Party Autonomy in Tort Theory and Reform

36 Pages Posted: 26 Feb 2015 Last revised: 22 Jul 2015

See all articles by Christopher J. Robinette

Christopher J. Robinette

Widener University - Commonwealth Law School

Date Written: February 25, 2015


Tort theory has been dominated by a debate between scholars who view tort law as rooted in individualized justice and scholars who argue tort law is an instrument of social policy. This dialogue has distracted scholars from the more important issue of how to properly separate cases worthy of individualized justice treatment from those better suited to routinized resolution. Tort law already contains both types. One potentially fruitful method of separation is to empower the parties themselves to make the decision. They could do so by voluntarily trading liability for the elimination or substantial reduction in non-economic damages. Such an approach honors individualized justice by leaving the parties in control of the case and, if used, would increase both compensation and administrative efficiency, arguably without a reduction in the deterrent effect. Although the purpose of this article is not to design the ideal proposal(s) to embody such an approach, Jeffrey O’Connell has given us several models to begin our deliberations. It is only the latest contribution in his impressive legacy.

Keywords: Jeffrey O’Connell, tort theory, no-fault, individualized justice, compensation, deterrence, efficiency, resolution, settlement, non-economic damages, early offers

JEL Classification: K00, K13, K39

Suggested Citation

Robinette, Christopher J., Party Autonomy in Tort Theory and Reform (February 25, 2015). 6 J. Tort Law (2015), Forthcoming; Widener Law School Legal Studies Research Paper No. 15-02. Available at SSRN:

Christopher J. Robinette (Contact Author)

Widener University - Commonwealth Law School ( email )

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