The Glaring Gap in Tort Theory

Kenneth Abraham, Catherine Sharkey, Feb. 22, 2024
The glaring gap in tort theory is its failure to take adequate account of liability insurance. Most of tort theory fails to recognize the central role that liability insurance plays in tort law and litigation, or mentions liability insurance only briefly, treating it as exogenous to tort law itself, as if it were merely a contingent source of outside financing, like a bank that passively guarantees a loan, rather than recognizing its active and central role. It is no exaggeration to say that liability insurance played a defining role in creating modern tort liability, and that modern tort liability would not look like at all like it looks today if liability insurance had not existed and influenced tort law’s development in the ways that it did.