Band 6, Heft 1-2 - Symposium Issue: “Tort, No-Fault, and Real-World Compensation”, A Volume in Honor of Jeffrey O’Connell

In this essay, I will attempt to locate the principles that animated the career of Jeffrey O’Connell in a larger context of examining the role of compensation in accident law. In Section 1, I provide a short historical excursion to set the stage. Next, in Section 2, I will discuss how O’Connell followed his initial venture involving auto no-fault with a more expansive scheme of elective no-fault coverage for products and medical mishaps, which in turn was followed by his early offer proposal. In Section 3, I will briefly trace the legacy of O’Connell in the present era of mass tort and disaster relief claims. A final section will offer a concluding note.

This article examines a transitional period in Jeffrey O’Connell’s long and productive career as an observer and critic of the American civil justice system. By the early 1970’s O’Connell had begun to abandon enterprise liability as a solution to the waste and undercompensation he saw in the tort system. Eventually O’Connell would develop solutions that focused on constraining plaintiffs’ attorneys, and less on no-fault compensation. Before reaching this point, O’Connell proposed a no-fault insurance scheme that would be paid for by fault-based tort litigation. This proposal, which he called “elective first party no-fault insurance” (“EFPI”) is the focus of this article. In EFPI tort suits would not disappear, and damages would not be limited, but litigation would be conducted by insurers who had been assigned their insured’s lawsuits. This article describes how this novel tort reform would work, and explores the theoretical assumptions upon which it is based. One assumption in particular, which is examined, is that a market in tort litigation could be socially efficient if the right sort of plaintiffs’ lawyers were recruited to conduct it. Finally, this article points out that O’Connell called for the repeal of champerty laws at least a decade before many other modern legal academics focused on the potential of a market in litigation.

This essay responds to Jeffrey O’Connell’s critique of fault-based tort liability. Behind O’Connell’s argument for no-fault liability lies the notion that “accidents” simply happen and no one is to blame for them. This idea can be seen as a species of philosophical arguments surrounding the perceived unfairness of moral luck. In reply, this essay outlines several responses to moral luck, ultimately siding with a position that accommodates both the apparent randomness of accidents with a coherent justification for personal legal responsibility. The essay’s position, however, assumes an answer to the precise feature of tort law that O’Connell found problematic and unjustified, namely, that this defendant has a particular reason to pay this plaintiff. In response, the essay offers a defense of the personal nature of tort law’s remedial personal obligations.

Tort theory has been dominated by a debate between scholars who view tort law as rooted in individualized justice and scholars who argue tort law is an instrument of social policy. This dialogue has distracted scholars from the more important issue of how to properly separate cases worthy of individualized justice treatment from those better suited to routinized resolution. Tort law already contains both types. One potentially fruitful method of separation is to empower the parties themselves to make the decision. They could do so by voluntarily trading liability for the elimination or substantial reduction in non-economic damages. Such an approach honors individualized justice by leaving the parties in control of the case and, if used, would increase both compensation and administrative efficiency, arguably without a reduction in the deterrent effect. Although the purpose of this article is not to design the ideal proposal(s) to embody such an approach, Jeffrey O’Connell has given us several models to begin our deliberations. It is only the latest contribution in his impressive legacy.