Baker on the Place of Insurance in Tort Theory

Tom Baker has posted to SSRN What Is Insurance for Tort Law?.  The abstract provides:

This Article reexamines the relationship between liability insurance and tort law to answer a deceptively simple but foundational question: What is insurance for tort law? Building on prior work and responding to the recent call by Abraham and Sharkey to close the “glaring gap” in tort theory, the Article makes both descriptive and normative contributions. It summarizes how liability insurance structures tort law in action—determining which claims are brought, who defends them, and who pays—as well as how insurance shapes tort doctrine by channeling litigation toward insured defendants and insured causes of action. It analyzes how that insurance influences tort law’s potential foundations, justifications, functions, or objectives: compensation, deterrence, corrective justice, retribution, or civil recourse. And it argues that liability insurance is not merely a mechanism for satisfying tort judgments but a constitutive force that shapes the distribution of correction and civil recourse. Drawing on the work of Stephen Perry and John Gardner, the Article introduces a framework for understanding how insurance law and market practice define who has meaningful access to corrective justice and civil recourse. It urges influential tort theorists to reconsider their exclusion of insurance from normative analysis and calls for courts to weigh the presence of liability insurance when evaluating whether to expand tort doctrine—while cautioning against judicial efforts to predict insurance market responses. By integrating insights from insurance law, tort practice, and moral theory, the Article strengthens the case for treating liability insurance as central to understanding what tort law is, does, and ought to be.