The Politics of Law: A Progressive Critique

By David Kairys | Go to book overview

RICHARD L. ABEL


20
TORTS

TORTS are injuries for which the law awards money damages. Some events may be both crimes and torts--O. J. Simpson was prosecuted for the murders of Nicole Brown and Ronald Goldman and held civilly liable to their families. But some torts are not crimes because the actor lacked the wrongful state of mind--a car driver who negligently injures a pedestrian. And some crimes are not torts because no one was injured-- speeding on an empty highway. Compensability may turn on property rights--whether land entitles owners to freedom from the noise of an adjacent airport. Most tort claims arise without any prior agreement between the parties, as in car accidents. But some are preceded by a contract--the sale of a defective product or an insurer's refusal to pay an insured. And agreements may limit tort remedies--as when a parking lot disclaims liability. Contract also may define liability after the fact--most tort claims are settled rather than tried. Statutes (e.g., federal tobacco labeling requirements) and constitutional rights (e.g., equal protection and due process) may also affect tort liability.

In recent decades, a well-funded campaign by manufacturers, insurers, doctors, and other frequent tort defendants has sought, with considerable success, to convince the public that Americans are excessively litigious, file frivolous claims, and persuade irresponsible juries to award excessive damages, burdening the judicial system and hurting the economy. Senator Mitch McConnell, a leading proponent of "tort reform," says, "everyone is suing everyone, and most are getting big money." The Insurance Information Institute deplores that our judicial system "has been handicapped by unnecessary lawsuits, . . . exorbitant awards, and unpredictable results. . . . [T]he number of personal injury, product liability, or property damage suits . . . has created a crisis." The influential columnist Jack Anderson has been even more hyperbolic: "people are suing one another with abandon; courts are clogged with litigation;

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