Our special section this month is on tort law and the insurance crisis. The distinguished contributors of the articles in this section bring in-depth knowledge of legal theory and actuarial information to their suggestions for the reform of a tort law system that has created a severe insurance crisis in the United States. Many, perhaps most, of their suggestions can significantly further efforts to cope with this crisis and to restore some important insurance protections that have lapsed--for example, for municipal playgrounds.
As they point out, among the theories that have been applied to tort law are negligence, deterrence, insurance, and moral responsibility. The insurance principle, first advocated by Justice Benjamin Cardozo, along with the "deep pockets" principle--which makes any tort-feasor, no matter how marginally at fault, liable for the entire judgment--and awards for mental suffering, have been major factors in producing the insurance crisis. The authors, therefore, search for ways to avoid those types of awards that have led to the critical situation that now prevails.
The authors suggest, among other improvements in tort law, eliminating payments for mental pain or other claims a rational person would not seek to insure against. Several of them believe that these reforms would relieve the insurance crisis. However, they fail to suggest that the idea that a particular theory of tort law must govern the field is an important cause of the present problems.
It is understandable that lawyers and other social scientists tend to search for the correct theory to govern the range of cases in a given category. This may seem to be scientific and to mimic the established procedures in hard sciences such as physics. In addition, it improves clarity and certainty in evaluating cases. Yet, this approach is a mistake. For reasons too complex to expand on here, it is based on a misunderstanding of the role of generalization in the social sciences.
I have written about this subject in Science, Language, and the Human Condition [revised edition, 1989], where I show that laws do not apply in the social sciences and that theories, where appropriate, need to be adapted to concrete circumstances. Moreover, I show that ethics, a subject akin to law in important respects, is overdetermined and that it must be analyzed from a variety of perspectives.
For these reasons, contradictory generalizations may both be true, but not with respect to the same sets of circumstances. Consider a simple example: Should we attempt to appease aggressors? That obviously was a mistake in dealing with Hitler because he could not be appeased. However, no one would have dared use that concept if it had not worked under other circumstances.
In our legal and moral decisions there is not a single good to be optimized, such as deterring negligence, but a number. And this means, as several of our authors recognize, that there are inevitable trade-offs that must be considered. However, it is important to understand the problem of trade-offs in practice as well as in theory when disposing of particular cases, which, like the appeasement of aggression, should be considered in their specific contexts.
Let us consider a few examples to clarify this
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