‘Taking A Lesson From Uncertainty’

Tom Baker, Uncertainty > Risk: Lessons for Legal Thought from the Insurance Runoff Market, 61 Boston College Law Review (forthcoming 2020), available at SSRN. The received wisdom is that insurance can function well in a world of ‘risk’ – the determinable probability of loss – but that insurance can function only poorly, or not at all, in the face of ‘uncertainty’ – the indeterminate probability of loss. This received wisdom colors a lot of thinking, and judicial decision-making, about any number of policy problems, perhaps most prominently about the proper scope of tort liability. If the threat of liability cannot be reduced to a particular probability, the thinking goes, then it will be difficult or impossible to insure against, and part of the point of tort liability, to encourage spreading the risk of loss, will be undermined … (more)

[Kenneth S Abraham, JOTWELL, 2 June]

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