Tortfeasor - Theory and Reform

Theory and Reform

Scholars and lawyers have identified conflicting aims for the law of tort, to some extent reflected in the different types of damages awarded by the courts: compensatory, aggravated, and punitive. British scholar Glanville Williams notes four possible bases on which different torts rested: appeasement, justice, deterrence and compensation.

From the late 1950s a group of legally-oriented economists and economically-oriented lawyers known as law and economics scholars emphasized incentives and deterrence, and identified the aim of tort as being the efficient distribution of risk. Ronald Coase, a principal proponents, argued in The Problem of Social Cost (1960) that the aim of tort should be to reflect as closely as possible liability where transaction costs should be minimized.

Since the mid-to-late 20th century, calls for reform of tort law have come from various perspectives. Some calls for reform stress the difficulties encountered by potential claimants. For example, because not all people who have accidents can find solvent defendants from which to recover damages in the courts, P. S. Atiyah has called the situation a "damages lottery". Consequently, in New Zealand, the government in the 1960s established a no-fault system of state compensation for accidents. Similar proposals have been the subject of Command Papers in the UK and much academic debate.

In the U.S. reform has typically limited the scope of tort law and damages available, such as limiting joint and several liability, the collateral source rule, or capping noneconomic damages for emotional distress or punitive damages. These reform statutes are sometimes rejected as unconstitutional under the state constitutions by state supreme courts, with the Seventh Amendment to the United States Constitution possibly also relevant. Theoretical and policy considerations are central to fixing liability for pure economic loss and of public bodies.