!!Экзамен зачет 2023 год / Unified theory of tort law

(Cite as: 43 Brandeis L.J. 369)

[FN28]. Holmes, supra note 8, at 77. For a succinct critique of Holmes' "policy" argument see Robert L. Rabin, The Historical Development of the Fault Principle: A Reinterpretation, 15 Ga. L. Rev. 925, 929 n.15 (1981).

[FN29]. Id. at 85.

[FN30]. Id. at 86.

[FN31]. Id.

[FN32]. Id. at 86-87.

[FN33]. Id. at 104.

[FN34]. Holmes, supra note 8, at 104.

[FN35]. Id.

[FN36]. Id. at 116-17.

[FN37]. Id. at 117.

[FN38]. Id. at 129.

[FN39]. Kenneth J. Vandevelde, A History of Prima Facie Tort: The Origins of a General Theory of Intentional Tort, 19 Hofstra L. Rev. 447, 462 (1990).

[FN40]. Holmes, supra note 8, at 104.

[FN41]. Vandevelde, supra note 39, at 459.

[FN42]. Holmes, supra note 8, at 112 (noting malicious prosecution is "comparatively insignificant").

[FN43]. [Holmes], The Theory of Torts, 7 Am. L. Rev. 652, 659 (1873). (The article is untitled, but has been attributed to Holmes.) See Mark Dewolfe Howe, Justice Oliver Wendell Holmes: The Proving Years 64 (1963).

[FN44]. Holmes, supra note 8, at 72.

[FN45]. G. Edward White, Tort Law In America: An Intellectual History 13 (2003).

[FN46]. Harry Kalven, Jr., Torts, 31 U. Chi. L. Rev. 263, 267 (1964).

[FN47]. Vandevelde, supra note 39, at 461.

[FN48]. Id. (citations omitted).

[FN49]. Holmes attempted to present not only a unified theory of tort law, but a broader unified theory of law encompassing criminal law, torts and contracts. See Vandevelde, supra note 39, at 461-62 ("The core of Holmes' subsequent discussion of criminal law, torts and contracts was a demonstration that the trend of the law had been toward replacing standards of liability based on personal culpability with standards based on legislative policy.")

[FN50]. 8 Harv. L. Rev. 1 (1894).

[FN51]. Id. at 2.

[FN52]. Id. at 6.

[FN53]. Id. (citations omitted).

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 43 Brandeis L.J. 369)

[FN54]. See generally White, supra note 45, at 20-62.

[FN55]. John Hasnas, What's Wrong with a Little Tort Reform?, 32 Idaho L. Rev. 557, 563-64 (1996).

[FN56]. Id.

[FN57]. Id.

[FN58]. White estimates this period as 1910-1945. For a discussion on the influence of Realists on tort law see generally White, supra note 45, at 63113.

[FN59]. White, supra note 45, at 68.

[FN60]. Id.

[FN61]. White attributes this, at least in part, to the realists' reduction of the role of doctrine in tort law. Many tort doctrines were designed to confine liability to individuals who were "blameworthy." Once doctrine was no longer of primary importance, one could focus on policy issues. At the same time, liability insurance had made the compensation function of the tort system apparent. Finally, a perception of social interdependence was prevalent among realists. Under such a perception, there is an attractiveness to sharing losses in order to diminish them. These factors combined to create a preference for compensation on the part of many realists. See White, supra note 45, at 66, 151-52.

[FN62]. George L. Priest, The Invention of Enterprise Liability: A Critical History of the Intellectual Foundation of Modern Tort Law, 14 J. Legal Stud. 461 (1985).

[FN63]. However, the appeal of a unified theory of torts is occasionally evident even in the scholarship of a realist like James. See Fowler V. Harper & Fleming James, Jr., The Law Of Torts 759-64 (1956) (discussing the superiority of a social compensation scheme in dealing with injuries).

[FN64]. James, supra note 9, at 315.

[FN65]. Id. at 316.

[FN66]. Id. at 317.

[FN67]. Id.

[FN68]. Id.

[FN69]. Id.

[FN70]. James, supra note 9, at 317

[FN71]. Id. Robert Rabin expanded on the ambiguity criticism when he argued that the term "negligence" is also ambiguous:

The problem arises because, as a matter of usage, "negligence" is employed in two distinct ways. When an actor breaches a duty of due care, we speak of the violation-the breach itself-as negligence. In this sense negligence is synonymous with lack of due care. However, as every first-year law student soon learns, the question of liability is not always so easily resolved. For "negligence," as a cause of action, consists of a number of additional elements-the issue of duty itself, the matter of cause-in-fact, the question of proximate cause, and, of course, the requirement of damages. It is only when all of these elements are present that "negligence," in the second sense, is established.

Rabin, supra note 28, at 932 (emphasis in original).

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 43 Brandeis L.J. 369)

[FN72]. James, supra note 9, at 317.

[FN73]. Id.

[FN74]. Id.

[FN75]. Id.

[FN76]. Id. at 318.

[FN77]. Id.

[FN78]. James, supra note 9, at 318.

[FN79]. Id.

[FN80]. James also rebutted a then-recent attempt to find "common denominators in the elements of the tort cause of action," i.e., duty, breach of duty, causation and damages. Id. James, citing the Restatement, stated that damage is not required in all torts. Id. More significantly, James questioned the usefulness of the concept of duty. James stated, "In a case of any difficulty or novelty the real question is whether a duty is to be imposed; and this at once reminds us of all the manifold reasons why society should or should not impose non-consensual obligations in the infinitely variable types of situations covered by the law of torts." Id.

[FN81]. Id. at 320.

[FN82]. Id. at 325.

[FN83]. Id. at 325-26 (emphasis in the original).

[FN84]. Id. at 326.

[FN85]. James, supra note 9, at 326.

[FN86]. Id.

[FN87]. Id. at 326-27.

[FN88]. Id. at 326.

[FN89]. Id. at 315.

[FN90]. Perhaps the transition from a search for a unifying principle based on doctrine to a unifying principle based on rationale was due to the realists' reduction in the importance of doctrine. See supra note 64.

[FN91]. White, supra note 45, at 218. He labels the quest for a unifying principle of tort law "conceptualist."

[FN92]. See O'Connell & Robinette, supra note 7, at 140. See generally Schwartz, supra note 2, at 1802-06.

[FN93]. Id.

[FN94]. Id.

[FN95]. Schwartz, supra note 2, at 1803.

[FN96]. Guido Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 Yale L. J. 499 (1961); Guido Calabresi, Transaction Costs, Resource Allocation and Liability Rules, 11 J.L. & Econ. 67 (1968).

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 43 Brandeis L.J. 369)

[FN97]. Guido Calabresi, The Cost of Accidents (1970).

[FN98]. Id. at 24-33.

[FN99]. See Schwartz, supra note 2, at 1804.

[FN100]. See Calabresi, supra note 97, at 24-33.

[FN101]. Schwartz, supra note 2, at 1805.

[FN102]. Id.

[FN103]. Calabresi, supra note 97, at 276.

[FN104]. Guido Calabresi & Jon T. Hirschoff, Toward a Test for Strict Liability in Torts, 81 Yale L.J. 1955 (1972).

[FN105]. White, supra note 45, at 221.

[FN106]. Id.

[FN107]. Richard A. Posner, The Cost of Accidents-A Legal and Economic Analysis, 37 U. Chi. L. Rev. 636 (1970) (book review).

[FN108]. Richard A. Posner, Killing or Wounding to Protect a Property Interest, 14 J.L. & Econ. 201 (1971); Posner, supra note 6.

[FN109]. White, supra note 45, at 219-20.

[FN110]. Id. at 219 (citing Posner, 1 J. Legal Stud. at 33).

[FN111]. Schwartz, supra note 2, at 1806.

[FN112]. Id.

[FN113]. Richard A. Posner, The Economic Approach to Law, 53 Tex. L. Rev. 757, 764 (1975).

[FN114]. Schwartz, supra note 2, at 1803 (citing William M. Landes & Richard A. Posner, The Economic Structure Of Tort Law (1987)).

[FN115]. See, e.g., Foundations of Tort Law (Saul Levmore, ed., 1994) (excerpting many of the leading articles).

[FN116]. White, supra note 45, at 223-24. Corrective justice is a term taken from Aristotle. He distinguished between corrective and distributive justice. According to Aristotle, distributive justice involves the basic pattern of wealth holdings in a society. The baseline in distributive justice is generally set by some notion of worth. On the other hand, corrective justice involves the problem of a transactional disruption of the basic pattern of wealth holdings based on one person's injury to another. In corrective justice, the holdings of the parties immediately prior to the transactional disruption serves as the baseline from which gains and losses are calculated. See Schwartz, supra note 2, at 1802 n.5; Jeffrey O'Connell & Christopher J. Robinette, "Choice Auto Insurance: Do Theories of Justice Require Linkage Between Injurers and the Injured?, 1997 U. Ill. L. Rev. 1109, 1127-28.

[FN117]. George P. Fletcher, Fairness and Utility in Tort Theory, 85 Harv. L. Rev. 537, 537-38 (1972).

[FN118]. Id. at 542.

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 43 Brandeis L.J. 369)

[FN119]. Id.

[FN120]. L.R., 3 E. & I. App. (H.L.) 330 (1868).

[FN121]. Fletcher, supra note 117, at 547.

[FN122]. Id. at 548.

[FN123]. Id.

[FN124]. Id. at 550.

[FN125]. Richard A. Epstein, A Theory of Strict Liability, 2 J. Leg. Studies 151 (1973).

[FN126]. Id. It should be noted Epstein's current work embraces economic analysis. See, e.g., Richard A. Epstein, Mortal Peril: Our Inalienable Right To Health Care? (1997).

[FN127]. Epstein, supra note 125, at 165 n.42.

[FN128]. Richard A. Epstein, Intentional Harms, 4 J. Leg. Studies 391, 441 (1975).

[FN129]. Id.

[FN130]. White, supra note 45, at 226.

[FN131]. Id. at 228.

[FN132]. See, e.g., Jules L. Coleman, Moral Theories of Torts: Their Scope and Limits (pt. 1), 1 Law & Phil. 371 (1982).

[FN133]. See, e.g., Ernest J. Weinrib, Toward a Moral Theory of Negligence Law, 2 Law & Phil. 37 (1983); Ernest J. Weinrib, The Idea Of Private Law (1995).

[FN134]. Schwartz, supra note 2, at 1802-03.

[FN135]. Id. at 1807; Coleman, supra note 132, at 374-82; Weinrib, supra note 133, at 22-55. Coleman, however, excludes products liability from this analysis. See Coleman, supra note 132 at 418.

[FN136]. Schwartz, supra note 2, at 1815-16.

[FN137]. Id. at 1808.

[FN138]. See Richard A. Posner, The Concept of Corrective Justice in Tort Law, 10 J. Leg. Studies 187 (1981) ("Once the concept of corrective justice is given its correct Aristotelian meaning, it becomes possible to show that it is not only compatible with, but required by, the economic theory of law. In that theory, law is a means of bringing about an efficient (in the sense of wealth-maximizing) allocation of resources. The idea of rectification in the Aristotelian sense is implicit in this theory.").

[FN139]. Posner, supra note 113.

[FN140]. Schwartz, supra note 2, at 1808 (citing George L. Priest, The Current Insurance Crisis and Modern Tort Law, 96 Yale L. J. 1521, 1537 (1987)).

[FN141]. Schwartz, supra note 2, at 1808 (citing American Law Institute, Reporters' Study: Enterprise Responsibility For Personal Injury 24-25 (1991)).

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 43 Brandeis L.J. 369)

[FN142]. Id.

[FN143]. See supra notes 117 and 126 and accompanying text.

[FN144]. See supra note 136 and accompanying text.

[FN145]. Richard W. Wright, The Efficiency Theory of Causation and Responsibility: Unscientific Formalism and False Semantics, 63 Chi.-Kent L. Rev. 553, 578 (1987).

[FN146]. Schwartz, supra note 2, at 1807 (citing Alan Calnan, Justice and Tort Law 5 (1997)).

[FN147]. Schwartz, supra note 2, at 1809.

[FN148]. There are some signs of amenability to a pluralist conception of tort law. Distinguished corrective justice theorist Stephen Perry has acknowledged the possibility that tort law may seek not only justice, but also deterrence. Stephen R. Perry, The Moral Foundations of Tort Law, 77 Iowa L. Rev. 449, 450 (1992). Posner's more recent work has shown an increased interest in justice issues. See Richard A. Posner, Wealth Maximization and Tort Law, A Philosophical Inquiry, in Philosophical Foundations of Tort Law (David G. Owen, ed., 1995). Schwartz's article itself is an attempt to combine multiple rationales of tort law. A recent collection of philosophical essays includes several efforts by scholars to formulate a pluralist theory of tort law. See Mark Geistfeld, Economics, Moral Philosophy, and the Positive Analysis of Tort Law, in Philosophy and The Law of Torts (Gerald J. Postema, ed. 2001); Bruce Chapman, Pluralism in Tort and Accident Law, in Philosophy and The Law of Torts. See also Gregory C. Keating, Rawlsian Fairness and Regime Choice in the Law of Accidents, 72 Fordham L. Rev. 1857 (2004) (discussing issues of reasonableness and fairness).

[FN149]. Hasnas, supra note 55, at 558.

[FN150]. Id. at 558-59.

[FN151]. Id.

[FN152]. Id.

[FN153]. Id. at 560.

[FN154]. Id.

[FN155]. Hasnas, supra note 55, at 560.

[FN156]. Id.

[FN157]. Id.

[FN158]. Id. at 560-61.

[FN159]. Id. at 561.

[FN160]. Id.

[FN161]. Hasnas, supra note 55, at 561.

[FN162]. Id.

[FN163]. Id. at 562.

[FN164]. Id. at 562-63.

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 43 Brandeis L.J. 369)

[FN165]. In a sense, Hasnas' work is a narrative of Professor Rabin's thesis that general fault liability emerged, "out of a world view dominated largely by no-liability thinking." See Rabin, supra note 28, at 928. Rabin argued that, in the years prior to the mid-nineteenth century, "a variety of prima facie negligent activities were systematically treated outside the ambit of negligence law." Id. at 949. In other words, there was no duty imposed in many situations. Hasnas' article illustrates the process. Until there was a controversy that was decided in the moot, no duty, in a legal sense, was imposed upon people. However, the basic stability in pre-industrial England was not amenable to a multiplication of claims.

[FN166]. White, supra note 45, at 3.

[FN167]. 3 W. Blackstone, Commentaries on the Laws of England 117 (1771 ed.) (Emphasis added.)

[FN168]. White, supra note 45, at 3 (citing 1 F. Hilliard, The Law of Torts (2 vols., 1859) (1859)).

[FN169]. White, supra note 45, at 3 (citing The Centennial History of Harvard Law School 29 (1918)).

[FN170]. White, supra note 45, at 3 (citing J. Ames, A Selection of Cases on the Law of Torts, (1874)).

[FN171]. [Holmes], Book Review, 5 Am. L. Rev. 340, 341 (1871).

[FN172]. White, supra note 45, at 291. Accord Grant Gilmore, The Death of Contract 87 (1974) ("Until the general theory of contract was hurriedly run up in the nineteenth century, tort had always been our residual category of civil liability.").

[FN173]. Schwartz, supra note 2, at 1811.

[FN174]. See, e.g., Don Dewees ET AL., supra note 7, at 5-10 (describing deterrence, compensation and corrective justice as "the three major normative perspectives on tort law."); see also Anthony J. Sebok, The Fall and Rise of Blame in American Tort Law, 68 Brooklyn L. Rev. 1031, 1049 (2003)(describing the criminal law point of view applied to torts as "not merely nonobvious" but "contradict[ing] the dominant tradition of modern tort theory.").

[FN175]. See Prosser & Keeton on the Law of Torts 9 (W. Page Keeton et al. eds., 5th ed. 1984)(describing punitive damages as an instance where "the ideas underlying the criminal law have invaded the field of torts.").

[FN176]. David C. Searle, Note: Keeping the "Civil" in Civil Litigation: The Need for a Punitive Damage-Actu- al Damage Link in Title VII Cases, 51 Duke L.J. 1683, 1686 (2002).

[FN177]. Thomas Koenig & Michael Rustad, "Crimtorts" as Corporate Just Deserts, 31 U. Mich. J.L. Reform. 289, 293 (1998).

[FN178]. Id.

[FN179]. See, e.g., Dorsey D. Ellis, Jr., Fairness and Efficiency in the Law of Punitive Damages, 56 S. Cal. L. Rev. 1 (1982); Gary T. Schwartz, Deterrence and Punishment in the Common Law of Punitive Damages, 56 S. Cal. L. Rev. 133 (1982).

[FN180]. David Luban, A Flawed Case Against Punitive Damages, 87 Geo. L.J. 359, 379 (1998).

[FN181]. See Ellis, supra note 179, at 2.

[FN182]. Id.

[FN183]. See Charles Fried, Contract as Promise: A Theory of Contractual Obligation 1-2 (1981) (arguing that preserving party autonomy should be the primary goal of contract law); Ann Laquer Estin, Love and Obligation:

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 43 Brandeis L.J. 369)

Family Law and the Romance of Economics, 36 Wm & Mary L. Rev. 989, 1051 (1995) ("the goal of contract is to foster individual autonomy"). See also Melvin Aron Eisenberg, Expression Rules in Contract Law and Problems of Offer and Acceptance, 82 Cal. L. Rev. 1127 (1994) ("A major goal of contract law is to facilitate the power of self-governing parties to further their shared objectives through contracting.").

[FN184]. Unfortunately, the term "assumption of risk" is subject to considerable confusion. See, e.g., John L. Diamond, Assumption of Risk After Comparative Negligence: Integrating Contract Theory into Tort Doctrine, 52 Ohio St. L.J. 717, 717 n.1 (1991) (observing that courts and commentators use different systems to subcategorize the various cases invoking assumption of risk, dividing it into anywhere from two to six categories). I do not intend to draw careful distinctions among the types of assumption of risk; instead I will simply define the type of assumption of risk most significant from a contracts perspective.

[FN185]. See Joseph H. King, Jr., Exculpatory Agreements for Volunteers in Youth Activities-The Alternative to "Nerf " Tiddlywinks, 53 Ohio St. L.J. 683 (1992). To add to the confusion, not only are there many meanings of the term "assumption of risk," there are also several synonyms for the type of assumption of risk I discuss in this piece. The relevant type of assumption of risk is also referred to as "exculpatory agreements," "waivers" or "releases."

[FN186]. Restatement (Second) of Torts §496b; see also Id.

[FN187]. King, supra note 185, at 684.

[FN188]. Peter Huber, Safety and Second Best: The Hazards of Public Risk Management in the Courts, 85 Colum. L. Rev. 277, 292 n. 67 (1985).

[FN189]. See, e.g., Prosser & Keeton on the Law of Torts, supra note 175, at 484; Kenneth W. Simmons, As- sumption of Risk and Consent in the Law of Torts: A Theory of Full Preference, 67 B.U.L. Rev. 213 (1987) (passim); Mark Geistfeld, Reconciling Cost-Benefit Analysis with the Principle that Safety Matters More than Money, 76 N.Y.U.L. Rev. 114, 123 (2001) ("To reject these choices in favor of the safety principle would be paternalistic, widely disfavored, and inconsistent with important legal practices, such as assumption of risk. Due to the way in which consent promotes individual autonomy, the safety principle would be hard to defend if it routinely applied to consensual risks.")(footnotes omitted).

[FN190]. See Diamond, supra note 184, at 725 ("Ultimately, this Article will argue that current tort classification inadequately addresses the assumption of risk problem and that, in this context, courts must rely more heavily on principles of limited duty and on contract law to achieve a proper result.").

[FN191]. William L. Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn. L. Rev. 791, 800 (1966). Prosser was discussing implied warranty, but the same idea applies to other doctrines. Professor Rabin has discussed privity of contract for products liability, assumption of risk and the fellow servant rule. See Rabin, supra note 28, at 936-45.

[FN192]. See Rabin, supra note 28, at 933.

[FN193]. Id.

[FN194]. Id.

[FN195]. Id.(citing, 139 A. 440 (Vt. 1927).

[FN196]. Rabin, supra note 28, at 934 (citing, 139 A. at442).

[FN197]. Rabin, supra note 28, at 934.

[FN198]. Id, at 935.

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 43 Brandeis L.J. 369)

[FN199]. Id.

[FN200]. Id. at 936. (footnotes omitted).

[FN201]. Id.

[FN202]. See, e.g., Dewees Et Al., supra note 7 (analyzing areas of tort law, including automobile accidents and medical malpractice); Gary T. Scwhartz, Reality in Economic Analysis of Tort Law: Does Tort Law Really De- ter?, 42 UCLA L. Rev. 377 (1994) (analyzing areas of tort law, including automobile accidents and medical malpractice.) Note the very methodology of these authors provides support for a pluralist understanding of tort law: tort doctrines are analyzed individually.

[FN203]. The content of the standard, however, is somewhat different in the two contexts, as will be discussed shortly. Other significant areas of unintentional torts include premises and products liability and workplace injuries. See Dewees et al. and Schwartz, supra note 202. Products liability and workplace liability are based on (more or less) strict liability. Premises liability, as discussed supra notes 192-201 and accompanying text, consists of significant departures from the negligence standard.

[FN204]. Compare products liability and workplace injuries, most of which would include an entity (producer or employer) as a party. Also, premises liability cases are often against a commercial entity. See Schwartz, supra note 202, at 416-19.

[FN205]. See supra notes 117-124 and accompanying text.

[FN206]. John J. Donahue, III, The Law and Economics of Tort Law: The Profound Revolution, 102 Harv. L. Rev. 1047, 1050n.16 (1989) (reviewing William M. Landes & Richard A. Posner, The Economic Structure of Tort Law (1987)).

[FN207]. John A. Siliciano, Mass Torts and the Rhetoric of Crisis, 80 Cornell L. Rev. 990 (1995).

[FN208]. Kathleen E. Payne, Linking Tort Reform to Fairness and Moral Values, 1995 Det. C.L. Rev. 1207, 1228.

[FN209]. See Paul S. Kochanowski & Madelyn V. Young, Deterrent Aspects of No-Fault Automobile Insurance: Some Empirical Findings, 52 J. Risk & Ins. 269 (1985); U.S. Dep't of Transp., Compensating Auto Accident Victims: A Follow-Up Report on No-Fault Auto Insurance Experiences 159-66 (1985); G. David Cummins & Mary A. Weiss, Incentive Effective of No-Fault: Evidence From Insurance Claim Data, Contributions to Insurance Economics 445 (Georges Dionne ed., 1992); Paul Zador & Adrian Lund, Re-Analysis of the Effects of No-Fault Auto Insurance on Fatal Crashes, 53 J. Risk & Ins. 226, 236-41 (1986).

[FN210]. In the 1960's and 1970's, about two dozen states enacted no-fault automobile laws to deal with automobile accidents. The general goal was to assure compensation for basic economic loss to moderately injured victims of automobile accidents. In contrast to tort law, victims did not have to prove fault on the part of the person causing injury to recover for damages. For those victims falling within the parameters of no-fault, tort rights were extinguished. See Stephen D. Sugarman, Doing Away With Tort Law, 73 Cal. L. Rev. 555, 623 (1985).

[FN211]. See Elisabeth M. Landes, Insurance, Liability and Accidents: A Theoretical and Empirical Investigation of the Effects of No-Fault Accidents, 25 J.L. & Econ 49 (1982); Marshall H. Medoff and Joseph P. Magaddino, An Empirical Analysis of No-Fault Insurance, 6 Evaluation Rev. 373 (1982); Frank A. Sloan, et al., Tort Liability versus Other Approaches for Deterring Careless Driving, 14 Int'l Rev. L. & Econ. 53 (1994).

[FN212]. See, e.g., Zador & Lund, supra note 209, at 236-41; Sugarman, supra note 210.

[FN213]. See Marc Gaudry, The Effects on Road Safety of the Compulsory Insurance, Flat Premium Rating and

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 43 Brandeis L.J. 369)

No-Fault Features of the 1978 Quebec Automobile Act, in 2 Report of Inquiry Into Motor Vehicle Accident Compensation in Ontario 1 (1988); Marc Guadry, Measuring the Effects of the No-Fault Quebec Automobile Insurance Act With the DRAG Model, in Contributions to Insurance Economics 471 (Georges Dionne ed. 1992); Rose Anne Devlin; Liability Versus No-Fault Automobile Regimes, An Analysis of the Experience in Quebec, in Contributions to Insurance Economics at 494; Rose Anne Devlin, Some Welfare Implications of NoFault Automobile Insurance, 10 Int'l Rev. L. & Econ. 193 (1990); R. Ian McEwin, No-Fault and Road Accidents: Some Australian Evidence, 9 Int'l Rev. L & Econ. 13 (1989).

[FN214]. See Dewees et al., supra note 7, at 22-26, 415-16. Insurance is risk-rated if it is priced based on the amount of risk of payment by the insurer. Typical factors include age and prior accidents. See id.

[FN215]. Id. The idea is that people would drive more carefully to avoid paying higher insurance premiums.

[FN216]. See Craig Brown, Deterrence in Tort and No-Fault: The New Zealand Experience, 73 Cal L. Rev. 976, 986-89 (1985).

[FN217]. See Schwartz, supra note 202. Schwartz also reviewed a study showing a correlation between riskrating automobile insurance and deterrence. That point can be used to support DeWees' criticism of the studies of foreign jurisdictions as well as the proposition that tort law deters accidents.

[FN218]. Id. at 444.

[FN219]. Gary T. Schwartz, Empiricism and Tort Law, 2002 U. Ill. L. Rev. 1067, 1068-69.

[FN220]. Id. at 1069.

[FN221]. Schwartz, supra note 202, at 397-405.

[FN222]. Id. Schwartz discussed Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. 1976) (psychiatrists' duty to warn potential victims if their patients express a serious, credible threat of harm to those persons); Helling v. Carey, 519 P.2d 981 (Wash. 1974) (doctors' duty to perform glaucoma pressure tests during a routine eye exam); Reibl v. Hughes, [1980] 2 S.C.R. 880 (Canadian opinion broadening doctors' obligation to give obtain informed consent). For example, after the Helling decision, one study found 27% of ophthalmologists reported increased testing. See Jerry Wiley, The Impact of Judicial Decisions on Professional Conduct: An Empirical Study, 55 S. Cal. L. Rev. 345, 360 (1981).

[FN223]. See Paul C. Weiler et al., A Measure of Malpractice 128 (1993).

[FN224]. Id.

[FN225]. Schwartz, supra note 202, at 401-02 (citing Ann G. Lawthers et al., Physicians' Perceptions of the Risk of Being Sued, 17 Health Pol. Pol'y & L. 463, 470(1992) (81% of doctors ordered more tests and procedures); Roger A. Reynolds et al. The Cost of Medical Professional Liability, 257 JAMA 2776, 2777-78 (1987); Stephen Zuckerman, Medical Malpractice Claims. Legal Costs, and the Practice of Defensive Medicine, 3 Health Affairs 128, 132 (1984)).

[FN226]. Schwartz, supra note 202, at 390.

[FN227]. Id. at 391 n.61.

[FN228]. Weiler, supra note 223, at 131.

[FN229]. Schwartz, supra note 202, at 444 (stating the deterrence rate in medical malpractice was "less than thirty percent.").

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.