The Renaissance of Accident Law Plans Revisited

TLDR: In a recent contribution to a symposium devoted to reassessing Guido Calabresi's "The Costs of Accidents" 35 years after its publication, the authors, the authors surveyed the trajectories of the resurgence of interest in non-fault approaches since 1970.

Abstract: This paper is a contribution to a symposium devoted to reassessing Guido Calabresi's pathbreaking volume, The Costs of Accidents, 35 years after its publication. In Calabresi's opening chapter, he begins by noting a renaissance of interest in plans, by which he meant legislative efforts and proposals to supplant conventional tort doctrine - the negligence system - with a nonfault-based compensation scheme of one sort or another. Concurrently, Calabresi noted a then-emerging parallel challenge to the fault system in the judicial domain, strict liability for product injuries. Both in the legislative sphere and the courts, he lamented the absence of an ideological framework that would make sense of the various developments. Viewing accident law from the vantage point of 1970, Calabresi offered a brief account of five categories of plans that seemed both topical and representative of the under-theorized character of accident law reform proposals. The three principal strategies that he surveyed - social insurance/welfare legislation, first-party auto no-fault, and strict liability for defective products - serve as my port of entry for a broader view of developments in nonfault approaches since the publication of The Costs of Accidents. I begin by surveying how the renaissance has fared in the ensuing years, indicating the pathways taken by the resurgence of interest in nonfault approaches since 1970. In particular, I discuss two systems of reparation that stand in contrast to fault-based liability: no-fault compensation schemes and strict liability (in particular, for product injuries) - systems that are consonant with Calabresi's range of concerns, but at the same time reflect a view of no-fault substantially broadened beyond the motor vehicle area. From a scholarly perspective, one can also ask, as Calabresi did a generation ago, whether latter-day efforts to reconstitute accident law - whether in the legislative arena or in the courts - reveal a greater fidelity to coherently articulated goals than was evident in earlier times. In exploring this question, in the following section of the paper, I discuss some related issues, as well: Was accident law, in fact, as under-theorized as The Costs of Accidents suggests? And does the notion of theorizing about legislative compensation plans resonate in similar fashion to theorizing about judge-made tort law? The principal thrust of this section is to determine whether there are identifiable themes underlying nonfault alternatives to traditional tort that illuminate the staying power of the fault system. In a brief concluding section, I offer some summary thoughts on the legacy of Costs, drawing on my survey of the observable patterns of legislative and judicial activity over the past thirty-five years.