Collapsing Torts

Abstract

This Article examines collapse as a judicial phenomenon, arguing that cyclical collapsing and uncollapsing of tort doctrines are standard techniques used by judges as they continually adjust the degree of loss reallocation and deterrence. To make this argument requires critical analysis of the doctrinal and meta-doctrinal structures (and labels) of modern accident law. To substantiate it necessitates exploring certain causes of action and doctrinal rules that exhibit confusion or compression, either between allocation models and operational rules or between different levels of operational rules. Examples of such confusion and compression attract the label "collapse." Part II of this Article introduces the allocation model/operational rules dichotomy upon which the later collapse analysis is premised. Part III begins the detailed discussion of the collapse concept. Part IV identifies causes of action in various stages of collapse. Finally, Part V concludes by suggesting decision-maker value preferences that promote collapse.