!!Экзамен зачет 2023 год / Critique of torts

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spread of liability insurance. This aggregation reflects the fact that tort damages have grown too large to be paid by individual defendants. But the imbalance between individual victims and collective tortfeasors is constructed by the legal system as well. Although the collective liability insurer can badger the victim for a release, the plaintiff's lawyer cannot seek out victims and offer representation. [FN108] Group legal service plans established in the 1930s to provide representation to automobile accident victims were outlawed for several decades. [FN109] Corporations often refuse to bargain collectively with unions over safety practices on the ground *819 that these are "management prerogatives." Thus, the individual victim (consumer, worker, traveller, breather of air, and drinker of water) confronts a collectivity (enterprise, insurer, or government) in the struggle over risk, regardless of whether the forum is a legislature, regulatory agency, court, or negotiating table.

III. PROPOSALS

Criticism can lead in two directions: concrete reforms capable of implementation within the existing political framework; and recognition that fully adequate solutions require a fundamental restructuring of society. This Part offers both responses, organized like the critique, although some issues overlap, and alternative responses to risk must reconcile tensions among the goals.

A. Moral Judgment

Tort law fails almost entirely to pass moral judgment on the infliction of risk and injury. Negligent behavior is a public as well as a private wrong because it endangers many people besides the victim. It therefore merits the public disapproval that only the state can express in order to reaffirm the norm of safety. Public prosecutors and administrative agencies must pursue safety offenders more vigorously. Actual and potential victims must organize to demand effective enforcement because both public prosecutors and administrative agencies respond to political pressure. Trade unions and consumer and environmental groups already do this; they deserve additional financial and legislative support from the state because of the substantial free rider problem.

The injured victim requires a different kind of moral response. First, this must recognize the victim's injury and sense of grievance; damages not only fail to do so, but also suggest that the victim has enjoyed a windfall. Second, the tortfeasor must acknowledge wrongdoing and apologize. [FN110] Complex organizations will have to trace responsibility throughout the chain of command, from the *820 employee who physically caused the injury up to the highest management. [FN111] Settlements resolve the vast majority of claims; instead of denying culpability, they must accept it explicitly. Third, moral judgment must occur in every case of injury or endangerment; utilitarian concepts of general deterrence are inapplicable here. [FN112] All victims must be encouraged strongly to claim--by lawyers, the legal system, cultural norms, and support groups.

Finally, we must stop blaming victims. We do so now through legal doctrines like contributory negligence, comparative fault, assumption of risk, dangerous jobs, and agreements not to sue, as well as through economic theories that workers receive a "risk premium" or consumers "choose" to purchase dangerous products and services. [FN113] Liberalism fosters these misconceptions by locating all *821 constraint within the state and portraying "private" behavior as free. [FN114] Actually, victims "choose" risk and injury within an environment of limited and grossly unequal economic resources, influenced by divergent cultural norms about their entitlement to safety and suffering from a profound sense of political powerlessness. [FN115] *822 The concept of choice could become morally compelling only after we equalized individual circumstances--a profound challenge to those who take liberalism seriously. Furthermore, even if we agreed that individuals should be free to choose risk, logic does not compel us to be indifferent to those who are injured. Suffering seems more than adequate punishment--if any is deserved. And it still may be morally appropriate for the tortfeasor to apologize and suffer public condemnation.

B. Compensation

Accidents will happen even in utopia. The popular preoccupation with compensation accurately reflects the severe personal and social dislocations they can cause. Taking compensation seriously, however, will require a total restructuring of the legal mechanisms. [FN116]

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First, compensation should respond to what happened rather than how it happened, to need rather than cause or fault. It should be available universally: to those suffering congenital disability and illness as well as injury; to those who cannot identify a culpable agent; and to those who have themselves to blame. After all, that is how we respond to the misfortunes of those we love. We must view compensation as a positive good to be encouraged if not required--like education or preventive medicine. It should not be seen as an undeserved benefit extracted grudgingly from a reluctant bureaucracy or adversary. [FN117] Lawyers, support groups, and the state should reach out to those in need and overcome the cultural differences that make some more ready to claim than others. [FN118]

*823 Second, state compensation should affirm the equal humanity of victims, both materially and symbolically. It should provide the same level of income for all--whatever minimum society believes it can afford. Enlightened self-interest should make this minimum award fairly generous because accidents happen to everyone. Comprehensive medical care should be freely available according to need. Property loss should not be compensated. In a society where property is distributed so unequally, compensation can only reproduce inequality and undermine community. Furthermore, courts have been unable to articulate principled distinctions between what should and should not be compensated. Those who enjoy the privileges of wealth and income should bear the burdens of loss and loss insurance. In addition to satisfying a moral imperative, shifting the burden of loss to the privileged would reduce the inefficiencies of double insurance by both potential victims and tortfeasors. [FN119]

Third, intangible harm should not be compensated. Despite propaganda campaigns by trial lawyers' associations seeking to convince the public that pain and suffering damages are the inalienable birthright of every free- dom-loving American, virtually engraved in Magna Carta, surveys of victims demonstrate repeatedly that they do not want it, though they do want the defendant to acknowledge the wrong inflicted. [FN120] Just as the present system of compensating pecuniary loss treats equals unequally (all people are created equal but damages for pecuniary loss vary with personal wealth), compensation for intangibles treats unequals equally (all human experience is unique but damages for intangible harms reduce them to the common currency of money). Nonpecuniary damages also dehumanize the response to misfortune, substituting money for compassion, arousing jealousy instead of sympathy, and treating experience and love as commodities. [FN121]

The three reforms just proposed not only are mutually compatible, but also reinforce each other. The tradeoff between the quantum of damages awarded each victim and the number of victims benefited is not only logical, but also documented by historical experience. Workers' compensation, automobile no-fault insurance, *824 Sweden's no-fault medical malpractice scheme, and New Zealand's comprehensive compensation program all have reduced benefits but served more victims. [FN122] Eliminating the adjudication of causation and fault and the calculation of past and future income and property loss, medical expenses, and intangible damages will reduce transaction costs enormously. It will obviate the need for lawyers, an original goal of workers' compensation. [FN123] And it will drastically reduce delay, which presently inflicts great hardship on victims, forcing them to accept inadequate settlements. [FN124]

I do not want to underestimate the difficulty of implementing these reforms or overestimate what they will achieve. They will elicit vigorous opposition from both the plaintiffs' bar and private liability insurers, perhaps even forging an unholy alliance between these traditional adversaries. [FN125] Though both groups manipulate *825 symbols adeptly and wield formidable material resources, their hypocritical posturing has seriously eroded their public credibility. Nor do they deserve sympathy. American lawyers always have been creative in finding new sources of business, and insurers who lose liability policies probably can make more money writing loss insurance for those wishing to protect their high incomes and substantial property. [FN126] Besides, reformers may be able to enlist the support of capital, which would gladly unload on the state the burden of health insurance, liability insurance, workers' compensation, and sick pay.

Even were these reforms implemented, they would represent only a social democratic solution to the problem of risk. They would reallocate the cost of accidents, not the accidents themselves. True, the legal system no

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longer would encourage tortfeasors to inflict greater risk on underprivileged victims whose liability costs are lower because they are less likely to claim or will recover smaller awards. But those endowed with greater material, social, or educational resources still would be able to translate that privilege into lower risk when choosing consumer goods, workplaces, and environmental amenities, just as they would be able to buy better medical care and insure their superior wealth and income from depletion by an injury. [FN127]

C. Safety

Although the reforms proposed above are valuable, safety must be our first priority. We want to prevent accidents, not just respond *826 to them with moral condemnation and social support; the more we prevent, the less important those responses become. I offer two contradictory proposals: one could be pursued incrementally within the existing social framework, whereas the other would require a radical transformation.

The first proposal takes seriously the role of tort liability in deterring unsafe behavior. Many of the deficiencies criticized above can be ameliorated or eliminated. First, liability should be strict rather than based on fault. A strict liability regime encourages the tortfeasor to reduce accident costs rather than liability. It lodges responsibility for the "decision for accidents" in the experienced entrepreneur rather than the ignorant jury. It encourages research on safety. It internalizes in the price of the good or service the cost of all accidents, not just those caused by the defendant's fault, allowing the market mechanism of consumer choice to reduce the quantity of accident-causing behavior. And it reduces transaction costs by eliminating the hotly contested issue of fault (although it intensifies disputes about cause and increases the total number of claims).

Second, victim behavior should not bar or diminish recovery. Self-interest, the axiomatic foundation of economics, sufficiently discourages potential victims from exposing themselves to risk; there is no evidence that the denial of compensation makes them safer. [FN128]

Third, damages should reflect all costs of the accident, however these ramify through chance circumstance, emotional attachment, or economic interdependence. [FN129] Doctrines of duty and proximate cause should not terminate liability. Proximate cause is both incoherent and unnecessary and should be eliminated altogether. Duty is just as incoherent and should be eliminated except insofar as it reflects the tension between egoism and altruism, which cannot be avoided in questions of affirmative obligations to help those at risk.

*827 Fourth, claims should be actively encouraged--certainly by bar associations, possibly by individual lawyers. [FN130] As claimants pursue selfish interests, they simultaneously perform a public service. Furthermore, claiming is learned behavior. [FN131] And encouragement will have the greatest effect on those who have been least likely to claim. [FN132]

Many objections may be raised to this proposal. Some will maintain we cannot afford it: courts will be overburdened, prices inflated, and companies driven out of business. These are captious criticisms. Courts exist to hear valid claims--we do not close schools because there are too many students, libraries because there are too many readers, or roads because there are too many drivers. When police, prosecutors, and prisons are overextended by rising crime rates, we increase their budgets; we should be at least as generous when private individuals mobilize the law. If consumers purchase fewer goods or services when their prices reflect accident costs as well as labor and materials, we have simply moved closer to the efficient allocation of resources. If we want to subsidize goods or services, we can do so in ways that are fairer and more efficient than the denial of compensation to the random victim. In any case, liability costs contribute little to the prices of most goods and services. [FN133]

Others will raise the specter of fueling American "litigiousness" and increasing social conflict. [FN134] But Americans actually exhibit*828 relatively low and fairly constant rates of civil litigation. [FN135] Social conflict could be reduced much more effectively if tortfeasors stopped causing so many injuries [FN136] and promptly acceded to claims when they were made.

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Perhaps the most telling objection to this proposal is its inconsistency with my earlier endorsement of a no-fault compensation scheme. Politics is not logic, however, and I see no practical problems in pursuing both reforms simultaneously: encouraging a one hundred percent claims rate under a strict liability regime while gradually mobilizing support for public medical care and income maintenance. If forced to choose, I would sacrifice the former to achieve the latter: the unquestionable good of universal compensation outweighs the uncertain deterrent of tort liability, especially given its high administrative costs. [FN137]

*829 But even a strict liability system with a one hundred percent claims rate (an empirical impossibility) remains seriously flawed. It reproduces inequality, since tortfeasors still find it cheaper to endanger the poor. It violates autonomy, since the state still evaluates the cost of accidents and the tortfeasor decides whether to inflict them. It also undermines community, since victims must claim as individuals. Fidelity to these three ideals in the confrontation with risk will require a commitment to democratic socialism. [FN138]

Human autonomy is the foundation of Kantian ethics. Contemporary tort law reflects this inspiration when it insists that those exposed to danger ought to be as autonomous as possible in the confrontation with risk. The doctrine of informed consent seeks to protect the autonomy of patients. Potential victims cannot "assume" the risk of negligence unless the decision is fully informed and voluntary; the difficulty of realizing these conditions in the workplace persuaded legislatures to abrogate the doctrine. [FN139] "Agreements" not to sue are unenforceable when the good or service is a necessity. [FN140] Warnings place consumers on notice only when they effectively communicate the danger. [FN141]

Autonomy in the encounter with risk in the workplace mandates worker ownership and control of the means of production. Only in producer cooperatives will those exposed to risk also profit from that exposure and have the power to make the cost-benefit analysis advocated by law and economics. [FN142]

Rawlsian theories of justice call for equality of benefits and burdens including risk. [FN143] This principle is reflected in daily life. Many countries, including our own, require universal military service (at least for men during wartime) in the belief that the threat of death or disability ought to be borne by all, however imperfectly that ideal is realized. None explicitly allows the wealthy to buy an exemption or substitute, as occurred during the nineteenth century. [FN144] *830 State guarantees of a minimal level of medical care express a rudimentary notion of equal entitlement to well-being. [FN145] Americans are properly horrified when they read that Third World countries tolerate a market in bodily organs or that a physician proposed to create one here. [FN146]

Risk in the workplace can be equalized only by a substantial reduction in the division of labor through a rotation of tasks--headwork and handwork, safe and dangerous. At the very least, everyone must be exposed periodically to the most dangerous jobs--only that experience will awaken self-interest in reducing risk and foster empathetic understanding of the dangers that fellow-workers encounter daily. [FN147]

Liberalism conceptualizes the encounter with risk as a matter of individual choice: where to work, how to travel, what to consume, how to spend one's leisure, where to live. But individuals choose within a framework constructed by others. [FN148] The most important decisions about risk--environmental pollution, the organization of work, the range of consumer goods--are made by collectivities (private enterprise and government). Consequently, those exposed to risk also must respond collectively. Together they can mobilize far more information than any individual could master. Collective decision-making also will compel individuals to reexamine their idiosyncratic risk preferences and aversions.

The only organizational form capable of realizing autonomy, equality, and community in the encounter with workplace risk is the producer cooperative, whose members share ownership and management, rotate tasks, and decide collectively. Consumer cooperatives might perform a similar role, although the lesser salience of consumption compared to production and the greater number of *831 goods and services consumed will make it difficult to sustain the interest and develop the expertise of members. The obstacles of organizing the diffuse public exposed to environmental risk are so great that only state regulation can respond adequately. In each domain, equality of risk presupposes a high degree of social, political, economic, and cultural equality.

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CONCLUSION

Contemporary tort law, not surprisingly, reflects the dominant traits of late-twentieth-century America: capitalist relations of production, individualism, extreme division of labor, and commodification. Some of the unfortunate consequences for the incidence and distribution of risk and injury could be ameliorated within the existing framework. The rhetoric of "law and order" supports harsher and more certain penalties for those who endanger or injure others. Numerous countries have shown that social democracy is fully compatible with advanced capitalism and political liberalism. Radicals could make common cause with free market enthusiasts to ensure that tort liability contributes to efficient resource allocation. But we can fully realize the widely shared values of autonomy, equality, and community in the encounter with risk only by embracing democratic socialism: worker ownership and management, consumer cooperatives, equalization of benefits (resources) and burdens (risk), and a state sufficiently powerful to regulate environmental pollution.

[FNa] Professor of Law, University of California, Los Angeles. B.A. 1962, Harvard University; J.D. 1965, Columbia University; Ph.D. 1974, University of London. I am grateful for the comments of Emily Abel, Jay Feinman, David Kairys, Mark Kelman, Sandra Segal Ikuta, William Simon, Mark Tushnet, and the editors of UCLA Law Review. All still would disagree with some of what I have written, and some with all of it.

[FN1]. This Article began as my contribution to the revised edition of THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE (D. Kairys 2d ed.) (forthcoming), where it will appear in abbreviated form.

[FN2]. The exceptions involved cattle trespass and fire. Liability seems to have been strict--the consequences were treated as though they were intended. Abel, Customary Laws of Wrongs in Kenya: An Essay in Research Method, 17 AM. J. COMP. L. 573 (1969); THE ALLOCATION OF RESPONSIBILITY (M. Gluckman ed. 1972).

[FN3]. See Abel, The Rise of Capitalism and the Transformation of Disputing: From Confrontations over Honor to Competition for Property, 27 UCLA L. REV. 223 (1979).

[FN4]. See E.E. EVANS-PRITCHARD, WITCHCRAFT, ORACLES AND MAGIC AMONG THE AZANDE (1937); M. MARWICK, SORCERY IN ITS SOCIAL SETTING: A STUDY OF THE NORTHERN RHODESIA CEWA! (1965); WITCHCRAFT AND SORCERY IN EAST AFRICA (J. Middleton & E.H. Winter ed. 1963).

[FN5]. The federal government sued a fishing guide for millions of dollars for starting a fire that consumed thousands of acres of national parkland. Woods and Waters, Chicago Tribune, June 28, 1989, § 4, at 2, col. 3.

[FN6]. Gang activity is clearly motivated by status considerations. Jack Katz has recently attributed this characteristic to much of crime, in SEDUCTIONS OF CRIME: MORAL AND SENSUAL ATTRACTIONS IN DOING EVIL (1988). But Laurie Taylor's ethnography of English criminals, IN THE UNDERWORLD (1984), depicts them as approximating "economic man."DD'

[FN7]. Status competition obviously is the grist of economic life, but there it is mandated, not punished.

[FN8]. Calabresi, The Decision for Accidents: An Approach to Nonfault Allocation of Costs, 78 HARV. L. REV. 713 (1965).

[FN9]. See L. FRIEDMAN, A HISTORY OF AMERICAN LAW (1973); M. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860 (1977); Gregory, Trespass to Negligence to Absolute Liability, 37 VA. L. REV. 359 (1951); Rabin, The Historical Development of the Fault Principle: A Reinterpretation, 15 GA. L. REV. 925 (1981); Schwartz, The Character of Early American Tort Law, 36 UCLA L. REV. 641 (1989); Schwartz, Tort Law and the Economy in Nineteenth-Century America: A Reinterpretation, 90 YALE L.J. 1717 (1981).

[FN10]. Society compensates victims only for the cost of commodified care, not for the opportunity cost to a

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spouse of giving up a job to provide that care. Rodriguez v. Bethlehem Steel Corp., 12 Cal. 3d 382, 409, 525 P.2d 669, 687, 115 Cal. Rptr. 765, 783 (1974).

[FN11]. The exception, of course, is the workplace. See D. NELKIN & M. BROWN, WORKERS AT RISK: VOICES FROM THE WORKPLACE (1984).

[FN12]. In September 1989, a school bus carrying 80 children was struck by a truck from the local Coca-Cola Bottling Company and crashed into a municipal gravel pit full of water in Alton, Texas, killing 21. Most of the parents of the injured children were Hispanic agricultural workers. Carmen Cruz, whose 17- year-old daughter was killed and whose 14-year-old daughter was injured, said: "I didn't want a lawyer. I said, 'The first lawyer who can bring my daughter back, I'll hire.' But everyone started telling me: 'No, that's the law. When this happens to you, you hire a lawyer and you get money.' So now I have a lawyer." Actually, she was besieged by lawyers. She signed contracts with three and tried to fire two of them. One gave her $5,000 and promised to help her buy a new house; a second helped her to buy a new GMC Suburban van. Belkin, Where 21 Youths Died, Lawyers Wage a War, N.Y. Times, Jan. 18, 1990, at A1, col. 2.

[FN13]. See Christie, Conflicts as Property, 17 BRIT. J. CRIMINOLOGY 1 (1977).

[FN14]. See H. GENN, HARD BARGAINING: OUT OF COURT SETTLEMENT IN PERSONAL INJURY ACTIONS (1987); H.L. ROSS, SETTLED OUT OF COURT: THE SOCIAL PROCESS OF INSURANCE CLAIMS ADJUSTMENT (2d ed. 1980); cf. Mnookin & Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950 (1979). The physician also packages the victim's injury for "sale" to a third-party payer.

[FN15]. See E. LIND, R. MACCOUN, P. EBENER, W. FELSTINER, D. HENSLER, J. RESNIK & T. TYLER, THE PERCEPTION OF JUSTICE: TORT LITIGANTS' VIEWS OF TRIAL, COURT-ANNEXED ARBITRATION, AND JUDICIAL SETTLEMENT CONFERENCES (1989); D. ROSENTHAL, LAWYER AND CLIENT: WHO'S IN CHARGE? (1974). The self-interest of lawyers can tempt them to unethical behavior. The United States Attorney for the Southern District of New York has indicted three members of a Manhattan personal injury firm, its four private investigators, and an office manager for bribing witnesses to lie and for falsifying evidence in 19 accident cases since 1979. The indictment alleges that one witness falsely testified in two cases although the witness was in prison at the time of one of the accidents and claims that a private investigator used a pick axe to enlarge a pothole at a race track. Hevesi, 8 at Law Firm Accused of Bribing Witnesses and Faking Evidence, N.Y. Times, Jan. 12, 1990, at A16, col. 1; see also Effron & Weikel, 31 Named in Phony Accident Scheme, L.A. Times, March 1, 1990, at A3, col. 5.

The victims' rights movement has loudly deplored the disregard for victims in criminal prosecutions.

[FN16]. See, e.g., In re Kinsman Transit Co., 388 F.2d 821 (2d Cir. 1968); Strauss v. Belle Realty Co., 65 N.Y.2d 399, 482 N.E.2d 34, 492 N.Y.S.2d 555 (1985).

[FN17]. In Wells v. Ortho Pharmaceutical Corp., 788 F.2d 741 (11th Cir.), cert. denied, 479 U.S. 950 (1986), a federal judge found that a spermicidal jelly had caused serious birth defects even though most of the experts had testified to the contrary. The decision provoked critical editorials in the New England Journal of Medicine and the New York Times, Federal Judges vs. Science, N.Y. Times, Dec. 27, 1986, at 22, col. 1, as well as controversy among letters to the editor, N.Y. Times, Jan. 24, 1987, at 26, cols. 4, 5, 6.

In another case, a jury awarded $1.16 million in damages for birth deformities to the family of Carla Richardson, whose mother took Bendectin for morning sickness while she was pregnant. The trial judge set aside the verdict, and the United States Court of Appeals upheld the decision. Merrell Dow Pharmaceuticals, which manufactured the drug, has prevailed in all other trials. Hoffman v. Merrell Dow Pharmaceuticals, Inc., 857 F.2d 290 (6th Cir. 1988), cert. denied, 109 S. Ct. 88 (1989).

[FN18]. The best justification that Oliver Wendell Holmes could offer was: "The law does not spread its protec-

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tion so far." Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 309 (1927). The most notorious statement may be Justice Andrews' dissent in Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 352, 162 N.E. 99, 103, 104 (1928): "[B]ecause of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics. . . . It is all a question of expediency. There are no fixed rules to govern our judgment."DD'

[FN19]. The doctrine of respondeat superior holds an employer strictly liable for the negligent torts of an employee.

[FN20]. Tortfeasors may never even learn whether their liability insurer paid the claim or how much it paid. At most, their premiums may rise; they may attribute the increase to general inflationary trends.

[FN21]. In Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 607 P.2d 924, 163 Cal. Rptr. 132 (1980), the California Supreme Court upheld a complaint against five DES manufacturers without requiring the victim to show whose product her mother consumed. The New York Court of Appeals has gone a step further, imposing liability on DES manufacturers even if they can prove that their product did not injure the plaintiff. Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 539 N.E.2d 1069, 541 N.Y.S.2d 941, cert. denied sub nom., Rexall Drug Co. v. Tigue, 110 S. Ct. 350 (1989). See Verhovek, New York Court Backs Wide Claims on the Drug DES, N.Y. Times, Apr. 5, 1989, at A1, col. 3.

This problem is not unique to pharmaceuticals. Whenever the defendant's culpability is based on probabilities, tort law imposes liability for injuries the defendant did not cause and fails to impose liability for injuries the defendant did cause. See Stubbs v. City of Rochester, 226 N.Y. 516, 124 N.E. 137 (1919). On the tension between legal and scientific concepts of causation, see Horwitz, The Doctrine of Objective Causation, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE (D. Kairys ed. 1982).

[FN22]. See R. HUNTING & G. NEUWIRTH, WHO SUES IN NEW YORK CITY? A STUDY OF AUTOMOBILE ACCIDENT CLAIMS 5-15 (1962); H.L. ROSS, supra note 14; Lloyd-Bostock, Fault and Liability for Accidents: The Accident Victim's Perspective, in COMPENSATION AND SUPPORT FOR ILLNESS AND INJURY 139 (1984) [COMPENSATION AND SUPPORT FOR ILLNESS AND INJURY hereinafter COMPENSATION AND SUPPORT]; O'Connell & Simon, Payment for Pain and Suffering: Who Wants What, When and Why?, 1972 U. ILL. L.F. 1.

[FN23]. Gibbs, The Kpelle Moot: A Therapeutic Model for the Informal Settlement of Disputes, 33 AFRICA 1 (1963) (Liberia); see L. NADER, Styles of Court Procedure: To Make the Balance, in LAW IN CULTURE AND SOCIETY 69 (1969) (Mexico); Wagatsuma & Rosett, The Implications of Apology: Law and Culture in Japan and the United States, 20 LAW & SOC'Y REV. 461 (1986).

[FN24]. Duncan Kennedy has explored similar issues in the context of contract law. Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976).

[FN25]. Cobbs v. Grant, 8 Cal. 3d 229, 502 P.2d 1, 104 Cal. Rptr. 505 (1972); see Twerski & Cohen, Informed Decision Making and the Law of Torts: The Myth of Justiciable Causation, 1988 U. ILL. L. REV. 607, 609-21.

[FN26]. New York has refused to hold a parent liable for negligence in supervising a child. Holodook v. Spencer, 36 N.Y.2d 35, 324 N.E.2d 338, 364 N.Y.S.2d 859 (1974). Courts also have been uncomfortable when a victim invokes religious scruples as the reason for not mitigating damages through medical care. See Christiansen v. Hollings, 44 Cal. App. 2d 332, 112 P.2d 723 (1941); Shorter v. Drury, 103 Wash. 2d 645, 695 P.2d 116, cert. denied, 474 U.S. 827 (1985).

[FN27]. W. LANDES & R. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW 1 (1987) ( "[T] he common law of torts is best explained as if the judges who created the law . . . were trying to promote efficient resource allocation."). Richard Posner is the most visible exponent of this view. See R. POSNER, ECONOMIC ANALYSIS OF LAW (3d ed. 1986); Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29, 33 (1972)

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("[T]here is no moral indignation in the case in which the cost of prevention would have exceeded the cost of the accident.").

[FN28]. See infra text accompanying notes 74-109.

[FN29]. Courts individualize the standard of care expected of victims who are young or old or physically or mentally disabled. They sometimes interpret statutes as excusing victim negligence. Doctrines of ultrahazardous activity, workers' compensation, and products liability all demand greater care by tortfeasors than by victims.

[FN30]. See, e.g., Epstein, Medical Malpractice: The Case for Contract, 1976 AM. B. FOUND. RES. J. 87.

[FN31]. See, e.g., Delta Air Lines, Inc. v. McDonnell Douglas Corp., 503 F.2d 239 (5th Cir. 1974) (defendant aircraft manufacturers not liable for negligence or strict liability because of an exculpatory clause which limited defendant's liability to contractual damages when aircraft that plaintiff purchased from defendant collapsed), cert. denied, 421 U.S. 965 (1975); Smith v. Arbaugh's Restaurant, Inc., 469 F.2d 97 (D.C. Cir. 1972) (Leventhal, J., concurring) (after building inspector fell on the greasy metal steps of a restaurant, the court found that the restaurant owner owed a duty to maintain his property in a condition reasonably safe under all circumstances without regard to whether business inspector was "business invitee" or "licensee"); Delta Air Lines, Inc. v. Douglas Aircraft Co., 238 Cal. App. 2d 95, 47 Cal. Rptr. 518 (1965) (defendant airplane manufacturer not liable in tort for failure of airplane to function properly because contractural provision exculpated defendant for liability); K-Lines, Inc. v. Roberts Motor Co., 273 Or. 242, 541 P.2d 1378 (1975) (manufacturer and distributor of trucks not liable in tort for defects in trucks sold to plaintiff because unambiguous limitation of liability in sales provision was valid).

[FN32]. Abel, Should Tort Law Protect Property Against Accidental Loss? 23 SAN DIEGO L. REV. 79, 101 (1986).

[FN33]. Tunkl v. Regents of University of California, 60 Cal. 2d 92, 383 P.2d 441, 32 Cal. Rptr. 33 (1963).

[FN34]. Genn, Who Claims Compensation: Factors Associated with Claiming and Obtaining Damages, in COMPENSATION AND SUPPORT, supra note 22, at 45, 51 (Table 2.2); see also Abel, £'s of Cure, Ounces of Prevention (Book Review), 73 CALIF. L. REV. 1003 (1985). The many obvious differences between the legal systems of the United States and the United Kingdom include the structure of fees, size of damages, role of juries and the legal profession, and availability of legal aid. One comparative study--of asbestos claims--suggests reasons why the claims rate might be higher in the United Kingdom than in the United States. W. FELSTINER & R. DINGWALL, ASBESTOS LITIGATION IN THE UNITED KINGDOM: AN INTERIM REPORT (1987). Another comparative study of medical malpractice claims reaches the opposite conclusion. C. Ham, R. Dingwall, P. Fenn & D. Harris, Medical Negligence: Compensation and Accountability (King's Fund Institute Briefing Paper No. 6) (1988).

[FN35]. See, e.g., P. DANZON, MEDICAL MALPRACTICE: THEORY, EVIDENCE, AND PUBLIC POLICY 19-21, 23 (1985); W. SCHWARTZ & N. KOMESAR, DOCTORS, DAMAGES AND DETERRENCE: AN ECONOMIC VIEW OF MEDICAL MALPRACTICE 11 (1978).

The New York State Commissioner of Health contracted with Harvard University to study claims by malpractice victims in New York hospitals. Extrapolation from a review of 30,195 randomly selected patients at 51 hospitals in 1984 led researchers to conclude that malpractice was associated with 7000 deaths and 29,000 injuries throughout the state. However, only 1 victim in 10 even filed a malpractice claim. A 1974 California study found the same level of claims. Sack, Thousands of Medical Errors, but Few Lawsuits, Study Shows, N.Y. Times, Jan. 29, 1990, at A15, col. 2. See also Goldman, 4% Got Disabling Injury in N.Y. Hospitals, Study Finds, L.A. Times, Mar. 1, 1990, at A17, col. 1. A very crude estimate of product injuries concluded that less than 70,000 of the average 6.7 million injuries occurring annually between 1973 and 1975 led to claims, or less than 11 in 1000. INTERAGENCY TASK FORCE ON PRODUCT LIABILITY-- FINAL REPORT,,,,, Ch. VII, at 212 (1978). The Rand Corporation is replicating the English study; it will screen 55,000 respondents to identi-

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fy 3,000 victims. 7(1) CIVIL JUSTICE ROUNDTABLE (March 1989).

We reach the same conclusion by examining the question from the perspective of aggregate benefits paid for injury and illness. Tort damages contributed less than a tenth of total payments in 1960 (7.9%), 1982 (8.8%), and 1984 (9.8%). O'Connell & Guinivan, An Irrational Combination: The Relative Expansion of Liability Insurance and Contraction of Loss Insurance, 49 OHIO ST. L.J. 757, 759 (1988).

[FN36]. Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978); Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988) (O'Connor, J., dissenting).

[FN37]. See A. CONARD, J. MORGAN, R. PRATT, C. VOLTZ & R. BOMBAUGH, AUTOMOBILE ACCIDENT COSTS AND PAYMENTS: STUDIES IN THE ECONOMICS OF INJURY REPARATION (1964); H. GENN, supra note 14; J. HAMMITT, AUTOMOBILE ACCIDENT COMPENSATION: PAYMENTS BY AUTO INSURERS (1985); J. KAKALIK, E. KING, M. TRAYNOR, P. EBENER & L. PICUS, COSTS AND COMPENSATION PAID IN AVIATION ACCIDENT LITIGATION (1988); H.L. ROSS, supra note 14; Danzon & Lillard, Settlement Out of Court: The Disposition of Medical Malpractice Claims, 12 J. LEGAL STUD. 345 (1983); Franklin, Chanin & Mark, Accidents, Money and the Law: A Study of the Economics of Personal Injury Litigation, 61 COLUM. L. REV. 1 (1961); COMPENSATION AND SUPPORT, supra note 22; Rosenberg & Sovern, Delay and the Dynamics of Personal Injury Litigation, 59 COLUM. L. REV. 1115 (1959).

Recoveries by survivors of victims killed in airplane crashes (after deduction for lawyers' fees) averaged only 39% of their economic loss and none of their intangible loss. See also E. KING & J. SMITH, ECONOMIC LOSS AND COMPENSATION IN AVIATION ACCIDENTS 71 (1989); E. KING & J. SMITH, COMPUTING ECONOMIC LOSS IN CASES OF WRONGFUL DEATH (1988).

[FN38]. Brittan, Household Income, in COMPENSATION AND SUPPORT, supra note 22, at 281; Abel, supra note 34, at 1012-22.

[FN39]. See, e.g., Cooper v. Bray, 21 Cal. 3d 841, 582 P.2d 604, 148 Cal. Rptr. 148 (1978) (automobile guest statute); Brown v. Merlo, 8 Cal. 3d 855, 506 P.2d 212, 106 Cal. Rptr. 388 (1973) (automobile guest statute); Rowland v. Christian, 69 Cal. 2d 108, 443 P.2d 561, 70 Cal. Rptr. 97 (1968) (status of victim on tortfeasor's land); Bing v. Thunig, 2 N.Y.2d 656, 143 N.E.2d 3, 163 N.Y.S.2d 3 (1957) (charitable hospitals). Not surprisingly, however, capitalist tort law still recognizes fundamental class differences. When a capital good is damaged, capitalists, who own the means of production, can recover lost profits, but workers, who do not, cannot recover lost wages. Compare Dunlop Tire & Rubber Corp. v. FMC Corp., 53 A.D. 2d 150, 385 N.Y.S.2d 971 (1976) (plaintiff factory owner sought to recover damages when explosion at defendant's nearby plant led to loss of power and shutdown of production facilities; plaintiff was entitled to recover if he could establish causal relationship between defendant's negligence and the damage) with Beck v. FMC Corp., 53 A.D.2d 118, 385 N.Y.S.2d 956 (1976), aff'd, 42 N.Y.2d 1027, 369 N.E.2d 10, 398 N.Y.S.2d 1011 (1977) (employees of automobile plant brought action alleging power company was liable for loss of wages attributable to disruption of electrical power service to the plant, but the court found that the power company owed no duty to the employees for their negligent failure to furnish power to the employer).

[FN40]. More than 15,000 active duty military personnel were killed in peacetime training accidents between 1979 and 1989. Kutzler & Kutzler, The Army's Silence on Accidental Death, N.Y. Times, Feb. 9, 1990, at A19, col. 1.

[FN41]. Genn, Who Claims Compensation: Factors Associated With Claiming and Obtaining Damages in COMPENSATION AND SUPPORT, supra note 22, at 51; see also Abel, supra note 34.

[FN42]. For instance, an amateur violinist received substantial damages for an injury that impaired her performance. Riddle v. Memorial Hosp., 43 A.D.2d 750, 349 N.Y.S.2d 855 (1973). Would a jury have been as generous to a victim who enjoyed listening to Mantovani on the radio and whose hearing was impaired by injury?

Several South African cases explicitly proportion damages for pain and suffering based upon the identity of the victim. "What would be a magnificent recompense to a person in the position of the applicant [an African]

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might be a very poor solatium to a European workman . . . . " Jojo v. William Bain & Co. 1941 S.R. 72, quoted in Radebe v. Hough [1949] 1 S.A.L.R. 380. "Every award of non-economic damages must necessarily depend upon the circumstances of the particular case. In the present case, one of the circumstances I have to take into account is that the plaintiff is a native in a humble position in life." Mkize v. The South British Ins. Co. [1948] 4 S.A.L.R. 33, 36. In Radebe v. Hough [1949] 1 S.A.L.R. 380, the Witwatersrand Local Division had awarded the plaintiff £16 for pain and suffering for a bullet wound at the base of his penis, which caused pain when urinating, rendered him impotent for nearly a year, and made an erection intensely painful thereafter. Id. at 382-84. The trial judge commented: "[I]in the case of a native, as is the plaintiff, who is earning the sum of £2 per week, I should most certainly not award the same amount for pain and suffering as I would for the same pain and suffering of a person who had more culture and, for instance, I would award a larger sum for damages in the case of an injury to a European woman than I would do for a native male . . . . " Id. at 384-85. The judge awarded two months' earnings. Id. at 385. The Appellate Division reversed, disapproving the two earlier decisions. "It is the physical and mental make-up of the person injured which must be considered in assessing his pain and suffering, and that make-up cannot be determined by reference to his social or cultural or financial status. Most decidedly it cannot be determined by reference to his race." Id. The court increased the award to £>>>200. Id. at 387. However, it conceded that the relative standing of the two parties would have been relevant if contumelia (punitive damages) had been appropriate. Id. at 385.

[FN43]. COMPENSATION AND SUPPORT, supra note 22, at 215; see also Abel, supra note 34.

[FN44]. Abel, supra note 32. The latest effort by the California Supreme Court to draw "clear lines" around Dillon v. Legg, 68 Cal. 2d 228, 441 P.2d 912, 69 Cal. Rptr. 72 (1968), merely emphasizes the arbitrariness. See Thing v. La Chusa, 48 Cal. 3d 644, 771 P.2d 814, 257 Cal. Rptr. 865 (1989).

[FN45]. Legal principles cannot establish who has the stronger entitlement. See, e.g., Spur Indus. v. Del E. Webb Dev. Co., 108 Ariz. 178, 494 P.2d 700 (1972); Calabresi & Melamed, Property Rules, Liability Rules and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972).

[FN46]. See, e.g., J'Aire Corp. v. Gregory, 24 Cal. 3d 799, 598 P.2d 60, 157 Cal. Rptr. 407 (1979); People Express Airlines v. Consolidated Rail, 100 N.J. 246, 495 A.2d 107 (1985); Junior Books, Ltd. v. Veitchi, Ltd. 1983 AC 520; THE LAW OF TORT: POLICIES AND TRENDS IN LIABILITY FOR DAMAGE TO PROPERTY AND ECONOMIC LOSS (M. Furmston ed. 1986).

The ramifications of the Exxon Valdez disaster exemplify the impossibility of finding any principled basis for deciding what damages are compensable. The class action has constructed seven categories of claimants: fishermen, fish processors and distributors, union workers laid off by processors, Alaska natives, area businesses that supply equipment or services to the fishing industry, tour operators, recreational users of the region, and municipalities. The National Wildlife Association filed its own lawsuit, claiming to represent those who never intended to visit Alaska but know it has been spoiled for future generations. A Los Angeles sole practitioner sought to express his anger by filing an action in Los Angeles on behalf of local drivers who were paying 20 cents more per gallon for gasoline because of supply interruptions following the spill. Finally, Exxon shareholders have filed a derivative action against company directors and senior management for the $1.3 billion the accident has already cost the company for cleanup and the sums it will cost in the future. Feder, Exxon Valdez's Sea of Litigation, N.Y. Times, Nov. 19, 1989, at C3, col. 1.

[FN47]. Compare Rodriguez v. Bethlehem Steel Corp., 12 Cal. 3d 382, 525 P.2d 669, 115 Cal. Rptr. 765 (1974) with Borer v. American Airlines, Inc., 19 Cal. 3d 441, 563 P.2d 858, 138 Cal. Rptr. 302 (1977).

[FN48]. Compare Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968) with Hathaway v. Superior Court, 112 Cal. App. 3d 728, 169 Cal. Rptr. 435 (1980).

[FN49]. Ryan v. New York Cent. R.R., 35 N.Y. 210 (1866).

[FN50]. Alfred Conard estimated in the 1960s that it cost $1850 to transfer $750 to an automobile accident vic-

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