“The Only Thing We Have To Fear Is Fear Itself”: How Physicians’ Exaggerated Conception Of Medical Malpractice Liability Has Become The Real Problem

Myungho Paik, Bernard Black, & David A. Hyman, The Receding Tide of Medical Malpractice Litigation:  Part 1—National Trends, 10 J. Emp. Legal Stud. 612 (2013) available at SSRN.

Physicians continue to talk about the “Medical Liability Crisis” and physician-funded advocacy groups continue to push for additional and further-reaching liability-limiting reforms.  Yet although the prize advocates seek (tort reform!) has remained the same for decades, the justification for why tort reform is needed has undergone a subtle metamorphosis.  For a while, reformers argued that liability limits were needed because the problem of medical injury was grossly exaggerated—medical injury was a problem mostly ginned up by plaintiffs.  But then, the Institute of Medicine’s (IOM’s) groundbreaking 1999 study, To Err is Human, came along.  Estimating that between 44,000 and 98,000 Americans die in hospitals each year as a result of preventable medical errors, the IOM’s study took the wind out of that argument’s sails.  Undaunted, reformers changed their tune.  Tort reform was needed, reformers insisted, because, even if medical injury is all too real, medical liability is random, as decisions are untethered to the underlying merits of claims.  In 2006, however, that argument encountered a major setback.  David Studdert and co-authors published a groundbreaking study of 1,452 medical malpractice claims which convincingly debunked the litigation lottery story.  Some claims that don’t involve errors are indeed filed, they found.  But such claims do not typically result in payment.  Undeterred, another reason to resist medical liability has taken center stage:  the problem of defensive medicine.

Defensive medicine refers to instances when physicians, concerned about liability, test or treat despite the lack of medical necessity, as well as times physicians decline to provide particular services or accept certain individuals as patients for fear of liability.  A prototypical example might be a doctor who orders a CT scan, not because he believes it’s medically warranted but because he believes it’s prudent in light of the liability risk.  This behavior, some now say, imposes medical liability’s biggest cost.  Though numbers are hard to pin down (as it’s hard to discern whether that CT scan was really ordered to protect the physician from liability, as opposed to helping the patient or, perhaps, even padding the physician’s paycheck), defensive medicine appears to be widespread.  One recent survey found that 93% of physicians in high-risk specialties reported providing care that they thought was unnecessary.  And, respected academics suggest its price tag is high—roughly $45.6 billion per year.  Pointing to these statistics, some reason:  (1) defensive medicine is a huge problem, and (2) in order to rein in defensive medicine, we need to dramatically reduce medical malpractice liability—or, perhaps, dismantle the present system of compensation for medical injury.  That argument, in fact, appears to be gaining ground.

What’s puzzling, though, is that defensive medicine is caused mostly by fear—by physician’s fear of medical liability.  And, there are at least two ways to respond to another person’s fear of something.  One approach is to remove the menacing thing.  Another is to convince the person their fear is unfounded.  So, for example, when my son was four, he was terrified of lightning.  Confronted with his terror, I could choose to remove the lightning (perhaps by relocating to a sunnier clime) or I could convince him that lightning, while not without some danger, isn’t actually so threatening; his fear was totally overblown.  Not keen to move, I adopted the latter approach.  So, too, with medical malpractice liability.  Confronted with physician’s fear of medical malpractice (which via defensive medicine is causing demonstrable harm), we can, as some suggest, dismantle the liability system.  Alternatively, we can empirically assess and then convey to physicians the legitimate liability risk.

Of course, the latter tack will only prove fruitful if doctors’ current estimate of the risk is (like my son’s view of lightning) grossly exaggerated.  Evidence suggests it is.  Doctors substantially overestimate their risk of being sued.  Various studies suggest that, of patients who are negligently harmed, a very small minority—on the order of 2% to 3%—ever attempt to claim compensation for their medical injuries.  Yet, in 1989, researchers surveyed 739 New York physicians who estimated that 60% of negligent injuries led to lawsuits, while 45% of all iatrogenic injuries led to lawsuits, regardless of whether or not the injury was negligently inflicted.  Doctors, in other words, estimated the threat of liability to be some 20 times what it actually is.  Doctors’ views concerning the system’s accuracy are similarly out of whack.  The Studdert study (and a number of other studies, too) show that the medical liability system does quite a good job of sorting between meritorious and non-meritorious claims, and that, when errors are made, they tend to be made in favor of physicians (i.e., payment of claims not involving errors occurs less frequently than the converse form of inaccuracy).  Yet, in a 2002 poll, a full 83% of surveyed physicians indicated that, if sued, the current system of justice could not be trusted to “achieve a reasonable result.”  Given physicians’ apparent sense that lawsuits lurk everywhere and their concomitant distrust of the system once sued, it’s no wonder defensive medicine has come to the fore.  Indeed, a recent study puts the pieces together, suggesting that physicians who are most worried about malpractice liability are precisely the ones most apt to engage in costly “defensive” practices.  The same study looked to physicians’ actual liability risk (as measured by objective, state-level determinants, such as claims costs and tort reforms) and found these indicators counted for little:  “[I]t is perceived rather than actual risk, the authors found, “that determines how physicians behave.”

This all suggests that, if we want to curtail defensive medicine, there’s much to be gained by targeting perceptions—by assessing and conveying to physicians their legitimate liability risk.  This insight brings us to Myungho Paik, Bernard Black, and David Hyman’s recent, and important, work.  Relying on data from the National Practitioner Data Bank (NPDB), Paik and co-authors provide the first academic assessment of national trends in medical malpractice liability.  They show that, despite persistent and often panicked claims that the medical malpractice system is in “crisis,” in actuality, paid claims per physician dropped by 57% nationally from 1992 through 2012, while lawsuit filings (whether or not paid) are also in sharp decline.  Using data from Florida, Illinois, and Texas, they consider, and mostly refute, the possibility that the observed decline is explained by hospitals stepping in to pay settlements in order to shield practitioners from having to report payments to the NPDB.  By breaking states down into whether they have noneconomic damage caps, they show that, though tort reform is surely part of the story, it’s not the whole story, as there’s been a decline in per-capita physician payments even in non-cap states.  Finally, they consider, and cast doubt on, the possibility that “improvements in health-care quality” explain the observed drop—though, of course, they can’t wholly dismiss that possibility.  Nor, for that matter, can they disprove that an uptick in defensive medicine itself helps to explain identified trends.

Still, while the reasons for the precipitous decline aren’t entirely clear, the decline’s very existence adds an important coda to the true medical malpractice liability story.  We now know that few negligently-injured patients seek compensation, and when patients do seek compensation, payments generally track the quality of care.  Now, thanks to Paik, Black, and Hyman, we also know that, rather than facing a litigation “explosion,” physicians’ liability risk has (for whatever reason) dropped considerably over the past two decades.  Some contend that defensive medicine is the number one cause of “unaffordable health care in America.”  Stoked by fear, defensive medicine might be curtailed, at least in part, by ensuring doctors have a greater understanding of the real—rather than the imagined or grossly exaggerated—tort liability system.  The important work of empirical legal scholars over the past two decades ought to be deployed toward that end.


Federal Preemption and Products Liability

Daniel J. Meltzer, Preemption and Textualism, 112 Mich. L. Rev. 1 (2013).

Professor Daniel Meltzer’s article on federal preemption and statutory interpretation is not exactly a torts article. But for those of us who believe that federal preemption in products liability is among a handful of the most pressing and controversial tort issues today, Preemption and Textualism, is an essential read. One of the nation’s most admired federal courts scholars, recently back from a stint in the Obama administration, Professor Meltzer is an ideal commentator on contemporary debates about the proper scope of federal preemption doctrine.

Meltzer’s target is the interpretive method of textualism. Textualism, he argues, is not up to the task of handling the important preemption issues before the Supreme Court. In particular, Meltzer demonstrates that, while Justice Thomas denounced “obstacle preemption” as inviting unconstrained judicial lawmaking, neither Thomas’s reliance on statutory text nor his putative rejection of obstacle preemption holds up to close analysis.1 In the end, Justice Thomas, like his conservative brethren, inevitably turns to purposive analysis.

Three features of Meltzer’s analysis struck me as especially interesting and valuable. First, he argues persuasively that issues regarding the harmonization of state and federal laws are typically outside of the awareness of members of Congress who draft or vote for statutory text, even assuming they were within anyone’s awareness when a statute was passed. Add to this legislative gridlock and the unlikelihood of amendment, and the assumption that text reflects legislative will evaporates into thin air. Second, many of the words and concepts that must be analyzed in a preemption case are notoriously supple. This includes, for Meltzer, the interpretation of the word “requirement” in preemption clauses, and the concept of “logical impossibility” that (supposedly) undergirds the only form of implied preemption (impossibility) that Justice Thomas will tolerate.

A third and especially valuable feature of Meltzer’s article relates to the presumption against preemption, which has recently come under attack from Justice Thomas, relying upon important research by Professor Caleb Nelson.2 Nelson has claimed that the text of the Supremacy Clause was modeled after non obstante clauses commonly utilized by late 18th Century American legal draftsman. During that era, Nelson argues, such provisions were actually intended to displace the normal presumption that courts should strain to render existing statutes operative and viable in the face of later legislation that appears to repeal them. On this view, the Supremacy Clause should actually be interpreted to signal a rejection of any presumption against preemption. Meltzer’s cleverest criticism of this argument is that it proves too much: it entails that the Supremacy Clause is inconsistent with the Thayerian principle that statutes should be interpreted as constitutionally permissible, where possible. Most relevantly to tort law, Meltzer observes that the non obstante argument, even if it were justified historically and textually, addresses only the relationship between federal statutes and prior state statutes; it has no obvious implications for preemption of common law doctrine. Meltzer’s article concludes with a nuanced but confident defense of the presumption against preemption.

While Meltzer’s article is careful and illuminating, it seems to have been written without the benefit of a big picture of what has happened in products liability preemption litigation over the past two decades or so. Neither the text nor the legislative history of the federal statutes governing drugs, medical devices, or automobiles displays even a hint that Congress aimed to curtail products liability litigation (which was private, common law, traditionally rooted in compensatory goals, and often understood to be strict liability). By the mid-1980s, product manufacturers (and others) had pulled together a powerful movement that saw the attraction of federal tort reform, and, largely failing to persuade Congress, turned to the Court as a vehicle for national law reform. Combining an expertly honed litigation strategy with the ascendant law-and-economics conception of tort law as regulatory (which had never been a significant part of how judges or legislators understood torts), the tort reform movement convinced the Court to use preemption doctrine as a tort reform tool. As torts professors, we can see Geier and its progeny as of a piece with Daubert and BMW v. Gore and their progeny. Just as the Federal Rules of Evidence provided the means through which the Court could address ‘junk science,’ and the Due Process Clause of the Constitution anchored the Court’s critique of punitive damages run ‘amok,’ the Supremacy Clause is now the hook for softening what the Justices perceive to be unduly plaintiff-friendly liability standards.

Meltzer certainly succeeds in using preemption doctrine to demonstrate the shortcomings of textualism in action, but purposivism in action contains its own perils too, and Meltzer – coming from outside of tort law – may not be as alert to these concerns as one might wish. To be sure, his defense of the presumption against preemption (as against Justice Thomas and Professor Nelson) does indeed display an appreciation for federalist concerns. However, when Metlzer writes that “the task of fashioning a workable legal system—one that integrates state and federal law— will necessarily require a significant decisional role for the courts” he seems to be inviting just the sort of intrusion that rightly concerns Justice Thomas.

The Supreme Court’s most recent pharmaceutical preemption decision – Mutual Pharmaceutical Co. v. Bartlett, 133 S. Ct. 2466 (2013) — illustrates a tension that may be intrinsic to the sort of purposive preemption analysis Meltzer favors. In a 5-4 opinion penned by Justice Alito (and joined by Justice Thomas), the Court determined that a New Hampshire design defect verdict against a drug manufacturer must be struck down under impossibility preemption doctrine. The plaintiff conceded – indeed argued – that there was no way to have marketed the drug that would have protected the defendant from the jury’s categorization of it as “unreasonably dangerous,” notwithstanding the FDA’s having approved it for sale. And yet the plaintiff asserted that New Hampshire had the prerogative to impose strict liability for injuries inflicted by unreasonably dangerous drugs regardless of whether those drugs are permissibly sold under state and federal law. Justice Alito reasoned that if a manufacturer’s only way to avoid liability was to withdraw the drug from the market, notwithstanding the federal government’s designation of it as safe enough to market, then impossibility preemption applied.

While Meltzer does offer a nice critique of “impossibility preemption” (as mentioned above), and therefore cannot be assumed to accept Justice Alito’s analysis, his approach is nonetheless unduly receptive to the defense-side argument. That is because, whether or not it is correct to regard Mutual’s predicament as one rising to the level of “impossibility” preemption, there is surely real substance in the drug company’s complaint that the federal and state law in this case are poorly integrated. More generally, drug manufacturers are at least somewhat justified in complaining that it is costly and confusing for them to adjust their products and practices to the products liability law of fifty different jurisdictions as well as the FDA and federal law more generally, and uniformity of drug safety was undoubtedly among the goals of Congress in enacting the drug-regulatory statutes it enacted. Meltzer’s obstacle preemption seems well situated to accommodate these arguments; indeed, obstacle preemption arguably would have provided a more comfortable foundation for Mutual’s argument.

And yet, the Court’s decision in Bartlett should, I believe, be regarded as unacceptable from a federalist point of view that takes the common law of torts seriously. An authentic form of preemption analysis in Bartlett would begin by recognizing that states have chosen very different points on the spectrum between negligence and strict liability for their design defect law, and that they have also differed greatly from one another on the question of whether to subject pharmaceutical companies to a more defendant-friendly regime than other manufacturers (as Justice Sotomayor noted, in her powerful dissent). It would then ask whether anything in text or history of the FDCA or the Hatch-Waxman Act manifests a purpose of eliminating or even constraining these state choices in products liability law. I have never seen any evidence of such a Congressional purpose. Under these circumstances, I believe, drug companies’ preemption arguments should fail.

Meltzer’s purposivism straddles these two approaches. By arguing that textualism is unacceptably and artificially narrow, he seems to open the way to what I have just depicted as a form of preemption analysis faithful to a federalist recognition of the states’ entitlement to design their own tort law. But Meltzer also welcomes a form of purposivism that invites the Justices to sympathize with defendants’ descriptions of the legal thicket that results from this system. When the Justices do so, they are understandably tempted to think it is their job to prune away the state law that renders the whole system so burdensome.

Perhaps we should not be surprised that purposivism, like textualism, can be used on either side in preemption analysis, and perhaps we should be pleased that it has a higher degree of transparency. For now, I think, we should recognize that the plasticity of purposivism is not an unmitigated good in preemption analysis; serious federalist commitments regarding the integrity of state tort law can disappear all too quickly through the methododological prism of either textualism or purposivism.

  1. See also Catherine M. Sharkey, Against Freewheeling Extratextual Obstacle Preemption: Is Justice Clarence Thomas the Lone Principled Federalist?, 5 N.Y.U. J.L. & Liberty 63, 68 (2010). []
  2. See Caleb Nelson, Preemption, 86 Va. L. Rev. 225 (2000). []

Third-Party Financing of Litigation: Good or Bad?

Duty in the Litigation Investment Agreement: The Choice Between Tort and Contract Norms When the Deal Breaks Down, by Anthony Sebok and W. Bradley Wendel, addresses a topic of growing importance: third-party funding of litigation. In a third-party funding contract, a firm finances a lawsuit, and receives in return some portion of the judgment. Several finance firms have appeared recently, with Juridica and Burford perhaps the best known, that specialize in investing in large-claim lawsuits.

Third-party litigation funding is also known as champerty, and has been prohibited for a long time under the common law. The common law prohibition has been relaxed in recent years in some states, making the legal status of third-party funding agreements unclear as a general matter. The litigation investment firms have a large stake in the law changing in their favor, or at least remaining unclear.

The ancient prohibition on champerty seems to have been based on a desire to minimize external influence on judges. In the late Middle Ages, a wealthy landowner who funded a legal claim might pressure the judge to decide the dispute in a way that favored his investment. Although judges are not afraid of wealthy landowners today, the champerty prohibition emerged in a time when judges were not infrequently threatened and bullied by the wealthy and powerful.

There are several desirable and undesirable consequences that might result from expanded third-party funding of litigation today. Sebok and Wendel examine some of the risks facing the contracting parties and look at ways in which the law can minimize them. They conclude that the risks should largely be left to the parties to manage in their contracts.

In general, the types of claims that can be financed are, to borrow language from Robert Cooter, “matured” and “unmatured.” A legal claim is matured if the victim has already suffered (or is suffering) the injury and can sue for damages or an injunction based on what has happened to him. A legal claim is unmatured if the victim has suffered no harm at all; the claim is simply the right to sue for some wrong that may occur in the future.

Sebok and Wendel discuss matured claims, as do most of the most analyses of third-party funding. This is entirely reasonable because these are the only types of claim that are currently the subject of third-party financing.

The question that follows from their paper is whether their conclusions might also be applicable to markets in unmatured claims, should they ever arise. In comparison to matured claims, the risks associated with unmatured claims are a bit more difficult for the parties to manage. The informational asymmetry problems are an order of magnitude greater for unmatured claims. Markets in unmatured claims are not observed for the most part, but there are examples of such transfers. Patent trolls, for example, essentially purchase unmatured infringement legal claims.

Since many controversial legal relationships are designed primarily to solve the litigation funding problem – from class actions to patent trolls – the proper legal framework for third-party litigation funding is a topic with implications for several areas of the law. Sebok and Wendel are to be congratulated for calling attention to the topic.


Why Answer?

Nils Jansen, The Idea of Legal Responsibility, O.J.L.S. (forthcoming, 2014) available at SSRN.

Prof. Nils Jansen’s new article, The Idea of Legal Responsibility, is an ambitious work of tort theory. Jansen engages some of the most basic questions of private law.  The article’s rewards are found on two levels.  First, the argument it propounds—that responsibility in tort can be usefully (if not exclusively) framed in terms of restitution– is intriguing and offers another take on corrective justice.  Second, the framework around which Jansen builds his argument – the evolution of the law of restitution in scholastic and early modern European private law– is one that may be unfamiliar to many common lawyers. Jansen’s article make a persuasive case that contained within this history are lessons that transcend the common and civilian divide.

Professor Jansen’s thesis is deceptively simple:  He argues that the best justification for tort liability in many modern legal systems on both sides of the Atlantic is a principle of “responsibility” that has its roots in the doctrine of unjust enrichment.  Early in the article Jansen asserts that the question that all tort theorists in both the common law and civilian legal cultures must answer is, “why be responsible for another’s loss” and that the answer to this question lies in the “moral principle against unjust enrichment” (P. 3).  Yet by the end of the article, Jansen restates his position so that it seems that unjust enrichment is useful today because it helps illustrate the “constitutionalisation” of tort law, a modern phenomenon where the priority of basic human rights determines the variety of tort doctrines that dominate today’s legal landscape.  This tension is interesting and worth considering.

Jansen is quite clear at the outset of the article about what a tort theory needs to do.  It must explain responsibility in tort for losses that do not arise from the defendant’s wrong-doing.  According to Jansen, the chief problem with almost all modern corrective justice theorists (Pufendorf, Grotius and Weinrib, for example) is that “they cannot account for the fact that corrective justice is not only concerned with the correction of the consequences of wrongful behavior (wrongs), but also—and often more importantly—with the correction of losses and gains resulting from actions that are legally permitted” (P. 14, emphasis added).

It is clear that that in this article Jansen deals only with a set of concerns within one side of the modern tort theory debate. Although he mentions some well-known law and economics theorists in footnotes, he frankly chooses not even to address the solutions they offer.  His target is broad, nonetheless:  as he sees it, tort theory in both the common law and civilian systems took a wrong turn when it (and tort doctrine) became single-mindedly fixed around fault and negligence, leaving trespass and strict liability as either anachronisms or riddles to be resolved through even more clever fault-based explanations.

So Jansen goes back to the beginning:  to the sixteenth century (and earlier).  In the Christian doctrine of penitence we can see the roots of the solution to our twenty-first century problem.  According to Jansen, the scholastic theory of restitution “formulated a comprehensive system of non-contractual obligations” (P. 5).  To be a good person meant acknowledging and paying penance for the wrongs one committed before God; including wrongs that harmed other people. The doctrine of restitutio developed by Aquinas from Aristotle gave structure to this theological impulse by identifying the form of secular property interests which, if trespassed upon, entailed an obligation of repair.

Jansen provides a fascinating account of how the early doctrine of restitutio, which, he persuasively argues, was not fault-based, was marginalized in favor of a system of responsibility conditioned on fault.  Rejecting a unified natural law architecture, Grotius divided wrongs into two groups—wrongful gains (unjust enrichment) and wrongful losses (torts) and insisted that responsibility for the latter could only be justified on the basis of faulty (wrongful) conduct.  Pufendorf added to this a political dimension; stripping away natural law, he justified responsibility for wrongful losses by reference to the state; a person is responsible for the losses caused to others when they unreasonably failed to conform to the non-criminal conduct-guiding rules of the state (P. 12).  Finally, modern corrective justice theorists like Weinrib took the final step and argued that fault-based corrective justice was required not by God, not by political theory, but by the very conception of tort law itself.

Jansen’s main rebuttal to the advocates of fault is that they excise so much of tort law (in both the common law and civilian systems) that their accounts fit neither the law nor our moral intuitions.  Jansen’s main exhibits in his case against “fault-oriented” corrective justice are cases of necessity, such as Vincent v. Lake Erie and strict liability for ultra-hazardous activities. In these cases, liability is imposed even though the defendants acted reasonably.  Therefore their liability cannot be based on wrongful conduct unless by “wrongful” all we mean is conditional fault (an act that is wrong only if there is no compensation after the doing), a definition of “wronging” or “wrongfulness” which Jansen rejects as empty (P. 17).

Surprisingly, at this moment in his argument, Jansen turns his back on unjust enrichment.  It would have been open to him to have argued that cases like Vincent are best explained as restitution, and he notes some well-known theorists who make that very claim..  But Jansen does not want to collapse tort law into unjust enrichment.  In fact he rejects their conflation, saying that “wrong categories make bad law” (P. 20) and that to slot Vincent into unjust enrichment is to make a category error.

Instead, Jansen argues that restitution illuminates the solution to certain problems in the law of necessity, such as why a defendant is liable in tort if she engages in a privileged invasion of property and gains nothing by it (e.g. a stranded hiker who attempts to enter a cabin in the woods but fails to do anything but break the windows).  Jansen argues that responsibility in such a case is not based on the literal gain by the defendant, but on her invasion of one of the plaintiff’s “basic” rights (P. 25). An invasion of a basic right that is reasonable and of no benefit to the doer creates an obligation to restore losses even though they are not wrongful losses.

In this short review I cannot deal in detail with the argument Jansen adopts to determine when invasions of rights that are not wrongful are nonetheless the responsibility of the defendant to repair.  (His argument depends heavily on George Fletcher’s distinction between reciprocal and non-reciprocal risk.)  What I want to note, however, is just how far Jansen’s theory strays from its original roots in the law of unjust enrichment.  The idea that there are a certain basic rights that tort rules protect in doctrinal forms that are contingent on various circumstances has recently been propounded by a number of liberal tort theorists such as Arthur Ripstein and Greg Keating (whom Jansen generously acknowledges).  What is unclear to me is what work the doctrine of unjust enrichment does once the primacy of rights to certain human goods is asserted.

There is a way in which Jansen’s argument makes a full circle.  He acknowledges that the scholastic theory of penitence was vulnerable to attack by modern secularizers like Grotius and Pufendorf because it asserted a menu of property rights (dominium) whose invasion was absolutely prohibited by reference to divine command.  Although the content may be very different, the “constitutionalist” approach to tort—that private law rules are fixed around the protection of basic rights—shares a similar structure with the scholastic approach.  If a defendant today impairs a basic right whose invasion is absolutely prohibited, her responsibility is to pay restitution for the invasion—regardless of whether she was at fault, or her invasion was otherwise not wrongful.  The great difference is that back in the sixteenth century the law could refer to divine command to identify those interests, whereas now judges have to refer to something far more nebulous.


Tort as Backstop to Regulation in the Face of Uncertainty

Thomas Merrill & David Schizer, The Shale Oil and Gas Revolution, Hydraulic Fracturing, and Water Contamination: A Regulatory Strategy, Columbia Law and Economics Working Paper No. 440 (2013).

Thomas Merril and David Schizer—a property law theorist and tax law expert— deliver an ostensibly new framework for analyzing tort liability-regulation tradeoffs, standing on the shoulders of the pioneer in this area in the 1980s, Steven Shavell.  In The Shale Oil and Gas Revolution, Hydraulic Fracturing, and Water Contamination: A Regulatory Strategy,  Merrill and Schizer offer a fairly modest strategy for regulating water contamination from hydraulic fracturing (also commonly known as “fracking”), a practice that is “transforming the energy landscape of the United States.”  But their proposals lay the groundwork for a more ambitious project: to reassess the balance between tort liability and regulation in areas that pose emerging, and incompletely understood, health and safety risks.  Fracking exemplifies the widespread trend of new, controversial practices with highly uncertain risks.  Tort law emerges as a backstop to best practices regulation: tort liability rules provide “a form of protection for those injured by technological innovations, while information gradually accumulates that may eventually lead to more protective ex ante regulation.”

Hydraulic fracturing is a controversial process whereby energy companies pump fluid into shale formations at high pressure to crack the rock and release the gas and oil trapped inside.  Merrill and Schizer are not shy about their overall support for the “fracturing boom,” which holds the potential to “increase the competiveness of the United States in the global economy, reduce our reliance on energy imports and enhance our energy security.”  At the same time, they acknowledge the potentially high price of fracking: increased air pollution, traffic and congestion (all risks associated with conventional oil and gas drilling) and, most significantly, potential contamination of groundwater (a unique risk associated with fracturing).

Shavell’s classic four-factor approach to choosing an optimal regulatory framework continues to dominate discussion of tort-regulation tradeoffs.  Differential knowledge, namely actors’ superior understanding of the costs and benefits inherent in their particular activities (or what Merrill and Schizer term the “heterogeneity of risk” factor), favors liability rules over regulation.  Administrative costs likewise advantage ex post tort liability, which is triggered only after an injury, over ex ante regulation, which imposes costs across the board to prevent injuries (not only in the rarer instances in which someone is harmed).  Merrill and Schizer add a dimension to administrative costs, which they term “the settlement costs of making ex post case-by-case determinations.”  Borrowing self-consciously from the takings literature (but also reminiscent of Neil Komesar’s, Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy), which examines the functioning of tort liability in different injury settings defined by differences in the distribution of the impacts or stakes of the injury and its prevention), Merrill and Schizer point out that “[i]f the sources of an external harm are diffuse, or victims are numerous, the costs of case-by-case adjudication may be prohibitive.”

As in Shavell’s framework, ability to pay and likelihood of escaping suit are factors that point in the opposite direction, towards regulation.  (Merrill and Schizer lump insolvency and escaping suit together—“identifying a defendant sufficiently solvent to pay damages”—and fold these considerations into their above-mentioned “settlement costs” factor.)  Merrill and Schizer follow Shavell in applying an exclusively economic method of analysis of tort law, one that does not consider compensation of injured plaintiffs (or otherwise repairing harm) as an independent factor.  Moreover, the authors do not address interest-group theories of regulation—a significant limitation of Shavell’s analysis, taken up by others—and likely significant when considering the oil and gas industry’s repeat interactions with the state regulators.

In Products Liability Preemption: An Institutional Approach, I suggested an extension of the Shavell framework to address the federalism (state versus national regulation) and institutional (court/jury versus agency decisionmaking) dimensions.

Merrill and Schizer address each of these aspects in turn.  Framing the federalism inquiry in familiar terms—“whether a uniform solution is likely to be optimal”—Merrill and Schizer opt for pragmatism, with a recommendation to keep the regulatory center of gravity in the states as opposed to fashioning a new federal regime.  The gist of their argument here is path dependence—namely, given the traditional primacy of states in oil and gas regulation, state regulatory commissions have a head start in terms of developing best practices regulations, whereas a federal regime would have to be developed from scratch, as “the federal government has played almost no role in regulating oil and gas production on private land.”

Likewise, with respect to the institutional choice among legislature, administrative agency, or court, Merrill and Schizer again herald historical practice; indeed, they go further to suggest that “[i]nstitutions that have regulated issues in the past will have a presumptive claim to do so in the future, based on their expertise, their relationships with important interest groups, and their natural inclination to protect their turf.”  Merrill and Schizer might have devoted more attention to this issue, one that is highly contested in litigation over stringently regulated products such as medical devices and pharmaceuticals.  For example, in the context of the question of liability for fracking-caused water contamination, they conclude that “any water contamination causally attributable to the violation of a best practices regulation should be considered negligence per se and should result in liability.”  In so doing, they skirt a key question: who should decide—agency or jury/court— whether such a regulation has been violated.  Here, I am far less persuaded by Merrill and Schizer’s argument that, in the face of pervasive uncertainty, policymakers should necessarily defer to the existing alignment of institutional authority.

However, the authors effectively highlight two additional factors that should guide regulatory choice in the face of uncertainty: “the magnitude of the expected harm,” and “the novelty of the relevant technology.”  To my mind, these are inter-related.  At the core is the need for a dynamic regulatory response, one that generates additional information about potential risks and stimulates innovation to reduce these risks.  Merrill and Schizer suggest that “[w]ithout experience, we generally will be better off with some form of ex post regulation. . .  It took experience to design (and mobilize popular support for) regulations addressing . . . unexpected problem[s].”  They provocatively suggest that “steam boilers, organ transplants, and other novel technologies” fit the bill where liability regimes created incentives to develop better information.  (Here, they implicitly confront Jerry Mashaw’s contrary thesis that tort liability in the 19th century did little either to improve steamboat safety or to lead to effective regulation.)

Merrill and Schizer’s framework would benefit from a dose of empirical support.  Their innate faith in tort law as a means to encourage risk-reducing innovation—based on their belief that “products liability law has transformed the way consumer products are designed, and CERCLA has had a similar effect on waste disposal”—wades into sharply contested waters that lack strong empirical foundations.

But, in the course of developing a highly fact-specific, institutionally-grounded regulatory strategy for addressing the risks posed by hydraulic fracturing, they have enriched Shavell’s classic theoretical framework with consideration of novel risks associated with the latest innovations and, in these ever-changing contexts, the dynamic, information-forcing role that tort liability can play.


Did You Get The Message

Scott Hershovitz, Tort as a Substitute for Revenge, in Philosophical Foundations of the Law of Torts (John Oberdiek ed., forthcoming 2014) available at SSRN.

Modern tort theory begins with Holmes, who was eager to recast the old law of ‘trespass’ on suitably modern terms. Back when people were superstitious and quick to blame, tort could be understood as law that provides an alternative to vengeance. In our disenchanted world, however, tort law must be seen as a mechanism by which the state pursues a public policy, such as compensation of injury victims.

In Tort as a Substitute for Revenge, Professor Scott Hershovitz invites us to ask whether Holmes got us off on the wrong foot. Indeed, he argues that tort law has an important connection to revenge and that, as such, it is to be credited with delivering a kind of justice.

Hershovitz builds his analysis around a “chestnut” from Holmes’s time, the 1872 decision of Alcorn v. Mitchell.  Alcorn had sued Mitchell for trespass. At the conclusion of that suit, which Alcorn lost, and while the two were still in the courtroom, Alcorn spat on Mitchell.  Mitchell then sued Alcorn for battery, obtaining a jury award of $1,000, most of which consisted of “vindictive” (punitive) damages. The Illinois Supreme Court affirmed. To be spat on, it observed, is to suffer a serious indignity, all the more so in a courtroom.

If nothing else, Alcorn provides a memorable illustration of an ‘offensive-contact’ battery.  Hershovitz digs into the record, however, and finds interesting information relevant to his theoretical claims.  Alcorn was a wealthy, powerful man, whereas Mitchell was not. Hershovitz plausibly speculates that Alcorn was used to getting what he wanted, was furious that the court had ruled against him, and was keen to re-establish his place—and Mitchell’s—in the pecking order. All of which might explain the apparent extravagance of Alcorn’s expectoration. According to the complaint, this was no ‘ordinary’ spitting incident.  Alcorn filled his mouth with noxious substances and spewed them in Mitchell’s face, an act so dramatic that onlookers urged Mitchell to kill Alcorn on the spot! For failing to heed the crowd’s exhortations, Mitchell claimed to suffer a significant reputational hit.

Assuming these are facts and not mere pleading embellishments, what do they tell us? Hershovitz suggests the following. One person’s injuring of another carries an expressive component. Alcorn’s conduct was not an offense to some inflated notion of personal honor. It was an effort to degrade Mitchell. That effort demanded a response, lest Mitchell be perceived as acceding to his degradation. Alcorn’s actions sent a message, and Mitchell needed to send a message back.

Hershovitz’s core claim is that a tort suit enables a form of victim response that, like an act of revenge, conveys the right message. To obtain damages from a tortfeasor is to re-assert and re-establish one’s moral standing in the face of an act that threatens to undermine it. Against corrective justice theorists who maintain that tort law holds wrongdoers to a duty to repair losses that they cause, Hershovitz offers a very different notion of correction. Tort law is about corrective justice, but corrective justice is about getting even.

Tort as a Substitute for Revenge is elegant and provocative. In placing victim empowerment at the center of his account, Hershovitz builds on, but takes in a different direction, the civil recourse theory of tort that Benjamin Zipursky and I have developed. In emphasizing the expressive and equality-reinforcing aspects of tort law, he—along with other ‘next-generation’ scholars, including Andrew Gold, Nathan Oman, and Jason Solomon—opens new vistas in tort theory. Yet Hershovitz’s work is distinctly engaging for so boldly linking tort, dignity, revenge, and justice.

Not surprisingly, these linkages also raise some questions. Hershovitz’s claim is not that we should see tort law as channeling an understandable impulse to engage in bad behavior (revenge-taking) toward acceptable behavior (litigation). This view, he would say, fails to give revenge its due as a righteous response to wrongdoing. But is revenge really righteous?

One might concede that the Alcorns of the world ‘have it coming’—that they have no grounds to object when their victims respond vengefully. (If Mitchell retaliated by punching Alcorn, would we credit a complaint from Alcorn?) And revenge is undeniably a source of vicarious satisfaction. Still, caution is warranted. A moviegoer who delights in on-screen revenge might describe his enjoyment as a guilty pleasure, and with reason. Cinematic vengeance is cinematic; it has been expertly air-brushed to maximize its palatability. In reality, the best candidates for acceptable vengeance are probably immediate, small-scale retaliations, and even these might be merely excused rather than justified. In short, one can acknowledge the allure of revenge yet maintain that victims who respond in that angry, ugly manner have asserted their worth in an unacceptable way.  In turn, one might question the notion that there is a deep connection between the wreaking of vengeance and the doing of justice.

Hershovitz’s account also may have trouble making sense of important parts of tort law. The meaning of an injury caused by inattentive driving or an inadvertent medical error seems qualitatively different from that of Alcorn’s abuse of Mitchell. This is not because—as Holmesians tend to think—it is erroneous to treat car accidents and malpractice as matters of rights and wrongs. Rather, these events don’t seem to carry a message that could possibly render revenge a suitable response. (Even many batteries seem not to send the degrading message of Alcorn’s.)  Likewise, it seems a stretch to describe awards of compensatory damages for injuries of this sort as instances of “getting even.” Perhaps, then, Hershovitz’s is not so much a theory of tort law as of those insult-based torts that tend to give rise to punitive damages.

These questions notwithstanding, Hershovitz is fighting the good fight in challenging Holmesian orthodoxy. We moderns are not required to think of tort law bloodlessly, as an administrative scheme of compensation or deterrence.


Redressing the Harm of Death

Sean Hannon Williams, Lost Life and Life Projects, 87 Indiana L.J. 1745 (2012).

Sean Hannon Williams’ Lost Life and Life Projects tackles “wrongful death damages from the perspective of individual justice accounts of tort law.” Wrongful death damages—or, more accurately, their inadequacy—have long troubled tort scholars. Lately, as Williams shows, their shortcomings have been a particular sore point for economically oriented tort scholars.

The early common law of torts did not recognize any damages at all for wrongful death. Tort actions were personal and they died with the victim. Legislatures soon responded to this gap by passing two different kinds of statutes. One kind—survival statutes—enabled the estates of those wrongfully killed to recover the damages to which the dead would have been entitled had they not died (e.g., damages for medical treatment prior to death). The other kind—wrongful death statutes—addressed relational harm. Wrongful death statutes permit intimate relatives of the victim to recover for harm that they have suffered from her death (e.g., loss of financial support). Neither statute addressed the harm to the victim of her own premature, wrongful death. Only recently has there been any movement to remedy this gap by awarding damages for the victim’s lost “enjoyment of life.” Williams’ project is to bolster the case for such damages, in the name of justice to those who have lost their lives.

Williams is right to think that the absence of such damages is an issue of significance to the law of torts. Tort is the common law institution that protects against and redresses harm wrongly suffered at the hands of others. Premature death is normally the harm we fear most. But the law of torts provides no redress for that harm. Legal economists have found this particularly disturbing. The economic theory of torts holds that the deterrence of excessively risky activities—not redress or repair—is the raison d’être of the law of torts. On an economic view, tort deters by pricing the costs of avoiding harms and the costs of bearing those harms that should not be avoided so that rational actors take those costs into account in their decision-making. Death, like other costs, needs to be priced.

The absence of damages redressing the loss to the victim of her own death makes the tort system an incomplete pricing system and an imperfect form of deterrence. Tort economists have responded to this predicament by calling for the award of damages for the value to the victims of wrongful death of the lives that they have lost. This proposal may have merit as law reform, but the common law of torts has shown little inclination to evolve in this direction. Tort law’s resistance appears deep. The premise that damages are remedial is entrenched. Damages for the value to the victim of the life she has lost do not undo her death. The result of this internal logic, however, is an institution which ought to trouble all of us. Tort provides poor redress for, and little protection against, the worst harm that we can suffer.

Professor Williams finds both the present state of the law and the legal economists’ response to it unsatisfying. The law as it stands, he complains, values the death of the victim only insofar as she was useful to others. It values her only as a means, and not as an end in herself. Williams finds the economic solution unsatisfying for more complicated reasons. First, Williams finds corrective justice and civil recourse accounts of tort more descriptively accurate than economic accounts. Second, his deepest instincts are not welfarist. He thinks that tort protects, and death destroys, human agency—the exercise of will in the world for ends set by human subjects. Third, the economic view itself may be charged with not treating victims as ends-in-themselves. It awards damages in order to achieve optimal deterrence, not to vindicate the rights and repair the wrongs done to those who are wrongfully killed. Treating the victims of wrongful death as ends requires vindicating their rights, not just realizing a state of the world in which only cost-justified deaths occur.

To this end, Williams proposes awarding damages whose guiding aim is to effect the “life projects” that the dead held dear during their lives. This is a plausible proposal and most likely an improvement on the status quo. But it is a pale effectuation of personal autonomy. Exercising autonomy, like exercising, is not the kind of thing that others can really do for you. One wonders, therefore, if the problem of wrongful death is more intractable than Williams allows. Death is a unique harm. Other harms take place within lives. Their severity is measured by what they do to those lives. Tort remedies attempt to repair and rebuild damaged lives. Death happens not in a life but to a life, and it is this fact that robs tort remedies of their power. Death ends human agency and tort does not possess the God-like power to revive that agency. Wrongful death damages can further the unfinished projects of the dead, and that is no small thing. They may also be able to give public expression to the value of the lives lost and the rights violated. And they may provide a measure of deterrence. But they cannot give back to the dead the agency that has been taken from them. The only real “cure” for the harm of having one’s agency ended prematurely is avoiding that harm.

This suggests a possibility that Professor Williams does not consider. When harms cannot be repaired, an institution which responds to harm by enabling its repair may not be the institution of choice. What we need is an institution which enables us to double down on precaution. Health, safety, and environmental regulations which enjoin, variously, that our air and water be made safe, or that all feasible precautions be taken against some irreparable injuries may point the way to a more adequate response.


Avoiding Liability But Not Tort

Gideon Parchomovsky and Endre Stavang, Contracting Around Tort Defaults: The K4K Principle and Accident Costs (working paper, 2013), available at Docstoc.

When two sophisticated parties jointly decide that, in the case of accident, each will bear its own costs and insure against its own losses, why should anyone care? The Restatement Third of Torts, for one, does not. Restatement Third of Torts: Apportionment of Liability §2 (1999) (“When permitted by contract law, substantive law governing the claim, and applicable rules of construction, a contract between the plaintiff and another person absolving the person from liability for future harm bars the plaintiff’s recovery from that person for the harm.”). In their article, Contracting Around Tort Defaults, Gideon Parchomovsky and Endre Stavang, however, sound a cautionary note about potential social costs of private contractual agreements to opt out of tort liability. If potential tort liability prods actors to adopt socially optimal levels of precaution, when parties disclaim that liability through contract, will actors “under-invest in precaution and fall short of the optimal level of care,” with deleterious impacts not on the contracting parties themselves but on third parties? In short, will we have less tort liability but more tort?

The backdrop for Parchomovsky and Stavang’s question is an important one—oil and gas industry contracts that pervasively opt out of the tort system through a broad system of exculpatory agreements, sometimes referred to as “knock for knock” clauses. Courts determining the applicability of these agreements often focus their inquiries on the intent of the contracting parties to waive liability for negligence. Reeder v. Wood Cnty. Energy, LLC, 395 S.W.3d 789 (Tex. 2012), opinion supplemented on reh’g (Mar. 29, 2013) (“In construing a written contract, the primary concern of the court is to ascertain the true intentions of the parties as expressed in the instrument.”) Parchomovsky and Stavang’s critique suggests that  the effects of waivers on nonparty potential victims should also be taken into account. Could the industry’s pervasive system of exculpatory clauses, which ensures that liability falls short of even the cost of physical harms from negligently caused accidents, have caused insufficient industry precautions and led to major accidents like the Deepwater Horizon spill? While the authors don’t offer a definitive answer, they do identify the potential for industry contracts to result in moral hazard problems and suboptimal precautions  which increase hazards to third persons.

Parchomovsky and Stavang also identify four important mechanisms that may ameliorate the problems of moral hazard: 1) contract provisions that permit liability in the case of intentional and some other harms; 2) deductibles and precaution requirements; 3) regulation; and 4) continuing relationships between the parties. The authors do not blithely assume that these mechanisms are adequate to solve the moral hazard problem or the threat to third parties. Nor do they believe that the pervasive knock for knock clauses reflect the superiority of private over public ordering. Indeed, although scholars extoll the virtues of private ordering in other contexts, the authors distinguish oil and gas contracts here on the basis that parties’ negligence can have far reaching and potentially deleterious effects on others. According to the authors, in only a few situations would knock for knock clauses be welfare enhancing.

Stavang’s and Parchomovosky’s work thus asks a critical and underexplored  question in a context in which the answer is essential—when do private waivers of negligence liability jeopardize third parties so that intervention is necessary to protect not the sophisticated parties themselves but the safety of the public at large? The oil and gas cases put this question in sharp relief because the parties themselves are sophisticated, repeat players. They are capable of taking care of their own interests, but in so doing they may be exposing third persons to significant physical and environmental harm as well as economic loss. The extent to which these kinds of hazards justify imposing “public policy” limitations on express assumptions of risk is understudied in the academy and has received little attention from courts and legislatures.

This article is significant for the theoretical question it poses and the real-world context it exposes to scrutiny. We should hope that it is just the beginning of a conversation—that these authors and others will continue to study the issue. As recent accidents in the oil and gas setting suggest, the safety, property, and prosperity of many people may depend on reaching and implementing the right answers.


The Exceptional Case of Parental Negligence

Elizabeth G. Porter, Tort Liability in the Age of the Helicopter Parent, 64 Ala. L. Rev. 533 (2013).

Recently, there has been a flowering of family law scholarship critically examining what Janet Halley calls “family law exceptionalism,” the tendency in the law to treat the family as a special realm wholly divorced from market relations and to steer family matters, regardless of their economic nature, into family law. Although she never uses the term “family law exceptionalism,” Elizabeth Porter’s new article on parental immunity and negligent supervision cases follows in this vein. The article is an indictment of what she regards as the exceptionally favorable treatment of parents under current tort law. Professor Porter argues for ending the special rules favoring parents, applying ordinary negligence principles in parental liability cases, and ultimately sending more cases to the jury.

As Porter reminds us, it is a particularly appropriate time to re-examine the rules governing parental liability. On the cultural front, the steady stream of tragic cases (whether Newtown, Columbine or countless accidental shootings) has reignited perennial questions about the extent  of parental responsibility to control  dangerous children and whether parents should be held accountable to victims for their failures as parents. On the doctrinal front, the new approach to duty endorsed by the Restatement (Third) of Torts—which calls for presuming a general duty of care and abandoning that presumption only in exceptional cases when there are strong countervailing reasons of principle or policy— has the potential to reopen questions about the scope of parental liability.. Porter’s article suggests that if courts heed  the Third Restatement they may  well conclude that parental liability  cases are not so exceptional after all, ushering in what would be a major, very concrete change in tort doctrine.

This article appears to be Porter’s first published piece of scholarship (she is currently a VAP at the University of Washington).  Porter certainly deserves praise for choosing an undertheorized topic and writing an engaging history of two quite different types of parental liability claims – claims brought by children against their parents (implicating parental immunity) and claims brought against parents by third parties (negligent supervision claims).  To date, torts scholars have not paired these two types of claims and analyzed them together. As a result, Porter claims that they (and the courts) have failed to appreciate the contradictory narratives of the family that are used to justify exceptional treatment of parents. In cases implicating parental immunity,for example, courts continue to immunize parents based on the view that parents know their own children best and know best how to handle them. In negligent supervision cases, by contrast, courts are often reluctant to impose liability unless the parent has specific notice of the child’s dangerous propensity, endorsing a view that parents may not know what their children are up to and may be powerless to control them.

With respect to parental immunity, Porter complains that feminists failed to finish what they started. She claims that feminist arguments against the patriarchal family succeeded in getting rid of interspousal immunity.  But Porter faults feminist critics for not campaigning as vigorously against parental immunity, which made it impossible, for example, for a teenage girl to sue her father for rape, in the name of preserving family harmony.  Particularly because many of the tortfeasors in these cases are mothers, Porter believes that feminists have failed to protect children because they were blinded by their own “violence against women” lens against seeing women as aggressors.

In this respect, Porter exaggerates the influence of feminism on tort law, saying not a word about how the lifting of interspousal immunity has failed to make a dent in tort law’s pitiful record of addressing violence against women, most prominently domestic violence. Her thesis would have been strengthened, not undermined, by recognizing that the same family law exceptionalism that supports parental immunity likely also underwrites tort law’s reluctance to provide effective remedies for sexual violence and exploitation. Notably, in addition to making negligent parents liable to their children, Porter would also permit third party tortfeasors to seek contribution from negligent parents when there is joint liability. Most jurisdictions now enable children to sue negligent third parties and recover 100% of their damages— even if the parent is also negligently responsible for the child’s harm— because most courts interpret the parental immunity as extending to contribution suits brought by 3d party tortfeasors. Here, Porter’s child-centered approach is more interested in being “fair” to all parties than it is in enabling children to recover for all of their losses.

The heart of Porter’s article deals with negligent supervision cases.  She makes a strong case for lifting limited duty rules and subjecting parents to ordinary negligence principles, even criticizing the modified “reasonable parent” standard that some “liberal” courts now use. Porter doesn’t mince words here, calling some of the courts’ no-duty determinations “ridiculous” and their reasoning “tortured.”  In her view, many courts have let their fears get the best of them, creating a one-sided tort law that recognizes parental rights but not parental responsibilities. This is where the “helicopter parents” come into play. Porter explains that there is a fear that evolving norms embraced by some parents (e.g., those hovering, middle-class mothers who overshelter their children) will to lead to unrealistic requirements for all parents via the threat of negligence liability. Porter believes that these fears are overblown, even though she admits that there will be hard cases, particularly cases involving damage done by seriously troubled teens where the imposition of tort liability might prove to be a disincentive for beleaguered parents to continue to allow their child(ren) to live at home.

For Porter, it all comes down to how much one trusts juries, rather than judges, to decide the hard cases and determine whether the everyday decisions of parents warrant exceptional treatment in the law. I am not quite as confident as Porter that there is nothing special about parents when they are cast as tort defendants, but I am sure that this is the best current article on the topic.


Late-Night Law Firms

Nora Freeman Engstrom, Sunlight and Settlement Mills, 86 N.Y.U. L. Rev.  805 (2011).

Every year, I ask the students in my torts class whether any of them came to law school because they wanted to practice tort law. So far, only one has said yes. And she planned to join her father’s personal injury practice, so that was something of a special case.

This is not surprising. An awful lot of my students do not know what tort law is, at least not at the start. And those that know what tort law is tend to associate it with the lawyers that advertise on late-night television. Though most first-year students do not know what they want to do, they do know that they do not want to be one of those lawyers, whom they take to occupy the bottom rung of a profession that is not held in all that high esteem anyway. It is a constant struggle to get my students to see that there is more to tort law than those late-night lawyers.

But it turns out that those late-night lawyers may not deserve the scorn that they get. In Sunlight and Settlement Mills, Nora Freeman Engstrom argues that firms like the ones that advertise late at night have developed practice models that achieve many of the aims that reformers have for no-fault accident compensation schemes. They deliver compensation cheaply and quickly, because they settle almost every claim and nearly never go to court.  They resolve claims predictably and consistently, on account of cozy relationships with insurance adjusters that lead to a shared sense as to what different sorts of claims are worth. And perhaps most important, they increase access to justice, offering representation to clients with meritorious claims who would otherwise not seek lawyers or find ones willing to pursue their low-value claims.

The story Engstrom tells about late-night law firms is not all rosy, however. They process claims so fast that they hardly screen clients, and presumably pursue more fraudulent claims as a result. Their rush to settle cases leaves many clients undercompensated, and the problem grows with the extent of the client’s injuries. They often rely on paralegals and other non-lawyers to handle settlement negotiations, running afoul of ethics rules. And they claim fees that look high in light of the cookie-cutter nature of their work.

Engstrom argues that the standard ways of regulating lawyers—bar discipline, malpractice liability, and judicial oversight—are not likely to staunch the worst settlement mill abuses. The typical client is not sophisticated enough to spot misconduct or likely to complain about it if she does. And the market is not likely to provide much discipline either, as the clients of law firms that advertise late at night are not likely to hear much about a lawyer’s reputation from sources other than those ads.

Engstrom thinks that reform is needed, but because she sees so much to admire in the work that settlement mills do, she thinks it should be done with a light touch. She doesn’t argue that we should restrict the activity of settlement mills. Rather, she suggests, we should put prospective clients in a better position to judge the quality of representation that different firms provide. And she thinks that if we do that, the firms themselves might curtail some of their more objectionable behavior. The mechanism she proposes is a mandatory, public closing statement that all lawyers would be required to file whenever they accept work for a contingency fee. The disclosures would include, among other information, the nature of the claim, the amount of damages sought, the amount recovered, and the amount paid in fees. Engstrom further proposes aggregating this information and making it publicly available, so that potential clients could, say, search a website to learn which firms in their area recover the highest percentage of damages claimed, or accept the lowest fees.

I doubt that Engstrom’s proposal will help the clients of settlement mills much. If they were sophisticated enough to search for and interpret this sort of data, they might already be in a position to seek better representation. That does not mean that public closing statements would be worthless, however. At the least, they would provide a better picture of the practices of late-night law firms, and that might push us toward more intense reform. Or scare us away from it, lest we throw out the baby with the bathwater.

And it is that latter possibility that I find most intriguing. I have defended a picture of tort law on which the institution pursues corrective justice by empowering victims to hold wrongdoers accountable for their injuries.  That picture captures well what happens in a tort suit, when a court evaluates a plaintiff’s claim that a defendant wronged her and owes compensation as a consequence. But settlement mills nearly never file lawsuits; instead, they work out quick compensation with the would-be defendant’s insurance company. There is little to the practice that looks like justice or accountability.

And yet, I’m inclined to agree with Engstrom that there is something attractive in the work that settlement mills do. This is because they operate in a space where people are more apt to be concerned with compensation than corrective justice. The typical settlement mill client suffered a minor injury in an automobile accident, which is hardly the sort of indignity that calls out for corrective justice. If settlement mills have managed to jury rig a no-fault compensation scheme for minor automobile accidents onto the tort system, then we should probably say bully for them. But we should also join Engstrom in her efforts to make sure that their clients understand just what sort of service they provide.