Books in Brief: Liability

Liability: The Legal Revolution and Its Consequences, by Peter W. Huber (Basic, 272 pp., $19.95)

In this lucid, readable account, Peter Huber of the Manhattan Institute chronicles the transformation of tort law—the law of accidents and personal injury—from “a remote and sleepy province of the law’s empire” into the chaotic disaster that it is today. This revolution has occurred in just the last thirty years, staged largely out of public view by a small group of judges and law professors whom Huber ironically calls “the Founders.” The noble purpose of their enterprise was to make the law more “rational” and “compassionate”: famous last words, all too often heard. Huber correctly identifies the abandonment of traditional ideas about contracts as the crucial turning point in the development of tort law. Formerly, people could work out for themselves how best to allocate the health and safety risks that attended their dealings with others; the transformation of tort law gave the courts the power to impose their own solutions without regard to private choice. Armed with that power, “the Founders” went to work tearing down all the old barriers to liability—fault, causation, statutes of limitation, etc.—and expanded the limits of liability by introducing openended pain-and-suffering and punitivedamage awards. Their hope was to sharpen safety incentives and at the same time to improve accident victims’ chances of recovering damages. What happened, of course, was that the burden of liability ended up crushing when it meant to prod; as for compensating victims, the new system purchased occasional lavishness at the cost of wild inconsistency. Huber tells the story brilliantly, adeptly cutting through the legalese to lay bare the real-life impact of obscure shifts in judicial reasoning. He is similarly acute when he suggests ways out of the present mess. Instead of just calling for a return to the good old days, Huber proposes concrete changes in the law that would rejuvenate the flexibility and certainty of contract, but without reintroducing some of the harsher elements of the old system. If there is a fault in this fine book, it is that Huber oversimplifies the nature of the problem. He gives the impression that tort law is just an aberration in an otherwise sensible and smooth-running legal system, and that some changes here and there in doctrine will fix the whole thing. But the tort liability explosion is not an isolated phenomenon; rather, it is part of the larger pattern of liberal America’s obsessive search for legal and political cures for every social ill. In this broader view, the tort revolution appears at the same time easier to explain and harder to undo than Huber suggests.

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William B. Lindsey

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Liability: The Legal Revolution and Its Consequences, by Peter W. Huber (Basic, 272 pp., $19.95)

In this lucid, readable account, Peter Huber of the Manhattan Institute chronicles the transformation of tort law—the law of accidents and personal injury—from “a remote and sleepy province of the law’s empire” into the chaotic disaster that it is today. This revolution has occurred in just the last thirty years, staged largely out of public view by a small group of judges and law professors whom Huber ironically calls “the Founders.” The noble purpose of their enterprise was to make the law more “rational” and “compassionate”: famous last words, all too often heard. Huber correctly identifies the abandonment of traditional ideas about contracts as the crucial turning point in the development of tort law. Formerly, people could work out for themselves how best to allocate the health and safety risks that attended their dealings with others; the transformation of tort law gave the courts the power to impose their own solutions without regard to private choice. Armed with that power, “the Founders” went to work tearing down all the old barriers to liability—fault, causation, statutes of limitation, etc.—and expanded the limits of liability by introducing openended pain-and-suffering and punitivedamage awards. Their hope was to sharpen safety incentives and at the same time to improve accident victims’ chances of recovering damages. What happened, of course, was that the burden of liability ended up crushing when it meant to prod; as for compensating victims, the new system purchased occasional lavishness at the cost of wild inconsistency. Huber tells the story brilliantly, adeptly cutting through the legalese to lay bare the real-life impact of obscure shifts in judicial reasoning. He is similarly acute when he suggests ways out of the present mess. Instead of just calling for a return to the good old days, Huber proposes concrete changes in the law that would rejuvenate the flexibility and certainty of contract, but without reintroducing some of the harsher elements of the old system. If there is a fault in this fine book, it is that Huber oversimplifies the nature of the problem. He gives the impression that tort law is just an aberration in an otherwise sensible and smooth-running legal system, and that some changes here and there in doctrine will fix the whole thing. But the tort liability explosion is not an isolated phenomenon; rather, it is part of the larger pattern of liberal America’s obsessive search for legal and political cures for every social ill. In this broader view, the tort revolution appears at the same time easier to explain and harder to undo than Huber suggests.