TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Wednesday, August 22, 2012

Robinette on Civil Recourse Theory and Automobile Accidents

I have posted to SSRN a draft of my article from last January's AALS Torts & Compensation Systems Section panel on John Goldberg & Ben Zipursky's elegant civil recourse theory.  Entitled Two Roads Diverge for Civil Recourse Theory, the abstract provides:

John Goldberg and Ben Zipursky’s civil recourse theory purports to be descriptive and unitary. It cannot be both. According to this theory, as a positive matter, tort law is unified by wrongs and is not designed to be used as an instrument for purposes such as compensation and deterrence. In this article, I argue that civil recourse theory does not offer a complete description of twenty first century tort law. Tort law is not just about civil recourse; at least part of tort law’s purpose is instrumental. The extent of routinization in tort law, particularly in automobile accident claims, demonstrates a gap between civil recourse theory and the tort law it is supposed to describe. In the trenches, insurers and plaintiffs’ lawyers are concerned about the profitability of their portfolio of cases as a whole. Insurers and many plaintiffs’ lawyers, therefore, routinize the claims system, increasing its administrability and the compensation of claimants, but reducing or eliminating the importance of wrongs in a large portion of cases. Civil recourse theory fails as a descriptive unitary theory of tort law because it does not accurately describe automobile accident claims, constituting a majority of tort claims and three-quarters of tort payments.


The symposium will be published by the Indiana Law Journal in the spring and contain articles from Judges Calabresi and Posner, Martha Chamallas, me, and a detailed introduction from Mike Rustad.  John and Ben are in the unenviable position of responding to the 5 papers in 3 weeks!


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Three quick thoughts.

First, I generally believe – and bemoan – that the law is moving towards a "civil recourse" version of tort law, one in which the fault standard is being raised from negligence to recklessness. Consider the movement from the Second Restatement of Torts to the Third Restatement, the latter of which blows up the concept of strict liability and replaces it with a watered-down version of negligence masquerading as strict liability. Consider also the sharp decline in medical malpractice claims and victories at trial over the past decade, which I would describe, based on my observations, as a raising of the bar by which a breach of the standard of care is proven.

Second, automobile accident cases are unique in one respect by virtue of the multitude of laws that prescribe the exact conduct of drivers. Thus, while in many other fields, such as professional liability and product liability, cases turn on what the standard of care required, in the vast majority of automobile accidents it is not even disputed. You had a red light. The speed limit was 40 miles an hour. I had the right-of-way. Et cetera. Thus, there isn't as much "shadow of the law" bargaining because the law is not in doubt, and the facts are either quite often easy to prove one way or the other, given the presence of other witnesses, forensic reconstruction of the accident, and the speed with which statements are given to police officers, tow truck operators, insurance investigators, etc, or are simply a gamble with the jury (he-said, she-said about the red light). This plays into the negotiations: on legal issues, there is no doubt, and on factual issues either an issue is not really disputable or is so disputable that both sides know they are taking a risk.

Third, automobile accident cases are unique in another respect in that the insurance policies are so low that, in many cases, it makes more sense for the insurer to pay the claim (at whatever discount can be negotiated) then to litigate it, regardless of liability. If you plan on following up on this area, try to get claims data at a more refined level, so you can compare how cases are litigated where (1) the defendant has minimum lawful coverage (2) the defendant has coverage that substantially exceeds the potential cost of defense, like $100,000 or greater and (3) the defendant has extensive coverage, like $1 million or more. E.g., a routine "running the red light" case in which both drivers have minimum lawful coverage and there is no unambiguous evidence of fault will, consistent with your paper, probably result in payments to both drivers that are in some way connected to their damages. In contrast, a major trucking accident involving allegations that a driver failed to react to dangerous situations quickly enough because they had been driving too many hours in excess of FMCSR will involve far more of a fault-based negotiation on both sides.

Posted by: Max Kennerly | Aug 23, 2012 8:06:03 AM

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