Policy Functions of Tort Law 1. Establishing standards of behavior (signaling) A. both direct (THIS actor) and indirect (all actors) Deterrence – B. Stops people from engaging in self-help (physical altercations and social retributions) Intentional trial v. negligence Want to bad behavior as really bad (intentional torts, punitive damages) 2. Compensating victims (also provides accountability) 3. Spurs innovation by internalizing the cost of wrongdoing onto wrongdoers Reduces by putting the costs with wrongdoers? societal burdens 4. Democratic function-- provides another outlet through which people can raise issues But what when no jury? Removing democratic aspect of tort law? 5. Corrective justice (assigning and proportioning blame) Is tort law really the Best Way to meet goals? 1. Deter conduct? Statutes better? (more publicized than Govt regulation, market, media 2. Compensate victims? Lawyer administrative costs, etc get less than ½ $ spent on lawsuits. – 3. Internalize costs for wrongdoer? Government regulation (legislation, admin agencies), market, media = easier/more efficient? Distribute wealth? See Court says NO! Adams v. Bullock-- child with 8 foot wire and trolley – Tort law does not distribute wealth (except in products liability) ALTERNATIVES TO TORT: Administrative agencies Centralizing responsibility, minimize transaction money goes to “expert,” compensate victims Statutes, Regulations Usually sparked by tort problematic; more democratic? – “expert,” Reliance on market forces and/or media Holds wrongdoers liable/deters, but no compensation for individual victims First party insurance w/ regulating terms of insurance (no fault regime ensuring compensation) Deterrence: For deterrence to work: Volume of litigation must be relatively high (must actually be that could be likely sued for wrongful action) Attorneys must be available (must be big enough reward to be worth time)
Policy Functions of Tort Law 1. Establishing standards of behavior (signaling) A. Deterrence – both direct (THIS actor) and indirect (all actors) B. Stops people from engaging in self-help (physical altercations and social retributions) Intentional v. negligence Want to bad behavior as really bad (intentional torts, punitive damages) 2. Compensating victims (also provides accountability) 3. Spurs innovation by internalizing the cost of wrongdoing onto wrongdoers Reduces societal burdens by putting the costs with wrongdoers? 4. Democratic function-- provides another outlet through which people can raise issues But what when no jury? Removing democratic aspect of tort law? 5. Corrective justice (assigning and proportioning blame) Is tort law really the Best Way to meet goals? 1. Deter conduct? Statutes better? (more publicized than Govt regulation, market, media 2. Compensate victims? Lawyer administrative costs, etc – get less than ½ $ spent on lawsuits. 3. Internalize costs for wrongdoer? Government regulation (legislation, admin agencies), market, media = easier/more efficient? Distribute wealth? See Adams v. Bullock-- child with 8 foot wire and trolley – Court says NO! Tort law does not distribute wealth (except in products liability) ALTERNATIVES TO TORT: Administrative agencies Centralizing responsibility, minimize transaction “expert,” money goes to compensate victims Statutes, Regulations Usually sparked by tort – problematic; “expert,” more democratic? Reliance on market forces and/or media Holds wrongdoers liable/deters, but no compensation for individual victims First party insurance w/ regulating terms of insurance (no fault regime ensuring compensation) Deterrence: For deterrence to work: Volume of litigation must be relatively high (must actually be likely that could be sued for wrongful action) Attorneys must be available (must be big enough reward to be worth time) trial