Academic journal article Northwestern University Law Review

THE MYTH OF A VALUE-FREE INJURY LAW: CONSTITUTIVE INJURY LAW AS A CULTURAL BATTLEGROUND[dagger]

Academic journal article Northwestern University Law Review

THE MYTH OF A VALUE-FREE INJURY LAW: CONSTITUTIVE INJURY LAW AS A CULTURAL BATTLEGROUND[dagger]

Article excerpt

THE MYTH OF A VALUE-FREE INJURY LAW: CONSTITUTIVE INJURY LAW AS A CULTURAL BATTLEGROUND AN INJURY LAW CONSTITUTION. By Marshall S. Shapo. New York, N.Y.: Oxford University Press 2012. Pp. 284. $85.00.

INTRODUCTION

As they age, most academics do not wear out, but rust out or suffer from a hardening of the conceptual categories. Not so with Marshall Shapo, the Frederic P. Vose Professor at Northwestern University School of Law, whose An Injury Law Constitution is the culmination of a lifetime quest for justice through tort regimes.1 In this book, Shapo demonstrates by clear and convincing evidence that so-called tort reform is not just about torts, but is a sociocultural debate over the parameters of a broader constitutive injury law that is functionally equivalent to constitutional law. His singular contribution is the insight that constitutive injury law is a cultural mirror that reflects the continual societal struggle over the degree to which safety should be subordinated to the autonomy of the injurer.

When Marshall Shapo was a novice law professor teaching torts at the University of Texas Law School nearly a half century ago, no one would have imagined that U.S. presidential campaigns would feature tort law. Today, Republican leaders know that tort reform can always raise money from corporations and energize the conservative base-as effective as pitching lamb chops towards a pack of wolves. President George H.W. Bush charged that then-GovernorBill Clinton's campaign was "baked by practically every trial lawyer who ever wore a tasseled loafer."2 His son, President George W. Bush, aggressively called for curbing frivolous lawsuits againstmedical provided in his 2007 State of the Unkm Address. Bush highlighted tort reform in several of his other State of the Union Addresses as well.3 Mitt Romney, too, campaigned on tort reform:

Another burden on our economic future is our out-of-control tort system. Last year, U.S. corporations spent more money on tort claims than they did on R&D. If innovation is the key to our long term leadership, then some tort lawyers are cashing out our country's future. . . . No thanks, America needs national tort reform.4

Apart from its fundraising effectiveness, a phony crisis is like nothing else when it comes to camouflaging the real agenda in erecting new defenses and immunities to shield the corporate injuring lobby.5 If, as Shapo argues, tort law is a cultural mirror,6 what do caps on justice say about the way American society treats its mothers and grandmothers?7 What does it say about our society's family values when judges cap the noneconomic damages awarded to a child born deformed because of a prenatal injury inflicted by a negligent doctor? What does it say about the inner life of our Republic that we cap noneconomic damages at $250,000 for elderly nursing home patients who have suffered excruciating pain from neglected pressure sores or who have been sexually assaulted by minimum wage caretakers?8

Shapo's An Injury Law Constitution introduces the concept of an "injury law constitution" to describe the distinctive values embodied by American tort law, with its emphasis on responsibility and prevention of injuries. Constitutive injury law can be described as our civil religion that levels abuses of power, whether it is the haughty power of the oil industry responsible for the gusher in the Gulf or feral governmental officials that spy on or even torture U.S. citizens.

I. AN INJURY LAW CONSTITUTION IN A NUTSHELL

Shapo's thesis is that distinctive and virile bodies of law have evolved for determining responsibility for injuries and the prevention of injuries. These legal institutions have some of the qualities of a constitution-a fundamental set of legal and moral principles that govern relations between human persons, corpporations, and governments.9 His work counters the simplistic arguments of corporate-funded tort reformers who claim that America's civil justice system is driving our economy into a death spiral through jackpot justice awards to greedy plaintiffs and their amoral trial attorneys. …

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