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An Inquiry into the Merits of Redistribution through Tort Law: Rejecting the Claim of Randomness

Published online by Cambridge University Press:  22 April 2016

Tsachi Keren-Paz
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This Article responds to one challenge to the aspiration to incorporate distributive-egalitarian sensitivity into tort law. Arguably, any attempt to effect redistribution by means of tort law is bound to be random and, hence, unjust. There are two facets to the randomness charge: partiality of the participants and crudeness of the distributive result. I argue that the randomness charge, in both its aspects, does not provide a convincing reason to oppose infusing tort law with distributive-egalitarian sensitivity. The charge of randomness is based on two factual assumptions and one normative claim: namely, that existing tort law has no significant redistributive effect; that redistribution through tort law is especially susceptible to the charge of randomness; and that random progressive redistribution is less fair than the status quo distribution. In this Article, I challenge all three claims. I first argue that existing tort law has inevitable distributive consequences and that these consequences are predominantly regressive. I then raise four challenges to the assumption that distribution through tort law is partial, arguing that either such distribution is not partial at all or that it is no more partial than the distribution produced by alternative mechanisms: “localized distributive justice”; “participation through insurance”; “the complement thesis”; and “no comparative randomness.” Next, I develop a methodology for comparing the fairness of the post-tort litigation redistribution with that of the status quo distribution. This methodology is based on the respective proximity of these distributions to the reference point of society’s ideal distributive scheme. Applying this methodology, I argue that partial progressive redistribution is fairer than the status quo distribution. Regarding the problem of partiality of participants, I maintain that any injustice that arises from treating differently members of the same group is overridden by the more egalitarian distribution achieved between the different groups, namely, that the inter-group justice outweighs the intra-group injustice. With respect to the problem of the crudeness of the distributive result, I posit that adopting a guideline for redistribution that is “pro-disadvantaged” rather than “anti-well-to-do” ensures the superiority of the partial progressive redistribution relative to the status quo. Furthermore, even under a more radical “anti-well-to-do” benchmark for redistribution, that superiority might still be maintained. Finally, I apply my three claims to the context of gender inequality and lost earnings. I argue that the theoretical framework developed in this Article provides support for gender-neutral damages awards for lost earnings.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 16 , Issue 1 , January 2003 , pp. 91 - 128
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Copyright © Canadian Journal of Law and Jurisprudence 2003

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References

I would like to thank Richard Abel, Hanoch Dagan, Tsilli Dagan, Bruce Feldthusen, Leslie Green, Ofer Grosskopf, Allan Hutchinson, Marie-Andree Jacob, Nili Karako-Eyal, Duncan Kennedy, Shai Lavi, Barak Medina, Chantal Morton, Ariel Porat, lain Ramsay, Dana Rotman, Bruce Ryder, Kate Sutherland and Omri Yadlin for helpful comments on previous drafts of this Article. Previous drafts of this Article were presented in Faculty Seminars at Osgoode Hall Law School and the College of Management, School of Law and at the Canadian Law & Society Annual Meeting, Quebec City, 2001. I thank the participants for their helpful comments. I would like to thank the College of Management School of Law for its financial support of this project.

1. For a list of literature supporting or defending a distributive role for private law, see Appendix 1. See, e.g., Kronman, Anthony T. “Contract Law and Distributive Justice” (1980) 89 Yale L.J. 472.Google Scholar For approaches critical of such a role, see Appendix 2. See, e.g., Weinrib, Ernest J. The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995) at 36–7, 211,passim.Google Scholar

2. See sources in Appendix 3. See e.g., Abel, Richard L. “A Critique of Torts” (1990) 37 UCLA L. Rev. 785 at 822–31.Google Scholar

3. Other arguments include, for example, the claim that egalitarian commitment should be limited to the public sphere. Another concern is that opening the door to redistributive efforts might result in exploitation of the disadvantaged and hence with regressive redistribution. See, respectively, Dagan, Hanoch Unjust Enrichment (Cambridge: Cambridge University Press, 1997) at 36–40 Google Scholar [hereinafter Unjust Enrichment]; Dagan, Hanoch “Takings and Distributive Justice” (1999) 85 Vir. L. Rev. 741 at 761,Google Scholar passim [hereinafter “Takings”]. I discuss the latter concern partially in Part IDC below.

4. See the sources cited in Appendix 2.

5. See Keren-Paz, Tsachi The Limits of Private Law: Tort Law And Distributive Justice (D. Jur. dissertation, York University, 2000)Google Scholar [hereinafter: Limits of Private Law]; Tsachi Keren-Paz, “Egalitarianism as Justification: Why and How Should Egalitarian Considerations Reshape the Standard of Care in Negligence Law” 4 Theoretical Inquiries in Law (forthcoming 2003) [hereinafter: “Standard of Care”]; Tsachi Keren-Paz, “Slicing Pies Carefully: A Suggested Model for Incorporating Distributive-Egalitarian Sensitivity into the Tort of Negligence” (unpublished manuscript, 2001, on file with author) [hereinafter “Slicing Pies”]; Tsachi Keren-Paz, “On Mothers Babies and Bathwater: Tort Law, Distributive Justice and Prenatal Duties” (paper presented at the American Law and Society Association Annual Meeting, Miami Beach, 2001, on file with author) [hereinafter: “Prenatal Duties”].

6. See Keren-Paz, Limits of Private Law, ibid.

7. Ibid. ch. 3.

8. Ibid. ch. 4.

9. Ibid. chs. 5,6; Keren-Paz, “Slicing Pies”, supra note 5; Keren-Paz, “Prenatal Duties”, supra note 5.1 will not enumerate here the ways in which distributive-egalitarian sensitivity should reshape tort law, and I do not have an exhaustive list in mind. Note that each particular rule and factsituation will raise different policy considerations. Among other things, the relative weight that should be given to the egalitarian concern compared to other goals changes with the context. This notwithstanding, the Article’s main argument is that in general, showing distributive-egalitarian sensitivity cannot be successfully criticized on grounds of randomness.

10. For a list of other critiques, see text accompanying notes 3–4 above. More specifically, 1 do not deal in this Article with arguments based on efficiency.

11. While I believe that the bulk of the argument applies in a straightforward manner to private law in general, I do not defend this claim here.

12. Goodin, Robert E. “Compensation and Redistribution” inGoogle Scholar Chapman, John W. ed., Compensatory Justice Nomos XXXIII (New York: New York University Press, 1991) 143 at 143. See also ibid. at 144Google Scholar

13. For example, while the poor are more exposed to risk, as explained in the text below, they are in practice freer to place others at risk since they are financially judgment-proof. However, it is not clear to what extent this truism is a result of tort law itself. It seems more adequate to classify the effects discussed in the text that expose the poor to greater harm and are regressive in nature as the result of tort rules.

14. See Coase, Ronald A. “The Problem of Social Cost“ (1960) 3 J.L. & Econ. 1;Google Scholar Calabresi, Guido & Melamed, A. Douglas “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral” (1972) 85 Harv. L.R. 1089.Google Scholar

15. Abel, supra note 2 at 799–801, 802–03, 808–10, 813, 823, 825, 829.

16. Ibid. at 803.

17. Ibid. at 799–800, 809–10, 829.

18. See United States v. Carrol Towing Co, 159 F.2d. 169 (2d Cir. 1947) at 173

19. This is necessarily true when the likelihood of the accident occurring remains constant. True, the poor are more likely to be harmed since they invest less in precaution. This implies some offsetting of the gap between rich and poor expected losses. However, in some situations, the likelihood of occurrence is the same. In addition, overall it still seems cheaper to place the poor at risk, as existing patterns of exposure to risk in current society reveal. See generally Abel, supra note 2. Moreover, what is relevant from the plaintiff’s perspective is not the expected loss his activity creates, but, rather, his expected liability. Since the poor are less likely to bring a successful suit, there is still greater incentive to place them at risk. Finally, the “rational” decision to harm the poor might be exacerbated by cognitive failures that cause potential defendants to believe that it is even more warranted to risk the poor, rather than the rich, than the facts actually suggest.

20. Of course, the courts do not explicitly admit that the rich deserve greater protection, but perhaps they do not do so consciously. However, to the extent that courts intuitively follow the Learned Hand formula, a finding of negligence is more likely to be found where potential defendants are rich, given constant prevention costs. Moreover, if it could be proven, empirically, that courts do not apply the Hand formula in a way that affords better protection to the rich, this would be a deviation from the economic model of negligence, due to distributive considerations.

21. Even if, contrary to my general normative claim, conscious efforts to bring about progressive redistribution through tort law were to be unsuccessful or unjust, mere attention to the distributive effects of legal rules from an egalitarian perspective would be important in the attempt to compensate for these effects. Being conscious of the distributive effects of tort law—and the discussion in this Part has not been exhaustive—is far preferable to maintaining the misguided belief that there are no such distributive effects. The fact that tort law seems to have built-in regressive effects and to give incentive to perform activities that result in regressive redistribution makes awareness of tort law’s distributive effects essential and its absence suspicious.

22. Weinrib, supra note 1 at 37 (citing Calabresi). See also ibid, at 74–75.

23. See text accompanying notes 66–69 below.

24. See Aristotle, Nicomachean Ethics Book Five, trans. Ostwald, Martin (New York: The Bobbs Merrill Company, 1962) at 117–20.Google Scholar

25. See Perry, Stephen R. “The Moral Foundations of Tort Law” (1992) 77 Iowa L. Rev. 449.Google Scholar

26. See Honoré, Tony “Responsibility and Luck” (1988) 104 L.Q. Rev. 530.Google Scholar

27. Perry, supra note 25 at 488–89. See also ibid, at 490–96.

28. Ibid. at 497.

29. A notable exception is Gregory Keating. Keating’s resort to distributive considerations, however, is based mainly on the idea of fairness. Keating, Gregory “Distributive and Corrective Justice in the Tort Law of Accidents” (2000) 74 S. Cal. L. Rev. 193 at 200.Google Scholar(the idea of fairness entails that the burdens and benefits of risky activities be fairly apportioned when those who reap the benefits of those activities also bear their burdens).

30. See, e.g., Sugarman, Stephen D. “Doing Away with Tort Law” (1985) 73 Cal. L. Rev. 555.CrossRefGoogle Scholar

31. “Loss spreading,” both as a term and as a concept, relates also to notions of efficiency. I am interested here in its distributive ramifications only.

32. Abel, supra note 2 at 823.

33. For this claim (that redistribution through private law is unfair since it is unpredictable), see Goodin, supra note 12 at 157; Schwartz, Alan “Products Liability and Judicial Wealth Redistributions” (1976) 51 Ind. L.J. 558 at 572–73.Google Scholar

34. See Introduction above, Part IIIA4 below.

35. For a full discussion, see Part IVC below, text accompanying note 102.

36. See Introduction above, Part IIIA4 below.

37. For a full discussion, see Part IVC below, text accompanying notes 99–101.

38. See McCann, Michael W. “Reform Litigation on Trial” (1992) 17 Ind. L.J. 715 at 730–35.Google Scholar

39. See, e.g., Galanter, Marc “The Radiating Effects of Courts” inGoogle Scholar Boyum, Keith O. & Mather, Lynn eds., Empirical Theories of Courts (New York: Longman, 1983) at 123.Google Scholar

40. For the public choice approach, see Olsen, Mancur The Logic of Collective Action: Public Goods and the Theory of Grou (Cambridge, MA: Harvard University Press, 1965);Google Scholar see also, e.g., Sunstein, Cass R. “Interest Groups in American Public Law” (1985) 38 Stan. L. Rev. 29.Google Scholar For a public interest critique, see, e.g., Page, Benjamin I. & Shapiro, Robert Y. “Effects of Public Opinion on Policy” (1983) Am. J. Pol. Sci. 175 Google Scholar Shaviro, Daniel “Beyond Public Choice and Public Interest: A Study of the Legislative Process as Illustrated by Tax Legislation in the 1980s” (1990) 139 U. Pa. L. Rev. 1.Google Scholar Cf. Dagan, Hanoch “Just Compensation, Interests and Social Meanings” (2000) 99 Mich. L. Rev. 134 at 142–43.Google Scholar (endorsing an account affirming both public choice and public interest that “ignores neither material incentives nor social meanings”).

41. See generally Schlozman, Kay Lehman & Tierney, John T. Organized Interests and American Democracy (New York: Harper & Row, 1986).Google Scholar

42. See Westen, Peter “The Empty Idea of Equality” (1982) 95 Harv. L. Rev. 537 at 594.CrossRefGoogle Scholar

43. See, e.g., Schlozman & Tierney, supra note 41 at 314–16, 395–98 (finding that interest groups are most effective in blocking legislation undesirable to them—as opposed to pushing for desirable legislation—when the issues have relatively low visibility, when the group has substantial support from other groups and public officials, and when the group is able to select a favorable forum).

44. See, e.g., Hoffman, Elizabeth & Spitzer, Matthew L. “Willingness to Pay vs. Willingness to Accept: Legal and Economic Implications” (1993) 71 Wash. U. L.Q. 59.Google Scholar

45. Arguably, such an effect could be reached if the court were merely to acknowledge the Ds’ interest in redistribution, without backing it up with actual redistribution through the legal rule. Although this is to some extent true, the effect is more significant when the court is willing to support its reasoning with actual redistribution.

46. This prediction is based on the assumption that the legislative complementary response would take into account the partial redistribution already performed. Normatively it should. See note 70 below. It is also likely to do so due to the pressures discussed in the text above.

47. Economics would say that the welfare function of participating Hs includes a notion of jealousy. From a normative standpoint, I suggest in the next Part that non-participating Ds’ jealousy of participating Ds should not be acknowledged. However, the rationale there— “not cultivating envy towards the slightly less Disadvantaged”—does not apply in the context of this discussion.

48. See, e.g., Kaplow, Louis & Shavell, Steven “Why the Legal System Is Less Efficient than the Income Tax in Redistributing Income” (1994) 23 J. Leg. Stud. 667.CrossRefGoogle Scholar

49. See, e.g., Jolls, Christine “Behavioral Economics Analysis of Redistributive Legal Rules” (1998) 51 Vand. L. Rev. 1653.Google Scholar I distinguish between the argument against the accuracy of the claim and the argument that such an effect provides insufficient grounds for opposing redistribution through tort law.

50. Note that this argument might suggest that the transfer payment made by the legislature be limited to participating Hs and Ds, without solving the problem of partiality of participants. I assume, however, that such exclusionary legislation would entail a high political cost for legislators. They would be perceived as acting unfairly and unequally. In addition, they themselves might feel that acting this way would be unfair. Therefore, they would create a more general scheme that would be more efficient than redistribution through tort law.

51. See text accompanying note 105 below.

52. Brown v. Board of Education, 349 U.S. 483 (1954).

53. For a summary of this claim, see McCann, supra note 38 at 735–37. Needless to say, this interpretation is under dispute. See Rosenberg, Gerald N. “Hollow Hopes and Other Aspirations: A Reply to Feeley and McCann” (1992) 17 L. & Soc. Inq. 761 at 771–74.CrossRefGoogle Scholar

54. This claim resembles the one defended in Part I above. The latter claim maintains that existing tort law already engages in redistribution. Of course, this redistribution is in itself random.

55. Kronman, supra note I at 502–3.

56. See Dagan, Tsilli “The Hidden Distributive Implications of Tax Law” inGoogle Scholar Mautner, Menachem ed., Distributive Justice in Israel (Hotsa’ at Ramot: Tel Aviv, 2001) 261;Google Scholar Kahn, Douglas A. & Lehman, Jefferey S. “Tax Expenditure Budgets: A Critical View” (1992) 54 Tax Notes 1661;Google Scholar Bittker, Boris “A Comprehensive Tax Base as a Goal of Income Tax Reform” (1967) 80 Harv. L. Rev. 925;CrossRefGoogle Scholar Wolfman, Bernard “Tax Expenditures: From Idea to Ideology” (1985) 99 Harv. L. Rev. 491;CrossRefGoogle Scholar Roin, Julie A. “United They Stand, Divided They Fall: Public Choice Theory and the Tax Code” (1988) 74 Cornell L. Rev. 62.Google Scholar

57. See Dagan, Unjust Enrichment, supra note 3 at 3,23–31, 33; Keren-Paz, Limits of Private Law, supra note 5 at 27, 68, 72, 75–76.

58. Tort law’s potential for greater redistribution comes at the cost of greater curtailment of liberty. Elsewhere, I argue that this trade-off is worthwhile. Keren-Paz, ibid, at 171–78

59. See also Duncan Kennedy’s critique of law and economics where he claims that the tax and transfer system is a more efficient mechanism for redistribution and that the surplus saved by using it as the sole distributive mechanism can be put to the benefit of those disadvantaged who are on the receiving end of redistributive efforts. Kennedy, Duncan “Law-and-Economics from the Perspective of Critical Legal Studies” inCrossRefGoogle Scholar Newman, Peter ed., The New Palgrave Dictionary of Economics and the Law, vol.2 (New York: Stockton Press, 1998) 465 at 469CrossRefGoogle Scholar (“Legislatures never, ever pass statutes that adjust tax and transfer programs to make up for the impact of modifications of private law rules (though of course they could if they wanted to).”) See also Calabresi, Guido The Costs of Accidents: A Legal and Economic Analysis, (New Haven, CT: Yale University Press, 1970) at 32–33, 79.Google Scholar

60. See Goodin, supra note 12 at 162.

61. “Closer” could be measured either by subtracting the values we accord to the existing distributions from the ideal distribution or by dividing these values. In Aristotelian terminology, the choice is between arithmetic and geometric proportion. See Aristotle, supra note 24. It seems to me that the right measure is subtraction. However, since nothing in the following argument hinges on that distinction and for the reason explained in the text below, I will not defend this postulation.

62. For the comparison among competing alternative progressive rules, see Section D below.

63. See, e.g., Kennedy, Duncan “Distributive and Paternalist Motives in Contract and Tort Law, with Special Reference to Compulsory Terms and Unequal Bargaining Power” (1982) 41 Md. L. Rev. 563 at 611 n. 19, 612–13;Google Scholar Dagan, “Takings”, supra note 3; Keren-Paz, “Slicing Pies”, supra note 5 at 41–43;Google Scholar Keren-Paz, , “Prenatal Duties”, supra note 5 at 59, 64–67.Google Scholar

64. I qualify this claim in Section C2 below.

65. See the text accompanying note 60 above.

66. For example, if we would want to improve the lot of African-American women and a given legal rule affects most and mostly African-American women, crafting the rule progressively would benefit those African-American women who are affected by the legal rule, but would not improve the lot of African-American women who are not affected by the rule. The rule would also benefit other people affected by it, despite the fact that arguably, there is no egalitarian-based policy to benefit them. This is the over-inclusiveness aspect.

67. See Kronman, supra note 1 at 502–03.

68. Ibid. at 502

69. See Goodin, supra note 12 at 162. For similar claims along these lines, see Keeton, Robert E. Legal Cause in the Law of Torts (Columbus: Ohio State University Press, 1963) at 21;Google Scholar Hart, H.L.A. & Honoré, Tony, Causation in the Law, 2d ed. (Oxford: Clarendon Press, 1985) at 268;CrossRefGoogle Scholar Weinrib, supra note 1 at 36–37,73–74.

70. In order to prevent injustice, the comprehensive legislative response should take into account the Hs’ previous participation in progressive redistributions. This, for example, might be accomplished by changing the redistributive legal rule by legislation concomitantly with the comprehensive redistribution through the tax and transfer system.

71. Keren-Paz, , Limits of Private Law, supra note 5 at 34–37.Google Scholar

72. See Weinrib, supra note 1 at 63–64, 71–72, 74–75.

73. Consider the following example: The defendant is D, and the plaintiff is H. Under our tort redistributive rule, if the defendant is disadvantaged, she does not pay damages. The defendant caused the plaintiff a loss of $100,000. Now assume that under an ideal distributive scheme, each D is supposed to receive $20,000 and each H has to give up $50,000. The tort rule has resulted in a windfall of $80,000 for D ($100,000-$20,000) and a loss of $50,000 to H ($100,000-$50,000) as compared to the ideal distribution.

74. See Section A above.

75. The result entailed by the conservative response is analogous to a Pareto-superior move. Both parties move closer to their respective positions under the ideal distributive scheme. Therefore, there is no trade-off in attaining that goal. The radical response, discussed below, does not hinge on the actual results being closer to the ideal result.

76. A related question is whether the time-span in which the reverse takes place should affect individuals’ life-spans or whether it can be inter-generational. The latter view necessitates further discussion of collective rights (rights of groups).

77. I do not attempt to defend here the more radical view according to which the goal of toppling the status quo might justify giving a “premium” to solutions that are somewhat slightly less just than the status quo in order to achieve long-term transformative benefits.

78. However, if one is reassured that the courts will engage in progressive redistribution and the only risk is that the redistribution will give too much to the disadvantaged, the argument in the text loses force.

79. See Sub-Section (a) above.

80. Keren-Paz, “Prenatal Duties”, supra note 5.

81. Such a suggestion raises serious difficulties from an efficiency perspective. The argument in the text examines the desirability of the rule only from a distributive perspective.

82. See Section 2(b) above.

83. See Keren-Paz, , “Slicing Pies”, supra note 5 at 15–32.Google Scholar

84. See text accompanying notes 18–21 above.

85. Egalitarian sensitivity can also be incorporated into the law of negligence at the duty stage. Compare Keren-Paz, “Slicing Pies”, supra note 5.

86. See Fletcher, George P., “Fairness and Utility in Tort Theory” (1972) 85 Harv. L. Rev. 537.CrossRefGoogle Scholar For other formulations of negligence that are not cost-justified, see Hurd, Heidi M., “The Deontology of Negligence” (1996) 76 B.U.L. Rev. 249 at 254–61.Google Scholar

87. I defend such a view in Keren-Paz, “Standard of Care”, supra note 5.

88. See text following note 20 above.

89. See Part IIIC4, text accompanying note 81 above.

90. Compare Scarff v. Wilson (1986), 10 B.C.L.R. (2d) 273 (B.C.S.C); Shows v. Shoney’s, Inc., 738 So.2d 724 (La. App. 1 Cir. 1999); MacCabe v. Westlock Roman Catholic Separate School District (2001) 293 A.R. 41 (C.A.) (taking the fact into account); with MacCabe v. Westlock Roman Catholic Separate School District (1998) 226 A.R. 1 (Q.B.); Reilly v. United States, 665 F. Supp 976(R.I. 1987) aff’d 863 F.2d 149(lstCir. 1988) (ignoring the fact). For a discussion in support of ignoring the differences, see, e.g., Cassels, Jamie, “Damages for Lost Earning Capacity: Women and Children Last!” (1992) 71 Can. Bar Rev. 445;Google Scholar Adjin-Tetty, Elizabeth, “Contemporary Approaches to Compensating Female Tort Victims for Incapacity to Work” (2000) 38 Alta. L. Rev. 504;Google Scholar Chamallas, Martha, “Questioning the Use of Race-Specific and Gender-Specific Economic Data in Tort Litigation: A Constitutional Argument” (1994) 63 Ford. L. Rev. 73.Google Scholar

91. For empirical data, see Chamallas, ibid. at 84–86.

92. See, e.g., Adjin-Tetty, supra note 90 at 519–20.

93. See generally Cassels, supra note 90 at 450–72.

94. Whether this data should be comprised of average male earnings or average female-male earnings is another question altogether. Compare Chamallas, supra note 90 at 123 (supporting an average female-male index); with Adjin-Tetty, supra note 90 at 516 n.62 (supporting an only-male index). To be sure, whatever yardstick is opted for should be applied to the claims of injured males as well. The choice between the two yardsticks is difficult. An average female-male index better compensates for lost wages. However, it leaves uncompensated domestic labor. If, for some reason, we refuse to compensate for domestic labor, applying the average male-female index to claims of both genders will prevent the traditional rule’s regressive effect on women.

95. Cf. Cassels, supra note 90 at 460–65. However, this result is attenuated to die extent that awards are now being granted for the need to hire help to substitute the domestic labor previously performed by the injured plaintiff.

96. Ibid. at 475–77. For a rejection of a claim for compensation for loss of the benefits of marriage, see, e.g., Scraff, supra note 90; for acceptance of this claim, see Reekie v. Messervey (1986) 4 B.C.L.R.(2d) 194 (B.C.S.C), add. reasons (1986), 10 B.C.L.R. (2d) 231 (B.C.S.C.), aff’d (l989) 36 B.C.L.R. (2d) 316 (B.C.C.A.).

97. Lamb, Sherri R., “Toward Gender Neutral Data for Adjudicating Lost Future Earning Damages: An Evidentiary Perspective” (1996) 72 Chic-Kent L. Rev 299 at 311.Google Scholar

98. This problem is inherent in tort compensation that is based on lump sums; it is not unique to the problem of the gender wage-gap. In this respect, tort law, through its compensation rules, systematically renders redistributive effects by ignoring temporal changes in earning patterns.

99. See, e.g., Priest, George L., “The Current Insurance Crisis and Modern Tort Law” (1987) 96 Yale L.J. 1521. at 1546, 1559-60, 1565–66.CrossRefGoogle Scholar

100. This insight also bolsters my claim that existing tort law has regressive redistributive effects.

101. Even in cases involving an employer-tortfeasor, it is not at all clear that the progressive rule would be priced in. If it is, the distributive consequences of the two rules should be compared. A full evaluation would require more data.

102. I put “subsidize” and “inflated” in quotation marks for two reasons. First, as explained in the text above, a third-party liability regime is likely to result in women subsidizing men. Second and relatedly, women in Western modem societies subsidize men by not being fully compensated for their labor.

103. See note 94 above.

104. Similarly, low-income men would subsidize to a lesser extent high-income men and to a greater extent women.

105. I know of no decision of the highest instance in either the Canadian provinces or the American states requiring the use of gender-neutral data to compute lost earnings.

106. Compare Keren-Paz, Limits of Private Law, supra note 5; and Keren-Paz, “Prenatal Duties”, supra note 5.