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mendous expansion of the pain-and-suffering concept as passengers on a plane that never crashed have success-
fully sued for the "fear of death", and witnesses of the death of a stranger have successfully sued for the emo-
tional trauma they experienced by witnessing this death.
Perhaps the most dramatic change in the character of product-liability litigation has been the emergence of
mass toxic torts. Agent Orange, asbestos, and the Dalkon Shield cases are the three most notable examples of
such litigation. Each of these lines of litigation has involved more than 100,000 injury claimants – 190,000
claimants against the Manville Corporation for asbestos exposures, 150,000 claimants in other asbestos cases,
210,000 claimants against the Dalkon Shield, and 125,000 claimants in the Agent Orange litigation. Asbestos
litigation comprised 2 per cent of federal product-liability litigation in 1975, but by 1989 the asbestos share had
risen to 61 per cent. The surge in mass toxic torts had overwhelmed the courts' capacity to process these claims.
These cases are distinguished not only by their number, but also by the difficulties they create for the liabil-
ity system. Due to the substantial time lags involved, causality has been difficult to determine. It is noteworthy
that in the Agent Orange case, legal doctrine prevented soldiers from suing the actor primarily responsible for
their injuries – the federal government. Consequently, they sought compensation from the deep and more read-
ily available pockets of Dow Chemical Company and other Agent Orange producers. The judge who presided
over the Agent Orange litigation could not find any clear-cut causality between Agent Orange and the veterans'
ailments and, as a result, fashioned a "compromise" settlement for $180 million.
Moreover, in the asbestos cases liability was imposed retroactively on firms that could not have anticipated
the extent of the risks or the likely litigation costs. This means that one of the main modern rationales for ex-
panded liability – that it gives companies an incentive to avoid accidents – does not apply in the asbestos cases.
The viability of insuring these losses by shifting accident costs onto companies has also come under fire as the
Manville Corporation and others have reorganized under federal bankruptcy law and set up trust funds in excess
of $3 billion (in the case of Manville) to cover losses that will inevitably exceed that amount.
The costs of liability are reflected in the liability-insurance costs that firms must pay. Many of the largest
firms self-insure. The Ford Motor Company, which insures itself, faced $4 billion in product-liability damages
claims in 1986. Liability costs have also exploded for those who still buy liability insurance. General liability
premiums more than quintupled – from $1,13 billion to $6.49 billion – between 1968 and 1978. Then between
1978 and 1988, they tripled to $19,1 billion. What is particularly remarkable is that virtually all of this tripling
occurred between 1984 and 1986. Not surprisingly, during the mideighties people began to talk of an emerging
liability crisis.
A number of explanations have been offered for this crisis. One is that it may have been caused by the so-
called insurance underwriting cycle. Over the decades, insurance companies have periodically underpriced in-
surance as they competed for more business. Then, as the claims on these underpriced policies generated large
losses, the insurers responded by raising prices substantially. Another explanation offered is that the insurance
industry may have had a capital shortfall, causing it to decrease the amount of coverage it would write. It did
so, according to this explanation, by raising prices. A third explanation is that the crisis was caused by changes
in liability – the rise in liability costs, the increased uncertainty of the liability system, and the presence of
highly correlated risks that decrease the ability of insurers to pool offsetting risks in their portfolio. The long-
run nature of the rise in insurance premiums and the linkage of this increase to the surge in litigation suggest
that shifts in liability doctrine are the major contributors to the rise in liability costs.
Although the short-run crisis has abated, a broad array of tort-reform groups, ranging from the U.S. De-
partment of Justice to the American Law Institute, has concluded that the liability system must be restructured
to provide an efficient level of deterrence, to provide appropriate incentives for the introduction of new prod-
ucts, and to meet the legitimate needs of accident victims.
MICROECONOMICS
By Arnold C. Harberger
Until the so-called Keynesian revolution of the late thirties and forties, the two main parts of economic the-
ory were typically labeled monetary theory and price theory. Today, the corresponding dichotomy is between
macroeconomics and microeconomics. The motivating force for the change came from the macro side, with
modern macroeconomics being far more explicit than old-fashioned monetary theory about fluctuations in in-
come and employment (as well as the price level). In contrast, no revolution separates today's microeconomics
from old-fashioned price theory; one evolved from the other naturally and without significant controversy.
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