Days after September 11, 2001, in the Roosevelt Room of the White House, President George W. Bush and his senior advisers met with chief executives of six of the nation’s leading insurance companies. Their goal: to avert an international calamity. They needed to ensure that the world’s commercial aircraft fleet would not go idle for lack of insurance. Under typical aviation insurance contracts, the insurer can cancel the policy on seven days’ notice, after the occurrence of a designated event, including terrorist acts. After the 9/11 attacks, aviation insurance companies immediately sent cancellation notices to customers worldwide. And without insurance, airplanes could not fly. As of midnight September 18, 2001, most of the world’s commercial aircraft would be grounded.
As an emergency measure, the richest countries—including the United States, members of the European Union, and Japan—announced temporary governmental insurance programs to provide coverage in the absence of private insurance. Those short-term programs were mere Band-Aids, however, and unaffordable for many governments. Greenberg proposed creating an industry-wide pool of capital to supply aviation insurance. This would provide a long-term, private-sector solution. After explaining this to the president and the other executives, Greenberg left the White House. Within four days, AIG formed a $1 billion insurance fund, supplying a $200 million share of it directly. The world’s planes kept flying and a global crisis was quietly averted.1
Another way AIG responded to 9/11 was to conduct a comprehensive global analysis of calamitous risk such as terrorism. To spearhead this project, AIG enlisted Gerald Komisar, the former government official who for many years had been producing AIG’s Executive Briefing Book for executives of its largest customers. Komisar developed a security risk index, ranking 140 countries on a scale of 1 to 5. The scale incorporated various risks, including terrorism, coup, insurrection, violent strike, and other upheaval. No country ever earned a 1, the lowest score, signaling absence of risk. The index was a directive to AIG’s insurance underwriters: with a rating of up to 3, the underwriter could proceed at his own discretion; 4 required asking a supervisor; 5 required going to corporate headquarters, usually to Greenberg’s office. The results were color-coded and designed to be simple and easy to use, despite the intensive underlying data and complex analytical process required to reach the conclusion.
After any catastrophe, insurance markets adjust. Claims consume capital, prices rise, and insurers must replenish capital or obtain reinsurance. AIG took advantage of that cycle after the terrorist attacks of September 11. It formed Allied World Assurance Company, a joint undertaking with Chubb, (with investments from Goldman Sachs and Swiss Re) to underwrite high-dollar coverage in several fields, including directors and officers (D&O) and errors and omissions (E&O). AIG sent more managers into the new business than Chubb did, as many Chubb executives hesitated out of concern that Allied World would operate in the same lines of business as Chubb, increasing competition for itself.2 While it was difficult for Chubb to overcome this resistance to “cannibalization,” AIG managers did not resist. They tended to embrace competition, even between companies under the same corporate roof.3
AIG employees assigned to particular subsidiaries or divisions understood that they ultimately were part of AIG, not Allied World, American Home, National Union, or Lexington. Managers and underwriters appreciated that in some sense they were competing with colleagues at other units. But it was not as if they were competing with a particular company or for a given account. They were competing broadly in the wider marketplace. The philosophy was simple: the more boats you have in the ocean, the more fish you will catch. In any event, as Greenberg would remind employees, they did not own stock in American Home, National Union, Lexington, or Allied World, but in AIG.
AIG’s competitive culture, reinforced by its preoccupation with earning an underwriting profit, enabled it to avoid hazards that devastated some revered competitors. Excruciating examples arose from the explosion of tort liability during the 1980s and 1990s.4 Many insurers wrote policies, in fields ranging from environmental liability to medical malpractice, in order to earn premiums for investment while paying insufficient regard to the risks. Resulting losses not only erased the premiums and gains but sent AIG competitors into insolvency or reorganization.
AIG withdrew from the market when prices were low compared to risks, while competitors fought for business, and reentered when prices rose and an underwriting profit could be earned, when competitors retreated. Competitors failed to stress the importance of underwriting profit. True, insurers can make considerable income from investment—as AIG did. But at AIG an underwriting profit was the first priority and senior management broadcast that message to the troops. That command-and-control approach enforced discipline at AIG, enabling it to grow and amass capital while rivals shriveled or perished. Being ahead of the competition in product innovation and being widely diversified internationally were also great advantages.
At AIG, competition among rivals was not limited to insurance markets but extended into the public policy arena, where AIG’s business compelled it to take positions on matters of national interest. AIG fielded a strong public policy and government relations team. Among debates they influenced were those concerning the environmental hazards caused by previous generations, known as Superfund cleanups. AIG had entered the environmental insurance business through a company acquired in 1968, Commerce & Industry Insurance Company (C&I), which would be run by an outstanding manager named Elmer N. Dickinson Jr. It was a state-of-the-art specialty writer of “highly-protected” fire risks—meaning insurance on buildings constructed using the ultimate in protective methods. Designed to reduce the risk of destruction by fire, protections included superior construction, advanced smoke sensors, and rapid-response sprinklers. High-tech buildings qualified for lower insurance premiums; underwriting the insurance is also specialized, involving inspection and analysis by structural engineers.
C&I thereafter launched an environmental insurance business, expanding its inspection and engineering capabilities. C&I underwriters engaged the technical expertise of engineers knowledgeable in chemistry, geology, hazardous materials and waste management. By the 1980s, as AIG had grown into a substantial insurer of environmental risks, the country awakened to a painful reality: for generations, industry had been contaminating the environment without appreciating the costs, especially by letting chemicals leach into water systems. The timing of C&I’s success in this field, ironically, retaught an old lesson about the insurance business. Unlike in most businesses, insurers do not know production costs at the time products are made. Instead, they write coverage with a sense of future claims (probability and magnitude) but predictions prove inaccurate. In addition, unanticipated forces intervene, such as when judicial attitudes change, national priorities shift, or both—as happened concerning environmental risks during the 1980s and 1990s.
Several dramatic hazardous waste disasters—such as New York’s Love Canal catastrophe in which 20,000 tons of buried chemical waste was linked to large-scale miscarriages, birth defects, and cancer—stirred Congress to pass the Superfund law in 1980.5 Hastily drafted and quickly passed, Superfund radically changed the nation’s approach to cleanups by stating tight rules. Companies that dealt with hazardous waste became liable for costs even if their actions were entirely legal at the time and they had not been negligent or deliberate. Minor contributors became liable for entire cleanups if no other contributors could be found—called “joint-and-several” liability. Superfund established “retroactive liability,” making companies responsible for actions that occurred even before the law was passed—when the lion’s share of the damage from hazardous waste occurred—and there is no statute of limitations. The retroactive liability even exposed current owners or operators to liability for actions of predecessors.
Under Superfund, the Environmental Protection Agency (EPA) makes a list of hazardous sites targeted for cleanup. It then hunts for potentially responsible parties who might be required to pay. The EPA directs those parties to clean up the site, or else conducts its own remediation and sends those parties the bill. When the EPA names potentially responsible parties, the parties often respond by challenging the EPA in court; finding additional parties to pay, who might likewise lodge a court challenge; and scouring old insurance policies for language saying the activity was covered. This latter maneuver was called “insurance archeology.”
Insurance companies also fought in court, arguing that the old policies did not cover pollution. The oldest policies—some dating back decades before the 1970s when ecology became a national priority—had vague language about coverage, but insurers contended it did not cover the kinds of risks that had emerged. Since the companies had not set premiums under those old policies in anticipation of such risks, they had not collected funds for them. Beginning in the early 1970s, insurers added explicit policy language to encompass “sudden and accidental” events which, they said, excluded the hazardous waste problems that involved gradual pollution over many years.6 Many courts nevertheless held against the insurance companies, finding that the policies did cover these losses.7
The EPA named thousands of national priority sites where average cleanup costs per site ran to $40 million, translating into gargantuan sums totaling hundreds of billions of dollars. The legal expenses of sorting out who was responsible consumed many additional billions of dollars. In some instances, attorneys’ fees exceeded the clean-up costs. The result was a flawed system to address a serious problem, as Superfund had done more to generate administrative costs than to actually clean up the nation’s hazardous waste sites.
Reformers suggested ways to reduce litigation and increase money available for cleanup. Ending the rules of retroactive liability and joint-and-several liability would reduce litigation, but would not generate resources to pay for the problem. Reformers proposed various funds, such as one to be created by industry and insurance companies who would contribute according to their current size—a “deep pocket” approach. For AIG, that was problematic because of the relative size of its business before the 1970s when most pollution occurred and in the 1990s when the fund was to be established. AIG’s market share was comparatively modest in the earlier period but substantial since it had built C&I. Under most of the fund proposals, AIG would be forced to shoulder a disproportionate amount of costs compared to premiums received.
So AIG proposed a different approach, called a National Environmental Trust Fund.8 It would impose a small surcharge on all commercial insurance policies, with proceeds used to pay for cleanups. The trust fund would eliminate the unfairness of retroactive and joint-and-several liability and save the billions of dollars being lost in litigation. The theory was simple: this was a societal problem and the solution should be societal as well. Other insurance companies disliked this proposal, worried that policymakers would soon believe that charging insurers was the new way to handle all society’s costly problems.
After a decade of dismal results under Superfund, in August 1993 senior officials in the Clinton administration summoned top officers of eight large insurance companies, including AIG, Hartford, Nationwide, and Travelers. At this meeting, the government, backed by most of the insurance executives present, endorsed creating a pool funded by insurers based on their size. Greenberg repeated AIG’s objection that under this proposal it would pay a very large share due to its current industry dominance though when the activities in question occurred and policies at stake were written, it held a smaller relative share. The meeting lasted seven hours. As it drew to a close, the officials asked whether the group could all agree, particularly whether AIG would support it. Greenberg said no, repeating support for the National Environmental Trust Fund. With that, the meeting—and the hope for both concepts—ended.
Superfund survives, imperfect though it is, leaving costly litigation in its wake. While the bulk of the policy fight occurred during the 1980s and 1990s, and the costs of environmental cleanup have been declining, the number of claims remains high. Many billions of dollars of reserve liabilities linger on the balance sheets of U.S. insurance companies. Whether those reserves accurately reflect the actual costs is unknown, because it is notoriously difficult to estimate such reserves. Indeed, until the Superfund era, there were no systematic accounting standards governing environmental liabilities, either of industrial companies or insurers. Even using the most thorough estimating techniques, the accuracy of existing reserve liabilities will not be known for many years to come.
During the 1990s, billions of dollars of costs were also the stakes in lawsuits fought about responsibility for asbestos-related disease. Asbestos is a composite of silicate minerals that has been used in many applications for centuries, primarily because of its fire-retardant properties. Widespread modern commercial use dates to the late 1800s when Johns Manville used it in construction insulation, and to the 1940s when the U.S. military installed fire protection in naval ships. Applications multiplied through the 1970s—to scores of uses in ubiquitous building materials from bricks to pipes to drywall as well as automobile brake linings.
When scientists discovered that inhalation of asbestos fibers can cause serious illness, including lung cancer, a litigation explosion followed. Lawyers filed hundreds of cases claiming tens of billions of dollars. Medical screening, however, could not distinguish reliably between those who were ill and those who were not or between those whose illness was caused by asbestos rather than other carcinogens.9 The result was large numbers of complex claims that were costly to administer and prone to high error rates. The cases were so lucrative for lawyers and medically complex that fraud arose in many forms, as patients concocted claims with the help of doctors and lawyers submitted falsified evidence.10 Old-fashioned litigation failed to resolve the asbestos problem.
The Supreme Court urged Congress to create a national administrative solution.11 It would be a “wholesale” approach to the problem rather than the case-by-case “retail” approach of courts. Participants generally agreed that a systemic approach was desirable, including a national screening standard, a fair claims process and a fund to cover costs. They disagreed on the details. Not only did various interest groups oppose each other, but many groups differed among themselves, including insurers.
A coalition of insurers—ACE, Hartford, Liberty Mutual, State Farm, and Travelers—embraced the idea of a government-administered fund. Each would contribute significant capital, but exposure would be capped at their contribution. Such a system of paying up front in exchange for a cap on liability is ordinarily an appealing way to resolve exposure uncertainties such as this. But AIG, along with one other dissenter, Chubb, perceived problems. The fund approach would set aside many insurance policies on which policyholders had paid substantial premiums to cover liabilities such as these. Disagreements arose about whether policyholders were better off in the fund or under their own policies. AIG and Chubb preferred finding an industry-based solution rather than a governmentally administered fund.
Despite concerns, AIG and Chubb initially joined the coalition of other insurance companies, attempting to shape debate and work toward a better proposal. At a pivotal meeting of the chief executives of these larger insurers, Chubb’s chief executive sent his vice chairman, John Degnan, to join Greenberg in opposing the coalition’s majority. At the meeting, which was scheduled for two hours, Greenberg spoke first. He spent 20 minutes explaining why AIG could not support the fund proposal. During ensuing discussion, however, it appeared clear that the others would not budge.
So AIG and Chubb turned their attention to Washington, where Congress was developing proposals to address the asbestos problem. They joined a group of manufacturing, construction, energy, and smaller insurance companies to create the Coalition for Asbestos Reform (CAR), to fashion alternatives.12 Every lobbyist was eager to get the ear of Bill Frist of Tennessee, Senate majority leader, whose position would be influential. This was not an easy appointment to set up, with waiting times up to several weeks. Degnan called Greenberg to discuss this and noted the need to meet with Frist sooner, not later. Within days, Greenberg had a meeting set with Frist. Degnan explained: “In Washington policy formulation circles, when Hank Greenberg spoke, people listened.”13 At the meeting, Greenberg and Degnan made a strong case and Frist seemed receptive, but they did not get an immediate answer.
By early 2005, the other insurers had persuaded Senators Arlen Specter and Patrick Leahy, who sponsored legislation to create a special fund to handle asbestos claims. Named the Fairness in Asbestos Injury Resolution (FAIR) Act, their bill would establish a national administrative agency to handle claims arising from asbestos illness based on a fund, of at least $140 billion, established by contributions charged to manufacturers and users of asbestos and their insurers.14 AIG and Chubb opposed the complex bill, nearly 400 pages long.
CAR explained that the FAIR Act left hundreds of smaller companies worse off than under the judicial case approach, comparing what they relinquished under their policies with what they had to pay into the fund. CAR objected that the bill shifted costs from larger to smaller companies, as the bill’s complex formula meant relatively low maximums on larger companies and relatively high minimums on smaller ones. CAR also objected that the legislation did not correct the severe weaknesses in the medical screening process or establish required medical criteria.
When the bill finally reached the Senate floor, the call was close. The vote was scheduled in the evening. Just ahead of it, Senator Daniel Inouye’s wife became ill and he could not appear on the Senate floor. He tried frantically to find a proxy to render his “yea” vote but could not find one in time. The legislation failed by a single vote.15 Thanks in part to the accidents of health, AIG could claim a victory in its hard-fought campaign.
As the cases of Superfund and FAIR illustrate, AIG preferred private market solutions to those promulgated by government. This philosophy pervades the United States, and can be found in many historical examples of businesses responding to national crises. In particular, the preference for private market solutions is exemplified by the story of a century-plus-old company that AIG acquired in 1999: the Hartford Steam Boiler Inspection and Insurance Company (HSB), which was created in the wake of an 1865 explosive fire aboard the massive steam ship Sultana while she was plying the Mississippi River.16 The vessel, under commission of the U.S. War Department, carried 2,400 Union soldiers heading home after being held as Confederate prisoners of war. In one of the largest maritime accidents in U.S. history, the S.S. Sultana sank near Memphis, killing some 1,800. The cause: three of the ship’s four boilers exploded.
Boiler explosions had become common during the industrial expansion of the latter nineteenth century. Insufficient attention was paid to inherent risk of explosion or how to manage that risk. The sinking of the Sultana stimulated a group of entrepreneurial engineers to create HSB. Its mission, in addition to pooling resources to cover losses when they occurred, was to manage risk to prevent losses. HSB would set minimum manufacturing and maintenance standards for boilers. Only boilers produced and maintained in accordance with established standards would be insurable. The engineers believed that their commitment to such standard setting, along with rigorous insurance underwriting, would be more effective than government regulation. Their efforts proved correct.17
HSB cemented its niche to become the dominant insurer of commercial equipment nationwide, while simultaneously developing a substantial engineering business focused on risk management. By 1999, HSB had an excellent underwriting record with impressive technical capabilities. Its professional team excelled in evaluating risks and preventing losses. The company provided advice and coverage directly to commercial operators as well as reinsurance to hundreds of property and casualty insurance companies nationwide. HSB was AIG’s kind of insurance company: a niche business employing legions of highly skilled professionals committed to earning an underwriting profit.
Had there been more HSBs mitigating the hazards of modern life, whether in the workplace or elsewhere, the country might have avoided its costly experiment of redressing contemporary accidents by tort laws, both judge-made and statutory, another policy fight in which AIG participated. Unlike vast administrative systems—such as Superfund, FAIR, and alternatives—traditional tort law addresses one party battling another over which should be responsible to pay the costs of a given mishap. In the early 1960s, the typical tort case involved a car accident.18 U.S. law’s general approach was to assign responsibility for accidents to those who caused them. The point was to compensate victims and deter wrongdoing by making the blameworthy pay.
Thereafter, Americans became more familiar with tort cases involving products liability, medical malpractice and toxic health harms. From the 1960s to the late 1990s, liability expanded on many such fronts due to a broadened sense of what constitute abnormally dangerous activities and a greater preoccupation with safety. A new regime emerged in which liability arose for more kinds of actions to target more possible defendants and procedures emerged to aggregate claims on mass scales in the modern “class action.” In addition, damages increasingly went beyond pure compensation to encompass escalating sums for “pain and suffering.”
A public policy debate rolled out of the courtrooms and law school classrooms into the world of media, politics, and even pop culture—in such films as Erin Brockovich and A Civil Action. Known as the “tort wars,”19 proponents of the new regime insisted that paying victims was the top priority and that those profiting from risks—and their insurers—should pay, even when fault could not be established in the traditional manner. Those opposed to growth in scope and size of liability judgments urged reforms that would curtail the excesses. AIG stood firmly for tort reform.
The debate was legitimate—and remains important—yet escalated into exercises of mutual myth-making.20 Sparring partners portrayed the same data and identical cases in opposite lights. Critics said there are many frivolous tort cases winning runaway jury verdicts while proponents stressed that the percentage is small and awards often slashed on appeal. After a customer of McDonald’s scalded with its piping-hot coffee won a large tort settlement, critics said the case epitomized a system out of control, while proponents objected to that view as overlooking questionable practices at the fast-food chain.21 In a 1986 speech, President Reagan referenced the case of a man using a telephone booth when a drunk driver crashed into it and ridiculed a resulting lawsuit against the phone company that California’s top court allowed to proceed.22 Tort critics hailed the speech as highlighting a system off the rails, while defenders criticized omissions in the tale, including that the booth was poorly designed and dangerously located and all the court had said was a trial ought to be allowed, not that the phone company was responsible. (The case eventually settled on undisclosed terms.)
Mutual demonization was also a motif of the tort wars. Plaintiffs’ lawyers characterized defendants as villains and their insurers as conspirators in a grand scheme to exploit powerless Americans. Corporate America, by and large the target of such attacks, would respond in kind, painting the plaintiffs’ bar in particular as a cabal of mendacious pillagers. Greenberg used such strong language in a speech at the Chief Executives Club of Boston College in February 2004.
The rhetoric of the tort wars has calmed down, though disagreement persists about how much broader tort liability and damages became during recent decades.23 Yet there seems to be a consensus that the tort reformers won on several important issues, as many reform laws were enacted in the past decade and the volume of tort litigation has fallen.24 Perhaps the most striking specific change is the widespread adoption of statutory ceilings on the permissible level of damages awarded for “pain and suffering.”25 What’s most important in these debates, however, as suggested by AIG’s position on asbestos reform, is not so much which advocacy group wins or loses, but finding ways to channel fair compensation to the injured without overpaying the undeserving.26
A final domestic policy debate on which AIG sought to lead was the approach to regulation of the insurance industry. For largely historical reasons, since 1945, under the McCarran-Ferguson Act, American insurance companies have been regulated by the states, not the federal government. In many lines of insurance this is an appealing regime. States oversee insurance companies doing business in their locales where the state has an interest in promoting insurer solvency and establishing industry-supported funds to cover for insolvent firms. These state laws, focused on the individual customer and based on consumer-protection motives, are attractive for automobile, homeowners, and life insurance products serving that clientele.
But the 50-state regime is unnecessary for large-scale commercial insurance targeted to corporate customers, such as industrial policies covering property and casualty losses or directors’ and officers’ liability. These sophisticated customers do not need the protection of state solvency regulations or industry pools to pay claims of insolvent companies. They can investigate the solvency and reliability of the insurers they consider doing business with and often prefer to apply their own judgment in the exercise than delegate to state authorities. For those insurance companies, AIG advocated an alternative national charter. Such a system would significantly reduce costs of regulation and compliance, because there would be a single supervisory authority in Washington rather than 50 separate state overseers. Despite the logic of this stance, broad coalitions of state governments and local insurance departments blocked any chance of persuading Congress to consider such an initiative.
AIG’s engagement with domestic policy issues of the day was vital because of the vast scale of its business. It did not win every position, and not every policy debate was exciting, but AIG was always at the table and its victories translated into real gains for the company, the insurance industry, and its customers. While many other CEOs considered them extracurricular affairs, Greenberg saw participation in these activities as central to running AIG’s business, and real gains to AIG resulted. Investing AIG’s increasing gains posed a more exciting challenge, as AIG ventured into new fields of business.
Notes
1. Joseph B. Treaster, “Hard-Edged Insurance Chief Is Taking On a New and Public Face,” New York Times (October 31, 2001).
2. Cunningham telephone interview with John Degnan, August 31, 2011.
3. Cunningham telephone interview with Kevin Kelley, April 9, 2012.
4. Michael Loney, “30 Years in Insurance: Learning the Hard Way,” Reactions: Euromoney Institutional Investor (April 1, 2011).
5. Superfund is the popular name for the statute, also called CERCLA, which stands for Comprehensive Environmental Response, Compensation and Liability Act of 1980.
6. For a classic and comprehensive illustration, see New Castle County v. Hartford Accident & Indemnity Co., 933 F.2d 1162 (3rd Cir. 1991). Cases involving AIG companies include Technicon Electronics Corp. v. American Home Assurance Co., 533 N.Y.S.2d 91 (N.Y. App. Div. 1998), aff’d 542 N.E.2d 1048 (N.Y. 1989); Northville Industries Corp. v. National Union Fire Insurance Co. of Pittsburgh, 636 N.Y.S.2d 359 (N.Y. App. Div. 1995), aff’d 679 N.E.2d 1044 (N.Y. 1997).
7. Concerning the language begun to be added in the 1970s and its interpretation, see Kenneth Abraham, “Catastrophic Oil Spills and the Problem of Insurance,” Vanderbilt Law Review 64 (2011): 1769, 1785; William H. Rodgers Jr., “The Most Creative Moments in the History of Environmental Law: ‘The Whats,’” University of Illinois Law Review 1 (2000): 20–21; see also Sharon M. Murphy, “The ‘Sudden and Accidental’ Exception to the Pollution Exclusion Clause in Comprehensive General Liability Insurance Policies: The Gordian Knot of Environmental Liability,” Vanderbilt Law Review 45 (1992): 161.
8. See Maurice R. Greenberg, “Financing the Clean-up of Hazardous Waste: The National Environmental Insurance Fund,” Geneva Papers on Risk and Insurance 14 (April 1, 1989): 207–212.
9. See Lester Brickman, “Ethical Issues in Asbestos Litigation,” Hofstra Law Review 33 (2005): 833, 836–839 (describing practices used by lawyers to screen potential claimants).
10. Lester Brickman, “On the Applicability of the Silica MDL Proceeding to Asbestos Litigation,” Connecticut Insurance Law Journal 12 (2006): 289.
11. See Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 (1999) (the “elephantine mass of asbestos cases . . . defies customary judicial administration and calls for national legislation”); Amchem Products, Inc. v. Windsor, 521 U.S. 591, 628–629 (1997) (“The argument is sensibly made that a nationwide administrative claims processing regime would provide the most secure, fair, and efficient means of compensating victims of asbestos exposure.”).
12. See “Coalition for Insurance Reform,” Insurance Journal (April 22, 2005), available at www.insurancejournal.com/news/national/2005/04/22/54201.htm.
13. Cunningham telephone interview with John Degnan, August 31, 2011.
14. There would be an Office of Asbestos Disease Compensation administering an “Asbestos Injury Claims Resolution Fund.”
15. See James Rowley, “Asbestos Fund Blocked in U.S. Test Vote,” Bloomberg (February 14, 2006).
16. Guaazardi, Grose, et al., “Worth the Risk,” chap. 17, pp. 18 ff.
17. See John Fabian Witt, Speedy Fred Taylor and the Ironies of Enterprise Liability, Columbia Law Review 103 (2003): 1 (discussing HSB and noting that boiler engineering “stood as a shining example of what rational engineering could do for workplace safety.”)
18. For a thumbnail sketch of tort law and policy over the past 50 years along the following lines, see Richard Epstein, Torts (New York: Aspen, 2008).
19. See Jonathan D. Glater, “To the Trenches: The Tort War Is Raging On,” New York Times (June 22, 2008).
20. See Anthony J. Sebok, “Dispatches from the Tort Wars: A Review Essay,” Texas Law Review 85 (2007): 1465.
21. See Susan Saladoff, Hot Coffee (HBO documentary film 2011).
22. See “Reagan Hits Jury Awards,” Washington Post (May 31, 1986); Steven Brill and James Lyons, “The Not-So-Simple Crisis,” American Lawyer (May 1986), pp. 1, 16.
23. See Theodore Eisenberg, “Use It or Pretenders Will Abuse It: The Importance of Archival Legal Information,” UMKC Law Review 75 (2006): 1.
24. Thomas H. Cohen, “Tort Bench and Jury Trials in State Courts, 2005” (U.S. Dept. of Justice, Bureau of Justice Statistics) (November 2009), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/tbjtsc05.pdf.
25. See Robert L. Rabin, “Pain and Suffering and Beyond: Some Thoughts on Recovery for Intangible Loss,” DePaul Law Review 55 (2006): 359; Joseph H. King, Jr., “Pain and Suffering, Noneconomic Damages and the Goals of Tort Law,” SMU Law Review 57 (2004): 163; e-mail from Kenneth Abraham to Cunningham, March 26, 2012.
26. See Glater, “To the Trenches.”