The Myth of Individualism and the Appeal of Tort Reform
Martin A. Kotler
Widener University Delaware Law School
January 1, 2007
Rutgers Law Review, Vol. 55, 2007
This Article examines the relationship between the American political culture of individualism and long-standing, well-established tort doctrine. Although much of the doctrine in the abstract is obviously reflective of the prevailing political culture, there remains a certain ambivalence. Thus, when judges and jurors are faced with deciding concrete cases before them, they frequently abandon their professed commitment to mythological notions of self-sufficiency and personal responsibility and find the injured plaintiff to be entitled to compensation.
The modern American tort reform movement's recognition of this ambivalence underlies the essential strategy for reform. The reformers' goals are more far reaching than the limitation of jury decision making through such devices as capping damages or modifying rules of evidence and procedure. Changes such as those are, relatively speaking, minor. Rather, by altering the basic concept of duty, tort reformers seek to undermine the entire institution of civil trials so that cases can be decided by reference to abstract principles instead of real-world assessments of the parties' injuries and harm-causing conduct.
Number of Pages in PDF File: 67
Keywords: torts, tort law, individualism, tort reform
JEL Classification: K13
Date posted: May 9, 2009