Legal historian assesses accident compensation

16 April 2012

Ted White

The 2012 Legal Research Foundation Visiting Scholar, Professor G. Edward (Ted) White, gave a series of talks at the Auckland Law School on topics relating to legal history and judicial biography.

Professor White is the David and Mary Harrison Distinguished Professor of Law and University Professor at the University of Virginia. He is the author of fifteen books, including Earl Warren: A Public Life; The Marshall Court and Cultural Change; Justice Oliver Wendell Holmes: Law and the Inner Self; The Constitution and the New Deal; Tort Law in America: An Intellectual History; and The American Judicial Tradition. His most recent book is Law in American History: Volume One, From the Colonial Years Through the Civil War.

Professor White presented a faculty seminar on 22 March about the distinctive features of researching and writing biographies of judges. He talked about biographical writing generally and the particular challenges of judicial biography, drawing upon his books on Chief Justice Earl Warren (for whom he had clerked) and Justice Oliver Wendell Holmes. Professor White discussed the challenges of writing a life of a visible public official; the research obstacles posed by the professional role and public status of judges; the prospective audiences for judicial biography; and the problem, which exists for all historical figures but may be accentuated with judges, of the changing relevance of the careers and accomplishments of judges.

On 27 March Professor White gave a student lecture on the American experience of bicameral and unicameral legislatures. The lecture was also open to faculty and guests and was attended by the Chief Justice, Dame Sian Elias. Professor White explored the contrasts between unicameral and bicameral legislatures in nations with a common law heritage and a rule of law culture by focusing on the history of bicameralism in the United States. At the time of the adoption of the United States Constitution, some American state legislatures were unicameral and the version of bicameralism adopted by the framers of the Constitution was quite unique.

Professor White’s public lecture on 3 April was entitled ‘No Fault Accident Compensation in New Zealand and the United States- Divergent Species from a Common Ancestor’. His lecture was attended by, among others, Sir Owen Woodhouse, the Chairman of the 1967 Royal Commission which recommended an accident compensation scheme in New Zealand, and Sir Geoffrey Palmer, the former Prime Minister who also has a considerable interest in the subject.

Professor White noted that at approximately the same time, between the mid 1960s and the end of the 1970s, accident compensation systems replacing or modifying the traditional tort system’s governance of automobile accidents were proposed, debated, and established in New Zealand and the United States. In New Zealand, the Accident Compensation Act of 1972 instituted a no-fault standard for recovery of damages incurred in auto accidents, with compensation schedules administered by the Accident Compensation Commission. In the United States, by the end of the 1970s 16 states had adopted no-fault compensation schemes in the field of automobile accidents, based on first-party accident insurance and limited, as was the New Zealand compensation regime, to economic losses.

Professor White noted that the New Zealand accident compensation system is still intact, its periodic modifications primarily being directed to efforts to reduce funding and administrative costs. In contrast, no-fault automobile accident compensation plans have fared poorly in the United States since the 1970s. No additional states have adopted no-fault automobile accident legislation since 1980, and some states have repealed earlier legislation. At present only 12 require some form of no-fault coverage.

Professor White’s lecture examined why no-fault accident compensation plans, which originated out of common concerns in the United States and New Zealand at approximately the same time, have evolved so differently in the two nations. He emphasised differing attitudes toward the role of government, different governmental structures, and the continuing importance of tort law as a mechanism for governing accident compensation in the United States.