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Satisfying the Multiple Goals of Tort Law, 22 Valparaiso L. Rev. 643 (1988)


There are good reasons that the reform of tort law has commanded the extraordinary attention it has during recent years. We are only now beginning to perceive how consumers have been affected by the tremendous expansion of tort liability since the mid-1960s. The effects on consumers seem uniformly adverse. For liability reasons, product and service prices have been substantially increased. Large numbers of products have been withdrawn from markets altogether. Commercial services have similarly been withdrawn. Even services provided by municipal or governmental entities have been suspended or withdrawn. These same liability reasons have led large numbers of municipalities, as well as manufacturers, doctors, and other groups to retreat from commercial insurance markets into mutual self-insurance pools, leaving the insurance base against which injured consumers might raise claims extremely fragile and, in some cases, nonexistent. These various problems have arisen despite mounting evidence that the underlying accident rate generating these legal claims has been declining. Yet the decline in the accident rate appears to be unrelated to expanded tort liability. With respect to accident control, modern tort law seems largely ineffective. Thus, the current public policy issue is hardly whether the disruptions of product, service and insurance markets are worth the increased prices being paid, but whether the disruptions are worth any price.

These problems generated by modern tort law directly affect large numbers of consumers. Those consumers injured by products or services in contexts in which the injury could have been prevented would be clear beneficiaries of more carefully defined legal rules. Similarly, those consumers—most importantly, the poor and low income, who are forced by modern tort law to pay product or service insurance premiums whose benefits are worth far less than their costs—also stand to gain from a more careful analysis of the weaknesses of tort law insurance. The great attention to the reform of modern tort law represents an effort to find solutions to aid these sets of consumers. The urgency of the tort reform movement is only commensurate to the immediate injuries and losses being suffered. The tort reform message is that these losses and injuries should be minimized as much as possible, as quickly as possible.

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