Tort Law: A Population
Approach to Private Law
Tort is a haphazard public health strategy.
—Robert L. Rabin, The Tobacco Litigation:
A Tentative Assessment
ASBESTOS, CIGARETTES, lead paint, and guns. In recent decades privately initiated tort litigation about each of these dangerous products and others has captured the headlines, occupied courtrooms, and provoked a heated debate about the role of tort law in protecting public health. On one side of the debate, critics of the tort system, such as Peter Huber, the author of Galileo's Revenge, bemoan junk science and cry out against the high cost of frivolous litigation.1 On the other side, trial lawyers and some public health advocates contend that tort law is a critical tool for promoting population health.
This chapter uses population-based legal analysis to engage that debate and explore tort law's role in protecting population health, assessing contemporary tort theory from a population perspective, critiquing tort law, and suggesting doctrinal reforms. The chapter concludes by reaffirming tort law's importance to population health.