Scholars have long accepted the idea that there are alternatives to the tort system, particularly insurance, that are better at compensating victims than tort law. Tort law remains necessary, it has been assumed, because insurance lacks the ability to deter conduct that causes harm, and indeed it sometimes creates a moral hazard that increases incentives to engage in risky conduct. Scholars of insurance law, however, have observed that insurance has at its disposal a variety of tools that can help deter risky conduct. Recent technological developments lend dramatic support to this account. New telematics devices being used in automobiles can track acceleration, braking, and even whether a car is exceeding the speed limit on a particular road, allowing insurance companies to identify and penalize individual acts of negligent driving in real time. Insurance can now, in many cases, deter risky conduct more effectively than tort law. And yet tort law incorporates values that insurance cannot.
While much attention has been paid to the implications of these developments for insurance law, the implications for tort theory have been largely ignored. This Article fills that gap. Where insurance coverage is mandatory and premiums are adjusted based on individual acts by individual customers, ‘coercive insurance’ can be understood as a liability rule just like tort law. Comparing the mechanisms by which these systems deter risky conduct, I argue that coercive insurance’s abandonment of certain features central to tort law makes it inherently more efficient in dealing with certain risks. Coercive insurance thus helps resolve the ongoing debate between efficiency and rights-based theories of tort law, undermining the claim that tort law is best understood as a system for achieving efficient deterrence and lending support to the idea that concepts like corrective justice and civil recourse theory are necessary to explain tort law’s purpose and structure.
Lemann, Alexander B, Coercive Insurance and the Soul of Tort Law (June 13, 2016). Georgetown Law Journal, forthcoming.