The Role of Compensation in Personal Injury Tort Law: A Response to the Opposite Concerns of Gary Schwartz and Patrick Atiyah

A failure to focus on the practical operation of tort law--especially as it intersects with insurance--is a feature of too much contemporary tort scholarship. It was in mid-century that Fleming James of Yale hauled tort law from its isolation into a recognition that it is not only undergirded but dominated by insurance, with its concomitant concern for paying accident victims and spreading losses. Even appellate courts in the old pre-James days recoiled from mentioning insurance, mirroring trial judges who shielded jurors from such sullied considerations. But despite James\u27s breakthrough, thoughtful jurisprudes like Ernest Weinrib and Stephen Perry, along with younger scholars writing extensively in tort law, including Heidi Li Feldman, Linda Ross Meyer, Steven P. Croley and Jon D. Henson, fail in our view to focus sufficiently, if at all, on tort law\u27s unsatisfactory performance as an insurance mechanism with all its fortuity, delays, and transaction costs. This is not to deny the difficulty of reconciling tort law\u27s moral underpinnings with the amoral actuarial base of insurance. But that difficulty is all the more reason for tort scholars to deal with it