Party Autonomy in Tort Theory and Reform
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Christopher J. Robinette
Abstract
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.
Acknowledgements
The author thanks Ken Abraham, Don Gifford, John Goldberg, Sheila Scheuerman, and participants at a University of Iowa Faculty Colloquium for very helpful comments on earlier versions of this article. Ryan Gonder, Bridget Hendrick, Marc Prokopchak, and Jessica Smeriglio provided excellent research assistance. Special thanks to John Goldberg for arranging this tribute issue. The author dedicates this piece to Jeffrey O’Connell, a virtuoso teacher, model scholar, cherished mentor, and caring friend. Author’s personal reflections on Jeffrey are here: Remembering Jeffrey O’Connell, TortsProf Blog (Jan. 13, 2013), available at http://lawprofessors.typepad.com/tortsprof/2013/01/remembering-jeffrey-oconnell.html.
©2013 by De Gruyter
Articles in the same Issue
- Frontmatter
- Editorial
- Symposium Issue: “Tort, No-Fault, and Real-World Compensation,” A Volume in Honor of Jeffrey O’Connell
- Articles
- Jeffrey O’Connell and the Compensation Principle in Accident Law: Institutional and Intellectual Perspectives
- Prosser and His Influence
- Exit, Adversarialism, and the Stubborn Persistence of Tort
- Jeffrey O’Connell and the Market in Tort Claims
- Is Personal Injury Law Personal?
- Party Autonomy in Tort Theory and Reform
Articles in the same Issue
- Frontmatter
- Editorial
- Symposium Issue: “Tort, No-Fault, and Real-World Compensation,” A Volume in Honor of Jeffrey O’Connell
- Articles
- Jeffrey O’Connell and the Compensation Principle in Accident Law: Institutional and Intellectual Perspectives
- Prosser and His Influence
- Exit, Adversarialism, and the Stubborn Persistence of Tort
- Jeffrey O’Connell and the Market in Tort Claims
- Is Personal Injury Law Personal?
- Party Autonomy in Tort Theory and Reform
