First Page
555
Abstract
In a series of books and articles, Professor Marshall Shapo has developed the idea of American tort law as a "cultural mirror"--a legal system reflecting cultural norms that serves as the "intellectual and practical foundation for society's response to injuries." The "cultural mirror" metaphor captures both the notion that there is a substantive normative basis for tort law that exists within society and the procedural notion that tort law ensures that those underlying norms are reflected in the resolution of tort disputes.
Although I believe Professor Shapo's description to be fundamentally correct, it is also incomplete, and, as a result, somewhat misleading. It is correct in the sense that the moral intuitions of society form the underlying basis of tort law. It is misleading, however, in that it views twentieth-century American society as a single entity possessing a unitary or common "culture" that can be reflected in the law. In fact, our culture is enormously diverse in terms of conventional indicators such as race, religion, and ethnicity. More importantly, our society consists of many different groups-both within and cutting across various subcultures-that can be identified based on function. These functionally classified groups-professionals such as doctors, engineers, or product sellers (including insurers), for example-can be identified by commonality in knowledge, experience, expectation, and perception. In addition, they can sometimes be distinguished from non-group members by disparities in these same factors. In short, individuals view the world differently depending on their knowledge, training, experience, and professional socialization, and on the peculiar slants imparted by membership in communities or in racial and ethnic groups.
In this Article I maintain that explicit recognition of these differences in perception and expectation is the key to the proper resolution of tort cases. Specifically, I advance a number of claims. First, tort law must be understood essentially as a system in which individuals assess other individuals' conduct. As a result, most traditional tort cases turn on the answer to questions such as the following: Did the defendant impose an unacceptably high risk on others? Was the defendant motivated by something that is considered improper? Did the defendant intend to do harm or take unfair advantage? Although we have, from time to time, lost sight of this essential characteristic of the system (most notably in early attempts to impose strict liability on the sellers of products), judging conduct example-can be identified by commonality in knowledge, experience, expectation, and perception. In addition, they can sometimes be distinguished from non-group members by disparities in these same factors. In short, individuals view the world differently depending on their knowledge, training, experience, and professional socialization, and on the peculiar slants imparted by membership in communities or in racial and ethnic groups.
Recommended Citation
Martin A. Kotler,
Reconceptualizing Strict Liability in Tort: An Overview,
50 Vanderbilt Law Review
555
(1997)
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol50/iss3/1