Tort Law and Culture
Marshall S. Shapo
Northwestern University School of Law
Marshall S. Shapo, TORT LAW AND CULTURE, Carolina Academic Press, 2003
This book analyzes tort law as a reflection of American society.
Discerning in this branch of law "a cultural mosaic," the book identifies some areas in which judicial decisions reflect general agreement that moral principles govern the law. It also indicates how other areas of tort law reflect our ambivalences about "rights" and "wrongs" - how we are of "two minds" about what the law should be, because we are of two minds about what we ought to be.
Among the well-known personalities that illustrate particular aspects of culture are Paula Jones and Bill Clinton (disagreements about the limits of the law concerning sexual harassment); Ralph Nader (whose suit against General Motors is a landmark in tort privacy law); Karen Silkwood (whose survivors' suit for plutonium contamination is a graphic example of arguments over strict liability for abnormally dangerous activities); and Richard Nixon (who argued for the plaintiffs in a Supreme Court case involving media privacy issues).
Besides spotlighting these famous figures, the book concentrates on how the roots of culture manifest themselves in a multitude of cases involving ordinary people.
A recurrent theme is how tort wars reflect wider culture wars - notably those between a "justice culture" and a "market culture." One example of these types of clashes appears in cases involving injuries that workers ascribe to the design of industrial machines they must use to do their jobs. In discussing that type of case, the book shows the sharp disagreements about personal responsibility reflected in wider political discourse. It demonstrates that we are both compassionate and hardhearted, and that those opposed tendencies make themselves felt in deciding whether to enforce hard bargains about injury risks.
These themes also appear in the book's treatment of consumers' preoccupation with their material possessions. The book shows how our responses to disappointment with failures of products reveals those products "as repositories of our aspirations and definers of ourselves."
Another example of the book's examination of cultural tensions appears in its treatment of the differences of opinion among both lawyers and ordinary people about the merits of emotional anguish as a foundation for compensation. In its discussion of the controversy about whether to allow recovery for negligent infliction of emotional distress, the book suggests that there may be a little bit of General Patton in even many of the most compassionate among us.
Accepted Paper Series
Date posted: September 16, 2003
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