View the summary and press release.

In the popular imagination, tort law is associated with films like Silkwood, A Civil Action, The Insider, and Erin Brockovich, in which courageous, beleaguered plaintiffs' lawyers battle the malevolent forces of "big business" and occasionally pull off startling victories that vindicate the rights of ordinary people. Apart from a few eye-popping verdicts, the reality is quite different.

In Making Tort Law: What Should Be Done and Who Should Do It, Harvard law professors Charles Fried and David Rosenberg note that the system of tort liability in the United States seeks to achieve a variety of aims: to compensate individuals injured by the risky business activities of large entities; to create incentives for those entities to take into account the dangers of their activities in the design of their processes, products, and services; and to allow individuals who feel powerless to make their grievances felt against large, impersonal, and sometimes unresponsive organizations. The authors contend, however, that our current tort system is almost certainly not the best possible way to achieve those goals. At best, they claim, compensation represents an uncertain, delayed, and expensive form of insurance. In addition, the disciplining effect on business is haphazard.

Fried and Rosenberg assess the comparative advantages of courts and legislatures in taking the initiative of changing tort law to further the social objective of optimally managing accident risk. They conclude that the nature of the change involved--particularly the function that the change would serve and the means that would work best--strongly suggests that the legislature should play the major role in designing tort reform. And they contend that automobile and other nonbusiness-related accidents should be eliminated from the tort system. [more...]

Charles Fried is the Beneficial Professor of Law at Harvard Law School. David Rosenberg is a professor of law at Harvard Law School.