Collapsing Torts

Abstract:     
The observation that judges manipulate doctrinal elements to achieve allocational effects is hardly revolutionary. Neither is it a solely contempo rary phenomenon. The casuistic development of tort law has been sustained by many reasoning techniques; general rules have developed exceptions which in turn have metamorphosed into new general rules, analogies have been accepted or rejected, and doctrinal elements have been de-emphasized only to be reemphasized once again.

Doctrinal collapse is part of the lexicon of juridical development. However, its prevalence in modern and post-modern tort law has been underestimated. Equally unappreciated is that there are different species of collapse. The variations involve discrete judicial motives and produce radically different results.

This Article examines collapse as a judicial phenomenon, arguing that cyclical collapsing and uncollapsing of tort doctrines are standard techniques used by judges as they continually adjust the degree of loss reallocation and deterrence. To make this argument requires critical analysis of the doctrinal and meta-doctrinal structures (and labels) of modern accident law. To substantiate it necessitates exploring certain causes of action and doctrinal rules that exhibit confusion or compression, either between allocation models and operational rules or between different levels of operational rules. Examples of such confusion and compression attract the label “collapse.”

Part II of this Article introduces the allocation model/operational rules dichotomy upon which the later collapse analysis is premised. Part III begins the detailed discussion of the collapse concept. Part IV identifies causes of action in various stages of collapse. Finally, Part V concludes by suggesting decision-maker value preferences that promote collapse.

Number of Pages in PDF File: 60

Accepted Paper Series