The Real Tort Crisis--Too Few Claims
![handle is hein.journals/ohslj48 and id is 455 raw text is: The Real Tort Crisis-Too Few Claims
RICHARD L. ABEL*
I. POSING THE PROBLEM
When James Henderson asked me to speak at the January 1987 AALS
Mini-Workshop on the Tort Crisis and Tort Reform and to offer a proposal
capable of implementation within the present political climate, I wondered if this was
a deliberate plan to co-opt a crit.I I am on record as asserting that [t]ort law is
intimately related to the rise of capitalism as both cause and effect, that it
discriminates on the basis of class, race, and gender, that it produces illness and
injury, and that it reproduces bourgeois ideology by commodifying experience and
justifying inequality.2 Reanalyzing the best available study of tort law in action3, I
concluded:
* * judges, legislators, and legal scholars will find it hard to deprecate the magnitude
of the threat of illness and injury, to claim that tort liability adequately controls risk, to
disregard the differential impact of injury and illness and the bias of the systems that respond
to misfortune, to pretend that those systems restore victims to the status quo ante, to ignore
the catastrophic impact of injury and illness on many households, or to justify our
fault-based tort law as an expression of popular morality. Confronted by this bitter reality,
the complicated rationalizations of tort law as compensation, control, or justice collapse like
a house of cards.4
My colleague, Gary Schwartz, introducing the symposium in which that article
appeared, concluded that I sought to demonstrate the basic depravity of tort'5-a
characterization I enthusiastically embrace.
Because critical legal scholars repeatedly are attacked as nihilists who offer
nothing in place of the legal system they so blithely demolish, I have advanced and
elaborated several proposals to reform or replace tort law. First, I have argued that
courts can, and should, reconsider the damages they award. Damages for non-
pecuniary loss require a lengthy and expensive adjudication in every case; uncertainty
about what the jury will award discourages settlement; a rationale and a criterion for
* Professor of Law, University of California, Los Angeles. B.A., 1962, Harvard University; J.D., 1965,
Columbia University; Ph.D., 1974, University of London.
1. I participated in the founding Conference on Critical Legal Studies in Madison, Wisconsin, ten years ago and
have been involved with it ever since, most recently in helping to organize the tenth national conference on Law and
Racism in Los Angeles in January 1987. Those unfamiliar with the scholarship associated with critical legal studies
might consult: TnE Poincs OF L~w (D. Kairys ed. 1982); several special law review articles, e.g., Critical Legal Studies
Symposium, 36 STAN. L. REv. I (1984), Symposium on Critical Legal Studies, 6 CARDOZO L. REv. 693 (1985), or A
Symposium of Critical Legal Studies, 34 Ai. U.L. REv. 939 (1985); or the bibliography, Kennedy & Klare, A
Bibliography of Critical Legal Studies, 94 YAUE L.J. 461 (1984).
2. Abel, A Critique ofAmerican Tort Law, 8 BRIr. J. L. & Soc'v 199 (1981). An abridged version appears in THE
Pot'ncs OF LAw 185 (D. Kairys ed. 1982).
3. D. HARRIS, M. MACLEAN, H. GENN, S. LLoiD-BosTocK, P. FEsm, P. CoRnEtD & V. BmrrN, Co is-NsATloN AND
StPORT FOR ILNESS AND INJURY (1984) [hereinafter cited as CoMPE'NsAnoN AND SuPPORT].
4. Abel, i's of Cure, Ounces of Prevention, 73 CALIF. L. REv. 1003, 1023 (1985) (reviewing CoMPE-NsAnoN AND
SUPPORT, supra note 3).
5. Schwartz, Foreword: Tort Scholarship, 73 CAUF. L. REv. 548, 552 (1985).](ViewImageLocal?handle=hein.journals/ohslj48&div=29&collection=&method=preview&ext=.png&size=3)
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The Real Tort Crisis--Too Few Claims
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