MEDIA CONTACT: Pat Vaughan Tremmel at (847) 491-4892 or p-tremmel@northwestern.edu

October 3, 2003

Book Shows How Tort Laws Reflect Culture Wars

CHICAGO --- A new book by a Northwestern University School of Law professor demonstrates how the evolution of American personal injury law frequently reflects deep divisions about the role of law and morality in our social life.

“Tort law often becomes a series of culture wars,” says Professor Marshall S. Shapo, author of “Tort Law and Culture” (Carolina Academic Press, 2003).

The book begins with tort cases involving famous litigants: Paula Jones v. Bill Clinton; a landmark privacy action by Ralph Nader against General Motors; and a suit by the survivors of Karen Silkwood against the Kerr McGee Corporation for plutonium contamination.

Shapo suggests that judicial responses to legal disputes about injuries reflect the conflicting social and political attitudes that shape our culture.

A federal judge’s dismissal of an “outrage” complaint brought by Paula Jones, for example, boiled down to a judgment that the disgusting behavior Jones attributed to Clinton was not grounds for a legal claim.

“As is often the case with tort decisions, the judge’s ruling does not tell us what is proper for us to do -- or exactly what we must do -- but what we must stomach as part of our everyday lives,” Shapo says.

Courts agree that liability is appropriate for severe emotional injuries generated by vicious words and behavior, but they also are wary of litigation brought for insults and vexations that are part of everyday life.

Though the book begins with famous litigants, it primarily is about law that stems from mundane occurrences involving ordinary people.

“Besides the few well-publicized cases, there are many more mundane cases that show how tort law offers a remarkably accurate representation of the tensions in both our local and national cultures,” Shapo says.

Shapo cites Alexis de Tocqueville, who observed, more than 170 years ago, that important political issues in America have a tendency to wind up in court. “Tort Law and Culture” confirms Tocqueville’s observation with respect to socially significant issues that arise in ordinary cases.

Tort law basically involves actions for personal injury, for property damage and sometimes for injury to economic interests. The book discusses rules and principles that grow out of judicial resolution of individual disputes about injuries. It shows how the rules that emerge from the crucible of litigation reflect both firmly held moral views and ambivalences about “rights” and “wrongs.”

The tort law of the last two generations, for example, reflects our tensions about the boundaries of privacy, about awarding millions of dollars for intangible harms such as pain and suffering and about both manufacturers’ and consumers’ responsibilities concerning product dangers. From injuries caused by children’s hijinks to devastating harms to product users, “Tort Law and Culture” demonstrates why tort law has become a cultural mosaic of our society.

Shapo explains how the collision of two sets of cultures -- a justice culture and a market culture --underlies our tort wars. A recurrent example of our clashes appears in cases involving injuries that workers attribute to the design of industrial machines they must use to do their jobs. Workers insist machine manufacturers should be held responsible for injuries they know are likely to happen, even though it is the injured worker’s employer who chooses the machine and the employee who works in the face of the danger. Manufacturers contend that employees must be held legally as well as morally responsible for injuries occurring when they choose to work with a dangerous machine.

Shapo concludes that our tort wars show us as both compassionate and hard-hearted, as risk-takers and risk-averse. We are determined to make people who cause emotional anguish pay when they intentionally cause harm, but not nearly so sure when the injurer did not act intentionally. We are wrapped up in our material possessions, but we balance the gains they provide us against the preciousness of life and limb.