At the outset of his very interesting article, The Liability Revolution That No One Saw Coming, Kenneth Abraham, one of our most distinguished scholars of tort and insurance law, posits an irony concerning predictions about law. As Holmes famously observed, law practice is all about anticipating judicial decisions. Yet, according to Abraham, lawyers – and adjacent actors including insurers and law professors – are not expected to predict, and have not predicted, broader shifts in the legal landscape, some of which have had huge significance.
The bulk of the article discusses three broad twentieth-century legal developments: (1) the rise of mass tort law; (2) the expansion of insurers’ coverage costs for liabilities generated by environmental and tort law; and (3) the conclusion of the expansionary phase of American accident law. According to Abraham, nobody in law saw these important developments coming.
Mass tort litigation involving widely dispersed injuries first emerged in the 1970s, in part as a delayed reaction to workers and consumers having, since mid-century, been increasingly exposed to toxins in workplaces and products. The state of the legal profession also mattered: until the late 1970s, the plaintiffs’ bar had yet to develop mechanisms through which they could launch and coordinate mass litigation. For these and other reasons, according to Abraham, the era of mass torts that commenced with DES and Agent Orange came without warning.
Although Abraham’s second example – the expansion of insurers’ indemnification obligations and high-stakes litigation over coverage issues – followed closely on the emergence of mass torts, its main driver, he says, was the enactment of environmental statutes, particularly CERCLA in 1980. It imposed sometimes massive clean-up costs on firms deemed responsible for toxic waste sites. Around 1960, insurers had made the fateful decision to revise standard language in commercial general liability (“CGL”) policies, which extended coverage beyond one-off accidents to harms incurred over time. This in turn undermined the protection provided by annual coverage ceilings. Because insurers did not predict the rise of these massive new liabilities, they found themselves saddled with coverage claims of unexpected magnitudes.
Abraham’s third example is the abrupt closure of the period in which courts and legislatures tended to expand the grounds of liability for accidents. It opened around 1915, marked by judicial decisions such as MacPherson v. Buick, and the legislative adoption of workers’ compensation schemes, and continued until about 1980. That was the year in which the California Supreme Court, in Sindell, adopted market share liability for DES cases. Although many saw Sindell as pointing to a new world of broad, probabilistic liability, it proved to be a swansong. Already in the air at the time, the mantra of “tort reform” would quickly come to dominate the landscape. According to Abraham, the closing of the liability frontier was another epochal shift that defied expectations as to where tort law was headed.
What explains these failures? For the most part, Abraham is not casting blame. Predictions require an evidentiary basis, and, in his view, the clues that would have enabled observers to anticipate the foregoing developments were meager. He also posits that lawyers by training tend to focus on concrete, realized problems rather than ill-defined possibilities – an inclination that is reinforced by their (perhaps undue) optimism about the ability of legal institutions to ameliorate problems after the fact. Also making prediction difficult is the fact that each of the developments discussed, though nationwide in impact, often resulted from decentralized, state-by-state developments.
The article concludes with some brief suggestions for improved prediction. Funding for predictive research comparable to the support once provided to economic analysis of the law might help. Mega-insurers could also conduct and share their own research. And insurers could issue policies that provide coverage on a multi-year rather than annual basis, which would force them to make predictions about near-term developments.
Abraham’s article raises many intriguing questions. It invites historians to consider further how lawyers, scholars and others were thinking about tort and insurance law in the 1960s and 70s. For social scientists and philosophers, it poses in a concrete setting the perennial issue of whether historical events are ‘caused’ by prior occurrences in a manner comparable to physical phenomena, such that they can be predicted. For those studying the legal profession and for members of the legal academy, the article prompts consideration of whether persons with legal training tend to suffer from certain forms of myopia.
Of course, any assessment of lawyers’ predictive skills will turn largely on a description of what is they are supposed to have predicted. It is one thing to suggest that they (and others) might do better at predicting specific doctrinal trends (e.g., the shift from contributory negligence to comparative fault). It is another to suggest that they should do better at predicting broader changes in which the law gets swept up, such as the Reagan Revolution. Why would anyone expect lawyers to be able to read the latter sort of tea leaves? Likewise, would anyone today fault insurers operating around 1960 – or 1990 – for failing to anticipate that climate change would produce massively destructive wildfires in California and elsewhere? In sum, a more precise account of the developments in question is crucial to an assessment of Abraham’s contentions.
In reverse order from Abraham’s presentation, one can start with the closing of the liability frontier. In what sense did it “close”? Yes, the push for no-fault fizzled, and damage caps and several-only liability for indivisible injuries are now commonplace. However, blockbuster personal injury litigation continues. And it has done so in part because some courts have identified new doctrinal bases for liability (public nuisance, anyone?). So perhaps those in the 1960s who supposed that plaintiff-friendly doctrines would continue to generate litigation and liability on a uniquely American scale were spot-on.
As for insurers, to what exactly were they blind? That Congress would impose some form of remedial liability for toxic waste sites? Or that it would adopt a very aggressive regime of retroactive, strict, joint-and-several liability? Or that remediation expenses would turn out to run into the tens of billions?
With respect to mass torts, even in 1960, there were signs pointing to at least certain iterations of that phenomenon. As Abraham notes, leading torts scholars had then largely coalesced around the idea that tort law’s primary function was to distribute losses and help the injured get back on their feet. While many posited the eventual replacement of accident law by compensation schemes, plaintiffs’ lawyers, aligned with liability insurers, were busy resisting top-down, ‘statist’ approaches to compensation, while also developing new schemes of cooperation to enable them to expand recoveries for larger sets of injury victims.1 If one adds to this mix the experience of civil rights litigation, in which federal courts had functioned as institutional reformers, there may well have been a basis for envisioning that some judges would use the open-ended rules of modern civil procedure to enable aggregate litigations to function as event- or industry-specific compensation schemes.2 Indeed, even before the 1966 amendments to the federal class action rule, one can find scholars considering whether “mass torts,” identified as such, could be appropriately handled through class actions.3
On the other hand, modern mass tort litigation in its precise present form was probably not something that anyone back in 1960 could have envisioned. Today, it carries with it a populist and quasi-punitive character that was alien to mid-century, tort-as-compensation conceptions.4 And increasingly, it does not take the form of administrative schemes run by managerial judges, but instead operates as a marketplace for lawyers to strike bargains operating under the faintest shadow of the law.5 The resulting patchwork of mega-judgments and settlements would, I think, surprise even keen mid-century observers of the tort system. So, again, the validity of Abraham’s thesis rests largely on a specification of what it is that was supposed to have been predicted.
One final thought: any assessment of lawyers’ predictive powers needs to take into account that their predictions are sometimes embedded in litigation strategies designed to make those predictions come true. In 1960, probably few would have imaged that the post-Erie Supreme Court would get involved in state tort law. Yet, as the Burger Court morphed into the Rehnquist Court – and with New York Times v. Sullivan having demonstrated that constitutional law could be used to skirt Erie – savvy lawyers predicted that there was a coalition of Justices prepared to conclude that aspects of tort law – such as punitive damages – were sufficiently ‘out of control’ that the Court needed to step in. This was not just prediction: these same lawyers helped form that coalition through a methodical litigation campaign. Here, as in other contexts, ‘cause lawyering’ involved sensing the zeitgeist, predicting where its winds might blow, and harnessing those winds to lead the law toward a particular destination.
As the foregoing discussion I hope demonstrates, Professor Abraham’s rich article is to be commended for raising these and other questions about the different senses in which “prophecies of what the courts will do in fact” can and should be central to legal analysis.
- John Fabian Witt, Patriots and Cosmopolitans 211-78 (2007).
- Martha Minow, Judge for the Situation: Judge Jack Weinstein, Creator of Temporary Administrative Agencies, 97 Colum. L. Rev. 2010 (1997).
- See, e.g., Procedural Devices for Simplifying Litigation Stemming from a Mass Tort, 63 Yale L.J. 493 (1954).
- Anthony J. Sebok, The Fall and Rise of Blame in American Tort Law, 68 Brooklyn L. Rev. 1031 (2003).
- John C.P. Goldberg, Judging Responsibility, Responsible Judging, 64 DePaul L. Rev. 475 (2014).
