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Accountability Without Causality: Tort Litigation Reaches Fairy-tale Levels
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20287 |
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Section : |
MODERN THOUGHT
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| Issue
Date : |
7 / 1992 |
6,262 Words |
| Author
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Jude P. Dougherty
Jude P. Dougherty is the dean of the Department of Philosophy
at the Catholic University of America. |
"Tort Litigation Reaches Fairy Tale Levels" is the caption given to a letter to the editor recently published by the Wall Street Journal. The writer, of course, was not the first to notice. By one estimate tort awards are 2.3 percent of the U.S. gross national product, about eight times higher than the rate in Japan. Another study reports that U.S. liability insurance rates are twenty times those of Europe. Complaints about the drift that tort law has taken have come from many quarters, as courts have allowed industry liability for "unsafe" products, as physicians are obliged to pay enormous sums for insurance protection against malpractice awards, and as sellers are found strictly liable for cleanups. (While usually a matter of federal and state regulations, rather than tort law, liability for environmental infractions proceeds from the same expanded duty of care that drives current tort concepts.) Questionable court rulings are occurring with enough frequency to make it apparent to anyone who follows American legal practice even in a cursory way that major shifts in legal theory are occurring. Tort law is, of course, just one facet of a vast legal system, a system built upon an ancient philosophy of law and notions concerning the function of law in society.
Differing Theories Of Law
It is not simply, as one would expect, that a difference exists between the nineteenth- and twentieth-century jurisprudential outlooks. G Edward White, in Tort Law in America, reports a major shift in discussions of tort law between the 1950s and the 1970s. He finds that typical law review articles in the 1950s were tightly argued analyses of case law leading to the discovery of applicable principle, whereas in the 1970s tort literature was supplanted by broad and abstract analyses based on sociological and economic perspectives. "The novel quality of recent casebooks," says White, "is their tendency to speculate broadly on the function of tort law as a whole." He cites one textbook that calls for "a critical examination of fundamental ideas underlying tort liability" and another that discusses "three competing perspectives" concerning its rationale.
The 1970s literature that White views with some alarm because of its "non legal, theoretical perspective" has been amplified as philosophers and social theorists have added works bearing such titles as A Sociological Theory of Law (1985), Marxism and Morality (1984), The End of Law (1984), Marxism and Law (1982), The Concept of Socialist Law (1990), Collective and Corporate Responsibility (1984), and Post Modern Jurisprudence (1991). White suggests that shifting legal perspectives may
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