Tort as a Litigation Lottery: A Misconceived Metaphor
For over forty years, tort reform proponents have disparaged the tort system as a lottery, arguing that it produces arbitrary outcomes. The tort system, on this account, is both unfair and unpredictable. These criticisms have often served as justification for reform proposals that would replace the tort system with some form of no-fault accident insurance in order to provide fairer and more reliable compensation to accident victims.
In this short essay, we make three claims intended to discredit the lottery metaphor as applied to the tort system. First, it obscures the tort system’s shortcomings more than it clarifies them. We agree, of course, that tort outcomes produce horizontal inequities among accident victims with similar injuries, and that outcomes can also be unpredictable. Our initial point is that the comparison to random selection by lottery both misrepresents how the tort system decides cases and exaggerates its unpredictability.
Second, no-fault accident insurance plans fail to resolve the problem of arbitrariness, and this is true regardless of how carefully the plan is designed. Such schemes do eliminate the fault requirement, which reform proponents blame for creating unfair distinctions between accident victims with similar injuries and for making outcomes unpredictable. But a no-fault system’s provision that claimants need only prove that their injuries are accident-related simply reproduces, by drawing different boundaries, the very problems of horizontal inequity and unpredictability that reform proponents observe and denounce in the tort system.
Third, arbitrariness is endemic in compensation systems. Of necessity, all compensation schemes set coverage limits that inevitably create horizontal inequities among claimants with similar injuries and reduce predictability in the many borderline cases. While addressing one kind of arbitrariness, no-fault alternatives cannot escape creating other kinds of arbitrariness and having to make pragmatic tradeoffs among them that cannot be justified by any uncontroversial principle. These structural necessities will entail some unpredictability and horizontal inequity.
We emphatically do not oppose no-fault alternatives to tort. The merits of one or another such scheme are not before us in this essay. Quite the contrary; our point is that reformers must engage in more careful analysis and comparison of the nature and sources of arbitrariness in all compensation systems before embracing one or another of these systems. Doing so will discourage the kind of oversimplification that the lottery metaphor encourages.