Vol. 8 No. 1 (January 1998) pp. 23-24

by Peter A. Bell and Jeffrey O'Connell.  New Haven: Yale University Press, 1997.
266 pp. $30.00 Cloth. ISBN 0-300-06257-5.

Reviewed by Donald R. Songer, Department of Government and International Studies, The University of South Carolina.

Although written by a pair of law professors, I do not believe that the intended audience for this book is a law school class on torts. It certainly is neither a casebook nor a hornbook on tort law. Instead, the thrust of the book is to present the basic nature of American tort law in a style that could be understood by the college educated public and to discuss alternative views about a series of policy issues related to tort law. I think that this book would make a good text for a junior or senior level undergraduate course on law and society or even for a general course on public policy.

To set up the discussion of the way tort law works, the authors spend the first chapter describing the set of events leading up to a hypothetical, but realistic, personal injury suit against a local municipal transit authority. The theme of this lawsuit is then carried throughout the text as a vehicle to illustrate the various aspects of tort law that are discussed. The use of this extended case discussion works very well. First, the authors use a concrete factual situation to help students see what the issues in the case look like from a variety of perspectives: that of the injured plaintiff, his family, his friends and co-workers, the driver of the train, and the executives of the transit authority. Use of this case should also help to "bring alive" to students many of the elements of tort law that otherwise might seem both dry and complex. Finally, use of a concrete set of facts makes it easier to develop the ethical and policy implications of a variety of features of tort law.

After setting up the hypothetical case, the authors address three major topics. First, the basic elements of tort law are explained. Readers are led through explanations of the nature of negligence and the concept of fault and are introduced to more arcane issues such as theories of assumption of risk, strict liability, contributory negligence and comparative negligence. Attention is also given to the types of compensation that are typically at issue (including punitive damages and pain and suffering) and to the arguments for and against such schemes of compensation. Careful attention is also given to the contingency fee system, considering not only how it enables poor people to challenge wealthy defendants, but also the biases it creates in terms of the types of cases that are litigated.

After providing readers with an overview of the basics of the tort system, ACCIDENTAL JUSTICE procedes to examine each of the justifications for maintaining the current tort system instead of providing some alternative system of compensation. Particular attention is given to the fairness and efficiency of the compensation of victims, the extent of deterrence of unsafe behavior, whether the system promotes a belief that Justice is done, and the importance of victims having an opportunity to "tell their stories." For each of these justifications of the tort law system, the authors consider and assess the existing evidence in support and opposition and provide a similar analysis of the primary "counter theeories" (e.g., that compensation is excessive, that the system imposes a "regressive tax" on consumers, that it discourages technical innovation, and that transaction costs are excessively high).

The final two chapters of ACCIDENTAL JUSTICE consider a series of proposed "reforms" to the current tort law system. For each reform, the authors discuss the political interests that support and oppose the reform, they evaluate the rationale for the reform, and then examine whatever empirical evidence exists that is relevant for estimating the probable impact of the reform.

Overall, ACCIDENTAL JUSTICE is a very readable book. I think it would be a good choice for a variety of law related courses that exmaine civil law in the U.S. While one of the authors has been a
champion of a variety of tort reform measures, the treatment of the basic controversies related to tort reform is presented in a manner that is remarkably even-handed. The book is short enough that it could serve as a supplement to a core text or as one of a series of books on different topics in an advanced course.

My only substantial disappointment with this book is that there is no mention at all of what may be the most significant tort litigation of the past half century: the current series of suits against the tobacco industry. In spite of this ommission, it is a very thorough and very well written discussion of one of the most important elements of our common law system. Perhaps the best way I can emphasize my overall evaluation of ACCIDENTAL JUSTICE is to say that I expect to adopt it as one of the texts I will use the next time I teach my senior level Law and Society course.

Copyright 1998