The Myth of a Value-Free Injury Law: Constitutive Injury Law as a Cultural Battleground

Abstract

This is a book review essay of An Injury Law Constitution by Marshall S. Shapo (Oxford University Press, 2012). Shapo’s new book introduces the concept of an “injury law constitution” to describe the distinctive values embodied by American tort law, with its emphasis on responsibility and prevention of injuries. Constitutive injury law can be described as our civil religion that levels abuses of power, whether it is the haughty power of the oil industry responsible for the gusher in the Gulf or feral governmental officials that spy on or even torture U.S. citizens. Shapo’s thesis is that distinctive and virile bodies of law have evolved for determining responsibility for injuries and the prevention of injuries. These legal institutions have some of the qualities of a constitution — a fundamental set of legal and moral principles that govern relations between human persons, corporations, and governments. His work counters the simplistic arguments of corporate-funded tort reformers who claim that America’s civil justice system is driving our economy into a death spiral through jackpot justice awards to greedy plaintiffs and their amoral trial attorneys. Drawing upon forty-six years of torts scholarship and teaching, Shapo demonstrates how injury law reflects our most important cultural values in curbing corporate, governmental, and individual bullies, or reckless companies that play roulette by trading safety for profits.