Abstract
As the nation considers tort reform at both the state and federal levels, it should not be blinded to the fact that while tort law may, in some cases, overdeter beneficial activity or conduct, it also may underdeter dangerous activity or conduct, especially in mass tort cases. The idea that liability or the prospect of liability can shape human behavior through deterrence has become one of the practical and theoretical foundations of tort law.2 Judges and scholars regularly state that deterrence - the prospect that liability can influence behavior - is one of the purposes of tort law. 3 The legal economist recognizes that liability or the possibility of liability forces people to internalize accident costs by making them consider the costs of the injuries their activities may cause to others.4 To the extent tort law does not force people to take account of all their activities' accident costs, tort law inefficiently underdeters. Concomitantly, to the extent that tort law imposes liability in excess of an actor's activity costs, tort law inefficiently overdeters. This piece contends that the traditional (one-on-one) model of tort law may both cause and exacerbate the underdeterrence problems and, consequently, alternative models (class actions, augmented awards, and public tort suits) must be considered and analyzed. The piece proceeds to compare and contrast the strengths and weaknesses of each of the various approaches for different types of cases. The article builds upon earlier works on augmented awards and public torts by both expanding and extending the scholarly commentary. It presents both a vision and a theoretical view of mass torts that is too often ignored in today's debate about tort reform.
Recommended Citation
Thomas C. Galligan Jr.,
Risks of and Reactions to Underdeterrence in Torts, The,
70 Mo. L. Rev.
(2005)
Available at: https://scholarship.law.missouri.edu/mlr/vol70/iss3/2