ABSTRACT
Forty years ago, in Distributing Risk: Insurance, Legal Theory, and Public Policy, Kenneth Abraham examined how the law and institutions of insurance further, and sometimes impede, the public policy goals of legal systems. This essay, written for a symposium marking the book’s fortieth anniversary, argues that Distributing Risk also did something beyond its stated ambition: it provided a framework for operationalizing tort theory. Abraham took the theoretical insights of Guido Calabresi, Steven Shavell, and others and grounded them in the institutional reality of insurance markets, showing how the goals of tort law depend on how well those markets operate – in particular, on the feasibility of accurate risk classification, which varies substantially across domains of risk. The essay traces the literature that has developed in the decades since, addressing whether liability insurance helps or hinders tort law’s regulatory function. It then argues that this literature should give greater attention to mandatory liability insurance. The same judgment-proofness that makes liability insurance in certain contexts a useful form of surrogate regulation also undermines voluntary demand for it. The essay offers one specific proposal mandating coverage only for the layer between a defendant’s attachable assets and a bounded maximum harm – and suggests that the operationalization project poses parallel questions, not yet fully worked through, for the corrective justice tradition.
Logue, Kyle D, Operationalizing Tort Theory (May 5, 2026).
Leave a Reply