The Chicken and the Egg: Kenneth S. Abraham's 'The Liability Century'
Adam F. Scales
Washington and Lee University - School of Law
October 15, 2008
Virginia Law Review, Vol. 94, No. 1259, 2008
Washington & Lee Legal Studies Paper No. 2008-39
It may surprise casual students of insurance that relatively few insurance law scholars are equally at home writing about torts. Until recently, insurance law scholarship was essentially contract law scholarship, even as the major disputes of the past quarter-century have emerged from the transformation of tort liability that occurred in the 1960s. For their part, torts scholars have tended to treat insurance as an afterthought - a footnote to important debates about such things as corrective justice, deterrence, and efficiency. Furthermore, although these fields are naturally hospitable to law and economics scholars, relatively little effort has been expended to analyze the systematic interaction between these different bodies of law and bureaucracy. In contrast, Professor Abraham's important book, The Liability Century, ably threads this needle by providing a cogent analysis of these two highly important and interrelated fields.
Books about the tort system tend to be polemics relentlessly drained of nuance. Either the tort system is awful - an unmitigated hindrance to the national economy and progress - or the tort system is the only thing standing between the welfare of the American public and the abyss: its principal flaw is that there is not more of it. The Liability Century is, by contrast, a largely anthropological exercise. Peering over the ridge separating the old century from the new, Abraham examines what might be labeled The Ages of American Liability Law. Through these ages, he elucidates the appealing metaphor with which he opens his study: Astronomers have discovered a solar formation they call a binary star. This formation consists of two suns, each in orbit around the other. Their center of gravity lies at a point in between them, and they revolve around that center of gravity. Neither star could remain where it is, or as it is, without the other. They are two separate bodies, but each is dependent on the other for its place in the universe.
In this Book Review, I provide an overview of Abraham's major themes, comment on their persuasiveness, and offer some direction to readers for other sources they might wish to consider. As the passage above suggests, Abraham's thesis is that tort law and liability insurance enjoy a symbiotic relationship. Although tort law emerged first, and necessitated the development of insurance, each system has deeply influenced the other's path. Like the binary star, neither would be anything like its present self without the influence of the other.
Binary systems, however, form in nature. Abraham examines several instances in which the interaction of the very human institutions of tort and insurance law frustrated the hopes of their planners. The book is divided into eight chapters. Chapter One introduces the reader to the evolution of personal injury law and liability insurance. Chapters Two though Five each tackle discrete areas of reform throughout the modern history of liability law. Chapters Six and Eight further flesh out the major themes of the book, while Chapter Seven considers the legal response to mass disasters, including 9/11.
Number of Pages in PDF File: 22
Keywords: torts, liability
Date posted: October 20, 2008