Tort law in practice: appearance and reality in reforming periodical payments of damages
Paying damages for personal injury in the form of a lump sum is again under attack. Almost twenty years ago the concept of a structured settlement was first used in the UK in order to provide continuing lifetime payments for seriously injured claimants. However, the idea was slow to develop. Proposals for a structure were easily defeated if either of the parties objected. To counter this, recent legislation has removed this veto: taking into account the needs of the claimant, a judge can make a periodical payments order even if it is against the wishes of both parties. 
 
This article looks at the impact of this reform upon the settlement system and the bargaining power of the parties. The relationship between the new legislative regime and that involving structured settlements is examined. The reform is set in its wider political and economic context. In particular, it is shown to be based, firstly, on an inadequate assessment of the problems caused to insurers, and secondly, on excessive concern about the impact of litigation upon National Health Service budgets. Deferring the full payment of damages to later years is politically attractive, and gives the state an interest in the form in which damages are paid. This was insufficiently acknowledged in the reasons given for the reform. There are sharp differences between the surface appearance of the legislation and the realities of practice.
Insurance and the tort system
This article examines Stapleton's view that insurance has lacked influence and been no more than a ‘makeweight’ argument in the development of tort liability. Looking at the wider context, the article describes the overwhelming importance of insurers to the litigation system and argues that all cases are affected by insurance practice. It distinguishes the effect of insurance upon judicial fact finding, on the one hand, and the development of common law rules, on the other. It examines the ability of insurers to influence legislation relevant to the tort system. It concludes that, if account is taken of all these areas, insurance has been of vital importance to the law of tort. Without it, the system of personal injury compensation would not have survived. This conclusion is reached even though insurance is largely ignored by the great majority of tort texts.
The Timing of Tax Transparency
Fairness in the administration of the tax law is the subject of intense debate in the United States. As recent headlines reveal, the Internal Revenue Service has been accused of failing to enforce the tax law equitably in its review of tax-exempt status applications by political organizations, the international tax structures of multinational corporations, and the estate tax returns of millionaires, among other areas. Many have argued that greater “tax transparency” would better empower the public to hold the IRS accountable and the IRS to defend itself against accusations of malfeasance. Mandatory public disclosure of taxpayers’ tax return information is often proposed as a way to achieve greater tax transparency. Yet, in addition to concerns regarding exposure of personal and proprietary information, broad public disclosure measures pose potential threats to the taxing authority’s ability to enforce the tax law.Given the competing values of accountability and enforcement, what tax return information should be observable by the public? This Article argues that timing matters. The IRS continually engages in enforcement actions ex post, after taxpayers have pursued transactions and claimed tax positions, such as by conducting audits or settlements. But it also frequently engages in actions ex ante, before taxpayers pursue transactions and claim tax positions, by issuing advance tax rulings to and entering into agreements with specific taxpayers. While current law appears to require public disclosure of certain types of ex ante tax administration, many forms of ex ante tax administration remain concealed from public view. This Article argues that documents related to a specific taxpayer’s tax affairs that reflect ex ante tax administration should be publicly accessible as a means of accountability, but that documents that reflect ex post tax actions should remain private in order to preserve effective tax enforcement. Further, this Article proposes that the public should have access not only to ex ante tax administration actions where the taxing authority grants taxpayers’ requests, but also to those actions where the taxing authority denies such requests, even if it does so without issuing an official written determination, a concept it defines as “dual tax transparency.”The Article then applies this analysis to several types of ex ante tax administration that are currently obscured by the curtain of tax privacy: withdrawn private letter ruling requests, adverse tax-exempt determination letters and advance pricing agreements. It concludes by exploring approaches to improving the accountability of the IRS regarding its ex post tax enforcement other than public disclosure of tax return information.