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For their part, employers favored legislation because it limited their liability and made payments predictable.(6) That shift away from tort law to a public compensation system led to more thought about how tort liability could be improved or better applied in other types of cases. By the 1940s, legal scholars had begun to think about two ways in which the tort system could serve the wider goal of enhancing social welfare. First, they saw the economic concept of "cost internalization" as a tool for reducing accident rates: if potential injurers know they will be held liable for accidents, they will take appropriate action to avoid liability.
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The same reasoning applies to any torts that deal with injuries whose source was unknown at the time.(9) For such torts, liability costs are indeed inefficient.
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Class Action Lawsuits and Lawyers
-------------------------------------------------------------------------------- The Primary Effects of Some Broad Options for Tort Reform -------------------------------------------------------------------------------- Effects on Efficiency -------------------------------------------------------------------------------- Option Positive Negative Effects on Equity
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Control Nonpecuniary Damages
Cap or prohibit nonpecuniary damages Improves allocation of risk (by reducing implicit overinsurance); may reduce distortions of safety incentives if current damages are excessive or arbitrary May undermine incentives for care and encourage excessive consumption of risky products if current damages are appropriate Consumers are not forced to buy as much bundled insurance for nonpecuniary losses; depending on the character of existing damages, lower payments by injurers may reduce excessive judgments or punish injurersinadequately, and lower awards to victims may represent inadequate compensation or smaller windfalls
Allow buyers and sellers to agree in advance to limit liability damages Same as above Same as above Same as above, except that incomplete compensation to victims may be viewed as equitable if it follows voluntary, informed choices by consumers
Allow unlimited insurance subrogation Improves allocation of risk (by reducing implicit overinsurance) and incentives for care by consumers No major negative effects Consumers can effectively undo the bundled insurance for nonpecuniary losses; injurers still pay such damages, but the payments go to victims' insurance companies rather than to victims
Control Attorneys' Fees
Cap contingent fees Reduces nuisance suits Makes it harder for some victims with difficult claims to find representation Defendants face fewer claims for both legitimate and nuisance suits; some victims receive cheaper representation but others cannot find representation
Promote early offers and limit fees when such offers are made and accepted Reduces transaction costs for some cases; may reduce nuisance suits May indirectly make it harder for some victims (though fewer than above) to find representation if attorneys cannot subsidize difficult cases with profits from easy cases Defendants may face fewer nuisance suits and perhaps fewer legitimate suits; some victims receive cheaper representation but others(though fewer than above) cannot find representation
Restrict or Eliminate Joint-and-Several Liability May reduce transaction costs if the inability to target injurers with deep pockets discourages some suits; may make incentives for care more or less efficient May increase transaction costs if plaintiffs pursue larger numbers of defendants; may make incentives for care more or less efficient Injurers with deep pockets pay lower damages and transaction costs; victims get less compensation and may pay higher transaction costs
Offset Payments from Collateral Sources May reduce erroneous findings of liability if some verdicts are motivated by concern that plaintiffs need money for their injuries (such as for medical care) Reduces incentives for care to the extent that potential injurers expect losses to be covered by other sources Injurers pay lower damages; victims are not doubly compensated, nor are victims' insurance companies and other collateral sources reimbursed for the benefits they provide
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Source: Congressional Budget Office.
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Controlling Nonpecuniary Damages
As noted above, one goal of people who advocate public insurance as an alternative to tort liability is to control nonpecuniary damages. That goal can be achieved in other ways, however--most directly, through statutory limits or bans on those damages. Many states impose such restrictions, either in general or for particular types of torts.
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Are you submitting this information on behalf of a family member? ... Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota ... www.classactionamerica.com/affiliates/ gm/classactionlawsuit.asp?lngCaseID=2794 - 63k -
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