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Tort law is a fascinating topic of research for legal sociology generally, when law is observed from the viewpoint of legal sociology, two aspects are involved. One is ‘to make observations putting law within society’: observing how law operates in fact, within society. Another is ‘to make observations of society within law’: observing how the imprint of society is found in the law. Both aspects develop a circular, reﬂexive relationship, whereby law incorporating society impacts on society, and society being aﬀected by law aﬀects law. By then observing a particular society’s law from a distance, adopting a comparative sociological viewprint, one law appreciate the distinctive features characterizing that society’s law.
Reading with such awareness the sociological literature on both law, the literature can be understood either as dealing with processes for achieving desirable social consequences with tort law operating in society or as dealing with processes whereby various interests and conceptions within society are read into the law.
1. Functions Of Tort Law
Generally, it is said tort law has three goals: compensating harm, preventing accidents, and achieving justice. Tort law adopts the structure of requiring a person to compensate for harm caused to another when the former has been negligent in some way, deﬁned as a breach of a duty of care. This is expected to encourage people to avoid obligations to compensate others, making them more careful, thus reducing accidents. Further, under this structure compensating harm is seen of itself as a desirable objective to the beneﬁt of the injured and imposing this obligation directly on negligent people, rather than on third parties for the state, accords with our feelings of justice.
However, these three functions cannot always be achieved purely by implementing tort law (Sugarman 1989). In fact, various mechanisms are interposed, resulting in the creation of complex systems.
1.1 Compensating Harm
First, concerning ‘compensation of harm,’ various schemes of the third party assumption of the duty to compensate the injured have been developed. The most familiar one is the liability insurance, which covers the risk of tortfeasors incurring huge debts to pay compensation. It is also beneﬁcial for the injured to receive full compensation. So, quite often the state intervenes for the sake of the injured either to require the tortfeasors to carry liability insurance or to assume the duty to compensate the injured while levying some form of ‘tax’ on the potential tortfeasors. This scheme of compulsory liability insurance is seen in many countries, especially in the case of automobile accidents compensation. The state managed compensation, scheme is also used when it is judged too serious to leave the matter in the hands of private insurers, as in the case of accidents caused by nuclear power plants. The state takes such an initiative when it is both feasible (easy to calculate the loss and/or to identify and levy the tax on the potential tortfeasors), and politically wise to have such schemes (to show the concern over the plight of the victims, or to assuage the fear of the local residents surrounding the power plant).
The extent to which the state initiates this kind of compensation scheme is dependent upon the political culture of the respective countries, however. The most elaborate initiative along these lines is known as the New Zealand model in which compensation is paid out from the pool of dues collected mainly from the designated ﬁrms and drivers. The similar notion of paying out compensation with greater certainty and without costly legal battles is found in the United States as well. But the actual scheme is more fragmented, with legislative interventions mostly creating no-fault compensation for injuries from automobile accidents. In Japan, within the framework of general tort law, still in principle based on fault, compensation payments have been standardized and ever more detailed compensation structures have been elaborated. Especially in automobile accident compensation this system is so reﬁned that adversarial confrontation is virtually eliminated from the majority of cases (Tanase 1990).
Policy intervention in law is, therefore, facilitated by the emergence of insurance. Spreading costs through insurance lessens the diﬃculties involved, and it becomes generally easier politically to adopt policies oriented towards compensating injured parties. This promotes reform of tort law involving more certain compensation of injured parties and higher duties of care approaching strict liability. Such reform also reﬂects a general normative consciousness that society should be made safer and less traumatic, just as we have used science to overcome nature and create more amenable environments. This consciousness, along with more mundane political considerations, leads to what have been termed ‘liability explosions,’ or what Friedman (1985) calls a vision of ‘total justice.’
1.2 Struggles Over The Meaning Of Compensation
Nonetheless, even if a trend does develop towards greater protection of injured parties through compensation, such protection does not come about uniformly and without tensions. Changing the rules creates winners and losers, and political dissension inevitably arises regarding such changes. To counter ‘liability explosions,’ politics emerge regarding legislative initiatives, and at a more micro level tort law rules are reinterpreted through courts and litigations. Tort reforms speciﬁcally to cap compensation amounts and limit rights to bring suit, by legislation, have been an ongoing and vocal point of political debate in the United States. Such political dissension about access to the law is an important topic for sociolegal analysis. In particular, as the political attack on the expansion of tort liability often involves critiques of the ‘litigious society’ and ‘society of lawyers’ in the US, it leads to an examination of problems in legal order in a broader sense and of how people relate to law.
In this regard, commentators taking views of tort law reform as being played out on the people’s fear of losing control to professionals, for instance, have gained much support. They argued that assertions like ‘litigation explosions hurt the US economy,’ or frightening reports of ‘suits by children for malparenting,’ used to criticize the legalization of society, are unfounded in reality and based on hidden political agendas such as curbing the exercise of rights by consumers and minorities vis-a-vis corporations have strong elements of a campaign (Galanter 1983). The reality, they claimed, is that litigation turned out not to have grown so explosively. In fact, compared to the large body of accidents, people mostly acquiesced without asserting legal rights, or if they tried to do so, they were hampered in their attempts.
However, it seems that the roots of the problem lie deeper than suggested by these arguments. The political campaign against tort litigation developed in an era in which the American economy was losing its international competitiveness. Understandably, in these circumstances, the culprit was sought in businesses and individuals engaging in unproductive litigation strategies, rather than seeking to expand the pie, for instance, through technological innovation. At the same time, in this self-criticism of a society relying on litigation there was a clear nostalgia for the vision of an American society which hitherto had not indulged in litigation. One can smile at such anachronistic attitudes, but the shift towards a society in which law formed a central element for social integration and a basic model for social relations, had proceeded in many stages even in the United States. It is understandable that Americans would have felt concern especially over one important period of rapid transition, the 20 years from the 1960s, when the numbers of lawyers tripled. Yet in due time, neighboring institutions were reshaped, and they learned to play the game under the new rules, ﬁnding themselves once again surrounded by now familiar environments. This is a reason why criticism of the legalization of society died out, especially as the American economy revived over the 1990s.
Underlying these concerns is an appreciation that society and law operate on diﬀerent logics. As the roles of law expand and law penetrates society more deeply, tensions and frictions from the collision of these diﬀerent logics mount, which are reﬂected in the reaction against law by citizens involved in social life. This is true especially in tort litigation, which derives from events involving traumatic incidents such as loss of life. Torn by anger and sadness, people try to ﬁnd ‘life-world’ meaning in a search for justice, and the law played out fully by over-zealous lawyers is resented as neglecting this aspect and transforming grief into greed. Unlike parties to a contract who make explicit legal commitments beforehand, parties in tort actions forge legal remedies out of ordinary contacts. So tort litigation is put through more rigorous tests of community standards before being accepted by people. For example, in a traditional American community, while contract litigation is taken for granted because ‘one should naturally return money borrowed,’ tort litigation tends to involve the dubious morality of ‘getting another to take responsibility, rather than admitting one’s own’ (Engel 1983). This consciousness may have dissolved now in the United States, as further time has elapsed since the study was conducted. But we should not forget that there are always communities, which resist the control of the law, or that there are everyday interactions in which individuals give their own meanings to accidents, disputes, and solutions, which are not exhausted by legal frameworks. This is particularly important in sociolegal analyses aimed at understanding how law works within society, drawing on areas of law such as tort litigation.
2. Strains Within Tort Law
2.1 Deterrence Through Tort Litigation
There are also major corrections to the central mechanism underlying the traditional tort function of ‘deterring accidents,’ namely that tort law obligations create an incentive for tortfeasors to avoid harm caused by negligent behavior. The most important reason is that deterrence through obligations to compensate is undermined by ‘moral hazard’ resulting from insurance. Returning to a world without insurance remains too risky for both tortfeasors and injured parties, however, and hence an unrealistic policy option. Thus, deterrence of accidents must be assigned to legal enforcement by criminal or administrative sanctions, rather than tort law.
Yet such enforcement by specialist institutions then involves the problem of tending to lack necessary incentives and information to enforce the law at optimal levels. A system of legal enforcement must incorporate action by those who have suﬀered the injury, after all, and it is this aspect that is most distinctive about the United States. Known as the ‘private attorney general’ model (Cappelletti 1978), rights are given to injured parties under speciﬁc legislation, and systems are developed to lessen the economic burden of bringing suit, such as class actions, triple damage awards, and award of legal fees to the prevailing party in suits against the government. The possibility of being awarded punitive damages also heightens the capacity of injured parties to bring suit and to penalize the tortfeasors’ negligent acts harshly. Although there is criticism that this goes too far, and punitive damages have become the biggest issue in the tort law reform debate, Americans seem to believe in the wisdom of utilizing private pecuniary interests to advance the public interest in achieving the rule of law.
With legal enforcement capacity heightened in these ways, mass litigation is now frequently brought. In litigation involving drugs, asbestos, and recently tobacco, large companies have been forced into the corner through the pressure of massive compensation obligations, after political action proved ineﬀective. Particularly in regard to compensation for injuries resulting from smoking, an interesting tension emerges vis-a-vis American consciousness of liberty and dislike of paternalism (Kagan and Vogel 1993). When plaintiﬀs who had continued smoking claimed damages against tobacco companies, they met resistance from many citizens who asked ‘didn’t you continue smoking of your own free will?’ This not only creates more diﬃculty in winning against tobacco companies (Rabin 1992) but also strains smokers in assuming ‘victim’ status. For to call oneself a victim, one must assert either that one is seduced to smoke by tobacco companies’ advertisements or that one is too weak to stop smoking once hooked by nicotine. In either case, a smoker-plaintiﬀ presents oneself as a weak person, someone who cannot ‘smoke by choice’ despite being given the ‘freedom to smoke.’ In fact, this kind of twist is not peculiar to tobacco litigation. Indeed, it is widely seen in other claim-making situations, wherein one assumes a victim status, whereby one is susceptible of being victimized (Bumiller 1988).
At the same time, however, in the case of tobacco, citizens’ anger was directed towards tobacco companies as the greater evil especially when the companies were found to have lied before the public. This sentiment reﬂected upon jury trials. In one judgment ﬁnding tobacco companies liable, the foreman was quoted of saying ‘companies must not lie about their products, this is our message.’ Especially in these days of ‘jury activism,’ tort litigation functions to send messages from citizens to ﬁrms.
2.2 Morality In Tort Law
Finally, regarding the function of ‘achieving justice,’ while justice deﬁned as ‘just deserts’ by classical tort law is not losing its importance, it is no longer enough to appreciate the contours of justice in contemporary tort law. This is connected, ﬁrst, to the fact that many of the accidents which become the subject of tort law nowadays either arise repeatedly and extensively (like automobile accidents), or relate to more sporadic accidents which nonetheless can have large eﬀects on society (such as product liability cases). In dealing with such cases, it is possible, and necessary in view of its extent, to calculate cumulative damages, and to weigh them against the costs necessary for their prevention. In fact, this risk management is carried out by companies as well as by the government.
In this ‘collective justice’ approach—‘collective’ in the sense of taking accidents as an aggregate, and ‘justice’ in the sense of achieving the maximum safety given a set amount of available resources—to give priority to the standpoint of eﬃciency in deciding on whom to impose what obligations may sometimes come into conﬂict with the moral meaning attributed to accidents premised on traditional notions of ‘individual justice.’ The moral dubiousness of tort litigation in general in the eyes of the self-reliant traditional villagers, or in particular of smokers claiming victim status, is evidence of this.
Furthermore, related to such totalizing tendencies, there is a problem associated with the fact that tortfeasors come to lose a sense of pain in relation to making compensation, as liability insurance, both private and publicly managed, becomes pervasive. Particularly in automobile accident cases, insurance companies take over settlement negotiations in place of the insured, and the matter is resolved without the tortfeasor ever having to face the pain caused by his or her acts to the injured party. This may oﬀend the sense of justice held by at least some people. Gilligan (1982) points out the existence of ‘a diﬀerent voice,’ the morality of ‘care and responsibility,’ the core sensibility is to empathize with the pain of the other caused by his or her act and think through the way to minimize it. To the extent that this moral reasoning is foreclosed from the workings of tort law, the latter is judged to be morally deﬁcient.
In fact, leaving matters to the insurance company in this way still arouses strong condemnation from injured parties in Japan. A tortfeasor is expected to visit the hospital or to join the funeral, enduring the baleful gaze of the injured party and his or her family, as a proper attitude of ‘human sincerity.’ It would be enough to pay compensation in the form of damages arising from a breach of one’s legal obligations, but there is an important truth hidden in this seemingly irrational ceremonial apology on top of the legal duty. That is, the law deﬁning the dispute and resolving it represents only one part of the whole dispute. For an injured party aﬀected by an accident, someone able to empathize with his or her hurt is a necessary part of recovery so aside from monetary compensation, the matter must be viewed ‘pre-legally’ as involving relations between vulnerable human beings.
This much may be obvious. In the United States, too, this role for apology is presently being revisited. But in the legal world, to make an apology is not easy. For it is deemed admitting responsibility and conceding defeat from the outset. Although some states in the US have passed laws legally not to use an apology as evidence, the ‘attribution of responsibility’ gave, rejecting one’s own responsibility and pushing responsibility onto others, is played out. In these adversarial circumstances, apology itself easily comes to be seen as a mere gesture (Taft 2000). More generally, the sense of liberty abhorring constraints other than those expressly assumed, or mandated by law, is at the core of the law. So ‘moral reductionism,’ divorcing issues from nonlegal duties, and forcing them into the framework of legal duties, easily prevails.
The future is opaque. The trend towards ‘legalization’—increasing resort to law—is generally proceeding irreversibly, and these ‘pre-legal’ negotiation processes are gradually being abbreviated. But the counter-ideal emanating from the direct experience of the ways people interact within community may put the validity of law in question. This ‘law skepticism’ comes to surface most acutely in the case of tort law as it directly touches the daily lives of the common people, and hence is aﬀected by commonsense interpretations of justice. In this sense, ‘communitarian justice’ should inform the law along with the other two notions of justice.
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