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A Progressive View of Tort Law
| Article
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15665 |
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Section : |
MODERN THOUGHT
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| Issue
Date : |
2 / 1989 |
5,990 Words |
| Author
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James Boyle
James Boyle is a professor at Washington College of Law,
American University. |
At first blush, tort law seems like a strange thing to treat from a political, let alone a progressive, perspective. For a start, some people do not even know what tort law is, and those who do could be forgiven for associating it with dense law books rather than with ideological strife. Despite all of this, tort law turns out to be a surprisingly important political issue. Its ambit includes everything from liability for pollution to safety in the workplace, from the socialization of risk to product liability. It is the body or rules, principles, policies, and arguments that lawyers turn to when confronted by tragedies like Bhopal or Love Canal. But it is also a set of moral, economic, and political ideas about society, about bonds between people, about who should pay when bad things happen. The point that I am trying to make is that tort law is a political issue not only because it concerns the safety of the public and the allocation of profits and losses, but also because it deals with our contradictory and unconscious ideas about what is right and wrong, about what a good society would look like.
Most legal articles about tort law concentrate on the rules and the question of whose ox is to be gored. Most newspaper reports, on the other hand, concentrate on the "outrageous" cases--man who throws himself in front of a subway train and then sues the subway because he gets hurt. Neither the scholar nor the journalist seem to understand that these are simply two sides of the same coin. You cannot understand the success of the insurance industry's attempts to roll tort law back into the 1890s without understanding the popular image of tort law--culled not from the Harvard Law Review but from the pages of the National Enquirer. By the same token, you cannot understand the attraction of the National Enquirer's view of tort law unless you look at its most developed form--which you can find, strangely enough, in the laissez-faire ideology of the nineteenth century legal profession. My argument is that if we combine these two views we get not only a three-dimensional picture of tort law, but a different picture than we would get if we looked at only one.
I will begin by describing the popular stereotypes of the tort system. Next, I will explain how these stereotypes are currently being used to make tort law more favorable to manufacturers and insurers and less favorable to injured people. Finally, I will try to dispel the impression that any reform of the tort system would entail a shift to some form of nasty foreign socialism. In fact, as I hope to show, the traditions of community care, social responsibility, and the commonwealth are all integral to American public discourse in general and our existing
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