Scheduled Damages and Insurance Contracts for Future Services: A Comment on Blumstein, Bovbjerg, and Sloan

In their stimulating and valuable article,' Blumstein, Bovbjerg, and Sloan offer two quite distinct proposals. Both schemes seek to increase the predictability and efficiency of tort law outcomes, but they have little else in common. The first is a reporting scheme to facilitate the scheduling of damages. It would apply to all personal injury cases. The second is directed only at cases of serious injury. It would supplant the usual lump sum award covering the costs of future health care, educational, social, and related long-term support services, replacing that award with a series of contracts for these future services to be negotiated by the parties. In principle, both schemes offer attractive alternatives to the status quo, and one hopes that policymakers will give each the most serious consideration. For a variety of political and practical reasons, however, they would be difficult to implement. Moreover, each of them would involve significant costs that might well exceed the social benefits. (This seems especially true of the second.) My brief comment on the Blumstein et al. paper is divided into three parts. Part I sounds a note of realpolitik about "tort reform" and Parts II and III appraise the merits of each of the proposals advanced by the authors.