IN CHAPTER 8, I EXAMINED HOW TORT LAWYERS' QUEST FOR profits influenced the development of a tort system that neither efficiently compensates injured victims nor meaningfully deters the production of unsafe services and products. In this chapter, I continue the systemic focus by addressing the most far reaching effect of contingency fees on the tort system: the expansion of the scope of liability of the tort system over the past five decades. By expansion of the scope of liability, I mean the enlargement – mainly by judicial action – of the range of acts that make someone liable to another for causing injury.

When courts create new bases for awarding compensation by expanding the range of acts that give rise to liability, they typically apply those decisions retroactively, thus accentuating the effects of the expanded liability. This is especially true for individual or corporate acts that were lawful when they occurred in the 1940s and 1950s but were later considered wrongful after the expansion of liability that began in the late 1960s and quickened in the 1980s. Indeed, thousands of tort claims from the 1980s onward were the result of defendants' retroactive inculpation for acts committed decades earlier that were not wrongful at the time. Today, as Professors James A. Henderson and Aaron D. Twerski have stated, “a manufacturer can wake up one morning and find itself confronted with the very real possibility that all the products it has sold for the past [twenty] years (all 450 billion of them) are legally defective.”