What Is Deterred?
BEFORE Columbus sailed west, Spain's standard carried the proud boast Ne Plus Ultra--"There Is Nothing Beyond." But the discovery of the New World proved otherwise. After some debate in the Spanish royal house, the decision was made to strike the Ne, leaving Plus Ultra, so that the standard would now declare to the world: "There Is Much Beyond." There was a certain sensible pragmatism here, for the world was what it was, and the standard had to go along. The Founders made the cardinal mistake of assuming that if they changed the standard the world would change along with it. The world, however, had ideas of its own.
With or without insurance, people do not like to be sued; there is no doubt at all about that. Litigation on the receiving end is expensive, miserably vexatious, and socially disgraceful, notwithstanding all the talk of no-fault liability. And whatever its role in the overall cost-benefit reckoning, the misery of defendants always played an indispensable role in the rationale for the new jurisprudence.
To avoid a lawsuit and all its costs, after all, corporations, doctors, municipalities, hospitals, and drug manufacturers would surely take extra care. They would pay more heed to safety in their daily routine. They would hunt around for safer products and chemicals, new drugs, superior surgical techniques and playground designs. Life would grow safer and safer. By promoting safety and spurring innovation, strict liability would