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Abel Notes

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Abel: Torts: Not concerned primarily with showing the indeterminacy of legal rules and the inadequacy of judicial reasoning; believes strongly in the possibility of social theory and the importance of empirical research, and proposes concrete reforms thereby challenging the charge of nihilism frequently levelled by Critbashers. Liberals accept the contingent world as inevitable: capitalism is the best possible economic arrangement; democracy must yield to oligarchy in the interest of efficiency; inequality is natural rather than socially constructed; and individualism limits community. Crits, by contrast, take liberal values seriously and imagine alternative worlds in which they could be realized. Positivists distinguish sharply between value and fact, promising objective knowledge. Crits reject the distinction, contending that any account of the social world is partial and imbued with values. A Very Brief History: Before the modern era, tort law was preoccupied by intentional wrongs, still in the peripheral areas of the world unaffected by industrialisation, capitalism, urbanisation and the state. Accidents rarely caused serious injury because people did not control large amounts of energy. In societies in which the means and relations of production did not generate significant differences in wealth, status was differentiated by reputation, shaped by intentional wrongs and the response they evoked. The social, political, economic and cultural changes of the last century inevitably changed tort law. Technological development provoked farreaching danger. Mass migration and urbanisation have produced a nation of strangers. Strangers have less incentive to exhibit care towards each other, and thus negligent injuries as well as intentional ones increase. The deepening divides of class and race aggravate the situation further. Capitalism, technology and the division of labour have increased the social difference between the victims and the defendants of negligent or tortious acts. As the focus of tort law has shifted from intentional wrongs to negligent acts, the moral tone has changed a move from awards based on moralistic rhetoric to an explicit concern with compensation. Capitalism has created a proletariat that must sell its labour for wages in order to live; injury results in loss of earnings, permanent disability. Social fragmentation has made it difficult for victims to mobilise support for their claims, placing greater reliance upon the state (asserting its monopoly over the use of force) and on the commodified responsibility they accept from lawyers (fees). The capitalist state, legal and medical professionalism: in each instance a fraction of the dominant class mobilises state power to protect its property. Critique: Historically, moral judgement was the core of tort law, yet it consistently violates the basic principle of proportionality between the wrongfulness of the defendant's conduct and the magnitude of the penalty imposed. Notions of fault constructed when individuals were the significant actors and technology was simple are inadequate to assign responsibility today.

The moral incoherence of the tort system at the level of theory is reproduced at the level of practice in the proliferation of inconsistent standards of care. The last hundred years have seen continued tension between fault and nonfault principles. Nonfault recovery has expanded through workers compensation, products liability, ultrahazardous activity and nofault automobile insurance. Some defences have been restricted, and others have been modified. Few jurisdictions have created comprehensive compensation programs. The inconsistencies all reflect problems inherent in the dominant ethical framework - utilitarianism. Liberalism is discomforted by moral arguments that express patent and apparently irreconcilable value displacement, tort law has turned to the language of economics, replacing moral judgement with concern for the efficient allocation of resources. Although economics views all choices as equally "free", tort law recognises resource constraints in the purchase of "essential" goods and services. In sum, economics offers neither an accurate description of existing tort law, nor a morally superior alternative. Compensation: Tort law cannot compensate needy victims adequately because liability is a function of fault rather than need. Tort damages are not only inadequate as compensation, but are also unequal, thereby symbolising, reproducing and intensifying existing material inequalities. Because liberalism rejects status inequalities, tort law gradually has eliminated de jure distinctions between patients injured in charitable and profitmaking hospitals, feepaying passengers and gratuitous guests injured in automobile accidents, and business and social guests injured by landowner negligence. Yet the legal celebration of formal equality obscures the persistence of real inequality. The process of making a claim is institutionalised differently in various settings. When claims occur elsewhere, for example in the private home, the process is much less institutionalised: no one may have witnesed the accidents; victims tend to blame themselves; and the potential defendant is not readily identifiable. The measure of damages is inequitable. Tort damages are far more generous than workers' compensation payments, crime victim compensation schemes, or veterans' benefits for those disabled while in the military. Victims in these categories are likely to be manual workers, poor individuals, or members of racial minorities. Tort damages deliberately reproduce the existing distribution of wealth and income. Because these biases accumulate, tort law intensifies socail inequality. The decision to award compensation is inescapably political and unprincipled. American tort damages reaffirm the existing distribution of resources. By compensating owners for property loss, tort damages uphold the belief in private property and its concomitant - that a victim's worth is proportional to the value of the property she owns. By preserviing the income streams of those who suffer physical injury, tort damages endorse the legitimacy of the existing income distribution and the intergenerational reproduction of inequality. Tort law proclaims the class structure of capitalist society: you are what you own, what you earn, and what you do. By monetising intangible injuries, tort law extends a fundamental concept of capitalism - the commodity form - from the sphere of production to the sphere of reproduction. Such payments (for loss of a loved one) proclaim several messages. All relationships have a monetary equivalent, and hence can be bought and sold. The value of the relationship depends on the extent to which the "other" approaches societal ideas of physical beauty, mental acuity, athletic ability and emotional normality. All relationships are treated as a form of prostitution - the

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