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At any given time, potential and actual accident victims have rights that are determined by the contours of tort law. These rights create bargaining chips that are normally played by a claimant following an accident in return for a financial payment from the injurer or the injurer's insurer. The settlement, of course, exhausts the victim's tort rights. By contrast, only a few victims actually see their tort claims through to a trial in which a court determines their worth. Potential victims do not ordinarily do anything with their rights; they simply hold onto them until an accident occurs. Indeed, in unusual situations where potential victims have already waived their rights through a preaccident exchange, many courts have been hostile to such deals and have refused to enforce the contract against the victim.' This issue, of course, arises only after an injury has occurred and the injurer seeks to rely on the preaccident release from future tort liability that had been obtained from the victim. Judges rationalize setting aside those private agreements on the ground that they are protecting potential victims from their own ignorance and weakness in bargaining with parties who are better informed and stronger. Such protection is often necessary. But judicial intervention in private arrangements is misguided when it blocks exchanges that improve the position of both victims and injurers. This essay discusses a potential market in unmatured tort claims that could correct many shortcomings of existing tort law. In brief, it envisions a market in which people who are otherwise adequately insured against accidents will sell their preaccident bargaining chips. This market would function mainly through transactions in which workers with good employee-benefit packages would sell their future tort claims to their employers, who in turn would sell them to (i.e., presettle them with) liability insurers.

A Regulated Market in Unmatured Tort Claims: Tort Reform by Contract