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In this session, I am going to talk about what I would call substantive civil justice reform proposals, mostly in the tort area, and some of the justifications and the ways of thinking about these reform proposals. This is not, I am sure, an issue that comes before your courts, but implicates all of your courts and how they operate.
Let me first describe a simple economic model of how tort law operates. One way we might think about tort law is that our system of tort law places incentives on parties to take precautions to prevent injuries. Some of tort law has nothing to do in particular with incentives. For example, if a person simply happens to hurt somebody else, there may be an issue of corrective justice as between the parties. The most important area of tort law, however, is how to create incentives to reduce accidents in the future. To that end, what responsibilities should be placed on parties like manufacturers or doctors?
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