chapter  6
28 Pages

From Individual to System Blame: A Cultural Analysis of Historical Change in the Law of Torts

ByDaniel Polisar

Legal scholars draw distinctions between government regulation and adjudication in the courts. Judgments in tort cases, unlike enforcement of regulations, are made only after an accident occurs. Using a negligence standard, tort law encourages decentralized decision making. Under conditions of uncertainty, actors are not required to anticipate every possible danger. Only the failure to anticipate and prevent dangers that could reasonably be foreseen leads to liability. After error has been revealed, repeating it implies liability, establishing an incentive to avoid unsafe behavior and to devise alternate approaches. The historical development of tort law evidences a radical reversal of causal responsibility, from individual to system blame, accompanied by an identification of "the system" with greater ability to pay. At the end of the 1960s and the beginning of the 1970s, most states modified negligence law to make it still easier for injured parties to win compensation.