by David M. Engel and Michael McCann (eds). Stanford, CA: Stanford University Press. 2009. 408pp. Cloth $80.00 ISBN: 9780804756136. Paper $27.95. ISBN: 9780804756143.
Reviewed by Paul Parker, Department of Political Science, Truman State University. Email: parker [at] truman.edu.
Why does India have a “tort deficit”? Why has medical malpractice litigation increased in Japan over the past several decades? Why have lawsuits against big tobacco succeeded in the United States, but not in the United Kingdom? Why can I get insurance against losses that result from my tortious behavior, but not against losses that result from my criminal behavior? Why is sexual harassment considered civil rights law, and not tort – and with what consequences? Why was it better for a pedestrian in 1890’s Denver to be injured by a tramway than a railway, and what does the difference say about the legal culture?
These are some of the questions that are addressed in this collection of 16 chapters. Noting that “Scholars use the term culture in many different ways,” the editors go on to say, “culture is not a separate variable to be isolated and studied for its independent causal significance, but rather it refers to the discourses, logics, and norms that structure and render meaningful the practices of humans in various social contexts. . . . Culture, we might say, is practical meaning-making activity at work.” (pp.5-6) As indicated by the questions above, this meaning-making varies across time and across country.
In “Law, Liability, and Culture” (Chapter 1) David Nelken provides a synthetic treatment of culture (what is culture? what is the appropriate unit of legal culture?) and contrasts interpretive and positivist approaches to the use of “culture” as a variable. Positivists encourage comparative scholars to treat culture as a “second-order” variable, something of a leftover category after scholars have paid close attention to structural differences between countries (citing Prosser 1995; see also, Elkins and Simeon 1979). Rather than reduce culture to an isolated variable to explain legal differences, the interpretive approach “seeks to use evidence of legally relevant meaning-making activity and attitudes as an ‘index’ of legal culture” (p.33). Geertz (1973), Friedman (1994) and Nelken (1997) are three examples of interpretive approaches cited in which institutions, structure, and culture are not separated, but their intertwinings explored and explicated (pp.34-5).
The methodological mindset of readers will matter to their own meaning-making of these essays. Of India, Marc Galanter states, “Not surprisingly, the virtual absence of tort litigation is associated with an absence of institutional features for facilitating such litigation” (p.55). The positivist may be tempted to bypass culture and go directly to the institutional features that he describes: “Neither contingency fees nor legal aid are present . . . . Lawyers’ role does not [*738] include investigation and fact development,” and there is not a dedicated tort bar, owing to general lack of specialization and institutional supports (p.55). There is also an institutionalized system of ex gratia compensation –“without acknowledging any obligation or entitlement” – that appears to displace the compensation function of a tort suit. And structural barriers to litigation play prominent explanatory roles in later chapters, as discussed below. But as Nelken writes in Chapter 1, for cultural theorists, such “Institutions themselves are an expression of culture” (p.35).
This statement is reflected well in the other essays that comprise this second section. Tom Baker argues that liability insurance practices reflect and reinforce a cultural, moral, disapproval. If we conceive liability insurance as protecting the victim, the exclusion of crime-torts from liability insurance coverage makes no sense; only by considering the moral judgment that no one should profit from crime does this insurance exclusion make sense (Chapter 4). Valerie Hans (Chapter 5) explores the degree to which juries are “Conduits for Culture.” Hans discusses the role that (at times competing) narratives play in shaping juries’ cultural understandings (including those that may conflict with the letter of the law, leading for instance to jury nullification (p.94)). In Chapter 6, William Haltom and Michael McCann analyze how the news coverage frames fast-food and obesity as one of personal responsibility and choice, rather than corporate irresponsibility, reproducing a culture that is skeptical of fast-food litigation, buttressing their previous research on tobacco and the McDonald’s coffee case (2004).
In the third section, “Injury and Identity: Race, Gender, Sexuality,” the contributors explore how tort law creates or reinforces cultural and legal categories often taken as essentialist. Martha Chamallas reveals how William Prosser’s treatise mitigated torts of intentional infliction of harm for inappropriate sexual comments or overtures under the rule “no harm in asking.” Such a rule favored male sexual initiative, while simultaneously the limited use of tort in this area reinforced hierarchy and privilege, allowing “upstanding women” to sue for libel to their good moral character. We now address such harms through sexual harassment law, and Chamallas argues that harms recognized by civil rights law could be imported into tort law to change the concern for honor into a concern for dignity (pp.125-32). White privilege in law is the subject of Jennifer Wiggins’s study of tort from 1900-49. In assuming a white victim/plaintiff, and in the operation of the institutions by white judges and jurors, tort law was “white” (pp.157-58). Wiggins explores how the law’s twin demands of equal treatment and individualized consideration intersect in tort cases with plaintiffs of different races, and how ‘individualized treatment” led to unequal practices. Thus courts reduced damages for African Americans because an injury to a colored man cannot be as great as to a white man (p.162), because blacks have lower life expectancies (p.165), and for more generally racist reasons captured in the statement regarding “the well-known improvidence of the colored race” (p.170).
Part IV, “Issues of Risk and Responsibility,” contains two essays on Britain and two on Japan. Charles Epp [*739] (Chapter 10) discusses how activist lawyers and concentrated media attention changed the English cultural understanding of police misconduct. Structural features again play an important role in how this political battle unfolded, as England’s “loser pays” rule reduced the number of tort suits, and required public aid lawyers’ involvement (p.189). Such suits were aided by a rule of vicarious liability exposing British chief constables to liability for the actions of their officers (p.180), facilitating a change in thinking of abuse as having institutional roots (rather than being the result of “a few bad apples”), thereby facilitating reform.
Structural differences between legal systems play a central role in the other chapters in this section. Central to Lynn Mather’s explanation for a plethora of tobacco suits in the US, contrasted with two suits in Britain, are the financial incentives of the legal profession, and their organization. Fee arrangements including contingency fees and punitive damages encourage more suits in the United States than do the “loser pays” rule and the reliance on legal aid solicitors. Evidentiary rules and a greater ease of class certification also favor suits in the US. Meanwhile, the substantively less-specialized English bar, coupled with the division between barrister and solicitor, are two ways in which the professional organization of the bar contributes to fewer tobacco torts in Britain (pp.205f).
In “Suing doctors In Japan” (Chapter 12), Eric Feldman attempts to disentangle structure and culture to understand both a historically low level of medical malpractice litigation, and the rise in such litigation over the past 30 years. The standard explanation for low rates of litigation in Japan is a culture emphasizing harmony, but structural obstacles – high filing fees and legal retainers, lengthy resolution times – clearly deter suits. So, too, does the standardization of compensation through a “Red Book” of compensation rates for apparently nearly every accident and harm scenario, and the lack of punitive damages (pp.217-18). Recent structural reforms have reduced the claims resolution time, while cultural erosion of trust in elites (including doctors), as well as less secure national health care, have opened the door to more medical malpractice litigation.
Structural differences rooted in culture also assist in understanding differences in compensation schemes in Japan and the United States for mass torts like asbestos exposure. In Chapter 13, Takao Tanase discusses how the bureaucratic-compensation scheme in Japan, akin to workers’ compensation, provides more certain and efficient compensation. Beyond the uncertainty of tort litigation, lawyers’ fees increase transaction costs of those who secure compensation. After considering these structural differences, Tanase tells an illuminating story of how asbestos tort litigation in Japan – which is not precluded by the compensation scheme – produced two large lawsuits rather than thousands of individual lawsuits. He explains this as a result of a legal corporatism in which the Japanese bureaucratic elite, including judges, work more cooperatively with companies for fair compensation; litigation was used to negotiate a global compensation scheme, rather than produce many more lawsuits (pp.245-7). [*740]
The fifth and final section of the text is “Causation, Duty and Obligation.” In Chapter 14, David Engel explores how a Karmic cultural theory of causation in Thailand conflicts with a legal theory of causation, thereby reducing appeals to tort law. By contrast (and consistent with his earlier work (1984)) in the United States Engel finds theories of causation and responsibility differ between old timers and newcomers to a community. Ann Scales discusses how the demands of causation in the American tort system act as “an instrument of obfuscation and oppression,” focusing specifically on gender (Chapter 15). In our culture of personal responsibility, causal events are culturally and legally conceived as atomistic, discrete, and linearly and scientifically related to a harm: “These four aspects of Western causal habits are a veritable menu for defense lawyers in tort cases” (p.271). Scales presents the McDonald’s coffee case as a rape story (e.g., Stella Liebeck “deserved it,” given her behavior), and argues that the FDA’s cavalier attitude toward the testing of drugs for women is sex discrimination which the law of tort marginalizes through discounting of epidemiological studies (pp.280-82). Finally, Joyce Sterling and Nancy Reichman explicate how tort law on the Western Frontier constructed different legal duties for railroads and tramways, effectively subsidizing the railroads of outsider capitalists more than the local trams (Chapter 16).
This brief treatment is necessarily less nuanced than the essays, and a couple essays have not been referenced. In an Introduction, editors Engel and McCann also provide an overview of the essays, their organization of the text into the five sections, and a discussion of the cultural analysis approach used by the contributing authors. Rounding out the book are 18 pages of endnotes, a 31 page bibliography, a list of Cases, Statutes and Agency Reports and an index which is impressive in its scope and integration for an edited collection.
The editors, who have contributed mightily to our scholarly understanding of torts and disputing over the past 25 years, have succeeded admirably in assembling highly accessible essays that demonstrate their assertion, noted above, that “culture is not a separate variable to be isolated and studied for its independent causal significance, but rather it refers to the discourses, logics, and norms that structure and render meaningful the practices of humans in various social contexts” (pp.5-6). On average the essays are highly accessible, and the text will be a welcome addition to legal studies courses with an interpretive approach and among scholars who desire to learn more about tort law in a comparative context through thick description.
Elkins, David J. and Richard E.B. Simeon. 1979. “A Cause in Search of an Effect, or what Does Political Culture Explain?” 11 COMPARATIVE POLITICS 127-146.
Engel, David. 1984. “The Ovenbird Song: Insiders and Outsiders and Personal Injuries in an American Community.” 18 LAW AND SOCIETY REVIEW 551-582.
Friedman, Lawrence. 1994. “Is there a Modern Legal Culture?” 7 RATIO JURIS 117-131. [*741]
Geertz, Clifford. 1973. “Thick Description: Towards an Interpretive Theory of Culture,” in Clifford Geertz, THE INTERPRETATION OF CULTURE. New York: Basic Books.
Haltom, William, and Michael McCann. 2004. DISTORTING THE LAW. Chicago: University of Chicago Press.
Nelken, David (ed.). 1997. COMPARING LEGAL CULTURES. Aldershot, UK: Dartmouth.
Prosser, Tony. 1995. “The State, Constitutions, and Implementing Economic Policy: Privatization and Regulation in the UK, France, and the USA. 4 SOCIAL AND LEGAL STUDIES 507-516.
© Copyright 2009 by the author, Paul Parker.