Fault Lines: Tort Law as Cultural Practice

By David M. Engel; Michael McCann | Go to book overview

CHAPTER FIVE
Juries as Conduits for Culture?

VALERIE P. HANS

Conventional wisdom holds that juries are the purest method for incorporating social norms and cultural understandings into the civil justice system-'This is held to be particularly true in tort cases. In Tort Law and the Public Interest, Yale Law School Professor Peter Schuck argues that “The institution of the jury, as much as legal doctrine, infuses tort law with new life and meaning in the light of new configurations of social facts and values” (Schuck 1991, 18), That is so, he maintains, because of the inherent flexibility of tort doctrine: “Tort liability, more than most areas of law, mirrors the economic, technological, ideological, and moral conditions that prevail in society at any given time…The master ideas that drive tort doctrine—reasonableness, duty of care, and proximate cause—are as loose-jointed, context-sensitive, and openly relativistic as any principles to be found in law” (Schuck 1991, 18).

This chapter examines the conventional wisdom that the American civil jury is a key element in incorporating social, economic, and cultural elements into the tort system. Of course, law itself is so thoroughly intertwined with cultural understandings that one cannot divide “law” and “culture” without doing disservice to both phenomena (Rosen 2006, xii-xiii). Instead, the claim is that the use of core legal concepts of tort law—judgments of injury, liability, the reasonable person standard, and the appropriateness of compensation—depend centrally on the jury's infusion of social norms and popular cultural understandings into its decision making. The jury's normative understandings may be loosely teth ered to official law (Ewick and Silbey 1998) or may reflect extralegal norms and

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