Ethan Seidenberg (University of Michigan at Ann Arbor, College of Literature, Science & the Arts, Department of Philosophy, Students) has posted Rights-Based Tort Reform on SSRN. Here is the abstract:
Although “rights-based” tort theory has flourished as an academic subject over the past fifty years by offering a philosophical alternative to law and economics, the movement has little to show for itself beyond the halls of legal academia. Militating against the tort reforms of the late 20th century, philosophical tort theory has become an apologist for the status quo, even as tort law’s problems–torpid litigation, ubiquitous settlement, porous insurance–continue to pile up. This Article breaks from this orthodoxy by proposing a new cause for philosophical tort theorists: rights-based tort reform–modifications to our existing system that promote the very aims theorists ascribe to tort law. Against the prevailing assumption that reform is antithetical to philosophical tort theory, I argue that rights-based theories can and should embrace ambitious institutional innovation. To show just how far we can push rights-based reforms while remaining true to tort theory, I offer a novel philosophical account of the reform proposal theorists have most vehemently rejected: social insurance. Tort theorists have long argued that social insurance systems, which replace private causes of action with state-funded insurance payouts, are anathema to the aims of tort law, which concern interpersonal accountability. But this view rests on a mistake. I argue that tort law and social insurance relate to interpersonal accountability in two fundamentally different ways. Tort law facilitates accountability, a fact tort theorists readily acknowledge. Meanwhile, social insurance changes what counts as interpersonal accountability in the first place, a fact both tort and moral theorists have entirely overlooked. Understanding these two distinct roles enables us to consider a vast array of institutional arrangements that have previously gone unexamined, such as a “hybrid” social insurance and tort system. I argue that such a system bests tort law by theorists’ own lights by offering greater access to humane civil recourse. Thus, I conclude that theorists’ longstanding opposition to social insurance is unfounded, as is their more general resistance to reform. Pursuing rights-based tort reform can allow us to retain the valuable insights from philosophical tort theory while working to rectify tort’s greatest flaws in practice.