Covering Accident Costs: Insurance, Liability, and Tort Reforms

Notes

NOTES INTRODUCTION 1. Fowler Harper and Fleming James Jr., The Law of Torts (Boston: Little, Brown, 1956), 2:765. 2 . Walter Isaacson, "Let the Buyers Beware: Consumer Advocates Retrench for Hard Times," Time. September 21,1981,22 . 3. Kenneth S. Abraham, "Private Insurance, Social Insurance, and Tort Reform: Toward A New Vision of Compensation for Illness and Injury," Columbia Law Review 93 (1993): 75; Antoinette Paglia, "Taking the Tort out of Court-Administrative Adjudication of Liability Claims: Is It the Next Step?" Southwestern University Law Review 20 (1991): 41. 4. Jerry Phillips, "Attacks on the Legal System: Fallacy of Tort Reform Arguments ," Trial 28 (February 1992): 106-10. See also Robert L. Habush, "The Insurance 'Crisis': Reality or Myth? A Plaintiff Lawyer's Perspective," Denver University Law Review 64 (1991): 641 ; Philip J. Hermann, "Million-Dollar Verdicts and Other Fantasies," Wall Street Journal. April 4, 1987, 30. 5. David Cununins, Scott E. Harrington. and Robert W. Klein, "Cycles and Crises," Best's Review: Property-Casualty Insurance Edition 92, no. 9 (1992): 15. PART I I . An overview of early scholarly work on tort theory is provided by Priest, "The Invention of Enterprise Liability: A Critical History of the Intellectual Foundations of Modem Tort Law," Journal of Legal Studies 14 (1985): 461. See also G. Edward White, Tort Law in America: An Intellectual History (New York: Oxford University Press, 1980), 147-53 ("Few features of the history of twentieth-century American law more clearly illustrate the triumph of reformist thought than the massive infiltration of liability insurance into the field of torts"). Nearly all modem tort theory traces its origins to the 1881 lectures of Oliver Wendell Holmes Jr. See Holmes, The Common Law. ed. Mark DeWolfe Howe (Cambridge: Harvard University Press, 1963), 198-201 . 2 . Holmes, The Common Law; Peter Huber, Liability: The Legal Revolution and Its Consequences (New York: Basic Books, 1988); idem, Galileo's Revenge (New York: Basic Books, 1991); George Priest. "The Current Insurance Crisis and Modem Tort Law," Yale Law Journal 96 (1987): 1521; idem, "Invention of Enterprise Liability "; idem, "Modem Tort Law and Its Reform," Valparaiso University Law Review 22 (1987): I. 3. Francis Bohlen, "Fifty Years of Tort Law," Harvard Law Review 50 (1938): Copyrighted Material 190 Notes to Part I 725, 1225; Jeremiah Smith, "Sequel to Workmen's Compensation Acts," Harvard Law Review 27 (1914): 235, 344· 4. A. A. Ballantine, "Compensation Plan for Railway Accident Claims, Harvard Law Review 29 (1916): 705; William O. Douglas, "Vicarious Liability and Administration of Risk," Yale Law Journal 38 (1929): 584, 720; Albert Ehrenzweig, "Assurance Oblige: A Comparative Study," Law and Contemporary Problems 15 (1950): 445; idem, Negligence Without Fault, (Berkeley and Los Angeles: University of California Press, 1951): 4; idem, "Full-Aid Insurance for Traffic Victims: A Voluntary Compensation Plan," California Law Review 43 (1955): I; Lester Feezer, "Capacity to Bear Loss as a Factor in the Decision of Certain Types of Tort Cases," University ofPennsylvania Law Review 78 (1930): 805; ibid. 79 (1931): 742; Charles O. Gregory, "Trespass to Negligence to Absolute Liability," Virginia Law Review 37 (1951): 359; Harper and James, The Law of Torts; Clarence Morris, "Hazardous Enterprise and Risk-Bearing Capacity," Yale Law Journal 61 (1952): 1172; Young B. Smith, "Frolic and Detour," Columbia Law Review 23 (1923): 444. Of all the scholars who have written on the subject, the one most indelibly identified with the insurance rationale is Fleming James. James wrote extensively throughout the middle part of the twentieth century, nearly always employing the insurance rationale in his work. See, e.g. , the following by James: "Legislative Loss Distribution " (book review), University of Chicago Law Review 4 (1936): 158; "Last Clear Chance: A Transitional Doctrine," Yale Law Journal 47 (1938): 704; "Contribution Among Joint Tortfeasors in the Field of Accident Litigation," Utah Bar Bulletin 9 (1939): 208; "Contribution Among Joint Tortfeasors: A Pragmatic Criticism," Harvard Law Review 54 (1941): 1156; "Accident Liability: Some Wartime Developments ," Yale Law Journal 55 (1946): 365; "Accident Liability Reconsidered: The Impact of Insurance," Yale Law Journal 57 (1948): 549; "The Functions of Judge and Jury in Negligence Cases," Louisiana Law Review I I (1950): 95; "The Impact of Insurance on the Law of Torts" (by Fleming James and John V. Thornton), Law and Contemporary Problems 15 (1950): 431; "Accident Proneness and Accident Law" (by Fleming James and J. J. Dickinson), Harvard Law Review 63 (1950): 769; "Qualities of the Reasonable Man in Negligence," Missouri Law Review 16 (1951): I; "Proof of Breach in Negligence...