liability civil-law legal-history tort civil-judgment
Increase in civil award damages in 1980s?
<p>It seems that there was a large increase in civil awards around 1980. Piper Aircraft went bankrupt in 1991 after a decade of fighting lawsuits. In 1975, there were 20 makers of football helmets. By the 1990s, there were only 2 left, the others all exiting the business due to lawsuit liability. The manufacture of small planes came to a complete halt in the United States. </p>

<p>What changed? Obviously in the 1950s and 1960s these companies had no problem operating. What changed in the 1980s with regard to civil lawsuits that caused these large increases in awards?</p>

<p><strong>Background</strong></p>

<p>The immediate reason for the change is obvious: in <a href="http://www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/products-liability/greenman-v-yuba-power-products-inc/" rel="nofollow noreferrer">Greenman vs Yuba Power Company</a> (1962) the California Supreme Court decided that manufacturers would be held strictly liable for any "defects" in products. Since juries tended to ignore whether defects actually existed, all that really mattered was the strictly liable part and lawsuits against manufactured goods skyrocketed. At the same time, the Act of God defense, which previously had been used to routinely dismiss lawsuits against manufacturers, was essentially discarded by the courts and no longer allowed. These changes were subsequently added to state laws across the country, essentially making product manufacturers suable. This is called the "Section 402 Revolution" in legal history.</p>

<p>Note that these changes were part of a trend, not a single event. For example before 1920 manufacturers were mostly legally immune to lawsuits (see Schwartz). Then the courts changed this and allowed lawsuits if the manufacturer was "negligent". Finally, in the 1960s this changed again, and manufacturers were held "strictly liable" and negligence was no longer necessary to be proven. So, there was a definite trend. The question is what caused this trend?</p>

<p><strong>The Liability Insurance Crisis</strong></p>

<p>There was absolutely an increase in liability insurance premiums in the 1980s, although the cause of the <a href="https://en.wikipedia.org/wiki/Liability_insurance_crisis" rel="nofollow noreferrer">liability insurance crisis</a> in the 1980s remains disputed.</p>

<blockquote>
  <p>During the period from 1984 to 1987, premiums for general liability
  increased from about $6.5 billion to approximately $19.5 billion.<a href="http://hls.harvard.edu/library/research/find-a-database/judicial-workload-jury-verdicts-crime-data/" rel="nofollow noreferrer">2</a>
  In addition to increases in premium, many insurers took the following
  measures to limit the number and cost of claims: 1) changed policy
  coverage from an occurrence to a claims-made basis; 2) expanded
  exclusions; 3) raised deductibles; and 4) lowered policy limits on a
  per-claim basis, and 5) introduced the notion of aggregate total
  exposure.</p>
  
  <p>The resulting crisis adversely affected a diverse range of
  organizations, including municipalities, social service providers and
  pharmaceutical, aircraft, sports equipment, and medical device
  companies. Many organizations in the nonprofit and government sector
  could no longer offer social, medical or recreational services due to
  the prohibitive cost or unavailability of liability coverage.</p>
</blockquote>

<p><strong>Causes</strong></p>

<p>According to the same Wikipedia source linked above, some of the leading explanations for the liability insurance crisis include:</p>

<blockquote>
  <p>Collusion: the argument that the crisis was engineered by insurance
  companies themselves, through price-fixing and/or manipulation of
  insurance reserve accounts.</p>
  
  <p>Losses: Decrease in interest rates and investment returns forced
  insurance companies to raise premiums in order to make up for the loss
  of profitability.</p>
  
  <p>Litigation: Proliferation of tort litigation and large settlements
  drove the cost of liability insurance premiums to excessive levels.</p>
  
  <p>Reinsurance: Disruption of supply in reinsurance markets cited as a
  contributing factor.</p>
</blockquote>

<p>There are also a couple of distinct questions of causation. One is why liability insurance premiums needed to rise, and another is why this happened all at once. In all likelihood, the pressures on the industry accumulated over many years, and merely exploded all at once due to a crack in competitive pressure to keep rates low, and quite possibly due to major tax law changes around that time that may have disrupted the status quo.</p>

<p>Much of the <a href="http://hls.harvard.edu/library/research/find-a-database/judicial-workload-jury-verdicts-crime-data/" rel="nofollow noreferrer">better databases of historical data</a> concerning tort liability were established in the 1990s, in the wake of the liability insurance crisis of the 1980s, so there isn't great retrospective data.</p>

<p><strong>Developments In Civil Procedure And Tort Law</strong></p>

<p>The major contemporaneous revolution in civil procedure was largely a pro-defendant, rather than a pro-plaintiff one. In a series of U.S. Supreme Court decisions including <em>Celotex Corp. v. Catrett</em>, <a href="https://supreme.justia.com/cases/federal/us/477/317/case.html" rel="nofollow noreferrer">477 U.S. 317</a> (1986), the U.S. Supreme Court made it much easier for defendants in civil cases to avoid trials by jury by having cases dismissed by judges prior to trial pursuant to a Motion for Summary Judgment, which had previously been granted much more sparingly.</p>

<p>Likewise, there was not really any revolution in class action procedure which had existed with only modest amendments <a href="https://www.law.cornell.edu/rules/frcp/rule_23" rel="nofollow noreferrer">since the 1920s</a>. These was a major amendment of the class action rules in 1966, but it didn't really dramatically change the scope of the rule.</p>

<p>There was a significant expansion of tort liability for defective products that <a href="http://injury.findlaw.com/product-liability/product-liability-background.html" rel="nofollow noreferrer">began in 1963 in California</a> and gradually spread across the nation.</p>

<p>During the 1970s there were a variety of laws passed on subjects such as consumer protection, tenant rights, environmental protection, workplace safety regulation, and intellectual property that generally speaking expanded the scope of civil liability.</p>

<p><strong>Underlying Changes In Scientific Knowledge And The Economy</strong></p>

<p>Another important factor was a rise in scientific knowledge and contemporaneous changes in the economy.</p>

<p>Private sector economic production came to a near standstill from the stock market crash of 1929 that began the Great Depression until the end of World War II in 1945, it took time for the economy to return to normal after World War II, and the Korean War again put the economy on something of a wartime footing in the 1950s.</p>

<p>While automobiles had been around since before World War I, public transit was much more robust until the post-World War II economic recovery and interstate highway system made automobile ownership (which was one of the areas where product liability laws were first expanded) much more common. Another industry which rapidly surged in this time period was general aviation. </p>

<p>The economic prosperity of the 1960 to 1980s (driven in significant part by rampant labor unrest and perennial strikes from the end of World War II into the 1960s, assisted by labor shortages and pent up demand for consumer goods at home and abroad where industry had been wiped out by World War II), and the growing scope of manufacturing enterprises, meant that in general, people were buying more durable goods made by fewer companies. People who don't buy much and buy very simple, locally produced goods are rarely injured by the products they buy.</p>

<p>Many new pharmaceuticals and chemical products (think "The Graduate" and "Plastics") were being invented, but without the careful regulatory trials before they were introduced. This caused a great deal of harm when the new chemical products had unintended toxic side effects.</p>

<p>New technologies often have unintended side effects and insufficient attention to safety (dams that would fail, industrial revolution factories, myriad litigation in the wake of the introduction of the railroad), but a lot of that had been forgotten after decades of technological and economic stagnation in the private sector.</p>

<p>In the 1920s, a particular product might be made by hundreds of manufacturers, mostly fairly local, each with their own particular defects. </p>

<p>By the 1970s, just a handful of companies in the nation would make a particular product, so if it was defective, one particular defect would harm far more people.</p>

<p>New government agencies like the National Transportation Safety Board (1967), the Environmental Protection Agency (1970), the Occupational Health and Safety Administration (1971), the Consumer Products Safety Commission (1972), the Nuclear Regulatory Commission (1975), the Mining Health and Safety Administration (1977) and so on, began compiling that kind of data that made it possible to identify safety risks with common causes on a national scale that made it possible to prove that individual injuries were caused common defects traceable to large national companies or industries. Municipalities started to take building code enforcement more seriously and scientifically after decades in which this was irrelevant because nobody was building anything.</p>

<p>These agencies and judicially created tort doctrines expanding liability were driven by increasing faith in science and technology. Also, an increasingly prosperous and better educated population was more able to worry about health and safety now that its more urgent priorities like securing food and shelter had been addressed satisfactorily, and it understood how the modern economy worked better than it had in the past.</p>

<p>For example, at Love Canal, in Western New York, toxic pollution had been accumulating for decades (since well before the 1940s), but average citizens only started to understand that it was putting them at risk in the 1960s, and the true extent of the environmental disaster was not recognized until a New York State agency organized a large scale scientific investigation in 1977 using newly developed forensic chemistry techniques to quantify the extent to which people were exposed to toxic chemicals. Until then, many people suspected that pollution wasn't good, but nobody had the capacity to link pollution to negative health outcomes in individuals and communities.</p>

<p>Litigation and one of the nation's first Superfund sites followed in the early 1980s. The incredibly complex litigation that followed was still going strong at my first job after I graduated from law school in 1995 when I worked on the Love Canal case as a lawyer, representing some of the insurance companies on that risk.</p>

<p><strong>The Rise of Big Law</strong></p>

<p>Another innovation that changed how the legal system worked was the rise of the large law firm. When Abraham Lincoln was practicing law, the biggest law firm in the United States probably had no more than twenty lawyers. Law firms with as many as 50 lawyers were extremely rare into the 1950s. Large law firms bloomed everywhere as economies of scale caused their clients to consolidate into large national and multinational companies in need of lawyers with a wide variety of regulatory and technical legal specialties.</p>

<p>These law firms were a reaction to the rise in Plaintiff's law firms retooled to gather the technical information and expertise (often gathered by government agencies and burgeoning universities fueled by GI Bill enrollment) that was needed to prosecute product liability cases and mass torts and to manage massive amounts of discovery and class action lawsuit in this complex litigation. </p>

<p><strong>Conclusion</strong></p>

<p>I don't think that there is one neat consensus answer that even a very informed analysis can provide for the liability insurance crisis. And, like most great moments in economic and social history, there were almost certainly multiple significant causes that all converged at once. But, this answer, at least, touches on some of the relevant considerations.</p>

<p>I did some more research on this question. The archetypal study was Edward Levi's article in 1948 in the Chicago Law Review on emerging product liability. Levi argued that the change was due to emerging deep societal beliefs that government was responsible for people's safety, and that safety was no longer an individual responsibility. Subsequent researchers made a set of more specific theories:</p>

<p>(1) Manufacturing became more complex and goods were made by distant companies, not local artisans.</p>

<p>(2) Urbanization and specialization in the New Deal and WW2 led to compartmentalization of product dangers.</p>

<p>(3) The contract regime was replaced by the tort regime as an elite academic effort to hold companies responsible for their actions.</p>

<p>The proponent of this last theory, George Priest (1985), explains the effect as one of "benefit theory" and links it to turn of the century worker compensation laws. Basically the idea according to benefit theory is that since companies usually have more money than workers, if a worker is injured, the company should pay the worker, even if the worker injured themself accidentally or by their own recklessness. According to benefit theory money should be distributed by need, not justice. The benefit theory was championed by various people, notably Francis Bohlen.</p>

<p>These ideas crystallized in Fleming James' work. James extended the "benefit" idea into a belief of general social insurance. He thought that the "poor" should be "protected" by "society" paying for any injury, not just one that is product-related. Thus, he envisioned a general workers comp system for everyone in every situation, not just workers. James' thinking dominated tort law in the 1950s and can be traceably linked to the 402A revolution in the 1960s. James viciously and stridently attacked negligence requirements, fault assignment and contract law repeatedly and his thinking was instrumental in the replacement of contract law with tort law during the 1960s.</p>

<p>In reviewing the history, I conclude that the result distills from a purely political struggle, with Flemings "weak" individuals pitted against the "strong". The weak attempt to create reasons for the strong to given them money, and the strong, the reverse. Thus, there is no specific reason for the change, except powerful underlying societal forces, as identified by Levi in his 1948 study.</p>

<p>Thus to answer the question: there was no specific change, the causes were societal.</p>
