve a sufficient amount of deterrence to justify these expenses.

As a technique for evaluating the existing malpractice system, this methodology is interesting, but for several reasons inadequate. First, the malpractice recovery the tort plaintiff receives includes substantial compensation for pain and suffering. First-party insurance does not cover this element of intangible loss; moreover, pain- and-suffering awards do not further the basic economic purposes of insurance. (Elsewhere, Danzon herself recognizes this. Id. at 155-56.) Second, when the malpractice victim already has a first-party insurance policy, under the collateral source rule a tort recovery does not substitute for an insurance recovery; rather, the victim can recover on her insurance policy and then recover a second time in tort. Third, when jurisdictions repeal the collateral source rule, they render first-party insurance primary; hence persons injured by defendants' malpractice recover from their own insurance, not from tortfeasors. Finally, victims lacking first-party insurance coverage may well be risk-neutral; since they are acting rationally in dispensing with insurance, there is no welfare gain in providing them with insurance.

[FN322]. A related point can be brought forward here. Many perceive that the goal of compensatory justice is furthered when negligent defendants are required to furnish compensation to the victims of their negligence. See Schwartz, supra note 36, at 328-31, 335-36. Obviously, this "justice" attribute of the compensation award is non-utilitarian; and certainly it resists quantification. Even so, this justice "advantage" of the tort award is hard to ignore in considering whether the tort system is on balance socially desirable.

[FN323]. See, e.g., Robert C. Ellickson, Property in Land, 102 YALE L.J. 1315 (1993) (describing effects of property regimes in a variety of societies); Gregg Easterbrook, Winning the War on Smog, NEWSWEEK, Aug. 23, 1993, at 29.

Of course, as substantial as the social benefits of many environmental programs might be, there can still be debate about whether these benefits justify the programs' costs, and whether more efficient programs could be devised. For a sampling of this debate, see ROBERT W. CRANDALL ET AL., REGULATING THE AUTOMOBILE 85-116 (1986); James E. Krier, Irrational National Air Quality Standards: Macroand Micro-Mis- takes, 22 UCLA L. REV. 323 (1974).

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