!!Экзамен зачет 2023 год / Critique of torts

(Cite as: 37 UCLA L. Rev. 785)

UCLA Law Review

June,1990

*785 A CRITIQUE OF TORTS

Richard L. Abel [FNa]

Copyright 1990 by the Regents of the University of California; Richard L. Abel

This Article offers one critique of torts. [FN1] I stress the singular because almost '' commentators are critical; but I believe my approach is distinctive, if not unique. I firmly associate myself with Critical Legal Studies, but that broad movement contains many divergent 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 possibility of social theory and the importance of empirical research. And I propose concrete reforms, thereby challenging the charge of nihilism 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 constructed; 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 distinction, contending that any account of the social world is partial and imbued with values.

*786 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 existing 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 intentional 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. [FN2] 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. [FN3] Even misfortunes we now interpret as accidental--such as a snake bite, lightning bolt, or fatal disease--often were construed as intentional by reference to beliefs in witchcraft and sorcery or attributed to the wrath of ancestors or gods. [FN4] 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 members 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 development made it possible for inadvertence to inflict unimaginable misery. Individuals can trigger disaster when driving cars or starting *787 fires (in office towers, hotels, or forests, for instance). [FN5] Collectivities, both public and private, can cause even worse damage through both discrete events (the Exxon oil spill, the Bhopal disaster) 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.

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 37 UCLA L. Rev. 785)

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 enhanced social status (which is lost by crime, except within deviant subcultures). [FN6] 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 world of status relationships has largely contracted to the family. [FN7] Violence and emotional abuse are endemic within that domain, but the state is reluctant to get involved because intervention would destroy 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 negligent 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 tendencies. Capitalism, technology, and the division of labor all have increased the social distance between those who make the "decision for accidents" [FN8] 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.

*788 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, [FN9] 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 compensation. 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 another's car, and those guilty of contributory negligence or assumption 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. Capitalism has created a proletariat that must sell its labor for wages in order to live. Lost earnings (past and future) are an essential element of compensatory damages because unemployment is tantamount to destitution. Those disabled by accident must purchase care from strangers because capitalism erodes the obligations of mutual support outside the nuclear family and increasingly compels both spouses to work. [FN10] 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 because 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 replaced (indeed, the newer the better). Consequently, property loss *789 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 consumption over work and production.

Social fragmentation has made it difficult for victims to mobilize group support for their claims, increasing their reliance on the state and on the commodified assistance they must buy from lawyers. [FN11] 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. Politicians and the media constantly reaffirm the centrality of these state functions by bombarding the public with calls for "law and order." Powerful state bur- eaucracies--courts, prosecutors, police, and prison officials--develop vested interests in processing crime. The

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 37 UCLA L. Rev. 785)

victim becomes an embarrassing anachronism--necessary to set the process in motion but inconvenient thereafter. Criminal prosecutions 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 victim'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 capitalist production exploits and alienates workers. [FN12] In precapitalist society, *790 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 monopoly of force, undermining private collective action. [FN13] The legal system, which constructs the market for labor, capital, land, and commodities, also constructs the market for injuries. Just as capitalism separates workers from the means of production, legal professionalism separates tort victims from the means of redress, and medical professionalism separates victims and intimates from responsibility for care. In each instance, a fraction of the dominant class mobilizes state power to protect its property--capital or professional 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 statecreated market (the court) and the dependent markets it engenders (negotiated settlements). [FN14] Just as the capitalist insists on "managerial 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 transformed into torts and crimes. [FN15] Like workers, most victims receive the bare minimum needed for survival. Just as the capitalist expropriates the surplus value created by the worker, the lawyer expropriates *791 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 condemnation or that victims' wrongs deserve public recognition. Furthermore, 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 between the wrongfulness of the defendant's conduct and the magnitude 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 conduct 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 haphazardly: judges invoke doctrines of proximate cause and duty to curtail liability, [FN16] whereas triers of fact stretch notions of causation to extend liability. [FN17] But many injustices are not corrected, and the *792 moral intuitions of judges and juries lack a principled basis. [FN18] Similar 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 significant actors and technology was simple are inadequate to assign responsibility today. Many torts, particularly the most serious, are caused by collectivities,

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 37 UCLA L. Rev. 785)

both public and private. The doctrine of respondeat superior ensures victim compensation, but it also obviates the need to determine which employee was responsible. [FN19] Liability insurance pays most damages, but it also insulates the wrongdoer from moral judgment. [FN20] 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 plaintiffs seems to strain basic principles of fairness. [FN21]

*793 Tort theory and practice violate the moral intuitions of laypeople. Survey research reveals that both victims and the general public believe that compensation ought to be divorced from fault. [FN22] On one hand, those injured deserve and need compensation regardless 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 activity 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, apology, and plea for forgiveness. [FN23]

The moral incoherence of the tort system at the level of theory is reproduced at the level of practice in the proliferation of inconsistent standards of care. In preindustrial societies, liability was sometimes predicated on fault and sometimes imposed without fault; in yet other instances, fault went unpunished. Although nineteenth-cen- tury 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 *794 few jurisdictions have created comprehensive compensation programs. Yet fault principles have reappeared within every nonfault scheme: worker intoxication or employer breach of safety regulations in workers' compensation; notions of the appropriateness of ultrahazardous activities; the requirement of a defect and comparative 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 satisfactory. 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 altruism: we can neither embrace one of the extremes nor find any principled position between them. [FN24] We have just as much difficulty combining utilitarian and nonutilitarian ethics. We require informed consent before medical procedures out of respect for the patient'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 than to the violation of autonomy (both utilitarian perspectives). [FN25] 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 medicine. [FN26]

Partly in response to these difficulties, but also because liberalism 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 scientific *795 and apolitical. [FN27] There are serious obstacles to putting costbenefit analysis into effect. [FN28] More importantly, safety should not be a commodity that potential victims consume according to idiosyncratic preferences. Such "choices" inevitably reflect both the individual's socialization and the vastly different resources people can spend on safety.

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 37 UCLA L. Rev. 785)

In practice, tort law rejects many of the pivotal recommendations of economic analysis. Tort law penalizes victims who choose too little safety by reducing or barring recovery, but it fails to punish those who choose too much although their behavior is just as inefficient. Economics argues for symmetrical treatment of plaintiffs and defendants, but tort law is much more solicitous of victims. [FN29] 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). [FN30] Although economics disregards the characteristics of the parties, tort law imposes different obligations on corporate entities and individuals, entrepreneurs and consumers. [FN31] *796 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. [FN32] Although economics views all choices as equally "free," tort law recognizes resource constraints in the purchase of "essential" goods and services. [FN33] 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, compensation is its contemporary preoccupation, at least among laypersons. 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 helping 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 compensate 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, employees, 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 *797 two weeks, found that only twelve percent recovered any tort damages. [FN34] Several American studies confirm that recovery is infrequent here as well. [FN35] Although lawyers are essential to successful claims, they are prohibited from initiating contact with accident victims. [FN36] Even the small fraction of victims who seek compensation recover only part of their damages because the vast bulk of claims is settled out of court. [FN37] Economic incentives persuade *798 tortfeasors to overcompensate small claims (because of their nuisance value) and undercompensate large ones (because victims need immediate payment while the legal system allows defendants to delay for years). Many victims and their families are impoverished because of the inadequacy of other sources of compensation including loss insurance, sick pay, welfare, disability benefits, and pensions. [FN38]

Tort damages are not only inadequate as compensation, but also are unequal, thereby symbolizing, reproducing, and intensifying 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 negligence. [FN39] 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

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 37 UCLA L. Rev. 785)

compensation. Crime victims, for instance, are disproportionately the poor, racial minorities, *799 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 recipients, military personnel, or veterans. [FN40]

Second, the process of making a claim is institutionalized differently 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 physical 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 available 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 entitlement. 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 witnessed the accidents; victims tend to blame themselves; and the potential 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. [FN41] 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 disabled 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 legitimacy of that distribution will be troubled that the state uses its coercive 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, *800 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 consumed by victims from higher socioeconomic strata. The privileged also recover more for their pain and suffering than the nonprivileged 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. [FN42]

Because these biases cumulate, tort law intensifies social inequality. Among English accident victims disabled for two weeks or more, men recovered tort damages almost twice as often as women, individuals between the ages of twenty-five and fifty-four recovered three times as often as those younger or older, the employed recovered more often than the unemployed, and housewives recovered less than a third as often as their proportion of the *801 injured population would predict. The mean sick pay award to women was less than half that to men. [FN43]

The decision to award compensation is inescapably political and unprincipled. [FN44] 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 residential development, for instance. [FN45] Second, courts have been unable to explain when lost profits will be compensated. [FN46] Third, the ramifications 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; [FN47] witnesses 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; [FN48] homeowners whose houses are burned by a *802 fire next door can recover but not the neighbors one house further away. [FN49]

Even if all of these problems could be overcome (and they cannot), 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 defendants. Victims receive only a small fraction. [FN50]

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 37 UCLA L. Rev. 785)

Tort damages are no more satisfactory on the level of ideology. Their fundamental justification is hopelessly in- coherent--money cannot restore victims to their status quo before the accident. [FN51] Damages paid after prolonged delay are not the same as the wages lost or property destroyed years earlier even if the court adds prejudgment interest. [FN52] 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 *803 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 proportioned to the bridewealth necessary to affiliate a child to "replace" the deceased. [FN53] The New York workers' compensation scheme equates a lost toe to sixteen weeks' wages. [FN54]

If all legal remedies transmit cultural messages, what do American tort damages say? First, they reaffirm the existing distribution of resources. By compensating owners for property loss, tort damages 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 physical injury, tort damages endorse the legitimacy of the existing income 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 discouraging victims from claiming, tort law suggests that they are valued less highly. By relegating injured employees to workers' compensation, 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. [FN55] Tort law proclaims the class structure of capitalist society: 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 (producing workers). Damages for pain and suffering extrapolate Bentham'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. [FN56] The jury, therefore, must simulate a market in sadomasochism by asking what they would charge to undergo the victim's misfortune. [FN57] Tort law thus transforms an *804 involuntary past sacrifice (injury) into future gain (damages), reflecting bourgeois notions of delayed gratification and an instrumental view of the self--the very characteristics Weber stressed in identifying capitalism with the Protestant ethic. [FN58]

Damages commodify a unique experience, injury, by substituting the universal equivalent, money, as when a plaintiff's attorney asks the jury to assign a monetary value to each second of the victim's pain and then aggregate it over a lifetime of suffering. [FN59] This dehumanization is particularly striking in two diametrically opposed situations. When injuries shorten a victim's life expectancy, money damages are rationalized as enhancing present pleasure in *805 lieu of years foregone--a secular version of the Faustian compact. [FN60] 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 nothingness. [FN61] 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 justify 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 (deliberately 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. Plaintiffs can recover damages for loss of the society and companionship of a parent in wrongful death actions; [FN62] for loss of consortium of an injured spouse, lover, parent, or child; [FN63] for witnessing or learning about an injury to a loved one; [FN64] for mistreatment of the corpse of a loved one; [FN65] for negligent misinformation about the death of a loved *806 one; [FN66] for negligence causing the breakup of a marriage; [FN67] even for injury to loved objects. [FN68]

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 37 UCLA L. Rev. 785)

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, mimicking adolescent obsession with popularity and universalizing 1950s rating-dating. [FN69] 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 replacement 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 "human capital." [FN70]

C. Safety

Moral judgment was the historical origin of tort law, and compensation is the preoccupation of laypersons today, but safety actually 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 accident *807 costs must be our primary concern. [FN71] Indeed, were we unconcerned with safety, private law remedies would be hard to justify; criminal law expresses moral judgment more forcefully, and nofault 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 technological 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 divisions undermine solicitude for others. In addition, profit seeking in a competitive market compels entrepreneurs to cut corners 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 manifold and notorious. [FN72] Victims are not the sole concern of regulators, who are swayed by political exposure, bureaucratic convenience, good relations with the regulated, and outright corruption. Regulators are slow and legalistic. They generally have less information *808 and expertise than those regulated. They lack sufficient resources to inspect, investigate, and prosecute. And both regulators and courts hesitate to impose severe penalties. [FN73]

Legal theorists representing very different political persuasions have responded to this predicament by making tort liability the central mechanism for promoting safety. [FN74] Although they disagree over whether liability ought to be strict or based on fault, they concur 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, [FN75] 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 impossible to calculate the benefits of accident avoidance. Economists cannot tell us the value of bodily integrity, emotional well-being, or life because these are not defined by the market. [FN76] The costs of accidents can only be determined collectively--after the fact by a judge *809 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 earnings and medical expenses--are extremely difficult to pre-

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 37 UCLA L. Rev. 785)

dict into the future. [FN77] 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 entrepreneur 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 individuals, racial minorities, noncitizens, and women. [FN78] Thus, cheap consumer products not only perform less well, but also are more dangerous; [FN79] low-paid workers suffer more frequent and more serious injuries and illnesses at work; [FN80] and the underprivileged are exposed to greater environmental pollution. Whether or not the Bhopal disaster was an "accident," it was no accident that its victims were among the poorest in the Third World. [FN81] Nor is it chance *810 that toxic waste dumps are concentrated in black ghettoes in the United States. [FN82]

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-effectively would have avoided the injury that actually occurred. [FN83] 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 evaluate the safety of an activity in advance, rather than on the trier of fact to assign responsibility for an injury after the fact. [FN84]

*811 Fourth, every tort system, whether based on fault or strict liability, must determine whether a particular defendant caused a particular 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 compensating victims on only some of the causal actors. [FN85]

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. [FN86] Less often, they interpret negligence and causation broadly to impose liability because the defendant's behavior is particularly reprehensible. [FN87] Courts often look for the "deep *812 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. [FN88] Less often, they refuse to find negligence or causation because the defendant seems less capable of bearing the burden than the plaintiff. [FN89]

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. [FN90] Only the willfully naive could maintain that the result will be "optimum 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 (gathering aggregate statistics and accurate information about the insured) and political obstacles (increasing the cost of insurance to vulnerable or powerful categories). Indeed, if insurance perfectly transmitted liability costs to insureds, much of its raison d'être 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; indeed, the increased budget necessary to satisfy a tort judgment may *813 actually enhance the power of government bureaucrats. [FN91] Most individuals cause accidents so rarely that they have little incentive to seek information about their frequency and severity or how to avoid them. [FN92] Liability is no threat to those who are judgment proof. Even profit-seeking enterprises may

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

(Cite as: 37 UCLA L. Rev. 785)

be able to transfer liability costs to consumers rather than enhance safety if demand is relatively inelastic (the good or service is a necessity), the market is highly oligopolistic, or accident costs are an insignificant proportion of price. [FN93] 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. [FN94] Furthermore, such reasoning makes the counterintuitive assumption that victims and tortfeasors are similarly motivated. [FN95]

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 likelihood of being forced to pay damages--in England such an entrepreneur would make less than twelve percent of the optimum level *814 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 litigation between 1974 and 1986 was targeted at fewer than eighty companies; altogether, only nine percent of manufacturers were sued in 1986. [FN96]

Furthermore, the threat of damages encourages entrepreneurs to minimize liability, not accident costs. [FN97] It creates perverse incentives: to conceal information about danger, take actions that maximize 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. [FN98] How else can we explain *815 why Ford produced a Pinto with a gasoline tank it knew to be *816 explosive, [FN99] Johns-Manville subjected its workers to asbestos for decades after it knew they were suffering lung damage and cancer, [FN100] McDonnell-Douglas produced and American Airlines flew a DC-10 they knew contained a faulty pylon and other design defects, [FN101] and tobacco companies continue to manufacture, promote, and sell cigarettes? [FN102] Studies of the deterrent effect of criminal sanctions demonstrate repeatedly that certainty is more important than severity. [FN103] Because full damages are rarely collected, tort liability encourages suboptimal safety.

Tort law fails as a deterrent even when evaluated by its own criteria. Economic theory argues that regulation ought to be unnecessary: contract can regulate risk more efficiently when the cost of *817 transactions between the parties is low, [FN104] and the threat of tort liability 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 liability, 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 lawsuits would not be brought. Nevertheless, conservatives loudly proclaim (and denounce) what they insist is a tort litigation explosion. [FN105]

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. [FN106] Because liability arises only when an injury has occurred, tort law fails to address the underlying problem of risk. Under capitalism, private law, like private 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. [FN107] Money *818 damages undermine the collective interest in safety both by conveying the false impression that they restore the victim to the status quo ante (so that greater safety is unnecessary) and by arousing jealousy 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

© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.