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Should Government Be Allowed To Recover The Costs Of Public Services From Tortfeasors?: Tort Subsidies, The Limits Of Loss Spreading, And The Free Public Services Doctrine, Timothy D. Lytton
Should Government Be Allowed To Recover The Costs Of Public Services From Tortfeasors?: Tort Subsidies, The Limits Of Loss Spreading, And The Free Public Services Doctrine, Timothy D. Lytton
Timothy D. Lytton
The free public services doctrine (also known as the municipal cost recovery rule) states that a government entity may not recover from a tortfeasor the costs of public services occasioned by the tortfeasor's wrongdoing. This article traces the history of the doctrine and argues for its elimination. The article criticizes case law supporting the doctrine and raises objections based on fairness, efficiency, and institutional concerns about the proper limits of judicial policy making. The article discusses the implications of eliminating the doctrine for tobacco litigation, gun litigation, and tort reform.
Tort As A Litigation Lottery: A Misconceived Metaphor, Timothy D. Lytton, Robert L. Rabin, Peter H. Schuck
Tort As A Litigation Lottery: A Misconceived Metaphor, Timothy D. Lytton, Robert L. Rabin, Peter H. Schuck
Timothy D. Lytton
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 …