Tort Law as Corrective Justice: A Pragmatic Justification for Jury Adjudication

Abstract

From the introduction:

The past few years have seen a great deal of controversy concerning the continued viability of the tort system as a remedy for accidental injuries. Talk of a "torts crisis" has been widespread in both the public media and the scholarly community. While some accuse the insurance industry of orchestrating the crisis, there can be no question that lack of confidence in the tort system is both widespread and deeply felt. The depth of this feeling can be seen in the frequent proposals by respectable scholars and responsible officials that the system as a whole should be radically altered or abolished. What is new and surprising in these developments is the widespread dissatisfaction with the alleged "generosity" of the tort system. Many tort plaintiffs are sympathetic claimants while defendants are often large and seemingly callous institutions. Beyond this, the system itself - with its reliance on jury verdicts and its emphasis on public accountability - has served as a deeply democratic symbol of the state's commitment to individualized justice. Nevertheless, there is a growing perception that the system is arbitrary and excessive and that its costs far outweigh its benefits.