The Cultural Agenda of Tort Litigation
Constructing Responsibility in the Rocky Mountain Frontier
JOYCE STERLING AND NANCY REICIIMAN
Legal historians debate whether the tort system at the turn of the twentieth century was a compensation system for victims or simply a system built to provide economic subsidy for emerging industry (Friedman 2005, 356—357; Friedman and Russell 1990; Horowitz, 1977; Schwartz 1981b, 1989). Friedman's 2005 findings that most plaintiffs who filed a legal claim in Alameda County, California, in the late nineteenth century were either turned away with no compensation or with very small amounts of damages supports the conclusion that the tort system created an economic subsidy for industrial development.
Our chapter suggests that the subsidy debate as it has been argued to date may be too narrowly construed and consequently miss the important cultural dimensions of tort litigation, irrespective of the actual resources that are distributed. Tort law performs an important cultural function by “creating” meanings for dutiful relationships, risky situations, and attributions of blame for “accidents.” Tort law reflexively constructs the meaning of accidental events by organizing injury claims, defining wrongs that may be subject to legal remedies, and transforming everyday accounts of mishap into legal claims of responsibility. Successful tort claims transform accidents from “acts of god,” beyond anyone's control, to socially or personally responsible events. No longer a matter of fate, injuries are the consequence of accountable, social action.
The fundamental concepts of tort law—negligence, fault, reasonableness, responsibil-
ity, blame—are not out there in nature, immutable, etched in stone ready to be plucked
whole from the tree of life. Rather, these concepts and the theories or doctrines that