Inspired Tinkering versus Holistic Social Engineering: Jeffrey O’Connell and the American Tort System
8 Pages Posted: 20 Dec 2012 Last revised: 22 Feb 2015
Date Written: 1976
This paper serves as a review of Jeffrey O’Connell’s “Ending Insult to Injury”, which proposes an elective system of no-fault insurance for products and services. All potential tortfeasors are permitted to insure against their liability. The system of insurance will offer certain incentives to the insured to substitute elective no-fault liability for common law tort liability. This would eliminate payment for pain and suffering, collateral sources, and the expense of determining fault and the value of pain and suffering. Another important advantage argued by O’Connell is the reduction of the stigma of liability, particularly important to professionals such as medical practitioners.
There are two problems with O’Connell’s method: 1) is his initial premise that it is not financially or politically feasible to simply abolish the tort system correct and 2) if it is correct, will not the nature of his proposals influence the system which is likely to eventually replace the tort system? That it is not financially feasible to abolish the tort system is a presumption for which no hard evidence exists. The cost of abolishing the tort system in New Zealand has not proved to be exorbitant. There is more substance in the second point, namely, that it is not politically feasible to abolish the tort system. It cannot be denied that the political obstacles to reform of the tort system in the United States remain substantial. O’Connell’s proposal for a system of elective no-fault liability is certainly more compatible with American views of private market alternatives and options. But from a social welfare perspective, the idea of options seems peculiar.
The central ambivalence in O’Connell’s approach flows from the point that he wants to make change, but not so great a change that he stirs up opposition likely to prevent his change from being put into effect. Although tinkering may be the only thing which is practical in the US, O’Connell now owes his public a duty to outline what he sees as the ultimate pattern of personal injury law in the United States. In short, the time has come for O’Connell to stop tinkering and turn into a holistic social engineer.
Keywords: torts, law reform, liability, personal injury law, no-fault insurance
JEL Classification: K13, K32
Suggested Citation: Suggested Citation