This Article tells the story of three wholly unpredicted but enormously important late twentieth-century developments in tort liability and insurance: the rise of mass tort liability; the insurance coverage revolution that was generated by the advent of environmental cleanup and mass tort liability; and the abrupt halt in the expansion of negligence and strict liability that had been occurring for over a century. The law that these developments established became a central feature of modern tort liability and insurance and remains central to these fields today.
Yet, astonishingly, these developments were not predicted at all. They came completely out of the blue, taking everyone by surprise. In the space of little more than a decade, lawyers and legal scholars committed three major predictive failures, twice being blindsided by wholly unanticipated tort and insurance law developments, and once making important assumptions about the continued expansion of tort liability standards that never came to fruition at all. Nor has anyone in the last few decades seemed to have noticed, until now, that these highly significant features of modern civil liability were not predicted.
The Article chronicles of each of the three developments, explaining in detail how they came about and why the predictive failures that accompanied them occurred. Following this analysis, the Article derives several general principles relevant to these non-predictions and mis-predictions, identifying lessons about the political economy of legal prediction that can be learned from the story. In brief, there are a number of significant obstacles to legal prediction. Most importantly and obviously, there must be an existing evidentiary basis for making predictions. Often that is missing. There was little or no such evidentiary basis prior to the advent of the three major developments that are the centerpiece of the Article. In addition, however, it turns out that the incentives necessary to predicting legal developments are often missing, and that the splintering and decentralization of authority characteristic of common law change in a federal system also renders the predictive enterprise far more difficult than might be supposed. It should come as no surprise, therefore, when important legal developments have not been predicted and seem for a time to have come out of nowhere. If predictions are to be made, these obstacles must be overcome. The Article concludes by offering several methods of enhancing the predictive enterprise.