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1973 Utah L. Rev. 341 (1973)
Ceilings, Costs, and Compulsion in Auto Compensation Legislation

handle is hein.journals/utahlr1973 and id is 353 raw text is: Ceilings, Costs, and Compulsion
In Auto Compensation Legislation
Walter J. Blum* and Harry Kalven, Jr.*
The recent and quite spectacular development of statutory plans for
handling auto accident compensation provide, at this moment in their un-
folding, an invitation to analysis.'
In an awesomely short time period for a major legal change - less than
a decade - the idea of no-fault compensation has moved through several
phases.2 The contemporary momentum began with a fully developed legis-
lative proposal in the Keeton-O'Connell Plan; then passed through five
years of lively and often bitter debate about that Plan by the bar and the
insurance industry; then saw actual adoption of a plan in Massachusetts,
followed by a flood of bills and statutes touching almost every state in the
country. The change has not yet run its course, but surely it already pro-
vides more than enough phenomena to work over.'
Even on the surface there are facts that are arresting. The Keeton-
O'Connell Plan was for several years the salient point for debate and the
only plan under serious discussion. It was carefully elaborated in a thought-
ful book-length study; yet when the time came for action, Massachusetts
did not adopt it, nor has any state since. The Keeton-O'Connell Plan has
not provided the baseline from which other plans have been developed.
It is not too much to say that, however large the debt so deservedly owed to
it, the Keeton-O'Connell Plan has virtually dropped out of the discussion
* Professor of Law, University of Chicago.
** The Harry A. Bigelow Professor of Law, University of Chicago.
1This Article as an effort to analyze certain points in what might be thought of as
theory underlying auto accident compensation legislation. We have placed the discus-
sion at a level of generality which makes it appropriate not to cite particular statutory
provisions, not to supply full technical details on issues, and not to cover systematically
all important issues raised by plans. Omitted, for example, are the treatment of intra-
state problems, the decision whether insurance follows the car or follows the family,
the prescription for subrogation and reimbursement, and the handling of death repara-
tions. The literature is now voluminous and accessible and we have thought it unneces-
sary to add bibliographical references.
'This is the fourth time within the decade that we have written on the topic. We
began in 1964, prior to the publication of the Keeton-O'Connell proposal, with Public
Law Perspectives on a Private Law Problem. This was an effort to examine the choice
between the common law on the one hand and auto plans viewed as extensions of lia-
bility on the other. At that time, we thought the central issue was, stated simply, who
is to pay the cost of covering the victims not covered by the common law liability system.
In 1967, in The Empty Cabinet of Dr. Calabresi: Auto Accidents and General Deter-
rence, 34 U. CHI. L. lRv. 239, our concern was with deterrence. Assuming that issues
of allocating accident costs could be translated into strategies for deterrence in order
to optimize accident costs, we explored whether a plan would be superior in this respect
to the common law. In 1968, in A Stopgap Plan for Compensating Auto Accident Vic-
tims, 1968 INs. L.J. 661, the concern was once again with costs, this time re-examined
in the light of expected economies in administering reparations under a plan.
The topic has had a stubborn attraction for us, and we have thus far been unable
to exhaust its challenges to analysis.
'At present there are nineteen or twenty states which have enacted some sort of
plan; there are in addition several proposals for federal legislation and the important
model act of the Commissioners of Uniform Laws.

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