Part I briefly reviews the extensive literature on the distinction between tort and crime, the distinction's importance, and its erosion.
The line between tort and criminal law plays a significant role in our legal system's self-understanding and structure.
The doctrinal differences between criminal law and tort are relatively clear: the state, not the victim, initiates criminal proceedings; criminal sanctions include incarceration; criminal sanctions are measured against the defendant's culpability (as opposed to compensation measured against the victim's injuries); and so on.
Over the last decade, the antiquated doctrine of waiver of tort has re-emerged in Canadian law, raising concerns.
Current manifestations of waiver of tort purport to provide a meaningful remedy for the plaintiff in situations where tort losses are too difficult to prove.
The primary reason why waiver of tort is sometimes thought of as an independent cause of action is due to a misunderstanding of the difference between causes of action and remedies, and how they relate to various legal concepts.
Calabresi's risk-spreading theory of tort liability has had tremendous impact on the conceptualization of the role of tort liability.
In this article we provide only a partial assessment of the role of tort liability, focusing primarily on the insurance function.
Our starting point for exploring the insurance role of tort liability is a review of Calabresi's risk-distribution theory of tort law.