Robinette on Streamlined Procedures

I have posted to SSRN Streamlined Procedures, my contribution to the forthcoming A Research Agenda for Torts (E. Bublick & J. Goldberg, eds.) (2025).  The abstract provides:

In essence, tort should be a law of wrongs and recourse, providing an avenue of rectification to those suffering a civil wrongdoing at the hands of another.  Unfortunately, that avenue has been partially blocked. 

The paramount tort of negligence is vague; it is often difficult to ascertain what a reasonable person under the circumstances should have done.  As lawyers and experts debate the point, transaction costs mount.  And time passes, such that injured victims have to wait for the compensation they need.  The delay and transaction costs undermine tort cases in two ways.  Victims may decide that the process is not worth it and choose not to pursue legitimate claims.  Moreover, plaintiffs’ lawyers, working for a contingency fee, insist that only cases with increasingly high damages are worth pursuing, regardless of their merits.  The problem is exacerbated by tort reforms like damage caps and advances in technology.

Creating a bypass—a simpler, cheaper procedure perhaps with reduced damages—as an option for the parties would provide access to justice for more wronged victims.  The challenge, of course, is how to design an optional, streamlined procedure that is fair to both parties.  There is no more important work in tort law.