Exploring the Domain of Accident Law: Taking the Facts Seriously.

• Author: Meyer, Linda Ross

By Don Dewees, David Duff, and Michael Trebilcock. New York: Oxford University Press, 1996. Pp. xi, 452. $69.00.

In debates over tort reform, images of cancelled parades, discontinued vaccines, and lawyers in Armani suits hanging over hospital beds compete with images of drunk drivers, crippled children, and bankrupt accident victims. Meanwhile, in the quiet corridors of the ivory tower, tort theorists debate Pareto efficiency versus optimality and the true interpretation of Aristotle.

Into this strange mixture of high emotion and abstraction comes Exploring the Domain of Accident Law: Taking the Facts Seriously, a hard-boiled attempt to get to "just the facts, ma'am," as the iconic gumshoe detective might say.(1) The book is indeed a comprehensive review and analysis of the empirical evidence of the effectiveness of tort law, not only from the experience of the United States, but from that of other common law countries. Beyond its obvious value as a reference, the book's central virtue is its sober and balanced look at many of the less sober and less balanced claims for and against the tort system, claims of more influence than substance. Despite the vast scope of materials the book reviews in the course of its 439 pages of text, it is impeccably organized and written with great clarity. Summaries of each section make the book even more accessible for those whose interests are narrower than those of the authors.

The Sam Spade(2) style, however, should not obscure the fact that this book is not about "just the facts." Its policy arguments and theoretical claims are sweeping, if sometimes understated by the matter-of-fact presentation. Though the authors are admirably terse and clear in laying out the "[p]olicy [i]mplications" of their empirical analyses,(3) the evidence they cite does not always lead inexorably to the conclusions they reach. To bridge those gaps, the authors must rely on unsupported theoretical assumptions--despite their claims that theoretical debates about tort law are "in the abstract . . . largely sterile,"(4) and that "many of the central debates about tort law are less about competing normative values than they are about competing empirical understandings of the world."(5)

Two such assumptions stand out. First, while professing neutrality as to the different "goals" of tort law, the authors clearly discount the relevance of corrective justice theories, demonstrating their own commitment to instrumental theories of law. Second, except where there is very strong empirical evidence to the contrary, the authors take a very optimistic view of the potential of experience-rated insurance schemes(6) to solve many deterrence and compensation problems, without much inquiry into the operation of the insurance industry. Their optimism springs from a more general theoretical faith in economic and market principles.

These two assumptions both guide and limit the authors' analysis of the empirical record. The economic and instrumental assumptions lead the authors to prefer market-based alternatives to tort law whenever the empirical evidence is equivocal, obscuring questions about the normativity of law, the nature of human responsibility, and the possible alternatives to cost-benefit analysis. These assumptions also lead the authors to emphasize quantitative empirical research and econometric studies, an approach that may overlook the style, setting, normative gait, and human quirkiness of various institutions of accident law. Qualitative research approaches to institutional competence or custom (such as case studies or histories and law and society work) are sometimes missing from the otherwise extensive footnotes.(7)

While these points undermine the authors' insistence that they are theory-neutral, the assembly of empirical research and the authors' analysis of it make the book an essential reference and important contribution to both political and scholarly debate. Though the following summary focuses on the authors' policy conclusions and only briefly discusses the most important part of the book--its meaty review of the empirical literature--that focus reflects the limitations of space here, not the limitations of the authors' efforts. Part I summarizes the book's methodology and policy conclusions, Part II demonstrates how the authors' analysis of the empirical evidence is sometimes affected by theoretical assumptions, and Part III argues that the authors misunderstand and misapply principles of corrective justice.

1. METHOD AND CONCLUSIONS

   The authors analyze the effectiveness of tort law by describing how it operates in five "domains": automobile accidents, health care accidents, product-related accidents, environmental/toxic injuries, and workplace accidents. For each of the five areas, the authors evaluate the effectiveness of both tort doctrine ("inputs") and the scientifically measurable effects of legal institutions ("outputs") in meeting three goals of tort law taken from the theoretical literature: deterrence of inefficient accident-causing behavior, victim compensation, and "corrective justice." The authors' preference is that

   wherever feasible we should attempt to internalize accident costs to

   classes of activities and individual actors through the design of

   appropriate no-fault insurance arrangements rather than using the tort

   system. Where such insurance is not feasible, including product

   liability, environmental injuries, and other areas not covered in this

   study, we would rely on a combination of the tort system (for

   corrective justice and some deterrence) and expanded health care and

   disability insurance (for compensation).(8)

   Such an approach is necessary because "tort has expanded far beyond the areas in which it is cost effective."(9)

   The authors make conclusions and policy recommendations in five areas. First, Exploring the Domain of Accident Law maintains that tort law does not adequately compensate auto accident victims. Automobile accidents should be dealt with through an experience-rated, first-party, no-fault insurance system, not through tort law. Noneconomic damages should not be compensated. The no-fault system ought to be supplemented with vigorous enforcement of seat belt laws, drunk driving laws, and graduated licensing schemes of some sort to keep younger drivers off the roads longer. Tort law should remain (in all domains) only for victims of intentional, reckless, or grossly negligent wrongdoing.(10)

   Second, tort law is ineffective in compensating medical accident victims. As with automobile accidents, noneconomic damages should not be compensated. No-fault alternatives making health care institutions liable, with insurance premiums experience-rated, would encourage development of more careful hospital procedures and better oversight of medical staff. Regulatory reforms should enhance peer review; lessen the burden of proof on, and expand the range of sanctions available to, professional disciplinary boards; and increase nonphysician representation on such boards.(11)

   Third, the authors believe that product liability should be handled through the tort system. Liability should no longer be without fault, however, because strict liability discourages research and development without offsetting gains in victim compensation. Victims should be compensated through a "better mix of private first-party disability coverage and a more complete set of social welfare entitlements."(12) Victims covered by workers' compensation entitlements should not be able to sue product manufacturers in tort. Regulation of products should emphasize consumer information more than standard setting; if standards are to be set, the safety benefits should be balanced against manufacturers' costs.(13)

   Fourth, the book's analysis suggests that tort law has not been wholly effective in compensating victims of environmental injuries, due to the difficulties in proving causation and the difficulty in proving significant injuries to specific persons (rather than less serious injuries to the general public). The authors believe government regulation of pollution to be a better option, though the government should set standards after employing cost-benefit analysis and should make greater use of market-oriented strategies, such as marketable pollution permits and effluent charges. Regulations could also be enforced by private attorneys-general, to augment the limited resources of enforcement agencies. Where harm is serious and causation clear and foreseeable, victim compensation should be achievable through the tort system.(14) Other victims should have to seek compensation through general social insurance schemes.(15)

   Finally, workplace injuries are well suited to the present system of regulation and no-fault compensation. Product liability suits by injured workers should not be allowed, though perhaps such suits could be brought by the workers' compensation insurer. Workers' compensation premiums should be experience-rated.(16)

   Apart from these specific areas of tort law, the authors make several broad policy recommendations. For accidents not covered by a separate compensation scheme, such as environmental or product-related accidents, universal health care insurance and disability insurance should be available. Even for accidents covered by other compensation schemes, universal health care coverage should be available immediately, to be reimbursed by the relevant industry insurer once the claims are processed, ensuring both compensation and internalization of costs.(17)

2. ASSUMPTIONS AND PARADIGMS

   In any empirical investigation, value-neutral analysis is a fiction. Hence it is neither surprising nor shameful that the conclusions the authors of Exploring the Domain of Accident Law reach are not completely supported by the empirical evidence they cite. It is worthwhile, nonetheless, to articulate the theories and paradigms they draw upon to resolve conflicts in the record and to...