The Tort Crisis: Causes, Solutions, and the Constitution

The thesis of the Article is that the expansion of tort liability based on strict liability or enterprise liability without regard to the proper measurement of damages in such cases is at the root of the insurance crisis rather than the awarding of excessive damages in ordinary fault cases. Stated another way, the expansion of tort liability was based upon the appropriateness of internalizing the cost of economic activity by spreading the risk among the beneficiaries of such activity, but the damages were measured under full compensation theories rather than a more appropriate insurance approach. This divergence between basing liability upon insurance principles and measuring damages upon fault principles has resulted in the failure of businesses to incorporate the legal charges against them within the price of their product. The authors' solution is to match appropriately damages to liability while protecting the constitutional right of individuals to life, liberty, and property.

This solution necessarily includes the right of an individual to be free from intentional or careless injury to his or her bodily integrity.