Fault Lines: Tort Law as Cultural Practice

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

Notes

Introduction

1. Our conception of legal practice heeds David Nelken's insightful argument in Chapter One that studies of culture should focus on both meaning and behavior, on both who we are and what we do.

2. American Law Institute (1998).


Chapter One

1. See Nelken, 2004, and now Nelken 2005 and 2007.

2. An important cultural variable is how far, in places other than the United States, the same corrective, distributive, and retributive aims are pursued by a comparable branch of private law or distributed among other types of law or regulation.

3. But relevant empirical studies of tort law may be difficult to find even in the local languages. The lack of such research is of course itself evidence of cultural differences.

4. My comments on Italian law are derived from discussions with lawyers, judges, and law professors as well as interviews carried out in southern Italy.

5. But looking to the state does not mean welcoming the nanny state. My wife, a leftleaning Italian judge, finds it amusing that imported champagne bottles have warnings on them about the danger of opening the corks without due care.

6. The last Berlusconi government on the final day of office passed a law in response to lobbies of road accident victims, increasing from 30 percent to 50 percent the advance on expected compensation—provided there were grave indications of responsibility—and extended this beyond cases where “special need” could be shown.

7. In other work, Feldman has sought to show that there are other situations in which Japan makes more use of (tort) law than other industrial countries.

8. Preliminary interviews were conducted with a lawyer, an insurance agent, a loss fixer, an auto repairman (whose role is not marginal), someone running an agency

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