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. This criticism has been offered as justification for reform proposals that would replace the tort system with some form of no-fault accident insurance. We do not oppose no-fault alternatives to tort, but this Essay is not the place to weigh the merits of one or another such proposal. Our purpose here is the more limited one of discrediting the lottery metaphor as applied to the tort system. We make three claims. First, this metaphor obscures the tort system’s shortcomings more than it clarifies them. Second, no-fault accident insurance plans fail to resolve the problem of arbitrariness, regardless of how carefully the plan is designed. Third, arbitrariness is endemic in compensation systems, which all set coverage limits that create horizontal inequities among claimants with similar injuries and re-duce predictability in the many borderline cases. In light of these three points, we maintain that reformers must more carefully compare the nature and sources of arbitrariness in all compensation systems before embracing any particular system. Such analysis, we believe, will discourage the kind of oversimplification that the lottery metaphor encourages.