Abel - A Critique of Torts 37UCLALRev785

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ARTICLES
A CRITIQUE OF TORTS
Richard L. Abel*
This Article offers one critique of torts.' I stress the singular

because almost all commentators are critical; but I believe my ap-
proach is distinctive, if not unique. I firmly associate myself with
Critical Legal Studies, but that broad movement contains many di-
vergent strands. Unlike some Crits, I am not concerned primarily
with showing the indeterminacy of legal rules and the inadequacy of
judicial reasoning. Unlike others, I believe strongly in the possibil-
ity of social theory and the importance of empirical research. And I
propose concrete reforms, thereby challenging the charge of nihil-
ism frequently levelled by Crit-bashers. Despite these differences,
my work is critical rather than liberal or positivist. Liberals accept
the contingent world as inevitable: capitalism is the best possible
economic arrangement; democracy must yield to oligarchy in the
interest of efficiency; inequality is natural rather than socially con-
structed; and individualism limits community. Crits, by contrast,
take liberal values seriously and imagine alternative worlds in which
they could be realized. Positivists distinguish sharply between value
and fact, promising objective knowledge. Crits reject the distinc-
tion, contending that any account of the social world is partial and
imbued with values.
* Professor of Law, University of California, Los Angeles. B.A. 1962, Harvard

University; J.D. 1965, Columbia University; Ph.D. 1974, University of London. I am
grateful for the comments of Emily Abel, Jay Feinman, David Kairys, Mark Kelman,
Sandra Segal Ikuta, William Simon, Mark Tushnet, and the editors of UCLA Law Re-
view. All still would disagree with some of what I have written, and some with all of it.
1. This Article began as my contribution to the revised edition of THE POLITICS
OF LAW: A PROGRESSIVE CRITIQUE (D. Kairys 2d ed.) (forthcoming), where it will
appear in abbreviated form.
HeinOnline -- 37 UCLA L. Rev. 785 1989-1990

UCLA LAW REVIEW [Vol. 37:785
My views reflect twenty years of the dialogue with students

and texts that constitutes law teaching, but I am not a torts scholar
and do not pretend to have synthesized the massive literature in this
field. Part I offers a very abbreviated outline of the ways in which
modern society has shaped tort law. Part II then criticizes the ex-
isting legal regime in terms of the generally accepted goals of tort
law-moral judgment, compensation, and safety. Finally, Part III
proposes specific reforms that could be implemented within the
present system and simultaneously identifies the structural changes
necessary to realize the widely shared values that guide the system.
I. A VERY BRIEF HISTORY

Before the modern era, tort law was preoccupied with inten-
tional wrongs; it still is in peripheral areas of the world relatively
unaffected by industrialization, urbanization, capitalism, and the
state. Accidents rarely caused serious injury because people did not
control large amounts of energy. 2 In societies in which the means
and relations of production did not generate great differences in
wealth, status was differentiated by reputation, which was shaped
significantly by intentional wrongs and the response they evoked.3
Even misfortunes we now interpret as accidental-such as a snake
bite, lightning bolt, or fatal disease-often were construed as inten-
tional by reference to beliefs in witchcraft and sorcery or attributed
to the wrath of ancestors or gods. 4 In the absence of a state, redress
frequently depended on the victim's capacity to mobilize a support
group, often based on kinship, residence, or age grade, whose mem-
bers were likely to be outraged by intentional wrongs.
The social, economic, political, and cultural changes of the last
few centuries inevitably transformed tort law. Technological devel-
opment made it possible for inadvertence to inflict unimaginable
misery. Individuals can trigger disaster when driving cars or start-
2. The exceptions involved cattle trespass and fire. Liability seems to have been
strict-the consequences were treated as though they were intended. Abel, Customary
Laws of Wrongs in Kenya: An Essay in Research Method, 17 AM. J. COMP. L. 573
(1969); THE ALLOCATION OF RESPONSIBILITY (M. Gluckman ed. 1972).
3. See Abel, The Rise of Capitalism and the Transformation of Disputing: From
Confrontationsover Honor to Competition for Property, 27 UCLA L. REV. 223 (1979).
4. See E.E. EVANS-PRITCHARD, WITCHCRAFT, ORACLES AND MAGIC AMONG
THE AZANDE (1937); M. MARWICK, SORCERY IN ITS SOCIAL SETTING: A STUDY OF
THE NORTHERN RHODESIA CEWA! (1965); WITCHCRAFT AND SORCERY IN EAST AF-
RICA (J. Middleton & E.H. Winter ed. 1963).

1990] CRITIQUE OF TORTS
ing fires (in office towers, hotels, or forests, for instance).5 Collec-
tivities, both public and private, can cause even worse damage
through both discrete events (the Exxon oil spill, the Bhopal disas-
ter) and ongoing activities (the manufacture and sale of asbestos,
thalidomide, and cigarettes, and the dumping of nuclear waste).
The concentration of private capital and political power, together
with autocratic structures of control, have greatly augmented the
potential effects of carelessness.
Mass migration and urbanization have produced a nation of
strangers. Most people have little interest in inflicting intentional
injuries; when they do, the goal is material gain rather than en-
hanced social status (which is lost by crime, except within deviant
subcultures). 6 Similarly, victims of anonymous violence are more
interested in compensation than personal revenge, but tort actions
offer little redress because few criminals can pay damages. The
7
world of status relationships has largely contracted to the family.
Violence and emotional abuse are endemic within that domain, but
the state is reluctant to get involved because intervention would de-
stroy intimacy; people disagree about behavioral standards, and
those who wield power within the family-men and parents-
strongly resist interference.
The same social structural changes that reduce the salience of
intentional torts simultaneously increase the importance of negli-
gent injuries. Strangers have less incentive to exercise care toward
each other and greater difficulty in resolving conflict when injury
occurs. The deepening divides of class and race aggravate both ten-
dencies. Capitalism, technology, and the division of labor all have
increased the social distance between those who make the "decision
for accidents" 8 and their potential victims: consumers of goods,
services, and environmental amenities (such as air and water), and
workers. Tortious behavior has come to resemble modern warfare
in the distance between tortfeasor and victim.
5. The federal government sued a fishing guide for millions of dollars for starting
a fire that consumed thousands of acres of national parkland. Woods and Waters, Chi-
cago Tribune, June 28, 1989, § 4, at 2, col. 3.
6. Gang activity is clearly motivated by status considerations. Jack Katz has re-
cently attributed this characteristic to much of crime, in SEDUCTIONS OF CRIME:
MORAL AND SENSUAL ATTRACTIONS IN DOING EVIL (1988). But Laurie Taylor's eth-
nography of English criminals, IN THE UNDERWORLD (1984), depicts them as approxi-
mating "economic man."
7. Status competition obviously is the grist of economic life, but there it is man-
dated, not punished.
8. Calabresi, The Decision for Accidents: An Approach to Nonfault Allocation of
Costs, 78 HARV. L. REV. 713 (1965).

As the focus of tort law has shifted from intentional wrongs

among intimates to unintentional injuries among strangers, its
moral tone has changed as well. Although tort scholars disagree
about the standard of care demanded by preindustrial tort law, 9
none would deny that nineteenth-century judges consciously
adopted a highly moralistic rhetoric, allowing victims to recover
only if they were free from fault and those they sued were morally
culpable. In the last hundred years, these moral judgments have
been subordinated to an equally explicit concern with compensa-
tion. Courts have awarded damages to victims who previously
would have been barred from recovery: charitable hospital patients,
social guests or trespassers on the land of another, guests in an-
other's car, and those guilty of contributory negligence or assump-
tion of risk. Similarly, courts have imposed liability without fault
on those who caused injuries, simply because they were employers,
manufacturers, or participants in abnormally dangerous activities.
The experience of injury also has changed fundamentally. Cap-
italism has created a proletariat that must sell its labor for wages in
order to live. Lost earnings (past and future) are an essential ele-
ment of compensatory damages because unemployment is tanta-
mount to destitution. Those disabled by accident must purchase
care from strangers because capitalism erodes the obligations of mu-
tual support outside the nuclear family and increasingly compels
both spouses to work.10 As the medical profession has increased its
own technical competence, it simultaneously has deskilled the laity.
Medical expenses are another major component of tort damages be-
cause medical care now must be purchased from physicians or their
subordinates at prices inflated by the state-created monopoly.
Capitalism and mass production have disseminated consumer
goods among the general public. Most of these goods represent
pure exchange value-bought rather than made and readily re-
placed (indeed, the newer the better). Consequently, property loss
9. See L. FRIEDMAN, A HISTORY OF AMERICAN LAW (1973); M. HORWITZ,

THE TRANSFORMATION OF AMERICAN LAW, 1780-1860 (1977); Gregory, Trespass to
Negligence to Absolute Liability, 37 VA. L. REV. 359 (1951); Rabin, The HistoricalDe-
velopment of the Fault Principle: A Reinterpretation, 15 GA. L. REV. 925 (1981);
Schwartz, The Characterof Early American Tort Law, 36 UCLA L. REV. 641 (1989);
Schwartz, Tort Law and the Economy in Nineteenth-Century America: A Reinterpreta-
tion, 90 YALE L.J. 1717 (1981).
10. Society compensates victims only for the cost of commodified care, not for the
opportunity cost to a spouse of giving up a job to provide that care. Rodriguez v.
Bethlehem Steel Corp., 12 Cal. 3d 382, 409, 525 P.2d 669, 687, 115 Cal. Rptr. 765, 783
(1974).

is another ingredient of tort damages. Finally, as explained more

fully below, the commodity form has been extended from goods,
labor, and care to all forms of human experience. Accordingly,
courts grant tort damages for physical pain, disfigurement, loss of
bodily function, fear, and damage to emotional relationships. The
growing importance of damages for intangible injury reflects the
value system of a postindustrial society that promises everyone a
perfect life, unimpaired by accidents, and elevates leisure and con-
sumption over work and production.
Social fragmentation has made it difficult for victims to mobil-
ize group support for their claims, increasing their reliance on the
state and on the commodified assistance they must buy from law-
yers.I1 Both eagerly accept the responsibility. The state always has
sought a central role in norm enforcement and conflict resolution,
progressively asserting its monopoly over the use of force. Politi-
cians and the media constantly reaffirm the centrality of these state
functions by bombarding the public with calls for "law and order."
Powerful state bureaucracies-courts, prosecutors, police, and
prison officials-develop vested interests in processing crime. The
victim becomes an embarrassing anachronism-necessary to set the
process in motion but inconvenient thereafter. Criminal prosecu-
tions virtually supplant civil actions for intentional tort.
Private practitioners specializing in representing tort victims
develop their own vested interests. The economic manifestation is
the contingent fee-plaintiffs' lawyers take a proportion of the vic-
tim's recovery, typically twenty-five to fifty percent. The political
manifestation is the time and money devoted by the Association of
Trial Lawyers of America and its state counterparts to advocating
fault-based private law remedies.
Capitalist tort law exploits and alienates victims just as capital-
ist production exploits and alienates workers. 12 In precapitalist so-
11. The exception, of course, is the workplace. See D. NELKIN & M. BROWN,
WORKERS AT RISK: VOICES FROM THE WORKPLACE (1984).
12. In September 1989, a school bus carrying 80 children was struck by a truck
from the local Coca-Cola Bottling Company and crashed into a municipal gravel pit full
of water in Alton, Texas, killing 21. Most of the parents of the injured children were
Hispanic agricultural workers. Carmen Cruz, whose 17-year-old daughter was killed
and whose 14-year-old daughter was injured, said: "I didn't want a lawyer. I said, 'The
first lawyer who can bring my daughter back, I'll hire.' But everyone started telling me:
'No, that's the law. When this happens to you, you hire a lawyer and you get money.'
So now I have a lawyer." Actually, she was besieged by lawyers. She signed contracts
with three and tried to fire two of them. One gave her $5,000 and promised to help her
buy a new house; a second helped her to buy a new GMC Suburban van. Belkin, Where
21 Youths Died, Lawyers Wage a War, N.Y. Times, Jan. 18, 1990, at Al, col. 2.

ciety, injury-like work-creates use value. Intimates feel obligated

to care for victims; social groups diminished by the injury support
the victim's demand for redress. The capitalist state asserts a mo-
nopoly of force, undermining private collective action. 1 3 The legal
system, which constructs the market for labor, capital, land, and
commodities, also constructs the market for injuries. Just as capi-
talism separates workers from the means of production, legal pro-
fessionalism separates tort victims from the means of redress, and
medical professionalism separates victims and intimates from re-
sponsibility for care. In each instance, a fraction of the dominant
class mobilizes state power to protect its property--capital or pro-
fessional credentials. Just as the owner of capital combines it with
the worker's labor to produce a commodity with exchange value in
the market, the lawyer combines the state-created monopoly of
legal representation and advice with the victim's injury to produce a
commodity-a tort-which has exchange value in both the state-
created market (the court) and the dependent markets it engenders
(negotiated settlements). 14 Just as the capitalist insists on "manage-
rial prerogatives" in the workplace, the private practitioner and
prosecutor demand total control over legal production; the victim
(like the worker) has virtually no say in how injuries are trans-
formed into torts and crimes. 15 Like workers, most victims receive
the bare minimum needed for survival. Just as the capitalist expro-
priates the surplus value created by the worker, the lawyer expro-
13. See Christie, Conflicts as Property, 17 BRIT. J. CRIMINOLOGY 1 (1977).

14. See H. GENN, HARD BARGAINING: OUT OF COURT SETTLEMENT IN PER-
SONAL INJURY ACTIONS (1987); H.L. Ross, SETTLED OUT OF COURT: THE SOCIAL
PROCESS OF INSURANCE CLAIMS ADJUSTMENT (2d ed. 1980); cf Mnookin & Korn-
hauser, Bargainingin the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950
(1979). The physician also packages the victim's injury for "sale" to a third-party
payer.
15. See E. LIND, R. MACCOUN, P. EBENER, W. FELSTINER, D. HENSLER, J. RES-
NIK & T. TYLER, THE PERCEPTION OF JUSTICE: TORT LITIGANTS' VIEWS OF TRIAL,
COURT-ANNEXED ARBITRATION, AND JUDICIAL SETTLEMENT CONFERENCES (1989);
D. ROSENTHAL, LAWYER AND CLIENT: WHO'S IN CHARGE? (1974). The self-interest
of lawyers can tempt them to unethical behavior. The United States Attorney for the
Southern District of New York has indicted three members of a Manhattan personal
injury firm, its four private investigators, and an office manager for bribing witnesses to
lie and for falsifying evidence in 19 accident cases since 1979. The indictment alleges
that one witness falsely testified in two cases although the witness was in prison at the
time of one of the accidents and claims that a private investigator used a pick axe to
enlarge a pothole at a race track. Hevesi, 8 at Law Firm Accused of Bribing Witnesses
and Faking Evidence, N.Y. Times, Jan. 12, 1990, at A16, col. 1; see also Effron &
Weikel, 31 Named in Phony Accident Scheme, L.A. Times, March 1, 1990, at A3, col. 5.
The victims' rights movement has loudly deplored the disregard for victims in
criminal prosecutions.

priates a fourth to a half of the victim's recovery, sometimes sharing

it with other professionals, such as physicians.
II. CRITIQUE
The purposes of tort law are to pass moral judgment on what

has happened, respond to the victim's need for compensation, and
encourage future safety. It does a poor job of all three.
A. Moral Judgment
Historically, moral judgment was the core of tort law. Few
would deny that endangering or injuring another merits condemna-
tion or that victims' wrongs deserve public recognition. Further-
more, those held liable experience tort damages as punishment. Yet
tort liability is incoherent as a moral system.
It consistently violates the basic principle of proportionality be-
tween the wrongfulness of the defendant's conduct and the magni-
tude of the penalty imposed. Because punishment is a function of
harm caused, it is either too severe or too lenient. It is too severe
when momentary inadvertence results in catastrophic injury-for
instance, a driver who takes his eyes off the road to tune the radio,
causing an automobile accident that inflicts a lifetime of agony on
one or more victims. It is too lenient when egregiously unsafe con-
duct happens to cause little or no injury, by chance or through the
intervention of others-for instance, a negligently constructed and
maintained office building consumed by fire in the middle of the
night when it is empty. Courts deal with these inequities haphaz-
ardly: judges invoke doctrines of proximate cause and duty to cur-
tail liability, 16 whereas triers of fact stretch notions of causation to
extend liability. 17 But many injustices are not corrected, and the
16. See, e.g., In re Kinsman Transit Co., 388 F.2d 821 (2d Cir. 1968); Strauss v.
Belle Realty Co., 65 N.Y.2d 399, 482 N.E.2d 34, 492 N.Y.S.2d 555 (1985).
17. In Wells v. Ortho Pharmaceutical Corp., 788 F.2d 741 (1 1th Cir.), cert. denied,
479 U.S. 950 (1986), a federal judge found that a spermicidal jelly had caused serious
birth defects even though most of the experts had testified to the contrary. The decision
provoked critical editorials in the New England Journal of Medicine and the New York
Times, FederalJudges vs. Science, N.Y. Times, Dec. 27, 1986, at 22, col. 1, as well as
controversy among letters to the editor, N.Y. Times, Jan. 24, 1987, at 26, cols. 4, 5, 6.
In another case, a jury awarded $1.16 million in damages for birth deformities to
the family of Carla Richardson, whose mother took Bendectin for morning sickness
while she was pregnant. The trial judge set aside the verdict, and the United States
Court of Appeals upheld the decision. Merrell Dow Pharmaceuticals, which manufac-
tured the drug, has prevailed in all other trials. Hoffman v. Merrell Dow Pharmaceuti-
cals, Inc., 857 F.2d 290 (6th Cir. 1988), cert. denied, 109 S. Ct. 88 (1989).

moral intuitions of judges and juries lack a principled basis.' 8 Simi-

lar problems arise when the law overvalues or undervalues victim
misconduct; again courts make ad hoc accommodations, adjusting
the standard of care to the victim's capacity (measured by age and
physical or mental disability), making crude comparisons between
the fault of the parties, or acknowledging environmental constraints
on volition, such as an employer's domination of employees or the
few choices enjoyed by poor people.
Notions of fault constructed when individuals were the signifi-
cant actors and technology was simple are inadequate to assign re-
sponsibility today. Many torts, particularly the most serious, are
caused by collectivities, both public and private. The doctrine of
respondeat superior ensures victim compensation, but it also obvi-
ates the need to determine which employee was responsible. 19 Lia-
bility insurance pays most damages, but it also insulates the
wrongdoer from moral judgment. 20 Many injuries are caused by
the independent acts of several unrelated defendants among whom
there is no principled basis for apportioning responsibility. Indeed,
the very notion of individual responsibility is inconsistent with
probabilistic theories of causation. But the imposition of liability on
DES manufacturers whose products might have injured the plain-
tiffs seems to strain basic principles of fairness. 21
18. The best justification that Oliver Wendell Holmes could offer was: "The law
does not spread its protection so far." Robins Dry Dock & Repair Co. v. Flint, 275
U.S. 303, 309 (1927). The most notorious statement may be Justice Andrews' dissent in
Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 352, 162 N.E. 99, 103, 104 (1928):
"[B]ecause of convenience, of public policy, of a rough sense of justice, the law arbitrar-
ily declines to trace a series of events beyond a certain point. This is not logic. It is
practical politics .... It is all a question of expediency. There are no fixed rules to
govern our judgment."
19. The doctrine of respondeat superior holds an employer strictly liable for the
negligent torts of an employee.
20. Tortfeasors may never even learn whether their liability insurer paid the claim
or how much it paid. At most, their premiums may rise; they may attribute the increase
to general inflationary trends.
21. In Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 607 P.2d 924, 163 Cal. Rptr.
132 (1980), the California Supreme Court upheld a complaint against five DES manu-
facturers without requiring the victim to show whose product her mother consumed.
The New York Court of Appeals has gone a step further, imposing liability on DES
manufacturers even if they can prove that their product did not injure the plaintiff.
Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 539 N.E.2d 1069, 541 N.Y.S.2d 941, cert.
denied sub nom., Rexall Drug Co. v. Tigue, 110 S.Ct. 350 (1989). See Verhovek, New
York Court Backs Wide Claims on the Drug DES, N.Y. Times, Apr. 5, 1989, at Al,
col. 3.
This problem is not unique to pharmaceuticals. Whenever the defendant's culpa-
bility is based on probabilities, tort law imposes liability for injuries the defendant did
not cause and fails to impose liability for injuries the defendant did cause. See Stubbs v.

Tort theory and practice violate the moral intuitions of lay-

people. Survey research reveals that both victims and the general
22
public believe that compensation ought to be divorced from fault.
On one hand, those injured deserve and need compensation regard-
less of their own behavior. On the other hand, compensation
should be paid by those who can afford it most easily (because they
are wealthy or can spread the burden) or who benefit from the ac-
tivity that caused the injury (such as employers, manufacturers, or
sellers). The attribution of fault becomes a mere rationalization for
this more compelling ethical goal. Tortfeasors are even more averse
to moral judgment. Most cases are settled rather than adjudicated,
and settlements often explicitly deny any acknowledgment of fault.
This contrasts sharply with many nonwestern societies in which the
response to injury focuses on the causal actor's admission of guilt,
23
apology, and plea for forgiveness.
The moral incoherence of the tort system at the level of theory
is reproduced at the level of practice in the proliferation of inconsis-
tent standards of care. In preindustrial societies, liability was some-
times predicated on fault and sometimes imposed without fault; in
yet other instances, fault went unpunished. Although nineteenth-
century judges invoked fault to constrict liability, even they did not
embrace that principle wholeheartedly, as the persistence of strict
liability for ultrahazardous activities shows. The last hundred years
have seen continued tension between fault and nonfault principles.
Nonfault recovery has expanded through workers' compensation,
products liability, ultrahazardous activity, and no-fault automobile
insurance. Some defenses have been restricted (such as assumption
of risk or agreements not to sue), and others have been modified
(comparative fault largely displaced contributory negligence). A
City of Rochester, 226 N.Y. 516, 124 N.E. 137 (1919). On the tension between legal
and scientific concepts of causation, see Horwitz, The Doctrine of Objective Causation,
in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE (D. Kairys ed. 1982).
22. See R. HUNTING & G. NEUWIRTH, WHO SUES IN NEW YORK CITY? A
STUDY OF AUTOMOBILE ACCIDENT CLAIMS 5-15 (1962); H.L. Ross, supra note 14;
Lloyd-Bostock, Fault and Liabilityfor Accidents. The Accident Victim's Perspective, in
COMPENSATION AND SUPPORT FOR ILLNESS AND INJURY 139 (1984) [COMPENSATION
AND SUPPORT FOR ILLNESS AND INJURY hereinafter COMPENSATION AND SUPPORT];
O'Connell & Simon, Paymentfor Pain and Suffering.- Who Wants What, When and
Why?, 1972 U. ILL. L.F. 1.
23. Gibbs, The Kpelle Moot. A Therapeutic Model for the Informal Settlement of
Disputes, 33 AFRICA 1 (1963) (Liberia); see L. NADER, Styles of Court Procedure. To
Make the Balance, in LAW IN CULTURE AND SOCIETY 69 (1969) (Mexico); Wagatsuma
& Rosett, The Implicationsof Apology: Law and Culturein Japan and the United States,
20 LAW & Soc'Y REV. 461 (1986).

few jurisdictions have created comprehensive compensation pro-
grams. Yet fault principles have reappeared within every nonfault
scheme: worker intoxication or employer breach of safety regula-
tions in workers' compensation; notions of the appropriateness of
ultrahazardous activities; the requirement of a defect and compara-
tive fault in products liability; criminal activity in comprehensive
compensation programs.
The inconsistencies detailed above all reflect problems inherent
in the dominant ethical framework-utilitarianism. When tort law
expresses nonconsequentialist values, the results are even less satis-
factory. The obligation to help another in danger is one of the most
intractable issues in tort law. Our inability to find an acceptable
position highlights the basic contradiction between egoism and al-
truism: we can neither embrace one of the extremes nor find any
principled position between them. 24 We have just as much difficulty
combining utilitarian and nonutilitarian ethics. We require in-
formed consent before medical procedures out of respect for the pa-
tient's autonomy (a nonconsequentialist perspective); but we impose
liability only when the information withheld would have persuaded
a reasonable person to reject the procedure, and we award damages
in proportion to the physical injury caused by the procedure rather
25
than to the violation of autonomy (both utilitarian perspectives).
Similar problems arise when we try to combine the utilitarian duty
of reasonable care with nonutilitarian values, such as parents' right
to raise their children or minority religious beliefs about illness and
26
medicine.
Partly in response to these difficulties, but also because liber-
alism is discomforted by moral arguments that express patent and
apparently irreconcilable value disagreement, tort law has turned to
the language of economics, replacing moral judgment with concern
for the efficient allocation of resources, a concept that appears scien-
24. Duncan Kennedy has explored similar issues in the context of contract law.
Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685
(1976).
25. Cobbs v. Grant, 8 Cal. 3d 229, 502 P.2d 1, 104 Cal. Rptr. 505 (1972); see
Twerski & Cohen, Informed Decision Making and the Law of Torts. The Myth of Justi-
ciable Causation, 1988 U. ILL. L. REV. 607, 609-21.
26. New York has refused to hold a parent liable for negligence in supervising a
child. Holodook v. Spencer, 36 N.Y.2d 35, 324 N.E.2d 338, 364 N.Y.S.2d 859 (1974).
Courts also have been uncomfortable when a victim invokes religious scruples as the
reason for not mitigating damages through medical care. See Christiansen v. Hollings,
44 Cal. App. 2d 332, 112 P.2d 723 (1941); Shorter v. Drury, 103 Wash. 2d 645, 695
P.2d 116, cert. denied, 474 U.S. 827 (1985).

tific and apolitical. 27 There are serious obstacles to putting cost-

benefit analysis into effect. 28 More importantly, safety should not
be a commodity that potential victims consume according to idio-
syncratic preferences. Such "choices" inevitably reflect both the in-
dividual's socialization and the vastly different resources people can
spend on safety.
In practice, tort law rejects many of the pivotal recommenda-
tions of economic analysis. Tort law penalizes victims who choose
too little safety by reducing or barring recovery, but it fails to pun-
ish those who choose too much although their behavior is just as
inefficient. Economics argues for symmetrical treatment of plain-
tiffs and defendants, but tort law is much more solicitous of vic-
tims. 29 Economics is indifferent to context, but tort law is
contextually specific, recognizing that a consumer's "choice" of an
unsafe product differs from a worker's "choice" of an unsafe job.
Indeed, the Coase theorem, one foundation of law and economics,
sees no need for tort liability whenever the plaintiff and defendant
could negotiate safety: in the workplace or in the marketplace for
goods (pharmaceutical products, home appliances) or services (air
travel, medical care).3 0 Although economics disregards the charac-
teristics of the parties, tort law imposes different obligations on cor-
porate entities and individuals, entrepreneurs and consumers.'
27. W. LANDES & R. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW 1

(1987) ("IT]he common law of torts is best explained as if the judges who created the
law ... were trying to promote efficient resource allocation."). Richard Posner is the
most visible exponent of this view. See R. POSNER, ECONOMIC ANALYSIS OF LAW (3d
ed. 1986); Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29, 33 (1972) ("[T]here is
no moral indignation in the case in which the cost of prevention would have exceeded
the cost of the accident.").
28. See infra text accompanying notes 74-109.
29. Courts individualize the standard of care expected of victims who are young or
old or physically or mentally disabled. They sometimes interpret statutes as excusing
victim negligence. Doctrines of ultrahazardous activity, workers' compensation, and
products liability all demand greater care by tortfeasors than by victims.
30. See, e.g., Epstein, Medical Malpractice. The Case for Contract, 1976 AM. B.
FOUND. RES. J. 87.
31. See, e.g., Delta Air Lines, Inc. v. McDonnell Douglas Corp., 503 F.2d 239 (5th
Cir. 1974) (defendant aircraft manufacturers not liable for negligence or strict liability
because of an exculpatory clause which limited defendant's liability to contractual dam-
ages when aircraft that plaintiff purchased from defendant collapsed), cert. denied, 421
U.S. 965 (1975); Smith v. Arbaugh's Restaurant, Inc., 469 F.2d 97 (D.C. Cir. 1972)
(Leventhal, J., concurring) (after building inspector fell on the greasy metal steps of a
restaurant, the court found that the restaurant owner owed a duty to maintain his prop-
erty in a condition reasonably safe under all circumstances without regard to whether
business inspector was "business invitee" or "licensee"); Delta Air Lines, Inc. v. Doug-
las Aircraft Co., 238 Cal. App. 2d 95, 47 Cal. Rptr. 518 (1965) (defendant airplane
manufacturer not liable in tort for failure of airplane to function properly because con-

Although economics simply aggregates all the "costs of accidents"

in calculating desired safety levels, tort law treats personal injury
differently from property damage and lost profits. 32 Although eco-
nomics views all choices as equally "free," tort law recognizes re-
source constraints in the purchase of "essential" goods and
services. 33 In sum, economics offers neither an accurate description
of existing tort law nor a morally superior alternative.
B. Compensation
If moral judgment accounts for the origin of tort law, compen-
sation is its contemporary preoccupation, at least among layper-
sons. Victims need money-often desperately-to replace lost
earnings and pay medical expenses; they may want something more
to allay their sense of outrage and ensure that the tortfeasor has
been properly punished. Jurors are equally preoccupied with help-
ing needy victims. Yet tort law is an unsatisfactory mechanism of
compensation, both in its material consequences and as an ideology.
Tort law cannot compensate needy victims adequately because
liability is a function of fault rather than need. A victim injured by
someone not at fault will remain uncompensated. A victim at fault
can never receive more than partial compensation. And even when
the victim is found to be faultless and the defendant at fault, the
consequences of liability depend on the material circumstances of
the plaintiff and defendant. If the defendant lacks resources, a tort
judgment is an empty remedy. If the parties have similar resources
(or the victim is wealthier), shifting the financial burden from one to
the other produces no social gain. Indeed, the goal is not to com-
pensate the victim but to spread the financial burden among as
many people as possible. But spreading turns on the happenstance
that the tortfeasor either has insurance or is a large corporate entity
whose liability will be shared by customers, shareholders, employ-
ees, or taxpayers.
Given the legal and financial obstacles to recovery, it is not
surprising that relatively few victims succeed. The best empirical
study, which examined English accident victims disabled for at least
tractural provision exculpated defendant for liability); K-Lines, Inc. v. Roberts Motor
Co., 273 Or. 242, 541 P.2d 1378 (1975) (manufacturer and distributor of trucks not
liable in tort for defects in trucks sold to plaintiff because unambiguous limitation of
liability in sales provision was valid).
32. Abel, Should Tort Law Protect Property Against Accidental Loss? 23 SAN
DIEGO L. REV. 79, 101 (1986).
33. Tunkl v. Regents of University of California, 60 Cal. 2d 92, 383 P.2d 441, 32
Cal. Rptr. 33 (1963).

two weeks, found that only twelve percent recovered any tort dam-
ages. 34 Several American studies confirm that recovery is infre-
quent here as well. 35 Although lawyers are essential to successful
claims, they are prohibited from initiating contact with accident
victims. 36 Even the small fraction of victims who seek compensa-
tion recover only part of their damages because the vast bulk of
claims is settled out of court. 3 7 Economic incentives persuade
34. Genn, Who Claims Compensation: Factors Associated with Claiming and Ob-
taining Damages, in COMPENSATION AND SUPPORT, supra note 22, at 45, 51 (Table
2.2); see also Abel, X's of Cure, Ounces of Prevention (Book Review), 73 CALIF. L. REV.
1003 (1985). The many obvious differences between the legal systems of the United
States and the United Kingdom include the structure of fees, size of damages, role of
juries and the legal profession, and availability of legal aid. One comparative study-of
asbestos claims-suggests reasons why the claims rate might be higher in the United
Kingdom than in the United States. W. FELSTINER & R. DINGWALL, ASBESTOS LITI-
GATION IN THE UNITED KINGDOM: AN INTERIM REPORT (1987). Another compara-
tive study of medical malpractice claims reaches the opposite conclusion. C. Ham, R.
Dingwall, P. Fenn & D. Harris, Medical Negligence: Compensation and Accountability
(King's Fund Institute Briefing Paper No. 6) (1988).
35. See, e.g., P. DANZON, MEDICAL MALPRACTICE: THEORY, EVIDENCE, AND
PUBLIC POLICY 19-21, 23 (1985); W. SCHWARTZ & N. KOMESAR, DOCTORS, DAM-
AGES AND DETERRENCE: AN ECONOMIC VIEW OF MEDICAL MALPRACTICE 11 (1978).
The New York State Commissioner of Health contracted with Harvard University
to study claims by malpractice victims in New York hospitals. Extrapolation from a
review of 30,195 randomly selected patients at 51 hospitals in 1984 led researchers to
conclude that malpractice was associated with 7000 deaths and 29,000 injuries through-
out the state. However, only 1 victim in 10 even filed a malpractice claim. A 1974
California study found the same level of claims. Sack, Thousands of Medical Errors,but
Few Lawsuits, Study Shows, N.Y. Times, Jan. 29, 1990, at A15, col. 2. See also
Goldman, 4% Got DisablingInjury in N. Y Hospitals, Study Finds, L.A. Times, Mar. 1,
1990, at A17, col. 1. A very crude estimate of product injuries concluded that less than
70,000 of the average 6.7 million injuries occurring annually between 1973 and 1975 led
to claims, or less than 11 in 1000. INTERAGENCY TASK FORCE ON PRODUCT LIABIL-
ITY-FINAL REPORT, Ch. VII, at 212 (1978). The Rand Corporation is replicating the
English study; it will screen 55,000 respondents to identify 3,000 victims. 7(1) CIVIL
JUSTICE ROUNDTABLE (March 1989).
We reach the same conclusion by examining the question from the perspective of
aggregate benefits paid for injury and illness. Tort damages contributed less than a
tenth of total payments in 1960 (7.9%), 1982 (8.8%), and 1984 (9.8%). O'Connell &
Guinivan, An Irrational Combination: The Relative Expansion of Liability Insurance
and Contraction of Loss Insurance, 49 OHIO ST. L.J. 757, 759 (1988).
36. Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978); Shapero v. Kentucky Bar
Ass'n, 486 U.S. 466 (1988) (O'Connor, J., dissenting).
37. See A. CONARD, J. MORGAN, R. PRATT, C. VOLTZ & R. BOMBAUGH, AUTO-
MOBILE ACCIDENT COSTS AND PAYMENTS: STUDIES IN THE ECONOMICS OF INJURY
REPARATION (1964); H. GENN, supra note 14; J. HAMMITT, AUTOMOBILE ACCIDENT
COMPENSATION: PAYMENTS BY AUTO INSURERS (1985); J. KAKALIK, E. KING, M.
TRAYNOR, P. EBENER & L. PICUS, COSTS AND COMPENSATION PAID IN AVIATION
ACCIDENT LITIGATION (1988); H.L. Ross, supra note 14; Danzon & Lillard, Settle-
ment Out of Court: The Disposition of Medical Malpractice Claims, 12 J. LEGAL STUD.
345 (1983); Franklin, Chanin & Mark, Accidents, Money and the Law. A Study of the

tortfeasors to overcompensate small claims (because of their nui-

sance value) and undercompensate large ones (because victims need
immediate payment while the legal system allows defendants to de-
lay for years). Many victims and their families are impoverished
because of the inadequacy of other sources of compensation includ-
ing loss insurance, sick pay, welfare, disability benefits, and
38
pensions.
Tort damages are not only inadequate as compensation, but
also are unequal, thereby symbolizing, reproducing, and intensify-
ing existing material inequalities. Because liberalism rejects status
inequalities, tort law gradually has eliminated de jure distinctions
between patients injured in charitable and profit-making hospitals,
fee-paying passengers and gratuitous guests injured in automobile
accidents, and business and social guests injured by landowner neg-
ligence. 39 Yet the legal celebration of formal equality obscures the
persistence of real inequality.
First, some people are more likely than others to be victimized
by tortfeasors who cannot or will not pay compensation. Crime vic-
tims, for instance, are disproportionately the poor, racial minorities,
Economics of Personal Injury Litigation, 61 COLUM. L. REV. 1 (1961); COMPENSATION

AND SUPPORT, supra note 22; Rosenberg & Sovern, Delay and the Dynamics of Personal
Injury Litigation, 59 COLUM. L. REV. 1115 (1959).
Recoveries by survivors of victims killed in airplane crashes (after deduction for
lawyers' fees) averaged only 39% of their economic loss and none of their intangible
loss. See also E. KING & J. SMITH, ECONOMIC LOSS AND COMPENSATION IN AVIA-
TION ACCIDENTS 71 (1989); E. KING & J. SMITH, COMPUTING ECONOMIC LOSS IN
CASES OF WRONGFUL DEATH (1988).
38. Brittan, Household Income, in COMPENSATION AND SUPPORT, supra note 22,
at 281; Abel, supra note 34, at 1012-22.
39. See, e.g., Cooper v. Bray, 21 Cal. 3d 841, 582 P.2d 604, 148 Cal. Rptr. 148
(1978) (automobile guest statute); Brown v. Merlo, 8 Cal. 3d 855, 506 P.2d 212, 106
Cal. Rptr. 388 (1973) (automobile guest statute); Rowland v. Christian, 69 Cal. 2d 108,
443 P.2d 561, 70 Cal. Rptr. 97 (1968) (status of victim on tortfeasor's land); Bing v.
Thunig, 2 N.Y.2d 656, 143 N.E.2d 3, 163 N.Y.S.2d 3 (1957) (charitable hospitals). Not
surprisingly, however, capitalist tort law still recognizes fundamental class differences.
When a capital good is damaged, capitalists, who own the means of production, can
recover lost profits, but workers, who do not, cannot recover lost wages. Compare
Dunlop Tire & Rubber Corp. v. FMC Corp., 53 A.D. 2d 150, 385 N.Y.S.2d 971 (1976)
(plaintiff factory owner sought to recover damages when explosion at defendant's
nearby plant led to loss of power and shutdown of production facilities; plaintiff was
entitled to recover if he could establish causal relationship between defendant's negli-
gence and the damage) with Beck v. FMC Corp., 53 A.D.2d 118, 385 N.Y.S.2d 956
(1976), aff'd, 42 N.Y.2d 1027, 369 N.E.2d 10, 398 N.Y.S.2d 1011 (1977) (employees of
automobile plant brought action alleging power company was liable for loss of wages
attributable to disruption of electrical power service to the plant, but the court found
that the power company owed no duty to the employees for their negligent failure to
furnish power to the employer).

women, adolescents, and the elderly. Sovereign immunity often

eliminates tortious liability for government, whose victims are likely
to be charitable patients, criminal suspects, prison inmates, welfare
40
recipients, military personnel, or veterans.
Second, the process of making a claim is institutionalized dif-
ferently in various settings. Automobile accidents are governed by
reasonably clear behavioral rules-traffic laws. Witnesses often are
available because accidents occur in public. Accidents create physi-
cal evidence such as skid marks and dents. Victims usually summon
police, who make written reports. Finally, both parties are likely to
be insured. Similarly, some compensation almost always is avail-
able for work accidents. Fellow workers both encourage victims to
claim and act as witnesses. Trade unions provide assistance and
legal representation. Class antagonisms create a sense of entitle-
ment. When accidents occur elsewhere, however-at home, from
consumer products, during leisure activities, for example-the
claims process is much less institutionalized: no one may have wit-
nessed the accidents; victims tend to blame themselves; and the po-
tential defendant is not readily identifiable. In England, twenty-
nine percent of road-accident victims and nineteen percent of work-
accident victims recovered some damages, but only two percent of
other victims, who represented eighty-six percent of those disabled
for two weeks or more by accident, recovered. 4' Women, the young
and old, and the unemployed are more likely to be in the last
category.
Third, the measure of damages is inequitable. Tort damages
are far more generous than workers' compensation payments, crime
victim compensation schemes, or veterans' benefits for those dis-
abled while in the military. Victims in the last three categories are
more likely to be manual workers, poor individuals, or members of
racial minorities. Tort damages deliberately reproduce the existing
distribution of wealth and income. Those who question the legiti-
macy of that distribution will be troubled that the state uses its co-
ercive power to recreate inequality. Furthermore, the cost of
preserving privilege is borne by all those buying liability insurance,
purchasing products and services, and paying taxes. For example,
40. More than 15,000 active duty military personnel were killed in peacetime train-
ing accidents between 1979 and 1989. Kutzler & Kutzler, The Army's Silence on Acci-
dental Death, N.Y. Times, Feb. 9, 1990, at A19, col. 1.
41. Genn, Who Claims Compensation: Factors Associated With Claiming and Ob-
tainingDamages in COMPENSATION AND SUPPORT, supra note 22, at 51; see also Abel,
supra note 34.

all insured car owners pay the cost of compensating the privileged
few who drive a Rolls Royce or earn half a million dollars a year.
They also pay the greater costs of the superior medical care con-
sumed by victims from higher socioeconomic strata. The privileged
also recover more for their pain and suffering than the nonprivi-
leged because nonpecuniary damages are calculated as a multiple of
pecuniary damages-often twice as much. Finally, jurors may
show more sympathy for those who have lost privilege than for
those who never enjoyed it.42
Because these biases cumulate, tort law intensifies social in-

equality. Among English accident victims disabled for two weeks
or more, men recovered tort damages almost twice as often as wo-
men, individuals between the ages of twenty-five and fifty-four re-
covered three times as often as those younger or older, the
employed recovered more often than the unemployed, and house-
wives recovered less than a third as often as their proportion of the
42. For instance, an amateur violinist received substantial damages for an injury
that impaired her performance. Riddle v. Memorial Hosp., 43 A.D.2d 750, 349
N.Y.S.2d 855 (1973). Would a jury have been as generous to a victim who enjoyed
listening to Mantovani on the radio and whose hearing was impaired by injury?
Several South African cases explicitly proportion damages for pain and suffering
based upon the identity of the victim. "What would be a magnificent recompense to a
person in the position of the applicant [an African] might be a very poor solatium to a
European workman .. " Jojo v. William Bain & Co. 1941 S.R. 72, quoted in Radebe
v. Hough [1949] 1 S.A.L.R. 380. "Every award of non-economic damages must neces-
sarily depend upon the circumstances of the particular case. In the present case, one of
the circumstances I have to take into account is that the plaintiff is a native in a humble
position in life." Mkize v. The South British Ins. Co. [1948] 4 S.A.L.R. 33, 36. In
Radebe v. Hough [1949] 1 S.A.L.R. 380, the Witwatersrand Local Division had
awarded the plaintiff £16 for pain and suffering for a bullet wound at the base of his
penis, which caused pain when urinating, rendered him impotent for nearly a year, and
made an erection intensely painful thereafter. Id. at 382-84. The trial judge com-
mented: "[Ilin the case of a native, as is the plaintiff, who is earning the sum of £2 per
week, I should most certainly not award the same amount for pain and suffering as I
would for the same pain and suffering of a person who had more culture and, for in-
stance, I would award a larger sum for damages in the case of an injury to a European
woman than I would do for a native male .. " Id. at 384-85. The judge awarded two
months' earnings. Id. at 385. The Appellate Division reversed, disapproving the two
earlier decisions. "It is the physical and mental make-up of the person injured which
must be considered in assessing his pain and suffering, and that make-up cannot be
determined by reference to his social or cultural or financial status. Most decidedly it
cannot be determined by reference to his race." Id. The court increased the award to
£200. Id. at 387. However, it conceded that the relative standing of the two parties
would have been relevant if contumelia (punitive damages) had been appropriate. Id. at
385.

injured population would predict. The mean sick pay award to wo-
43
men was less than half that to men.
The decision to award compensation is inescapably political
and unprincipled." Three illustrations must suffice. First, no legal
principle can choose between adjacent property owners who seek to
put their land to inconsistent uses-a cattle feed lot and a residen-
tial development, for instance. 4 5 Second, courts have been unable to
explain when lost profits will be compensated. 46 Third, the ramifi-
cations of tortious behavior proliferate indefinitely in time and space
and across social relations. The decision to terminate liability and
deny compensation is hopelessly arbitrary: spouses can recover loss
of consortium, but children, parents, and siblings cannot;4 7 wit-
nesses to the injury of an intimate can recover emotional distress
but not those who arrive on the scene minutes later or are friends
rather than relatives; 48 homeowners whose houses are burned by a
43. COMPENSATION AND SUPPORT, supra note 22, at 215; see also Abel, supra note
34.
44. Abel, supra note 32. The latest effort by the California Supreme Court to draw
"clear lines" around Dillon v. Legg, 68 Cal. 2d 228, 441 P.2d 912, 69 Cal. Rptr. 72
(1968), merely emphasizes the arbitrariness. See Thing v. La Chusa, 48 Cal. 3d 644,
771 P.2d 814, 257 Cal. Rptr. 865 (1989).
45. Legal principles cannot establish who has the stronger entitlement. See, e.g.,
Spur Indus. v. Del E. Webb Dev. Co., 108 Ariz. 178, 494 P.2d 700 (1972); Calabresi &
Melamed, Property Rules, Liability Rules and Inalienability:One View of the Cathedral,
85 HARV. L. REV. 1089 (1972).
46. See, e.g., J'Aire Corp. v. Gregory, 24 Cal. 3d 799, 598 P.2d 60, 157 Cal. Rptr.
407 (1979); People Express Airlines v. Consolidated Rail, 100 N.J. 246, 495 A.2d 107
(1985); Junior Books, Ltd. v. Veitchi, Ltd. 1983 AC 520; THE LAW OF TORT: POLICIES
AND TRENDS IN LIABILITY FOR DAMAGE TO PROPERTY AND ECONOMIC Loss
(M. Furmston ed. 1986).
The ramifications of the Exxon Valdez disaster exemplify the impossibility of find-
ing any principled basis for deciding what damages are compensable. The class action
has constructed seven categories of claimants: fishermen, fish processors and distribu-
tors, union workers laid off by processors, Alaska natives, area businesses that supply
equipment or services to the fishing industry, tour operators, recreational users of the
region, and municipalities. The National Wildlife Association filed its own lawsuit,
claiming to represent those who never intended to visit Alaska but know it has been
spoiled for future generations. A Los Angeles sole practitioner sought to express his
anger by filing an action in Los Angeles on behalf of local drivers who were paying 20
cents more per gallon for gasoline because of supply interruptions following the spill.
Finally, Exxon shareholders have filed a derivative action against company directors
and senior management for the $1.3 billion the accident has already cost the company
for cleanup and the sums it will cost in the future. Feder, Exxon Valdez's Sea of Litiga-
tion, N.Y. Times, Nov. 19, 1989, at C3, col. 1.
47. Compare Rodriguez v. Bethlehem Steel Corp., 12 Cal. 3d 382, 525 P.2d 669,
115 Cal. Rptr. 765 (1974) with Borer v. American Airlines, Inc., 19 Cal. 3d 441, 563
P.2d 858, 138 Cal. Rptr. 302 (1977).
48. Compare Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968)
with Hathaway v. Superior Court, 112 Cal. App. 3d 728, 169 Cal. Rptr. 435 (1980).

fire next door can recover but not the neighbors one house further
49
away.
Even if all of these problems could be overcome (and they can-
not), tort liability would be an extraordinarily inefficient mechanism
for compensating victims. Private loss and liability insurers, courts,
and lawyers consume a large proportion of the money paid by de-
fendants. Victims receive only a small fraction.50
Tort damages are no more satisfactory on the level of ideology.
Their fundamental justification is hopelessly incoherent-money
51
cannot restore victims to their status quo before the accident.
Damages paid after prolonged delay are not the same as the wages
lost or property destroyed years earlier even if the court adds pre-
judgment interest.5 2 All goods are not fungible. Reimbursement
for the cost of medical treatment is hardly the same as never being
injured. Perhaps most telling, money is a poor equivalent for non-
pecuniary loss. We can appreciate better the historical contingency
49. Ryan v. New York Cent. R.R., 35 N.Y. 210 (1866).

50. Alfred Conard estimated in the 1960s that it cost $1850 to transfer $750 to an
automobile accident victim. Conard, The Economic Treatment of Automobile Injuries,
63 MICH. L. REV. 279, (1964); see also Conard, The Quantitative Analysis of Justice, 20
J. LEGAL EDUC. 1 (1967). The situation has not improved since then. See J. KAKALIK
& N. PACE, COSTS AND COMPENSATION PAID IN TORT LITIGATION (1986); J.
KAKALIK & A. ROBYN, COSTS OF THE CIVIL JUSTICE SYSTEM: COURT EXPENDI-
TURES FOR PROCESSING TORT CASES (1982). For example, five years after settlement
of the Agent Orange litigation, plaintiffs' lawyers, court-appointed officials, experts, and
the company that administers the payout have received $20 million of the $180 million
award, but veterans have received only $3 million. Labaton, Five Years After Settlement,
Agent Orange War Lives On, N.Y. Times, May 8, 1989, at D1, col. 1.
In England, costs (plaintiffs' and defendants' lawyers' fees) averaged 154% of the
damages awarded in County Court tort cases, 59% in District Registries, and 72% in
the Royal Courts of Justice. INBUCON MANAGEMENT CONSULTANTS, CIVIL JUSTICE
REVIEW: STUDY OF PERSONAL INJURIES LITIGATION 5 (1986) [hereinafter INBUCON
MANAGEMENT CONSULTANTS]. In English medical malpractice claims, lawyers' costs
consumed 85% of the plaintiffs' damages awards. See Brazier, Compensation, Compe-
tence and Culpability The Case for a No-Fault Scheme, J. MED. DEF. UNION 8, 9
(1988); Tort System in Medical Litigation: Unfair, Unpredictable and Very Expensive,
Law Society's Gazette, Mar. 30, 1988, at 4, col. 1. In response, the British Medical
Association, the Law Society, insurers, and the government are considering a no-fault
scheme.
51. "The fundamental goal of damage awards in the unintentional tort area is to
return the plaintiff as closely as possible to his condition before the accident. This is
achieved by measuring certain items of harm in past and future terms." M. FRANKLIN
& R. RABIN, CASES AND MATERIALS ON TORT LAW AND ALTERNATIVES 597 (4th ed.
1987).
52. J. ADLER, W. FELSTINER, D. HENSLER & M. PETERSON, THE PACE OF LITI-
GATION: CONFERENCE PROCEEDINGS (1982). The problem of delay is not new. See
M. SELVIN & P. EBENER, MANAGING THE UNMANAGEABLE: A HISTORY OF CIVIL
DELAY IN THE Los ANGELES SUPERIOR COURT (1984).

and cultural specificity of contemporary American tort damages by

contrasting them with other responses. African customary law, for
instance, "compensated" death by the payment of livestock propor-
tioned to the bridewealth necessary to affiliate a child to "replace"
the deceased. 53 The New York workers' compensation scheme
54
equates a lost toe to sixteen weeks' wages.
If all legal remedies transmit cultural messages, what do Amer-
ican tort damages say? First, they reaffirm the existing distribution
of resources. By compensating owners for property loss, tort dam-
ages uphold the belief in private property and its concomitant-that
a victim's worth is proportional to the value of the property she
owns. By preserving the income streams of those who suffer physi-
cal injury, tort damages endorse the legitimacy of the existing in-
come distribution and the intergenerational reproduction of
inequality (when children claim for the wrongful death of a parent).
By excluding some people and injuries from the system or discour-
aging victims from claiming, tort law suggests that they are valued
less highly. By relegating injured employees to workers' compensa-
tion, the law treats them like pure labor value, implicitly denying
that they suffer the pain for which we compensate tort victims or
enjoy the pleasures whose loss is often a significant element of tort
damages. 55 Tort law proclaims the class structure of capitalist soci-
ety: you are what you own, what you earn, and what you do.
Second, by monetizing intangible injuries, tort law extends a
fundamental concept of capitalism-the commodity form-from
the sphere of production (work) to the sphere of reproduction (pro-
ducing workers). Damages for pain and suffering extrapolate Ben-
tham's hedonic calculus to its logically absurd conclusion, insisting
that every pain suffered can be offset by an equivalent pleasure,
which can be bought for money. 56 The jury, therefore, must simu-
late a market in sadomasochism by asking what they would charge
to undergo the victim's misfortune.5 7 Tort law thus transforms an
53. See Abel, A Bibliography of the Customary Laws of Kenya (with Special Refer-
ence to the Laws of Wrongs), 6 E. AFR. L.J. 100 (1970).
54. See N.Y. WORK. COMP. LAW § 15(3) (McKinney 1965).
55. Workers who are permanently, partially, or totally disabled receive compensa-
tion for part of their lost earnings but for nothing else. Those who suffer injuries that do
not impair their productivity-for instance, loss of sexual function or sense of smell-
receive nothing. Moss v. Southern Excavation, Inc., 271 Ark. 781, 611 S.W.2d 178
(1981); Fetterhoff v. Western Block Co., 49 A.D.2d 1001, 373 N.Y.S.2d 920 (1975).
56. J. BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEG-
ISLATION (J.H. Burns & H.L.A. Hart eds. 1970).
57. Such markets actually exist in the Third World. In Brazil, for instance, the
classified pages of newspapers routinely contain advertisements by those seeking to sell

involuntary past sacrifice (injury) into future gain (damages), re-

flecting bourgeois notions of delayed gratification and an instrumen-
tal view of the self-the very characteristics Weber stressed in
58
identifying capitalism with the Protestant ethic.
Damages commodify a unique experience, injury, by substitut-
ing the universal equivalent, money, as when a plaintiff's attorney
asks the jury to assign a monetary value to each second of the vic-
tim's pain and then aggregate it over a lifetime of suffering. 59 This
dehumanization is particularly striking in two diametrically op-
posed situations. When injuries shorten a victim's life expectancy,
money damages are rationalized as enhancing present pleasure in
their bodily organs. Freed, Desperation:Selling Your Eye, Kidney, L.A. Times, Sept.
10, 1981, § I, at 1, col. 1. In Britain in January 1989, poor Turkish immigrants said
they were paid $3500 for kidneys that then were sold to others. A West German busi-
nessman, who already sold kidneys in Germany and France for $26,000-52,000,
planned to extend his operations to Britain. W. German to Sell Kidneys in Britainfor
Transplants, L.A. Times, Jan. 30, 1989, § 1, at 7, col. 1. Federal law prohibits organ
sales in the United States. Yet the family of a thirteen-year-old boy with leukemia, who
needed a bone marrow transplant, advertised in several newspapers and promised that
the boy's great uncle, the well-known head of Stanley H. Kaplan Educational Centers,
would pay $5000 for a donor whose marrow matched. Kolata, TransplantReward Offer
Raises Furor,N.Y. Times, June 23, 1989, at 6, col. 1.
Economist Stanley V. Smith, an expert witness in "hedonic damages," charges
$150 an hour to testify in trials about the value of experience foregone. Barrett, New
Legal Theorists Attach a Dollar Value to the Joys of Living, Wall St. J., Dec. 12, 1988,
at Al, col. 1 [hereinafter Legal Theorists].
Increasingly, courts are willing to award damages for fear, even when the victim
cannot prove that physical injury occurred or indeed could have occurred, as in some
cancerphobia cases. Barrett, Courts Lend Sympathetic Ear to Claims for Compensation
Based on Cancer Fears, Wall St. J., Dec. 14, 1988, at Bl, col. 3.
58. M. WEBER, THE PROTESTANT ETHIC AND THE SPIRIT OF CAPITALISM (1958).
Victims come to see the injury as a source of potential profit. " 'There's not an attorney
in California that hasn't had someone walk into his office and say, "I just got hit and I
want to make some money,"' said Will Glennon, legal analyst for the California Trial
Lawyers' Assn." But some plaintiffs' lawyers encourage this conception by sending cli-
ents to physicians known to exaggerate injuries and to submit virtually identical medical
reports in each case. When a Mercedes rear-ended a Cadillac in Hollywood, eight of
the nine occupants filed claims for medical expenses totalling more than $20,000, and
for pain and suffering totalling more than $50,000, although there was no damage to
either car. The only one who chose not to sue was the driver of the Mercedes, who
admitted fault. Muir, Inflated Claims Seen as Fast Lane to Easy Money, L.A. Times,
Jan. 23, 1989, § 1, at 5, col. 1.
Sometimes victims must relinquish moral vindication in order to obtain compensa-
tion. The relatives of a motorist killed in a collision with a truck driver asked the judge
in the criminal trial to reduce the charge from second-degree murder to manslaughter
because they stood a better chance of recovering from the accused's insurer if he acted
negligently rather than intentionally. Hicks, Families of Victims Urge Lesser Penaltyfor
Driver in Deaths, L.A. Times, June 30, 1988, § 1, at 3, col. 2.
59. See Seffert v. Los Angeles Transit Lines, 56 Cal. 2d 498, 509, 364 P.2d 337,
344, 15 Cal. Rptr. 161, 168 (1961).

lieu of years foregone-a secular version of the Faustian compact.60

Contrarily, a child who is born illegitimate or seriously disabled and
sues for wrongful life is claiming money damages to compensate for
the net detriment of painful experience over the alternative of noth-
ingness. 6' Large awards for severe pain and suffering have several
additional consequences: they salve the guilt of the unimpaired at
having been spared such torment (the survivor syndrome) and jus-
tify the "temporarily able bodied" succumbing to the selfish desire
to avoid and ignore the disabled (our new "invisible man"). Rather
than evoking compassion for victims, large awards awaken envy for
what is seen as a windfall and convey the erroneous impression (de-
liberately fostered by the insurance industry) that the tort system is
working well-if anything, too well.
If damages for pain and suffering commodify experience, the
recent awards for injuries to relationships commodify love. Plain-
tiffs can recover damages for loss of the society and companionship
of a parent in wrongful death actions; 62 for loss of consortium of an
injured spouse, lover, parent, or child; 63 for witnessing or learning
about an injury to a loved one; 64 for mistreatment of the corpse of a
loved one; 65 for negligent misinformation about the death of a loved
60. See DePass v. United States, 721 F.2d 203 (7th Cir. 1983). Prudential Insur-
ance Company of America now offers an even closer analogy. Policyholders of life
insurance who submit a doctor's certificate that they have less than six months to live
can cash in their policies before death. The primary purpose is to pay the astronomical
costs of health care. But the money could also be used for a splurge. Lewin, To the
Dying, Life Policy Can Bring Money Now, N.Y. Times, Mar. 5, 1990, at A10, col. 4;
Lewin, Terminally Ill Can Collect Death Payout While Alive, N.Y. Times, Jan. 27, 1990,
at 1, coL. 1.
61. See Turpin v. Sortini, 31 Cal. 3d 220, 643 P.2d 954, 182 Cal. Rptr. 337 (1982);
Williams v. State, 18 N.Y.2d 481, 223 N.E.2d 343, 276 N.Y.S.2d 885 (1966).
62. See Zaninovich v. American Airlines, Inc., 26 A.D.2d 155, 271 N.Y.S.2d 866
(1966).
63. See Rodriguez v. Bethlehem Steel Corp., 12 Cal. 3d 382, 525 P.2d 669, 115 Cal.
Rptr. 765 (1974); Butcher v. Superior Court, 139 Cal. App. 3d 58, 188 Cal. Rptr. 503
(1983); Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 413 N.E.2d 690
(1980); Berger v. Weber, 411 Mich. 1, 303 N.W.2d 424 (1981).
In the latest variation on this theme, a woman has sued her gynecologist and a
sperm bank for negligence in artificially inseminating her with sperm that was not her
late husband's. She and her husband are white; the sperm donor apparently was black.
Although the complaint was sealed, obscuring the nature of the damages claimed, she
did state that she filed suit when " 'racial taunting of her child became unbearable for
her.'" Sullivan, Mother Accuses Sperm Bank of a Mixup, N.Y. Times, Mar. 9, 1990, at
A16, col. 1, 3.
64. See Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968);
Bovsun v. Sanperi, 61 N.Y.2d 219, 461 N.E.2d 843, 473 N.Y.S.2d 357 (1984).
65. See Corrigal v. Ball and Dodd Funeral Home, Inc., 89 Wash. 2d 959, 577 P.2d
580 (1978).

one; 66 for negligence causing the breakup of a marriage; 67 even for

68
injury to loved objects.
Such payments proclaim several messages. All relationships
have a monetary equivalent and hence can be bought and sold. The
value of the relationship depends on the extent to which the "other"
approaches societal ideals of physical beauty, mental acuity, athletic
ability, and emotional normality. Tort damages assume, and help
construct, a single scale along which everyone can be ranked, mim-
icking adolescent obsession with popularity and universalizing
1950s rating-dating. 69 The implicit expectation is that a partner
whose value has been diminished by injury will be discarded, like
any other consumer product in our throwaway society, and a re-
placement purchased with the money damages received-the tort
counterpart of no-fault divorce. All relationships are treated as a
form of prostitution-the semblance of love exchanged for money-
a generalization of feminist critiques of marriage. Just as society
awards pain and suffering damages so that the injured victim can
purchase the companionship that will no longer be extended out of
love, so it gives damages to those who loved the victim, returning
their lost "investment" so that they can reinvest in unimpaired
'70
"human capital."
C. Safety
Moral judgment was the historical origin of tort law, and com-
pensation is the preoccupation of laypersons today, but safety actu-
ally has the greatest claim on our attention. Many folk sayings
capture this belief: safety first; better safe than sorry; an ounce of
prevention is worth a pound of cure. Calabresi has restated it more
formally, convincing most torts scholars that the reduction of acci-
66. See Johnson v. State, 37 N.Y.2d 378, 334 N.E.2d 590, 372 N.Y.S.2d 638
(1975).
67. See Molien v. Kaiser Found. Hosp., 27 Cal. 3d 916, 616 P.2d 813, 167 Cal.
Rptr. 831 (1980).
68. See Campbell v. Animal Quarantine Station, 63 Haw. 557, 632 P.2d 1066
(1981); Rodrigues v. State, 52 Haw. 156, 472 P.2d 509 (1970).
69. See generally J. MODELL, INTO ONE'S OWN: FROM YOUTH TO ADULTHOOD
IN THE UNITED STATES 1920-1975 (1989). The logical conclusion would be a progres-
sive "natural endowments" tax on the fortunate to fund transfer payments to those who
are deficient-in size, eyesight, personality, memory, or fine motor coordination-in
order to repeal the maxim that "anatomy is destiny."
70. See generally G. BECKER, HUMAN CAPITAL: A THEORETICAL AND EMPIRI-
CAL ANALYSIS, WITH SPECIAL REFERENCE TO EDUCATION (1964) (discussing activi-
ties that. affect future monetary income by increasing the investment in human capital).

dent costs must be our primary concern. 7 1 Indeed, were we uncon-

cerned with safety, private law remedies would be hard to justify;
criminal law expresses moral judgment more forcefully, and no-
fault schemes compensate victims more efficiently.
Although tort law is not the only means of fostering safety,
each alternative has serious problems. The ideal mechanism would
be self-interest: victims should control the risk to which they are
exposed. But the extreme division of labor associated with techno-
logical development, mass production of consumer goods, and the
separation of workers from ownership and control of the means of
production under capitalism make this impossible. Nor can we rely
on altruism to inspire a concern for safety in those with the power
to inflict harm. Social distance, cultural difference, and class divi-
sions undermine solicitude for others. In addition, profit seeking in
a competitive market compels entrepreneurs to cut comers on
safety.
Recognizing these limitations, we have created an elaborate
regulatory apparatus that makes the state responsible for protecting
the safety of workers, consumers, travelers, and those engaged in
recreational activities. Yet the deficiencies of regulation are mani-
fold and notorious. 72 Victims are not the sole concern of regulators,
who are swayed by political exposure, bureaucratic convenience,
good relations with the regulated, and outright coiruption. Regula-
tors are slow and legalistic. They generally have less information
71. G. CALABRESI, THE COSTS OF ACCIDENTS: A LEGAL AND ECONOMIC ANAL-

Ysis 24-33 (1970). Richard Posner states this position even more bluntly:
Perhaps, then, the dominant function of the fault system is to gener-
ate rules of liability that if followed will bring about, at least approxi-
mately, the efficient-the cost justified-level of accidents and safety.
Under this view, damages are assessed against the defendant as a way of
measuring the costs of accidents, and the damages so assessed are paid
over to the plaintiff (to be divided with his lawyer) as the price of enlisting
their participation in the operation of the system.
Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29, 33 (1972) (footnote omitted).
72. Two recent entries in the enormous literature documenting how the social or-
ganization of regulation structures its impact on safety are Manning, ManagingRisk:
Managing Uncertainty in the British Nuclear Installations Inspectorate, 11 LAW &
POL'Y 350 (1989) and Hawkins, 'FA TCA TS'and Prosecution in a RegulatoryAgency: A
Footnote on the Social Construction of Risk, 11 LAW & POL'Y 370 (1989).
In March 1989, the Justice Department limited the jurisdiction of the inspector
general of the Labor Department to government financed programs and federal employ-
ees. John C. Martin, inspector general of the Environmental Protection Agency, criti-
cized the ruling. He said that the EPA had become a "paper tiger" because the large
reduction in penalties made it cheaper for polluters to pay fines than to reduce pollu-
tion. Gerth, Enforcement Lax, U.S. Auditors Say, N.Y. Times, Oct. 4, 1989, at A21,
col. 1.

and expertise than those regulated. They lack sufficient resources to

inspect, investigate, and prosecute. And both regulators and courts
73
hesitate to impose severe penalties.
Legal theorists representing very different political persuasions
have responded to this predicament by making tort liability the cen-
tral mechanism for promoting safety. 74 Although they disagree
over whether liability ought to be strict or based on fault, they con-
cur that the most efficient way to promote an optimum level of
safety is to internalize accident costs by making tortfeasors liable for
their consequences. At least since Learned Hand offered his famous
formula more than forty years ago,7 5 judges, lawyers, and legal
scholars have argued that fear of liability will compel potential
tortfeasors to engage in a cost-benefit analysis, taking just those
safety precautions that cost less than the accidents they prevent.
Yet the scientific facade of this economic formulation conceals a
number of fundamental theoretical flaws and empirical problems.
First, although it is theoretically possible (if often difficult) to
calculate the costs of safety precautions, it is theoretically impossi-
ble to calculate the benefits of accident avoidance. Economists can-
not tell us the value of bodily integrity, emotional well-being, or life
because these are not defined by the market. 76 The costs of acci-
dents can only be determined collectively-after the fact by a judge
73. In 1986 three executives of Film Recovery Systems were found guilty of mur-
der, involuntary manslaughter, and reckless conduct for the 1983 death of Stefan Go-
lab, 61, a Polish immigrant who died of cyanide poisoning. The plant recovered silver
from used X-ray film; prosecutors characterized it as a "huge gas chamber." The com-
pany president, plant manager, and foreman were each sentenced to 25 years imprison-
ment, but were freed on bail pending their appeal. It could be the first time a court
convicted corporate officials for murder in the case of a worker death. The Illinois
Appellate Court has reversed those convictions on the ground that the state-of-mind
requirements for each of the three convictions were inconsistent. Job-Related Murder
Convictions of 3 Executives Are Overturned, N.Y. Times, Jan. 20, 1990, at 10, col. 5.
74. See G. CALABRESI, supra note 71.
75. [Tjhe owner's duty ... to provide against resulting injuries [should his
barge break its moorings] is a function of three variables: (1) The
probability that she will break away; (2) the gravity of the resulting in-
jury, if she does; (3) the burden of adequate precautions. . . . [I]f the
probability be called P; the injury, L; and the burden, B; liability depends
upon whether B is less than L multiplied by P ....
United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947).
76. See Rhoads, How Much Should We Spend to Save a Life?, 51 PUB. INTEREST
74, 75-76 (1978). "Willingness to pay" extrapolates from actual safety expenditures.
On that basis, the value of a life varies between $66,000 (desire for prompt coronary
care) to $11,800,000 (desire for safer air travel). Legal Theorists, supra note 57, at 6, col.
2. See generally Moore & Viscusi, Doubling the Estimated Value of Life: Results Using
New OccupationalFatality Data, 7 J. POL'Y ANALYSIS & MGMT. 476 (1988) (new re-
search suggests that current value of life is twice that previously indicated).

or jury, or before by a legislature or regulatory agency. In each

case, this is a political decision, not a finding of positive economics.
Even those elements of damage that have market values-lost earn-
ings and medical expenses-are extremely difficult to predict into
the future. 77 Actuarial methods can only tell us how a population
will behave overall, not the outcome of an individual case. Thus a
central element in the cost-benefit analysis is hopelessly
indeterminate.
Second, tort liability necessarily translates unequal recoveries
(discussed in section B) into unequal exposure to risk. An entrepre-
neur in a competitive market must spend less to protect those who
are less likely to claim or who will recover lower damage awards-
poor, unemployed, young, old, or inadequately educated individu-
als, racial minorities, noncitizens, and women. 7S Thus, cheap con-
sumer products not only perform less well, but also are more
dangerous; 79 low-paid workers suffer more frequent and more seri-
ous injuries and illnesses at work;80 and the underprivileged are ex-
posed to greater environmental pollution. Whether or not the
Bhopal disaster was an "accident," it was no accident that its vic-
tims were among the poorest in the Third World. 8' Nor is it chance
77. When a child is permanently and seriously disabled, it is almost impossible to

estimate future lost earnings over a working lifetime that has not yet begun. Similarly,
dramatic changes in what medicine can achieve, and at what cost, introduce great un-
certainty into long-term predictions of medical costs.
78. Competition will drive down prices, thereby forcing out of business an altruistic
entrepreneur (itself an oxymoron) who spends more on safety.
79. See U.S. DEP'T OF TRANSP., THE CAR BOOK: A CONSUMER'S GUIDE TO CAR
BUYING (1981). The same may be true of services. Hysterectomies are performed twice
as often per 1000 women in the southern states as in New York and almost three times
as often in upstate Franklin County as in New York City. Physicians believe the higher
rates are medically unjustified. Kolata, Rate of Hysterectomies Puzzles Experts, N.Y.
Times, Sept. 20, 1988, at Cl, col. 1.
80. See P. Dorman, Compensating Wage Differentials, Occupational Health and
Safety, and the Value of Human Life: An Efficiency Wage Analysis 144 (Ph.D. disserta-
tion, economics, University of Massachusetts 1987).
81. Following the Bhopal disaster, Union Carbide fought vigorously, and ulti-
mately successfully, to have the trial transferred to India. American manufacturers also
sought congressional legislation adopting a choice of law rule that would measure the
tort liability of American multinationals by the law of the host country. See Besharov,
Forum Shopping, Forum-Skipping, and the Problem of InternationalCompetitiveness, in
NEW DIRECTIONS IN LIABILITY LAW 139 (W. Olson ed. 1988).
Union Carbide ultimately settled all claims by paying $470 million to the Indian
government. Approximately 3600 people died from exposure to methyl isocyanate; an-
other 32 have been classified as totally disabled, 9000 as partially disabled, and 170,000
as slightly injured. Six years after the tragedy, nobody has received any part of the
settlement (aside from the ex gratia payments of about $550 made to the families of the
3323 identifiable deceased). The new Indian government of V.P. Singh is seeking to

that toxic waste dumps are concentrated in black ghettoes in the

82
United States.
Third, the threat of tort liability can elicit the optimum level of
safety only if the potential tortfeasor knows that the trier of fact will
perform the cost-benefit analysis correctly. But that calculation is
theoretically impossible. The trier of fact is asked to decide whether
the defendant failed to take specific safety precautions that cost-ef-
83
fectively would have avoided the injury that actually occurred.
Yet cost-benefit analysis requires potential tortfeasors engaged in
ongoing activities to evaluate all possible safety precautions for their
contribution to reducing the costs of all accidents that may occur.
Only a legal regime of true strict liability would place the decisional
burden where it properly belongs-on potential tortfeasors to eval-
uate the safety of an activity in advance, rather than on the trier of
84
fact to assign responsibility for an injury after the fact.
reopen the matter, reviving its initial claim of $3 billion and threatening criminal prose-
cution. India Seeks to Reopen Bhopal Case, N.Y. Times, Jan. 22, 1990, at Cl, col. 2;
Hazarika, Bhopal Victims Await Money from Carbide, N.Y. Times, Jan. 31, 1990, at A4,
col. 5.
After the Chernobyl disaster, West German manufacturers of radioactive pow-
dered milk tried to sell it to Egypt; when publicity led to the cancellation of that con-
tract, they sought to sell it to other Third World countries for animal feed. Tagliabue, A
Nuclear Taint in Milk Sets off German Dispute, N.Y. Times, Jan. 31, 1987, at 1, col. 2.
In the wake of the alar scare, the United States Department of Agriculture bought
$15 million of surplus apples and planned to provide them to schools, prisons, and food
aid programs. Government Will Buy Apples Left over from Scare on Alar, N.Y. Times,
July 8, 1989, § 1, at 6, col. 6.
82. See Williams, Race Bias Found in Location of Toxic Waste Dumps, N.Y. Times,
Apr. 16, 1987, at A20, col. 1; cf Dolan, Study Finds PerilousLevel of Lead in 20% of
Children, L.A. Times, June 2, 1989, § 1, at 1, col. 1.
The 250 members of the Campo Band of Mission Indians are negotiating with San
Diego, 68 miles west, to accept the city's garbage. The dump would not be governed by
state or federal environmental laws. The Navaho, Hopi, and other tribes have been
approached by others seeking dump sites. Reinhold, Indians and Neighbors Are at Odds
over Proposed Reservation Dump, N.Y. Times, Jan. 8, 1990, at Al, col. 4.
The Marshall Islands in the South Pacific are negotiating with Admiralty Pacific,
Inc. to build one of the world's biggest trash heaps on 20 square miles of lagoons in the
island of Majuro. For $56 million a year they would import trash from Los Angeles,
San Diego, San Francisco, Portland, and Spokane. They also welcomed another propo-
sal to establish a high-level nuclear waste dump (but subsequently reconsidered).
Drogin, ParadiseLost: Now It's a Dump, L.A. Times, Jan. 11, 1990, at Al, col. 1.
83. For an experimental simulation suggesting that laypersons misunderstand and
misapply cost-benefit analysis in making judgments about "reasonable care," see Green,
The Reasonable Man: Legal Fiction or Psychosocial Reality?, 2 LAW & Soc'y REV. 241
(1968).
84. Two of the most notorious proximate cause cases illustrate this ex post reason-
ing. The English Court of Appeals focused on whether those who dropped a plank into
the hold of a ship could have foreseen that it would strike a spark, rather than asking
whether a ship transporting benzene should have taken precautions to avoid fire. In re

Fourth, every tort system, whether based on fault or strict lia-

bility, must determine whether a particular defendant caused a par-
ticular plaintiff's injury. But both the natural and the social
sciences describe causation in terms of probabilities. Therefore, we
can only talk about the connection between populations of causes
and effects. Consequently, judgments will hold tortfeasors liable for
only some of the damages they cause and place the burden of com-
85
pensating victims on only some of the causal actors.
Fifth, safety sometimes must defer to the other two goals:
moral judgment and compensation. Courts often invoke the highly
malleable concepts of duty and proximate cause to curtail liability
because the consequences seem disproportionate to the defendant's
moral culpability. 86 Less often, they interpret negligence and causa-
tion broadly to impose liability because the defendant's behavior is
particularly reprehensible. 87 Courts often look for the "deep
Polemis, 1921 K.B. 560. Both Cardozo, writing for the majority, and Andrews, dissent-
ing, focused on whether railroad employees who knocked a package onto the tracks
could have foreseen that it would explode, rather than asking whether the railroad
should have taken precautions to avoid a heavy scale being unbalanced by crowds or
vibrations. Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928).
85. In 1910 the city of Rochester negligently allowed its water system to become
contaminated with typhoid bacillus; 223 residents contracted the disease. The strength
of the causal linkage with the defendant's negligence varied with the month in which
the disease was contracted and the victim's residence. In previous years, as many as 173
inhabitants had contracted typhoid. A test case held that the plaintiff had offered
enough evidence to allow a jury to find causation. Stubbs v. City of Rochester, 226
N.Y. 516, 124 N.E. 137 (1919). As a result, the defendant probably settled the cases of
the 58 other claimants, some of whom it did not infect, while other causal agents were
not pursued. Had the court of appeals upheld the trial judge's nonsuit, the defendant
would have escaped responsibility to some people whom it did infect. See generally
Dant, Gambling on the Truth: The Use of Purely StatisticalEvidence as a Basis for Civil
Liability, 22 COLUM. J.L. & Soc. PROBS. 31 (1988) (criticizing complete reliance on
probabilistic reasoning in fact finding as unfair).
86. A customer drove his car out of a parking garage and struck a pedestrian on
the sidewalk. The New York Court of Appeals dismissed the pedestrian's claim against
the garage, holding that "a garage owes no duty to pedestrians in this type of case."
Pulka v. Edelman, 40 N.Y.2d 781, 782, 358 N.E.2d 1019, 1020, 390 N.Y.S.2d 393, 394
(1976). "The relationship of the garage to pedestrians is ... at best somewhat tenu-
ous .... [I]t would be most unfair to impose that duty on the garage with respect to acts
of its patrons." Id. at 784, 358 N.E.2d at 1022, 390 N.Y.S.2d at 396. "If ... liability
[was] imposed in an instance such as this, it is difficult to conceive of the bounds to
which liability logically would flow." Id. at 786, 358 N.E.2d at 1023, 390 N.Y.S.2d at
397. "The burden cast on the operators of these parking establishments in order to
discharge their responsibilities in respect to patron-operated vehicles beyond the con-
fines of their properties would be an impractical and unbearable one." Id.
87. A gas station that violated a municipal ordinance requiring reports of container
sales greater than five gallons and forbidding container sales greater than one gallon
without a permit was held liable to an arson victim whose premises were burned with
gasoline obtained in violation of the ordinance. The court upheld the complaint because

pocket" defendant (large public or private entities or those likely to

be insured) and then construct negligence and causation in order to
rationalize the imposition of liability.88 Less often, they refuse to
find negligence or causation because the defendant seems less capa-
89
ble of bearing the burden than the plaintiff.
This focus on compensation distorts the promotion of safety in
another way. When a large public or private entity is held liable, its
organizational structure profoundly shapes the way in which the
message is communicated to those who actually caused the injury. 90
Only the willfully naive could maintain that the result will be "opti-
mum safety"-or even that this concept has any meaning. In the
large number of cases in which insurance pays the bill, liability is
not reflected in premium levels because of transaction costs (gather-
ing aggregate statistics and accurate information about the insured)
and political obstacles (increasing the cost of insurance to vulnera-
ble or powerful categories). Indeed, if insurance perfectly transmit-
ted liability costs to insureds, much of its raison d'l.tre would
disappear.
Sixth, the efficacy of tort liability in encouraging safety rests on
several dubious assumptions about economic rationality and market
conditions. Some actors are not profit maximizers in any simplistic
sense. Charitable and governmental entities do not seek profits; in-
deed, the increased budget necessary to satisfy a tort judgment may
"it is within the permissible scope of legislation to impose liability for wrongful acts
which have a practical or reasonable causal connection with injuries sustained, although
the sequence of events would not satisfy the rule of proximate cause in the law of negli-
gence." Daggett v. Keshner, 284 A.D. 733, 738, 134 N.Y.S.2d 524, 529 (1954).
88. In the typical proximate cause case, the plaintiff seeks to impose liability on a
wealthy defendant who is only mildly culpable because the true culprit has insufficient
resources to satisfy a judgment. See, e.g., McLaughlin v. Mine Safety Appliances Co.,
11 N.Y.2d 62, 181 N.E.2d 430, 226 N.Y.S.2d 407 (1962).
89. The Nevada Supreme Court refused to apply the famous California case of
Ybarra v. Spangard, 25 Cal. 2d 486, 154 P.2d 687 (1944) to require four hotel guests
who had been smoking in a room to exculpate themselves from responsibility for a fire.
Fireman's Fund Am. Ins. Co. v. Knobbe, 93 Nev. 201, 204, 562 P.2d 825, 826 (1977).
90. See P. REUTER, THE ECONOMIC CONSEQUENCES OF EXPANDED CORPORATE
LIABILITY: AN EXPLORATORY STUDY (1988); Eads & Reuter, Designing Safer Prod-
ucts. Corporate Responses to Product Liability Law and Regulation, 7 J. PROD. LIAB.
263 (1984); Felstiner & Siegelman, Neoclassical Difficulties: Tort Deterrencefor Latent
Injuries, 11 LAW & POL'Y 309 (1989); Komesar, Injuries and Institutions: Tort Reform,
Tort Theory, and Beyond, 65 N.Y.U. L. REV. 23 (1990); Sanders, Firm Risk Manage-
ment in the Faceof ProductLiability Rules, 11 LAW & POL'Y 253 (1989); Shapiro, Libel
Lawyers as Risk Counselors."Pre-Publicationand Pre-BroadcastReview and the Social
Construction of News, 11 LAW & POL'Y 281 (1989).

1990] CRITIQUE OF TORTS 813
actually enhance the power of government bureaucrats. 9 1 Most in-
dividuals cause accidents so rarely that they have little incentive to
seek information about their frequency and severity or how to avoid
them. 92 Liability is no threat to those who are judgment proof.
Even profit-seeking enterprises may be able to transfer liability costs
to consumers rather than enhance safety if demand is relatively in-
elastic (the good or service is a necessity), the market is highly
oligopolistic, or accident costs are an insignificant proportion of
price. 93 Reliance on economic incentives creates another dilemma:
careless victims must be motivated toward safety by denying them
some or all of their damages, but this necessarily reduces the safety
incentives of tortfeasors. 94 Furthermore, such reasoning makes the
counterintuitive assumption that victims and tortfeasors are simi-
95
larly motivated.
Finally, and perhaps most importantly, tort liability produces
optimum safety only if all negligence victims recover all of their
damages from all of those who caused their injuries. Yet we saw
above that only a fraction of victims recover anything-just twelve
percent of those disabled for at least two weeks in England (and
doubtless even fewer of those who suffered less serious injuries). A
rational entrepreneur must discount safety expenditures by the like-
lihood of being forced to pay damages-in England such an entre-
preneur would make less than twelve percent of the optimum level
91. See W. NISKANEN, BUREAUCRACY AND REPRESENTATIVE GOVERNMENT

(1971); W. NISKANEN, BUREAUCRACY: SERVANT OR MASTER? (1973). On the way in
which NASA approached the risks of the Challenger space shuttle, see Vaughan, Regu-
lating Risk. Implications of the Challenger Accident, 11 LAW & POL'Y 330 (1989).
92. See Latin, Problem-Solving Behavior and Theories of Tort Liability, 73 CALIF.
L. REV. 677 (1985).
93. See Abel, The Real Tort Crisis-Too Few Claims, 48 OHIO ST. L.J. 443,
445-46 (1987). Medical malpractice liability illustrates two of these points: demand for
medical care is relatively price inelastic, and liability costs represent only about 1% of
total costs. Freudenheim, Costs of Medical MalpracticeDrop After an 11-Year Climb,
N.Y. Times, June 11, 1989, at 1, col. 1. For self-employed physicians, malpractice in-
surance increased from 3% to 4% of their gross income between 1982 and 1984; in
hospitals, average malpractice costs per inpatient per day rose from $3.02 to $5.60 be-
tween 1983 and 1985. UNITED STATES GENERAL ACCOUNTING OFFICE, HUMAN RE-
SOURCES DIVISION, REPORT No. GAO/HRD-86-112, MEDICAL MALPRACTICE:
INSURANCE COSTS INCREASED BUT VARIED AMONG PHYSICIANS AND HOSPITALS 29,
40 (1986).
94. See Daly v. General Motors Corp., 20 Cal. 3d 725, 759-60, 575 P.2d 1162,
1183, 144 Cal. Rptr. 380, 401 (1978) (Mosk, J., dissenting).
95. For psychological data on the attitudes of potential victims toward risk, see
Calabresi & Klevorick, Four Tests for Liability in Torts, 14 J. LEGAL STUD. 585, 617
n.88 (1985); Schwartz, Proposalsfor ProductsLiability Reform: A Theoretical Synthesis,
97 YALE L.J. 353, 378-84 (1988).

of safety expenditures. If the market is perfectly competitive, as

deterrence theory presupposes, it will drive out of business anyone
who indulges in a higher level of safety. Nor are entrepreneurs
equally likely to be sued: half of all federal products liability litiga-
tion between 1974 and 1986 was targeted at fewer than eighty com-
panies; altogether, only nine percent of manufacturers were sued in
1986.96
Furthermore, the threat of damages encourages entrepreneurs
to minimize liability, not accident costs. 97 It creates perverse incen-
tives: to conceal information about danger, take actions that maxi-
mize success in litigation (such as defensive medicine), resist
legitimate claims (especially those that may establish unfavorable
precedents), use economic power to drive down claims, stall, and
conclude settlements that limit publicity.9 8 How else can we ex-
96. Asbestos, pharmaceuticals, machinery, tools and equipment, and motor vehi-
cles accounted for two-thirds of all litigation. There was further concentration within
each category: 20 companies were lead defendants in 90% of asbestos suits, 5 motor
vehicle manufacturers in 60% of automobile suits, 2 manufacturers in 60% of pharma-
ceutical suits. By contrast, 18,000 defendants (93% of all those sued) were named only
once or twice. T. DUNGWORTH, PRODUCT LIABILITY AND THE BUSINESS SECTOR:
LITIGATION TRENDS IN FEDERAL COURTS vii (1988).
97. Half a year after Antonio Cipollone won the first jury verdict against a ciga-
rette manufacturer for his wife's death, a lawyer in the Winston-Salem firm of Womble,
Carlyle, Sandridge & Rice, which represents the defendant R.J. Reynolds, wrote a
memo noting that an adversary had dropped 10 lawsuits because "the aggressive pos-
ture we have taken regarding depositions and discovery make [sic] these cases extremely
burdensome and expensive for plaintiffs' lawyers, particularly sole practitioners."
Glaberson, Surprise Tobacco Data: Suits Fall, N.Y. Times, Sept. 10, 1988, at 33, col. 2.
See Cipollone v. Liggett Group, Inc., 693 F. Supp. 208 (D. N.J. 1988), modified, Nos.
88-5732, 88-5770, 88-5771, 88-5784 (3d Cir. Jan. 5, 1990) (Lexis, Genfed library,
USApp file).
98. Beginning in 1947, the Atomic Energy Commission deliberately exposed
thousands of miners to radiation while concealing the danger from them. Until the
early 1960s, it frustrated efforts by the United States Public Health Service to require
ventilation in the mines. In 1954, the Service calculated that ventilation would increase
the cost of uranium by half a percent. It began a major epidemiological study of the
effects of radiation. Even though it required miners to undergo periodic physical exami-
nations and chest x-rays and to provide blood, urine, and sputum samples, it never told
them the reason or the findings. The first four miners died of lung cancer in 1958,
another five the following year, and nine more in 1960. More than 400 have died to
date, which is five times as many as among a similar sample of unexposed men; hun-
dreds of others are disabled. The federal government has paid no compensation thus
far. Schneider, Uranium Miners Inherit Dispute's Sad Legacy, N.Y. Times, Jan. 9,
1990, at Al, col. 2.
Some of the 16,000 employees who have worked at the Department of Energy's
Rocky Flats plant, the only source of plutonium in the country, have begun to claim
workers compensation from the private employers operating the plant, Dow Chemical
Company and, subsequently, Rockwell International Corporation. The DOE maintains
that exposure to radiation has always been within permissible levels, and Rockwell

plain why Ford produced a Pinto with a gasoline tank it knew to be
claims that injuries are less than half as frequent as the average for all industrial plants.
The former manager of radiation protection said at a 1988 hearing: "This is probably
the safest place they'll ever work." However, 13 workers have died of cancer and an-
other is dying of it; the records of all 14 workers showed repeated exposure to radiation
through airborne plutonium and breakdowns in protective equipment.
Donald Gabel began work as a janitor at Rocky Flats in 1970, when he was 21.
Three weeks later, a superior told him to tear construction tape from a contaminated
tank. He found the tape hot to the touch; his face, hair, and hands displayed 2,000
counts of alpha radiation per minute. Later he operated a furnace that melts pluto-
nium, for which he received an additional 15 cents an hour "hot pay." He spent up to
40% of his day with his head six inches from a pipe posted with a warning sign "Do
Not Loiter" and which the monitors showed to be radioactive. However, his supervisor
told him that radiation would not hurt his head. He died of a brain tumor in 1980.
Schneider, Decades of Plutonium Perilat an Arms Plant, N.Y. Times, Nov. 18, 1989, at
10, col. 1.
During the 23 years John Schamper worked at Rocky Flats, he was injured or
contaminated at least 40 times. In 1965 he was hit with radioactive steam which left his
face, neck, and left arm displaying 25,000-50,000 counts of radiation per minute. He
was given saline transfusions and calcium to try to flush the plutonium out of his body.
By 1974, radiation had deformed his blood chromosomes. He died of lung cancer in
1984. The Rocky Flats plant has been closed for the last thirteen months as federal
investigators study its contamination of the environment. Id.
The Rocky Flats plant also has contaminated the surrounding environment, most
dramatically in two fires in 1957 and 1969, which together consumed more than 2200
pounds of plutonium, but also through leakage of 5200 barrels of liquid plutonium-a
miniscule amount of which is sufficient to cause cancer. The government, Dow Chemi-
cal, and Rockwell International settled a 1978 lawsuit by adjacent landowners for more
than $9 million but required that its terms remain secret. Schneider, Weapons Plant is
Pressedfor Details of Toll on Health, N.Y. Times, Feb. 15, 1990, at A22, col. 1. Evi-
dence before a special panel of the Department of Energy asserted that in 1986 and 1987
Los Alamos officials pressured an epidemiologist to suppress or alter his findings of
abnormally high cancer rates at the Rocky Flats Plant. Dr. Gregg S. Wilkinson, now
associate professor of epidemiology at the University of Texas Medical Branch in Gal-
veston, said he was told he "should be writing to please the Department of Energy
because they were the customer." In the late 1970s, the Department of Energy fired
Thomas Mancuso, an epidemiologist from the University of Pittsburgh who had pub-
lished a study finding unusually high rates of cancer among workers at the Hanford
Reservation nuclear site in Washington. The present panel has recommended that mon-
itoring of worker health in the nuclear weapons industry should be transferred out of
the Department of Energy. Schneider, Panel Questions Credibility of Nuclear Health
Checks, N.Y. Times, Feb. 28, 1990, at A20, col. 5.
For more than 40 years, the government has concealed information concerning
accidental radiation exposure of eight scientists involved in the development of atomic
bombs after World War II at Los Alamos Scientific Laboratory in New Mexico. Ap-
proximately 220,000 American military personnel were exposed to radiation at Hiro-
shima or Nagasaki or in subsequent atmospheric tests; 9600 have filed claims against
the Veterans Administration, but only 812 have been compensated. In October 1989, a
federal judge ruled for the first time that workers at the Nevada test site could claim for
exposure; 220 joined the action. Earlier that year, the government finally acknowledged
radioactive emissions from the Fernald, Ohio nuclear weapons plant and offered to pay
$73 million to the 24,000 neighbors affected. Honicker, America's Radiation Victims.-
The Hidden Files, N.Y. Times, Nov. 19, 1989 (Magazine) at 39.

explosive, 99 Johns-Manville subjected its workers to asbestos for de-

cades after it knew they were suffering lung damage and cancer,1l°
McDonnell-Douglas produced and American Airlines flew a DC-10
they knew contained a faulty pylon and other design defects,10 1 and
tobacco companies continue to manufacture, promote, and sell ciga-
rettes? 10 2 Studies of the deterrent effect of criminal sanctions
demonstrate repeatedly that certainty is more important than sever-
ity. 10 3 Because full damages are rarely collected, tort liability en-
courages suboptimal safety.
Tort law fails as a deterrent even when evaluated by its own
criteria. Economic theory argues that regulation ought to be unnec-
essary: contract can regulate risk more efficiently when the cost of
99. See F. CULLEN, W. MAAKESTAD & G. CAVENDER, CORPORATE CRIME

UNDER ATTACK: THE FORD PINTO CASE AND BEYOND (1987).
100. See Fisher v. Johns-Manville Corp., 103 N.J. 643, 512 A.2d 466 (1986);
P. BRODEUR, OUTRAGEOUS MISCONDUCT: THE ASBESTOS INDUSTRY ON TRIAL
(1985). In the settlement following Johns-Manville's "bankruptcy," a trust was created
in 1988 through contributions of $155 million from Johns-Manville and $530 million
from its insurers. As of August 14, 1989, $515 million had been paid to settle 12,992
cases. A June 1989 financial statement indicated that another $136 million in claims
had been accepted but not paid. Operating expenses for the first six months of that year
exceeded $13 million. Consequently, the trust is almost exhausted. Over 93,000 claims
are still pending, another 7000 are expected by the end of this year, and some 200,000
are anticipated altogether. Given the rate at which Johns-Manville is contributing to
the fund, some claimants may not be paid for 25 years after they file. Labaton,
Manville's Trust Fund Runs Short, so Asbestos Victims May Have to Wait, N.Y. Times,
Oct. 24, 1989 at A8, col. 1.
101. See S. SPEISER, LAWSUIT 420, 557 (1980).
102. See generally P. TAYLOR, THE SMOKE RING: TOBACCO, MONEY, AND MUL-
TINATIONAL POLITICS (1984) (investigating the political and economic mechanisms of
the tobacco industry which enable it to prosper). A study by the California Department
of Health Services estimated that the total economic cost to Californians of smoking
was $7.1 billion a year: $4.1 billion in medical costs, $2.2 billion in lost future earnings
from premature death, and $800 million in lost productivity due to disability. Smoking
accounted for 16% of all adult deaths and 14% of all hospitalizations. Scott, Smoking
Costs State's Taxpayers Billions a Year, Report Indicates, L.A. Times, Nov. 3, 1988, § 1,
at 3, col. 5.
Guns are another dangerous product that tort law fails to control. An epidemio-
logical study estimated that gunshots cause 62,075 people a year to be hospitalized at a
cost of $429 million in hospital expenses alone, 86% of which is borne by taxpayers.
Martin, Hunt & Hulley, The Cost of Hospitalizationfor Firearm Injuries,260 J. A.M.A.
3048, 3049-50 (1988); see Lewin, Gunshots Cost Hospitals $429 Million, Study Says,
N.Y. Times, Nov. 29, 1988, at A16, col. 5.
103. See J. GIBBS, CRIME, PUNISHMENT, AND DETERRENCE 117-19 (1975); Pun-
ishment and Deterrence: Theory, Research, and Penal Policy, in LAW AND THE SOCIAL
SCIENCES 319 (L. Lipson & S. Wheeler eds. 1986); Paternoster, Decisions to Participate
in and Desist from Four Types of Common Delinquency- Deterrence and the Rational
Choice Perspective, 23 LAW & Soc'Y REV. 7 (1989).

1990] CRITIQUE OF TORTS 817
transactions between the parties is low,1°4 and the threat of tort lia-
bility should achieve optimum safety in the remaining cases. Yet
even the most ardent advocate of laissez-faire economics would
hesitate to eliminate all speed limits, end medical malpractice liabil-
ity, or abolish the Food and Drug Administration. Furthermore, if
deterrent theory worked perfectly, tort claims would disappear: fear
of liability would ensure optimum safety, and unmeritorious law-
suits would not be brought. Nevertheless, conservatives loudly pro-
claim (and denounce) what they insist is a tort litigation
explosion. 105
Reliance on a private law mechanism like tort to promote
safety has other unfortunate consequences. The focus on liability to
the individual victim subverts collective efforts to control risk.
Damages are paid only to individuals; group reparations and class
actions rarely are available to those injured by the same polluter,
manufacturer, common carrier, or employer. 10 6 Because liability
arises only when an injury has occurred, tort law fails to address the
underlying problem of risk. Under capitalism, private law, like pri-
vate medicine, is obsessed with individual cure at the expense of
collective prevention because capitalism creates a market for the
former while opposing state involvement in the latter. 10 7 Money
104. See Epstein, Medical Malpractice: The Casefor Contract, 1976 AM. B. FOUND.
RES. J. 87.
105. See, e.g., Galanter, Reading the Landscape of Disputes: What We Know and
Don't Know (and Think We Know) About Our Allegedly Contentious and Litigious Soci-
ety, 31 UCLA L. REV. 4 (1983) [hereinafter Landscape of Disputes]; Galanter, The Day
After the Litigation Explosion, 46 MD. L. REV. 3 (1986). The number of medical mal-
practice claims, as well as the size of jury awards and the costs of settlement, actually
decreased in 1988 after rising steadily for a decade. Freudenheim, supra note 93.
106. "A 'mass accident' resulting in injuries to numerous persons is ordinarily not
appropriate for a class action because of the likelihood that significant questions, not
only of damages but of liability and defenses to liability, would be present, affecting the
individuals in different ways." FED. R. Civ. P. 23(b)(3) advisory committee's note.
Agent Orange is the exception, not the rule. Even in that case, many victims were not
included in the settlement. P.SCHUCK,AGENT ORANGE ON TRIAL 226-34 (enlarged
ed. 1987).
107. President Bush epitomized this attitude in his speech for the centennial of the
Johns Hopkins University School of Medicine in Baltimore, February 22, 1990. "It is
estimated that 40 to 70 percent of the causes of premature death in America are pre-
ventable deaths-unnecessary deaths. And common sense tells us what that means.
It's not complicated. Eat sensibly. Exercise. Wear seatbelts. Don't smoke and if you
do smoke, stop. Don't abuse alcohol and don't use illegal drugs.... [T]he best prescrip-
tion for better health in America is a strong, daily dose of individual responsibility."
Address by President George Bush, Johns Hopkins School of Medicine Centennial, Re-
lease From Office of the Press Secretary, at 3-4 (Feb. 22, 1990). Bush also extolled a
quintessential example of heroic medicine, Dr. William Halsted, an early Hopkins
faculty member whom Bush characterized as "a kinder, gentler surgeon, if you will.

damages undermine the collective interest in safety both by convey-

ing the false impression that they restore the victim to the status
quo ante (so that greater safety is unnecessary) and by arousing jeal-
ousy of the suddenly wealthy victim, thereby diluting the sympathy
and solidarity of others who are potential victims.
At the same time that law individualizes victims (actual and
potential), it collectivizes tortfeasors-through the corporate form,
the doctrine of respondeat superior, expansive interpretations of
proximate cause, and the spread of liability insurance. This aggre-
gation reflects the fact that tort damages have grown too large to be
paid by individual defendants. But the imbalance between individ-
ual victims and collective tortfeasors is constructed by the legal sys-
tem as well. Although the collective liability insurer can badger the
victim for a release, the plaintiff's lawyer cannot seek out victims
and offer representation. 108 Group legal service plans established in
the 1930s to provide representation to automobile accident victims
were outlawed for several decades.109 Corporations often refuse to
bargain collectively with unions over safety practices on the ground
But he was not without boldness. And Halsted conceived and perfected a daring feat of
surgery: the radical mastectomy, that to this day saves the lives of thousands of women
afflicted with breast cancer." Id. at 3. In fact, the National Cancer Institute repudiated
radical mastectomy as the preferred treatment in the vast majority of cases in 1979, and
today it is performed in only about 5% of breast cancer operations. BOSTON WOMEN'S
HEALTH COLLECTIVE, THE NEW OUR BODIES, OURSELVES 533 (1984) (citing 2 NA-
TIONAL CANCER INSTITUTE, NIH CONSENSUS DEVELOPMENT CONFERENCE SUM-
MARY, The Treatment of Primary Breast Cancer: Management of Local Disease, no. 5
(June 1979)).
The United States has fallen to twentieth place among developed countries in in-
fant mortality. The rate in Washington, D.C. and Philadelphia is worse than that in
third world countries like Jamaica and Costa Rica. The difference between black and
white infant mortality in the United States is the greatest it has been since record keep-
ing began 50 years ago. Scott, U.S. Slips Badly in Infant Mortality Fight, Panel Says,
L.A. Times, Mar. 1, 1990, at Al, col. 1. The proportion of babies born in the United
States whose birth weight is so low as to place them at risk (less than 5 pounds 8
ounces) rose 2.4% from 1985 to 1987 after declining steadily during the decade 1975 to
1985. The proportion whose birth rate is very low (less than 3 pounds 4 ounces) rose
throughout that period by a total of 6.8%. The former are at least 5 times more likely
than the average baby to die in the first year; the latter are at least 90 times more likely
to die. Black babies are more than twice as likely as white to have low birth weights, a
difference that has grown steadily in the last 15 years. Birth Weight Trend Causes Con-
cern, N.Y. Times, Mar. 13, 1990, at C5, col. 3. One-fourth of the children in Southern
California, and half of those in Los Angeles-Long Beach, are believed to have levels of
lead in their blood that can cause behavioral problems and affect mental performance.
Dolan & Abramson, Lead Levels Put 25% of Southland Children at Risk, L.A. Times,
Mar. 6, 1990, at Al, col. 4.
108. Reichstein, Ambulance Chasing:A Case Study of Deviation and Control Within
the Legal Profession, 13 Soc. PROBS. 3, 7 (1965).
109. L. DEITCH & D. WEINSTEIN, PREPAID LEGAL SERVICES 16-17 (1976).

that these are "management prerogatives." Thus, the individual

victim (consumer, worker, traveller, breather of air, and drinker of
water) confronts a collectivity (enterprise, insurer, or government)
in the struggle over risk, regardless of whether the forum is a legis-
lature, regulatory agency, court, or negotiating table.
III. PROPOSALS
Criticism can lead in two directions: concrete reforms capable
of implementation within .the existing political framework; and rec-
ognition that fully adequate solutions require a fundamental re-
structuring of society. This Part offers both responses, organized
like the critique, although some issues overlap, and alternative re-
sponses to risk must reconcile tensions among the goals.
A. Moral Judgment
Tort law fails almost entirely to pass moral judgment on the
infliction of risk and injury. Negligent behavior is a public as well
as a private wrong because it endangers many people besides the
victim. It therefore merits the public disapproval that only the state
can express in order to reaffirm the norm of safety. Public prosecu-
tors and administrative agencies must pursue safety offenders more
vigorously. Actual and potential victims must organize to demand
effective enforcement because both public prosecutors and adminis-
trative agencies respond to political pressure. Trade unions and
consumer and environmental groups already do this; they deserve
additional financial and legislative support from the state because of
the substantial free rider problem.
The injured victim requires a different kind of moral response.
First, this must recognize the victim's injury and sense of grievance;
damages not only fail to do so, but also suggest that the victim has
enjoyed a windfall. Second, the tortfeasor must acknowledge
wrongdoing and apologize. 110 Complex organizations will have to
trace responsibility throughout the chain of command, from the
110. A Ford Escort collided with a tractor trailer. The two girls in the front seat of
the Ford suffered broken legs; one was wearing a seat belt. The two boys in the back
seat were wearing lap seat belts. One died from internal bleeding when the seat belt
severed his abdominal artery; the other, 14 year-old Jimmy Garrett, was paralyzed from
the waist down. He sued Ford and won a $3.3 million verdict. Larry Garrett, his
father, said: "I became angry because Ford refused to admit to anything. I sat there
three weeks through the trial. It was like they were above everybody else, even after the
jury came in. Ford didn't care. They really didn't care." His lawyers subsequently filed
a petition with the United States Department of Transportation seeking a recall of the
1.7 million Ford Escort and Mercury Lynx automobiles with lap belts in the rear seat.

employee who physically caused the injury up to the highest man-

agement. III Settlements resolve the vast majority of claims; instead
of denying culpability, they must accept it explicitly. Third, moral
judgment must occur in every case of injury or endangerment; utili-
tarian concepts of general deterrence are inapplicable here.1 1 2 All
victims must be encouraged strongly to claim-by lawyers, the legal
system, cultural norms, and support groups.
Finally, we must stop blaming victims. We do so now through
legal doctrines like contributory negligence, comparative fault, as-
sumption of risk, dangerous jobs, and agreements not to sue, as well
as through economic theories that workers receive a "risk pre-
mium" or consumers "choose" to purchase dangerous products and
services." 3 Liberalism fosters these misconceptions by locating all
Ordeal of Son's Auto Injury Spurs Father to Seek a Recall, N.Y. Times, Jan. 17, 1988,
§ 1, at 39, col. 5.
Michelle Snow, seven years old, was in her front yard in March 1987 when another
child threw a lawn dart, which embedded itself in her brain, killing her. Her father,
David, spent the next year trying to persuade the Consumer Product Safety Commis-
sion to ban lawn darts by March 6, 1988, which would have been her eighth birthday.
He told a sympathetic Senate subcommittee staff member:
My daughter's dead. She used to bring me home notes like yours [ges-
turing to a child's crayon drawings on the aide's bulletin board]. Nobody
knows what it's like who hasn't lost a child. I wake up miserable. I go to
bed miserable, and it's going to happen to other people unless we do
something. I'm here with my February house payment-that bought my
airline ticket. I've spent $12,000 on this. My wife doesn't work. I only
make $30,000 a year.
Baker, Grieving Father Is Given a Bitter Lesson in Civics, L.A. Times, Mar. 3, 1988, § 1,
at 26, col. 2. The lawn dart manufacturers naturally opposed the ban, and the Commis-
sion compromised on improved warnings. Snow said: "It sickens me. I can't verbalize
it. They defer and defer-I'll never understand it. These darts killed my child .... I
come here and it's like I came to a foreign planet. What happened today is an outrage."
Id. at 27, col. 1.
111. When a Japan Airlines plane crashed near Tokyo killing all passengers, the
president of the company travelled throughout the country attending meetings of be-
reaved relatives in order to extend his personal apologies. Wagatsuma & Rosett, supra
note 23, at 488.
Leslie Bender has advanced the radical and provocative idea that those who inflict
injury should themselves care for their victims. Thus, corporate executives who made
the "decision for accidents" would have to render care to those injured by like enter-
prises or products. Her argument challenges basic assumptions about the division of
labor-that caring is for women and commodified caring for women of color. Bender's
proposal would profoundly alter corporate attitudes toward risk. Bender, Blaming the
Victim: Some Thoughts About the Liability Crisis, Mass Torts, Power, and Responsibili-
ties, 1990 DUKE L.J.-(forthcoming).
112. The criminological theory of general deterrence asserts that deviant behavior
can be controlled by increasing the penalty to compensate for the uncertainty of
punishment.
113. All these doctrines are well known, except perhaps "dangerous jobs."
Although assumption of risk was abolished in the workplace by workers' compensation,

constraint within the state and portraying "private" behavior as

free. 114 Actually, victims "choose" risk and injury within an envi-
ronment of limited and grossly unequal economic resources, influ-
enced by divergent cultural norms about their entitlement to safety
and suffering from a profound sense of political powerlessness. 1" 5
it has reemerged when some workers have sued third parties in tort. See, e.g., Maltman
v. Sauer, 84 Wash. 2d 975, 530 P.2d 254 (1975) (involving helicopter rescue unit); Nel-
son v. Hall, 165 Cal. App. 3d 709, 211 Cal. Rptr. 668 (1985) (involving veterinarian).
A strong plea to stop blaming victims has come from an unlikely source: President
Bush. In a speech to a conference sponsored by the National Leadership Coalition on
AIDS, he said:
There is only one way to deal with an individual who is sick: with
dignity, compassion, care, confidentiality and without discrimination....
We don't spurn the accident victim who didn't wear a seat belt. We don't
reject the cancer patient who didn't quit smoking cigarettes. We try to
love them and care for them and comfort them.
Hilts, Bush, in First Address on AIDS, Backs a Bill to Protect Its Victims, N.Y. Times,
Mar. 30, 1990, at Al, col. 3.
114. Ronald Reagan perfectly reflected and strongly reinforced these beliefs. He
dismissed the problem of homelessness with the assertion that some people always will
live in the streets by choice. "They make it their own choice for staying out there.
There are shelters in virtually every city, and shelters here, and those people still prefer
out there on the grates or the lawn to going into one of those shelters." He had the
same response to the problem of unemployment. There were "hundreds of ads" in the
classified section of the Washington Post. "That means there are employers looking for
people to go to work." Roberts, Reagan on Homeless: Many Choose to Live in the
Streets, N.Y. Times, Dec. 23, 1988, at A26, col. 3.
The chimera of choice is even more tragically delusional in the Third World. In
Pagsanjan, the Philippines, a town of 22,000 approximately 40 miles southeast of Ma-
nila, as much as a third of the youth are engaged in prostitution, both heterosexual and
homosexual. Parents encourage it and are proud of the money and gifts their children
receive. When the Council of Citizens for the Protection of Children sought to expose
and stop the sex trade, they were vilified and threatened. When the Immigration Com-
mission arrested foreign panderers, an aide to the mayor said: "Why do the raids here?
They are just creating bad publicity for our town." Mydans, In a Philippine Town,
Child Prostitution,Despite Protests,Is a Way of Life, N.Y. Times, Feb. 5, 1989, § 1, at
3, col. 1.
South Korea provides more than half of the foreign babies legally adopted in the
United States each year: 6150 in 1986, and 5742 in 1987 (many adopted babies also
enter the country illegally through Mexico). Most of these babies are born to unmarried
women, often recent rural migrants to urban factories, naive about sex and ignorant of
birth control; illegitimacy strongly taints the entire family in Korean culture. American
adoptive parents pay about $4000, which includes transportation, medical expenses,
payments to Korean foster parents, and agency fees. Chira, Babiesfor Export: And Now
the Painful Questions, N.Y. Times, Apr. 21, 1988, at A4, col. 1. Choice?
115. The Federal Occupational Safety and Health Administration has cited Friction
Division Products, Inc. of Trenton, New Jersey for exposing its workers to asbestos.
Having found 15 times the acceptable levels of asbestos dust in the air and accumula-
tions an inch deep on the floor, it posted notices throughout the plant warning of immi-
nent danger. Some employees walked off the job, but the company had no difficulty
keeping a workforce of 125. Anthony Kelly, 26, started work a month later, for $6 an
hour, despite the notices. "I've got to take care of my family. I need a job, and jobs are

The concept of choice could become morally compelling only after

we equalized individual circumstances-a profound challenge to
those who take liberalism seriously. Furthermore, even if we agreed
that individuals should be free to choose risk, logic does not compel
us to be indifferent to those who are injured. Suffering seems more
than adequate punishment-if any is deserved. And it still may be
morally appropriate for the tortfeasor to apologize and suffer public
condemnation.
B. Compensation
Accidents will happen even in utopia. The popular preoccu-
pation with compensation accurately reflects the severe personal
and social dislocations they can cause. Taking compensation seri-
ously, however, will require a total restructuring of the legal
mechanisms. 116
First, compensation should respond to what happened rather
than how it happened, to need rather than cause or fault. It should
be available universally: to those suffering congenital disability and
illness as well as injury; to those who cannot identify a culpable
agent; and to those who have themselves to blame. After all, that is
how we respond to the misfortunes of those we love. We must view
compensation as a positive good to be encouraged if not required-
like education or preventive medicine. It should not be seen as an
undeserved benefit extracted grudgingly from a reluctant bureau-
cracy or adversary."17 Lawyers, support groups, and the state
should reach out to those in need and overcome the cultural differ-
ls
ences that make some more ready to claim than others.'
hard to find. I've been looking for two months and couldn't find anything. It's good
money." He looks forward to a $1/hour raise in six months. King, Asbestos Cloud
Hanging Over Workers, N.Y. Times, Aug. 15, 1989, at B1,col 1.
116. For the latest in a long series of proposed compensation schemes, see S.
SUGARMAN, DOING AWAY WITH PERSONAL INJURY LAW (1989).
117. Gwendolyn S. King, the new Commissioner of Social Security, has reversed the
Reagan Administration's policy of trying to deny benefits to the disabled and has
sought, instead, to enroll as many as possible of the one to two million poor estimated to
be eligible for supplemental security income. "I believe very strongly that we need to do
more by way of outreach" to the elderly homeless, she said. Tolchin, Social Security
Chief Seeks to Expand U.S. Welfare Program, N.Y. Times, Dec. 29, 1989, at A14,
col. 1.
118. In 1978 the Greater Manchester Legal Services Committee launched a scheme
to encourage accident victims to file claims. See H. GENN, MEETING LEGAL NEEDS?
(1982); Abel, supra note 93, at 461-67. The program was so successful that the national
Law Society is seeking to extend it throughout the country. See Abel, Between Market
and States. The Legal Profession in Turmoil, 52 MOD. L. REV. 285, 305 (1989).

Second, state compensation should affirm the equal humanity

of victims, both materially and symbolically. It should provide the
same level of income for all-whatever minimum society believes it
can afford. Enlightened self-interest should make this minimum
award fairly generous because accidents happen to everyone. Com-
prehensive medical care should be freely available according to
need. Property loss should not be compensated. In a society where
property is distributed so unequally, compensation can only
reproduce inequality and undermine community. Furthermore,
courts have been unable to articulate principled distinctions be-
tween what should and should not be compensated. Those who en-
joy the privileges of wealth and income should bear the burdens of
loss and loss insurance. In addition to satisfying a moral impera-
tive, shifting the burden of loss to the privileged would reduce the
inefficiencies of double insurance by both potential victims and
tortfeasors. 119
Third, intangible harm should not be compensated. Despite
propaganda campaigns by trial lawyers' associations seeking to con-
vince the public that pain and suffering damages are the inalienable
birthright of every freedom-loving American, virtually engraved in
Magna Carta, surveys of victims demonstrate repeatedly that they
do not want it, though they do want the defendant to acknowledge
the wrong inflicted.1 20 Just as the present system of compensating
pecuniary loss treats equals unequally (all people are created equal
but damages for pecuniary loss vary with personal wealth), compen-
sation for intangibles treats unequals equally (all human experience
is unique but damages for intangible harms reduce them to the com-
mon currency of money). Nonpecuniary damages also dehumanize
the response to misfortune, substituting money for compassion,
arousing jealousy instead of sympathy, and treating experience and
21
love as commodities.
The three reforms just proposed not only are mutually compat-
ible, but also reinforce each other. The trade-off between the quan-
tum of damages awarded each victim and the number of victims
benefited is not only logical, but also documented by historical ex-
perience. Workers' compensation, automobile no-fault insurance,
119. See generally Abel, supra note 32. In the absence of liability for property dam-
age, potential tortfeasors would have no reason to carry liability insurance.
120. See authorities cited supra note 22. Scots law, borrowing from Roman law,
offers victims a nominal payment of "solatium" in recognition of the fact that a physical
injury is also an affront.
121. For a similar recommendation from a different political perspective, see
Schwartz, supra note 95, at 411.

Sweden's no-fault medical malpractice scheme, and New Zealand's

comprehensive compensation program all have reduced benefits but
served more victims. 122 Eliminating the adjudication of causation
and fault and the calculation of past and future income and prop-
erty loss, medical expenses, and intangible damages will reduce
transaction costs enormously. It will obviate the need for lawyers,
an original goal of workers' compensation. 123 And it will drasti-
cally reduce delay, which presently inflicts great hardship on vic-
24
tims, forcing them to accept inadequate settlements.
I do not want to underestimate the difficulty of implementing
these reforms or overestimate what they will achieve. They will
elicit vigorous opposition from both the plaintiffs' bar and private
liability insurers, perhaps even forging an unholy alliance between
these traditional adversaries. 125 Though both groups manipulate
122. See T. ISON, ACCIDENT COMPENSATION: A COMMENTARY ON THE NEW

ZEALAND SCHEME (1980); G. PALMER, COMPENSATION FOR INCAPACITY: A STUDY
OF LAW AND SOCIAL CHANGE IN NEW ZEALAND AND AUSTRALIA (1979); A. WIDISS,
R. BOVBJERG, D. CAVERS, J. LITrLE, R. CLARK, G. WATERSON & T. JONES, No-
FAULT AUTOMOBILE INSURANCE IN ACTION: THE EXPERIENCES IN MASSACHU-
SETTS, FLORIDA, DELAWARE AND MICHIGAN (1977); Brahams, The Swedish 'No-
Fault' Compensation System for Medical Injuries-PartI, 138 NEW L.J. 14 (1988);
Friedman & Ladinsky, Social Change and the Law of IndustrialAccidents, 67 COLUM.
L. REV. 50 (1967).
The Health Commissioner of the State of New York has proposed a no-fault insur-
ance scheme for medical malpractice, which would be the first in the nation. Sack, No-
Faultfor Doctors is Called Feasible,N.Y. Times, Mar. 1, 1990, at B3, col. 4; Sack, New
York's Health Chief Suggests No-Fault Malpractice Insurance, N.Y. Times, Jan. 25,
1990, at A20, col. 1.
Pain and suffering account for 30-57% of all awards for bodily damages. W. ViS-
CUSI, PAIN AND SUFFERING IN PRODUCT LIABILITY CASES: SYSTEMATIC COMPENSA-
TION OR CAPRICIOUS AWARDS (1987), quoted in Schwartz, supra note 95, at 411 n. 115.
123. See P. NONET, ADMINISTRATIVE JUSTICE: ADVOCACY AND CHANGE IN A
GOVERNMENT AGENCY 104-07 (1969).
124. See STATE OF NEW YORK INSURANCE DEP'T, AUTOMOBILE INSURANCE...
FOR WHOSE BENEFIT? (1970); UNITED STATES DEP'T OF TRANSPORTATION, MOTOR
VEHICLE CRASH LOSSES AND THEIR COMPENSATION IN THE UNITED STATES (1971);
Rosenberg & Sovern, Delay and the Dynamics of PersonalInjury Litigation, 59 COLUM.
L. REV. 1115 (1959).
In England, the average length of time from accident to settlement or trial was
2 3/4-3 years in County Courts, 4-5 1/4 years in District Registries, and 5-5 3/4 years
in the Royal Courts of Justice. INBUCON MANAGEMENT CONSULTANTS, supra note
50, at 14.
125. It goes without saying that the Association of Trial Lawyers of America and its
local affiliates oppose any compensation scheme. So, apparently, does the American
Bar Association. ABA SPECIAL COMM. ON THE TORT LIABILITY SYSTEM, TOWARDS
A JURISPRUDENCE OF INJURY: THE CONTINUING CREATION OF A SYSTEM OF SUB-
STANTIVE JUSTICE IN AMERICAN TORT LAW (1984); see also R. HAYDEN, THE CUL-
TURAL LOGIC OF A POLITICAL CRISIS: COMMON SENSE, HEGEMONY AND THE GREAT
AMERICAN LIABILITY INSURANCE FAMINE OF 1986 (Disputes Processing Research

symbols adeptly and wield formidable material resources, their hyp-

ocritical posturing has seriously eroded their public credibility. Nor
do they deserve sympathy. American lawyers always have been
creative in finding new sources of business, and insurers who lose
liability policies probably can make more money writing loss insur-
ance for those wishing to protect their high incomes and substantial
property. 126 Besides, reformers may be able to enlist the support of
capital, which would gladly unload on the state the burden of
health insurance, liability insurance, workers' compensation, and
sick pay.
Even were these reforms implemented, they would represent
only a social democratic solution to the problem of risk. They
would reallocate the cost of accidents, not the accidents themselves.
True, the legal system no longer would encourage tortfeasors to in-
flict greater risk on underprivileged victims whose liability costs are
lower because they are less likely to claim or will recover smaller
awards. But those endowed with greater material, social, or educa-
tional resources still would be able to translate that privilege into
lower risk when choosing consumer goods, workplaces, and envi-
ronmental amenities, just as they would be able to buy better medi-
cal care and insure their superior wealth and income from depletion
127
by an injury.
C. Safety
Although the reforms proposed above are valuable, safety must
be our first priority. We want to prevent accidents, not just respond
Program Working Paper Sept. 9, 1989) (examining "common sense" origins of reform
movement to combat liability insurance famine).
126. California insurers budgeted $20-23 million in their unsuccessful effort to per-
suade voters to adopt their no-fault initiative in the 1988 elections. Reich & Lichtblau,
Insurers Set for $20-Million Effort on No-Fault Plan, Nader Group Says, L.A. Times,
July 8, 1988, § 1, at 3, col. 1.
127. Reliance on private loss insurance aggravates inequality because availability
and cost vary with the applicant's status. We have already seen the tragic denial of
health insurance to those at high risk of AIDS. Other groups that find it difficult or
expensive to obtain health insurance include those engaged in hazardous work (mining,
oil drilling, logging, farming, ranching, aviation, sanitation, pest-control, work involv-
ing munitions or asbestos, and work at quarries and lumberyards), low-paying or sea-
sonal work (involving hotels, restaurants, car washes, laundries, cleaners,
entertainment, beauty salons, barber shops, bowling allies, service stations, convenience
stores, golf clubs, ski resorts, camps), occupations that produce a high rate of claims
(medical workers), and employers with high administrative costs (non-profits, munici-
palities). These categories obviously overlap with those of class, gender, and race.
Freudenheim, Health Insurers, to Reduce Losses, Blacklist Dozens of Occupations, N.Y.
Times, Feb. 5, 1990, at Al, col. 1.

to them with moral condemnation and social support; the more we

prevent, the less important those responses become. I offer two
contradictory proposals: one could be pursued incrementally within
the existing social framework, whereas the other would require a
radical transformation.
The first proposal takes seriously the role of tort liability in
deterring unsafe behavior. Many of the deficiencies criticized above
can be ameliorated or eliminated. First, liability should be strict
rather than based on fault. A strict liability regime encourages the
tortfeasor to reduce accident costs rather than liability. It lodges
responsibility for the "decision for accidents" in the experienced en-
trepreneur rather than the ignorant jury. It encourages research on
safety. It internalizes in the price of the good or service the cost of
all accidents, not just those caused by the defendant's fault, al-
lowing the market mechanism of consumer choice to reduce the
quantity of accident-causing behavior. And it reduces transaction
costs by eliminating the hotly contested issue of fault (although it
intensifies disputes about cause and increases the total number of
claims).
Second, victim behavior should not bar or diminish recovery.
Self-interest, the axiomatic foundation of economics, sufficiently
discourages potential victims from exposing themselves to risk;
there is no evidence that the denial of compensation makes them
safer. 128
Third, damages should reflect all costs of the accident, however
these ramify through chance circumstance, emotional attachment,
or economic interdependence. 129 Doctrines of duty and proximate
cause should not terminate liability. Proximate cause is both inco-
herent and unnecessary and should be eliminated altogether. Duty
is just as incoherent and should be eliminated except insofar as it
reflects the tension between egoism and altruism, which cannot be
avoided in questions of affirmative obligations to help those at risk.
128. Latin, supra note 92, at 686.

129. Damages may be justified as a means of promoting optimal safety even if they
cannot compensate, for instance, the pain and suffering of a victim who dies soon there-
after (see De Long v. County of Erie, 60 N.Y.2d 296, 457 N.E.2d 717, 469 N.Y.S.2d
611 (1983); Yowell v. Piper Aircraft Corp., 703 S.W.2d 630 (Tex. 1986)), or the years
lost by a victim who never emerges from a coma (Kolbert, Awards Curbed for Uncon-
scious Patients, N.Y. Times, Feb. 22, 1989, at B1, col. 1).

Fourth, claims should be actively encouraged-certainly by

bar associations, possibly by individual lawyers. 130 As claimants
pursue selfish interests, they simultaneously perform a public ser-
vice. Furthermore, claiming is learned behavior. 131 And encour-
agement will have the greatest effect on those who have been least
132
likely to claim.
Many objections may be raised to this proposal. Some will
maintain we cannot afford it: courts will be overburdened, prices
inflated, and companies driven out of business. These are captious
criticisms. Courts exist to hear valid claims-we do not close
schools because there are too many students, libraries because there
are too many readers, or roads because there are too many drivers.
When police, prosecutors, and prisons are overextended by rising
crime rates, we increase their budgets; we should be at least as gen-
erous when private individuals mobilize the law. If consumers
purchase fewer goods or services when their prices reflect accident
costs as well as labor and materials, we have simply moved closer to
the efficient allocation of resources. If we want to subsidize goods
or services, we can do so in ways that are fairer and more efficient
than the denial of compensation to the random victim. In any case,
liability costs contribute little to the prices of most goods and
33
services.
Others will raise the specter of fueling American "litigious-
ness" and increasing social conflict.134 But Americans actually ex-
130. Lawyers should be free to engage in solicitation, limited only by the potential
client's right of privacy (restrictions on place and manner) and protections against over-
reaching (such as a cooling-off period) and fraud (civil and criminal liability).
The Association of Trial Lawyers of America recently began to notify regulatory
agencies of products they believed posed serious dangers. Their first target is a drain
cleaner, Red Devil Lye, which they are asking the Consumer Product Safety Commis-
sion to remove from the market. Meier, Lawyers Work to Publicize Risks in Household
Products, N.Y. Times, Oct. 14, 1989, at A16, col. 4.
131. Felstiner, Abel & Sarat, The Emergence and Transformation of Disputes: Nam-
ing, Blaming, Claiming. . ., 15 LAW & Soc'Y REV. 631 (1981).
132. The Greater Manchester Legal Services Committee's accident leaflet scheme
reduced the disparity in claiming behavior between women and men, individuals in dif-
ferent age groups, and the unemployed and employed. H. GENN, supra note 118, ch. 2;
Abel, supra note 93, at 463-67.
133. Abel, supra note 93, at 446.
134. P. HUBER, LIABILITY: THE LEGAL REVOLUTION AND ITS CONSEQUENCES
(1988); Symposium on Tort Reform, 10 HAMLINE L. REV. 345 (1987); Why Reforming
Our Liability System is Essential if America is to Succeed in Overseas Markets, N.Y.
Times, Feb. 25, 1990, § 3, at 4 (advertisement by American International Group, an
insurance underwriter). For a devastating critique of Huber, see Hager, Civil Compen-
sation and Its Discontents: A Response to Huber, 42 STAN. L. REV. 539 (1990).

hibit relatively low and fairly constant rates of civil litigation. 135
Social conflict could be reduced much more effectively if tortfeasors
stopped causing so many injuries 3 6 and promptly acceded to claims
when they were made.
Perhaps the most telling objection to this proposal is its incon-
sistency with my earlier endorsement of a no-fault compensation
scheme. Politics is not logic, however, and I see no practical
problems in pursuing both reforms simultaneously: encouraging a
one hundred percent claims rate under a strict liability regime while
gradually mobilizing support for public medical care and income
maintenance. If forced to choose, I would sacrifice the former to
achieve the latter: the unquestionable good of universal compensa-
tion outweighs the uncertain deterrent of tort liability, especially
1 37
given its high administrative costs.
135. See Landscape of Disputes, supra note 105. On changes in the size of tort
claims over time, see M. PETERSON & G. PRIEST, THE CIVIL JURY: TRENDS IN TRIALS
AND VERDICTS, COOK COUNTY, ILLINOIS, 1960-1979 (1982); M. PETERSON, CIVIL
JURIES IN THE 1980s: TRENDS IN JURY TRIALS AND VERDICTS IN CALIFORNIA AND
COOK COUNTY, ILLINOIS (1987).
If we exclude cases against the tiny number of defendants sued by multiple plain-
tiffs, the increase in the number of products liability cases in recent years merely paral-
lels the growth of the federal civil caseload. T. DUNGWORTH, supra note 96.
Furthermore, courts have been constricting rather than expanding tort liability in re-
cent years, with the result that fewer plaintiffs are recovering. Henderson & Eisenberg,
The Quiet Revolution in Products Liability: An Empirical Study of Legal Change, 37
UCLA L. REV. 479 (1990). This change is visible in the reserves insurance companies
set aside. St. Paul's Group set aside more than $100 million for losses in 1986, but
transferred $18 million from reserves to profits in 1988. General Re Corporation set
aside $529.5 million for losses in 1986, but only $164.4 million in 1988. Henriques,
FriendlierLegal Climate for Insurers, N.Y. Times, Mar. 4, 1990, § 3,.at 27, col. 3.
136. Evidence that tortfeasors are suboptimally safe comes from an unlikely source,
the Rand Corporation, in a study funded by American Medical International. The re-
searchers studied 182 patients who died of heart attack, stroke, or pneumonia in 12
AMI hospitals in the southern and western United States. A panel of experienced spe-
cialists examined their medical records; a majority concluded that poor care caused
27% of the deaths. Scott, Study Links 9 Common Medical Errorsto Deaths, L.A. Times,
Oct. 1, 1988, § 1, at 21, col. 1.
137. Commentators differ considerably as to whether the shift to no-fault plans in-
creases accident costs. See Trebilcock, The Future of Tort Law. Mapping the Contours
of the Debate, 15 CAN. BUS. L.J. 471, 475-76 (1989); Trebilcock, Incentive Issues in the
Design of 'No-Fault' Compensation Systems, 39 U. TORONTO L.J. 19 (1989); sources
cited supra notes 19-38; see also Swan, The Economics of Law: Economic Imperialism in
Negligence Law, No-Fault Insurance, Occupational Licensing and Criminology, 67
AUSTL. ECON. REV. 92, 98 (1984). I would expect any increase under no-fault automo-
bile insurance schemes to be attributable largely to the greater number of young men
who could pay the reduced costs of automobile insurance. If society deemed this a
problem, it could respond by licensing, taxing, raising insurance premiums, or policing
(especially targeted at drunk driving). It also could improve public transportation.

But even a strict liability system with a one hundred percent

claims rate (an empirical impossibility) remains seriously flawed. It
reproduces inequality, since tortfeasors still find it cheaper to en-
danger the poor. It violates autonomy, since the state still evaluates
the cost of accidents and the tortfeasor decides whether to inflict
them. It also undermines community, since victims must claim as
individuals. Fidelity to these three ideals in the confrontation with
1 38
risk will require a commitment to democratic socialism.
Human autonomy is the foundation of Kantian ethics. Con-
temporary tort law reflects this inspiration when it insists that those
exposed to danger ought to be as autonomous as possible in the
confrontation with risk. The doctrine of informed consent seeks to
protect the autonomy of patients. Potential victims cannot "as-
sume" the risk of negligence unless the decision is fully informed
and voluntary; the difficulty of realizing these conditions in the
139
workplace persuaded legislatures to abrogate the doctrine.
"Agreements" not to sue are unenforceable when the good or ser-
vice is a necessity.14 0 Warnings place consumers on notice only
14
when they effectively communicate the danger.
Autonomy in the encounter with risk in the workplace man-
dates worker ownership and control of the means of production.
Only in producer cooperatives will those exposed to risk also profit
from that exposure and have the power to make the cost-benefit
42
analysis advocated by law and economics.
Rawlsian theories of justice call for equality of benefits and
burdens including risk. I4 3 This principle is reflected in daily life.
Many countries, including our own, require universal military ser-
vice (at least for men during wartime) in the belief that the threat of
death or disability ought to be borne by all, however imperfectly
that ideal is realized. None explicitly allows the wealthy to buy an
exemption or substitute, as occurred during the nineteenth cen-
138. I develop these ideas much more fully in Abel, A Socialist Approach to Risk, 41
MD. L. REV. 695 (1982).
139. Workers compensation legislation abolished the nineteenth-century defense.
See Friedman & Ladinsky, supra note 122, at 69-71.
140. See, e.g., Henrioulle v. Marin Ventures, 20 Cal. 3d 512, 573 P.2d 465, 143 Cal.
Rptr. 247 (1978) (referring to housing).
141. See, e.g., MacDonald v. Ortho Pharmaceutical Corp., 394 Mass. 131, 475
N.E.2d 65, cert. denied, 474 U.S. 290 (1985) (oral contraceptive warning insufficient);
Campos v. Firestone Tire & Rubber Co., 98 N.J. 198, 485 A.2d 305 (1984) (written
warning insufficient if users likely not to read English).
142. For a quintessential expression of the free market position, see Epstein, Prod-
ucts Liability: The Search for the Middle Ground, 56 N.C.L. REV. 643, 656-57 (1978).
143. J. RAWLS, A THEORY OF JUSTICE (1971).

tury.'4 State guarantees of a minimal level of medical care express

a rudimentary notion of equal entitlement to well-being.145 Ameri-
cans are properly horrified when they read that Third World coun-
tries tolerate a market in bodily organs or that a physician proposed
to create one here. 146
Risk in the workplace can be equalized only by a substantial
reduction in the division of labor through a rotation of tasks-head-
work and handwork, safe and dangerous. At the very least, every-
one must be exposed periodically to the most dangerous jobs-only
that experience will awaken self-interest in reducing risk and foster
empathetic understanding of the dangers that fellow-workers en-
47
counter daily. 1
Liberalism conceptualizes the encounter with risk as a matter
of individual choice: where to work, how to travel, what to con-
sume, how to spend one's leisure, where to live. But individuals
choose within a framework constructed by others.148 The most im-
portant decisions about risk- environmental pollution, the organi-
zation of work, the range of consumer goods-are made by
collectivities (private enterprise and government). Consequently,
those exposed to risk also must respond collectively. Together they
can mobilize far more information than any individual could
master. Collective decision-making also will compel individuals to
reexamine their idiosyncratic risk preferences and aversions.
The only organizational form capable of realizing autonomy,
equality, and community in the encounter with workplace risk is
the producer cooperative, whose members share ownership and
management, rotate tasks, and decide collectively. Consumer coop-
eratives might perform a similar role, although the lesser salience of
consumption compared to production and the greater number of
144. In Graham Greene's THE TENTH MAN (1985), the occupying German army
rounds up a group of 30 French citizens and tells them to select three out of their
number to be executed in retaliation for a Resistance killing of a German soldier. A
wealthy lawyer chosen by lottery pays a poor man to take his place. Few would find
that ethically acceptable.
145. All advanced industrialized countries except the United States and South Af-
rica ensure that residents have access to medical care.
146. See supra note 57 and accompanying text.
147. The manager at General Motors' Buick Reatta assembly plant in Lansing,
Michigan plans to work a shift on the line at least once a month. Risen, GM Managers
Go on Line, L.A. Times, June 3, 1989, § 4, at 1, col. 1.
148. Cf. Marx, The Eighteenth Brumaire of Louis Bonaparte, in ESSENTIAL WORKS
OF SOCIALISM 72, 72 (I. Howe ed. 1976) ("Men make their own history, but they do not
make it just as they please; they do not make it under circumstances chosen by them-
selves, but under circumstances directly encountered, given, and transmitted from the
past.").

goods and services consumed will make it difficult to sustain the

interest and develop the expertise of members. The obstacles of or-
ganizing the diffuse public exposed to environmental risk are so
great that only state regulation can respond adequately. In each
domain, equality of risk presupposes a high degree of social, polit-
ical, economic, and cultural equality.
CONCLUSION
Contemporary tort law, not surprisingly, reflects the dominant

traits of late-twentieth-century America: capitalist relations of pro-
duction, individualism, extreme division of labor, and commodifica-
tion. Some of the unfortunate consequences for the incidence and
distribution of risk and injury could be ameliorated within the
existing framework. The rhetoric of "law and order" supports
harsher and more certain penalties for those who endanger or injure
others. Numerous countries have shown that social democracy is
fully compatible with advanced capitalism and political liberalism.
Radicals could make common cause with free market enthusiasts to
ensure that tort liability contributes to efficient resource allocation.
But we can fully realize the widely shared values of autonomy,
equality, and community in the encounter with risk only by em-
bracing democratic socialism: worker ownership and management,
consumer cooperatives, equalization of benefits (resources) and bur-
dens (risk), and a state sufficiently powerful to regulate environmen-
tal pollution.


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This Article offers one critique of torts.' I stress the singular

* Professor of Law, University of California, Los Angeles. B.A. 1962, Harvard

HeinOnline -- 37 UCLA L. Rev. 785 1989-1990

My views reflect twenty years of the dialogue with students

I. A VERY BRIEF HISTORY

HeinOnline -- 37 UCLA L. Rev. 786 1989-1990

HeinOnline -- 37 UCLA L. Rev. 787 1989-1990

As the focus of tort law has shifted from intentional wrongs

9. See L. FRIEDMAN, A HISTORY OF AMERICAN LAW (1973); M. HORWITZ,

HeinOnline -- 37 UCLA L. Rev. 788 1989-1990

is another ingredient of tort damages. Finally, as explained more

HeinOnline -- 37 UCLA L. Rev. 789 1989-1990

ciety, injury-like work-creates use value. Intimates feel obligated

13. See Christie, Conflicts as Property, 17 BRIT. J. CRIMINOLOGY 1 (1977).

HeinOnline -- 37 UCLA L. Rev. 790 1989-1990

priates a fourth to a half of the victim's recovery, sometimes sharing

The purposes of tort law are to pass moral judgment on what

HeinOnline -- 37 UCLA L. Rev. 791 1989-1990

moral intuitions of judges and juries lack a principled basis.' 8 Simi-

HeinOnline -- 37 UCLA L. Rev. 792 1989-1990

Tort theory and practice violate the moral intuitions of lay-

HeinOnline -- 37 UCLA L. Rev. 793 1989-1990

HeinOnline -- 37 UCLA L. Rev. 794 1989-1990

tific and apolitical. 27 There are serious obstacles to putting cost-

27. W. LANDES & R. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW 1

HeinOnline -- 37 UCLA L. Rev. 795 1989-1990

Although economics simply aggregates all the "costs of accidents"

HeinOnline -- 37 UCLA L. Rev. 796 1989-1990

HeinOnline -- 37 UCLA L. Rev. 797 1989-1990

tortfeasors to overcompensate small claims (because of their nui-

Economics of Personal Injury Litigation, 61 COLUM. L. REV. 1 (1961); COMPENSATION

HeinOnline -- 37 UCLA L. Rev. 798 1989-1990

women, adolescents, and the elderly. Sovereign immunity often

HeinOnline -- 37 UCLA L. Rev. 799 1989-1990

Because these biases cumulate, tort law intensifies social in-

HeinOnline -- 37 UCLA L. Rev. 800 1989-1990

HeinOnline -- 37 UCLA L. Rev. 801 1989-1990

49. Ryan v. New York Cent. R.R., 35 N.Y. 210 (1866).

HeinOnline -- 37 UCLA L. Rev. 802 1989-1990

and cultural specificity of contemporary American tort damages by

HeinOnline -- 37 UCLA L. Rev. 803 1989-1990

involuntary past sacrifice (injury) into future gain (damages), re-

HeinOnline -- 37 UCLA L. Rev. 804 1989-1990

lieu of years foregone-a secular version of the Faustian compact.60

HeinOnline -- 37 UCLA L. Rev. 805 1989-1990

one; 66 for negligence causing the breakup of a marriage; 67 even for

HeinOnline -- 37 UCLA L. Rev. 806 1989-1990

dent costs must be our primary concern. 7 1 Indeed, were we uncon-

71. G. CALABRESI, THE COSTS OF ACCIDENTS: A LEGAL AND ECONOMIC ANAL-

HeinOnline -- 37 UCLA L. Rev. 807 1989-1990

and expertise than those regulated. They lack sufficient resources to

HeinOnline -- 37 UCLA L. Rev. 808 1989-1990

or jury, or before by a legislature or regulatory agency. In each

77. When a child is permanently and seriously disabled, it is almost impossible to

HeinOnline -- 37 UCLA L. Rev. 809 1989-1990

that toxic waste dumps are concentrated in black ghettoes in the

HeinOnline -- 37 UCLA L. Rev. 810 1989-1990

Fourth, every tort system, whether based on fault or strict lia-