Volume 1, Issue 3

For at least the last 50 years two ways of looking at tort law have struggled for dominance. One characterized by system-builders, as Izhak Englard so felicitously termed us; the other by those who have seen in tort law the highest manifestation of the common law tradition of responding to breaches in non-criminal, often non-contractual interpersonal relationships. In this paper, I would like to explore the relationship between these two approaches, which I will suggest, find their common law antecedents, where else but, in the forms of actions, from which so much of modern Anglo-American private law derives. I will suggest that both approaches have always been there and that they have affected and shaped each other over the centuries and continue to do so today.

Law and economics scholars generally view regulation and litigation as substitutes in the task of deterring potentially harmful conduct. Existing normative models suggest that the desirable mix of regulation and litigation will depend on a number of variables, but all largely agree that, on the margin, optimality requires that as public regulation increases, private litigation should decline and vice versa. To investigate whether this condition holds, we examine the factors that affect plaintiffs attorneys' decisions about where and when to file class actions using a unique dataset covering the class action experience of 130 insurance companies during the period 1992 to 2002. We find no evidence to support the proposition that public regulation and private litigation function as substitute channels to deter harmful behavior. In fact, we find some evidence that litigation and regulation tend to piggy-back on each other at least in the insurance industry. More important in the attorneys' filing decisions is whether or not cases regarding the same general allegation and cases filed in the same state have been successful in the past.

This paper considers the state of our knowledge about the process of defending tort claims. A variety of specific topics are covered including relationships among the key actors on the defense side (alleged tortfeasor, insurer, and defense lawyer); the incentives faced by these actors; the resolutions of issues of liability, causation, and damages; different types of claimants; variations among tortfeasors and their insurers; conflicts on the defense side; staff lawyers and in-house counsel; the problem of defending sure losers; and the use of experts by the defense. A brief appendix presents some data on the sociology of defense practice (i.e., the characteristics of lawyers who describe themselves as specialists in personal injury defense).

Although Helland & Klick and Kritzer employ very different research methods, the two papers are alike in demonstrating the complementary nature of qualitative and quantitative empirical research. Using quantitative methods, Helland & Klick find an interesting positive relationship between the intensity of insurance market regulation and the likelihood of an insurer facing a class action in a given state. Future qualitative research will be necessary to adequately interpret this finding. Based on preliminary qualitative research Kritzer explores a variety of issues relating to defense practice that, as he acknowledges, will require additional qualitative and quantitative research to develop. For tort scholars, the papers present a useful snapshot of empirical research in the early stages of developing a new subfield in the study of tort law in action.

The European Union advances the unification or at least harmonization of the legal systems of its Member States. How and to what extent should effective unification take place? To date, selective harmonization in the form of directives and regulations, evidently the work of compromise and political steer, have highlighted the want of a consistent concept of harmonization. This inconsistency is further reinforced by the decisions of the European Court of Justice. Notwithstanding the difficulties necessarily inherent in the embarkment of harmonization, later on coherent harmonization, this article advocates the exploit of comparative law, and its intrinsic rewards, to achieve these ends. Thus, a comparative approach was pivotal to the European Group on Tort Law in its drafting of the Principles of European Tort Law with the aim of creating overarching tort concepts on the European level. Much of the article is dedicated to illustrating the benefits of comparative law in the area of tort law, with a particular emphasis on wrongfulness and causation. Comparative law facilitates an in-depth inquiry into the historical development of the relevant field of interest, differences and similarities across Member States in their approach to that field and how it fits into the wider legal mosaic in each State. Such an approach thus guarantees a more consistent and coherent approach to the harmonization or unification of Member State laws.

In this article I argue that the noble cause of comparative law as an intellectual activity is undermined by those who focus on its forensic utility. Specifically, I examine the practical value to practitioners and judges in the court of final appeal in an English-speaking jurisdiction of paying attention to how tort issues are analysed in a different jurisdiction when the subject matter of the domestic case at hand does not positively require it. Part I argues that the benefits of resorting to ``comparative tort reasoning" vary greatly according to the focus of the legal analysis in issue: outcomes, arguments, principle, or conceptual arrangement; and that by far the potential for enrichment is greatest in the context of comparative tort argumentation. Part II addresses the study of law across not just jurisdictional but language barriers: ``comparative foreign-language law." My argument here is that the practitioner and judge in an English-speaking jurisdiction should exercise extreme caution in using comparative materials from foreign language systems. Part III considers ``coordinated" tort materials: materials that seek to expound tort law across multiple intra-national tort jurisdictions, such as restatements of law by the American Law Institute, or across multiple national tort jurisdictions such as Helmut Koziol's ``Principles of European Tort Law" published in 2005.