Priest, George L.

English

ValpoScholar

Valparaiso University Law Review 
Volume 34 
Number 3 Summer 2000 pp.573-579 
Summer 2000 
The Culture of Modern Tort Law 
George L. Priest 
Follow this and additional works at: https://scholar.valpo.edu/vulr 
 Part of the Law Commons 
Recommended Citation 
George L. Priest, The Culture of Modern Tort Law, 34 Val. U. L. Rev. 573 (2000). 
Available at: https://scholar.valpo.edu/vulr/vol34/iss3/7 
This Monsanto Lecture is brought to you for free and 
open access by the Valparaiso University Law School at 
ValpoScholar. It has been accepted for inclusion in 
Valparaiso University Law Review by an authorized 
administrator of ValpoScholar. For more information, 
please contact a ValpoScholar staff member at 
scholar@valpo.edu. 
THE CULTURE OF MODERN TORT LAW
George L. Priest'
In this speech, I would like to address a feature of legal regimes
in general that is too often ignored in the study of how law operates.
Though I believe that the concept is relevant to many different areas of
law, I shall focus on modern tort law. I wish to address what I will call
the "culture" of our modem law of torts. By culture, I mean a set of
attitudes and expectations embedded in the conceptual basis of the law
that is only captured in a limited way by the principal legal doctrines of
the area of law themselves.
I believe that those of us who work in the field of law and
economics, especially, have neglected the broader impact of the culture
of modem law. As a consequence, we have failed to understand the
significant consequences that have derived from the shift in the culture
of tort law that occurred in the 1970s and 1980s from what is typically
called the regime of "negligence" to the regime of increased
responsibility for risk identified with the adoption of the standard of
strict products liability. I have argued separately, including in this
forum,' that the strict liability idea extends far beyond the products field.
Here, I want to examine that extension more carefully.
Let me present a primary example of the failure of law and
economics to appreciate the role of culture. According to the most basic
principle of law and economics, there is very little difference in effect
between the standards of negligence and strict liability. Indeed, when
those standards and their defenses are appropriately defined according
to economic analysis, there is virtually no difference, except in an
extremely limited number of cases in which the injurer and the victim
are in a position of exact equipoise with respect to fault. According to
economic analysis, at this point, the strict liability standard compels the
injurer to become an insurer of the victim. In all other contexts,
however, strict liability and negligence (again, attended by economically
appropriate incentives) generate exactly identical effects.
This analysis-though widely accepted-is belied by basic facts
known to us all. This analysis asserts that negligence and strict liability
* John M. Olin Professor of Law and Economics, Yale Law School.
'George L. Priest, Modern Tort Law and Its Reform, 22 VAL. U. L REv. 1 (1987).
573
Priest: The Culture of Modern Tort Law
Produced by The Berkeley Electronic Press, 2000
574 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 35
are indistinguishable. Yet, over the past 20 years, we have seen a vast
increase in the number of suits, in the number of settlements, and in the
magnitude of liability payouts and insurance premiums.2 We have seen
in response a vast increase in the size of the plaintiffs' and defense bars,
its training and its sophistication, as well as the development of an
industry of expert witnesses, all unlike anything seen in the legal
profession before, reflecting extraordinary investment toward
redistributing resources in society through tort litigation. Law and
economics on the whole has had nothing to say about these phenomena.
The reason is that law and economics has neglected the importance of
the broader culture of modem tort law.3
What was the nature of the shift in legal culture? If one reads
cases from the turn of the 20th Century through roughly the 1960s, a
period we associate with the negligence doctrine (though I think the
term "negligence" does not capture its essence), we observe a legal
culture in which our system of civil liability played a relatively minor
role. The method of analysis of legal disputes was chiefly categorical:
Did the defendant's behavior depart substantially from some vision of
normal behavior to justify making the defendant liable for the plaintiff's
losses? Unless that departure from the normal was extreme, the answer
was "no" and the plaintiff was left to bear his or her losses alone. The
economic implications of this approach toward civil liability were
reliance on the market and reputation to create incentives for safety and
an allocation to consumers-users of the responsibility of selecting the
right products or services and, then, to watch out for themselves how
they used them in order to prevent injury. A regime of this nature is not
accurately described as one dominated by a conception of "negligence"--
especially as the term "negligence" is defined by modern law and
economics. The regime may be better considered as one in which
"departure from normalcy" defines the most common grounds for
finding liability.
In a story well-known to all,4 roughly from the period of the
mid-1960s through the mid-1970s, there was a change in the law. I
believe that, over time, this change developed into a profound
2 George L. Priest, Products Liability Law and the Accident Rate, in LIABILITY: PERSPECTIvES
AND POLICY 184 (Robert E. Litan & Clifford Winston eds., 1988); George L. Priest, How to
Control Liability Costs, FORTUNE, Apr. 24, 1989, at 323.
My talk at the Inaugural Monsanto Lecture, Modern Tort Law and Its Reform, 22 VAL. U. L.
REV. 1 (1987), also neglected this broader culture.
4 For one version, see George L. Priest, The Invention of Enterprise Liability: A Critical Histon
of the Intellectual Foundations of Modern Tort Law, 14 J. LEGAL STUD. 461 (1985).
Valparaiso University Law Review, Vol. 34, No. 3 [2000], Art. 7
https://scholar.valpo.edu/vulr/vol34/iss3/7
CULTURE OF MODERN TORT LAW
transformation in the legal culture of tort law. The change began
modestly with the alteration of a certain set of principles with no
expectation of large scale changes in the effect of the law or in
underlying behavior.5 But the underlying conceptual basis for the
change and the way the change occurred meant that the change would
have far-reaching effects beyond what could ever have been anticipated.
The change began in the products field with the adoption of the
standard of strict liability which, in the first instance only placed
modestly greater responsibility on product manufacturers to protect
consumers. 6 But the underlying shift in attitudes and in the conception
of the role of law extended far beyond the modest adoption of the strict
liability standard.
Many law and economics scholars have claimed that the strict
liability standard is economically efficient.7 There is no question that
strict liability can be defined in a way consistent with economic efficiency.
But the underlying conception of strict liability is significantly broader:
it is that repeat defendants-typically corporate parties-are in a vastly
superior position than consumers to protect and insure against injury
and loss.
Because of the change in the culture-not in the legal standard-
defenses to strict liability central to the claim of economic efficiency, but
meaningless to the culture, have never been seriously entertained. Thus,
the defense of contributory negligence has been almost entirely
abandoned. While many courts entertain a misuse defense, in practice
the application of the defense operates far short of contributory
negligence as defined in law and economics. Similarly, though
nominally, many courts have retained an assumption of risk defense, it
has largely been swallowed in the expansion of the duty of the injurer to
warn of potential dangers, again reducing very dramatically the
obligations of consumers that law and economics analysis assumes will
apply.
These changes occurred because the development of products
law was dominated and directed by a culture of the law, not by
economic analysis. Indeed, to the extent that the field of law and
5 George L. Priest, Strict Products Liability: The Original Intent, 10 CARDOZO L. REv. 2301
(1989).
6 See generally id.
7RICHARD A. POSNER, EcoNoMIc ANALYSIS OF LAW (4th ed. 1992); WILLIAM M. LANDES &
RICHARD A. POSNER, THE ECONOMIC STRUcTURE OF TORT LAW (1987).
2000] 575
Priest: The Culture of Modern Tort Law
Produced by The Berkeley Electronic Press, 2000
576 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 35
economics was successful in defining an economic interpretation of the
negligence standard just at the beginning of the change in legal culture in
the early 1970s,8 many courts intentionally sought to define a strict
liability standard that departed from this definition, for example,
through elaboration of the maxim that strict liability was addressed to
the nature of the product, not to the behavior of the manufacturer, a
maxim that is meaningless in law and economics.
More generally, building on the underlying idea that strict
liability constituted liability without fault of the manufacturer, courts
began to ignore and increasingly have ignored the behavior, the choice,
the position and the role of consumers -with respect to product use
almost entirely, focusing on some technological definition of an ideal
product, not on the economic question of defining the set of consumer
and producer inputs that optimizes safety.
This has led to an extraordinary transformation in the law.
Today, in the products field, as a general matter, the only question for
the jury is whether a safer product could have been designed or built that
would have prevented the accident to the injured plaintiff in the case.
This is not the standard that prevailed prior to the 1960s in which the
jury was asked whether the product deviated too substantially from
some norm. Nor is it the standard promoted by economic analysis
which evaluates whether some greater level of consumer or producer
investment at the margin would have prevented the accident, accepting
that many accidents will occur that are not, from an economic
perspective, worthwhile preventing. The adoption of the new approach-
-generated by the culture of the law, not by the legal rule itself--is
responsible for the transformation of product suits from trials over
manufacturing normalcy to trials over the disparate claims of product
design experts.
It should be obvious that a culture which defines principal
responsibility on corporate entities to either prevent or insure for losses
is not by any inherent meaning limited in application to the products
field. Indeed, this change of attitude has extended beyond the products
field into all areas of corporate activity. The question again under
modem culture is, could some change in corporate behavior have
prevented the harm suffered by the injured plaintiff in this case?
8 See generally GuIDo CALABRESI, THE COSTS OF ACCIDENTS (1970); RICHARD A. POSNER,
ECONOMIC ANALYSIS OF LAW (1st ed. 1972); Richard A. Posner, A Theory of Negligence, 1 J.
LEGAL STUD. 29 (1972).
Valparaiso University Law Review, Vol. 34, No. 3 [2000], Art. 7
https://scholar.valpo.edu/vulr/vol34/iss3/7
CULTURE OF MODERN TORT LAW
I believe that this change in approach is better understood as a
cultural change, than only as a change in legal rules. First, the
underlying attitudes and conceptions of our modem culture of tort law
are entirely different both from the preceding regime and from economic
analysis. The modem approach incorporates a method of analysis--an
attitude--completely different from the categorical analysis of previous
regimes in which the dominant question was whether the defendant's
behavior had substantially deviated from the norm? Today the question
is, could anything have been done to have prevented the injury? Under
the culture of modem tort law, defendants prevail only where the
accident was truly freakish or, to a large extent, self-inflicted.
Second, the conception underlying the culture of modem tort
law is almost infinitely expandable. In the products field, focusing in
some technological sense on the product, not conduct, and asking could
anything be done to make the product safer, means that defendant
liability is nearly certain to follow. In this country, we believe in
perpetual progress. There is always something that can be done to
improve a product, especially when the only template for improvement
is the single accident in the underlying case before the jury.
Third, under this approach, the question of comparative
responsibility as between plaintiffs and defendants largely disappears.
Defendants are held liable as long as the plaintiffs behavior at the point
of the accident was in some way foreseeable to the defendant. If the
plaintiffs behavior-however incautious-was foreseeable, and the
accident or injury still occurred, it follows that the defendant did not do
enough to protect the plaintiff from the foreseeable consequences of the
plaintiff's own actions. For repeat defendants, such as corporations, all
actions of those citizens with whom they interact are foreseeable at some
level of generality. Thus, it is not a defense in this legal culture that
plaintiffs incur injuries while driving drunk, failing to wear seatbelts, or
neglecting other common sense safety precautions. Standards and rules
of this nature cannot be defended by economics; they reflect a culture
alien to economics.
Fourth, because our system delegates decisions in liability cases
to juries, lay juries have become the most important safety regulators of
our society. The costs imposed on corporate actions by juries are far
greater than costs imposed by the entire set of state and federal
regulatory agencies. And juries operate in substantially different ways.
A regulatory agency such as the National Highway Traffic Safety
Administration, or the Food and Drug Administration, for example,
2000] 577
Priest: The Culture of Modern Tort Law
Produced by The Berkeley Electronic Press, 2000
578 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 35
studies auto accident statistics or the results of drug tests in the
aggregate and adopts regulations or imposes safety standards only
where there is a strong statistical basis for believing that a different
design might significantly save lives. Juries may be presented similar
data, but the jury has to answer a different question. The jury is not
asked, "Is there sufficient statistical support for believing that a product
design change would improve welfare for consumers in the aggregate?"
The jury is asked, instead, "Should this severely injured person sitting
before you be compensated for the horrible and tragic losses or be forced
to suffer the losses himself or herself?" A defendant may attempt to
redefine the question as whether cars would be more or less safe on the
whole if the plaintiff's expert's proposed design were adopted. But the
jury is compelled to address the claim of this victim alone and is forced
by the culture of the law if it is to render a defense verdict, to state to the
victim, "You cannot recover because you yourself are totally responsible
for your injuries" or "You cannot recover because the design you propose
may have adverse effects on some unknown person in the future." If the
plaintiff's expert is able to identify some alleged design improvement--
and again, every product can be improved-the jury cannot reject the
injured person's claim.
It is, thus, not a surprise that we have seen a dramatic rise in the
creation of an industry of experts testifying that improvements to
products could have been made, because the truly unpreventable is
extremely rare. Our modem culture of tort law has vastly expanded
legal liability. What are the consequences of this change in the legal
culture? Despite the extraordinary increase in the extent of legal liability,
no single study has been able to demonstrate any consequent
improvement in safety or any reduction in the accident rate. Do not
misunderstand me-the world is getting safer in every respect. There are
many forces and reasons for that development. Yet, for every product
and for every activity, the trend in accident reduction has been constant
from the end of World War H to the present-there has been no additional
increase in safety or in accident reduction that can be attributed to the
expansion of liability.
This finding, however, is devastating to the ambitions of the
culture of modem tort law. It means that the principal effort of the
change in the legal culture has not been productive and not enhanced the
welfare of American citizens. There have resulted far greater earnings to
attorneys-both plaintiffs' and defendants' attorney-far greater
earnings to experts, vastly greater recoveries to individual plaintiffs, but
for no clear productive end. There is no demonstrable increase in safety.
Valparaiso University Law Review, Vol. 34, No. 3 [2000], Art. 7
https://scholar.valpo.edu/vulr/vol34/iss3/7
CULTURE OF MODERN TORT LAW
It follows that the principal effect of the change in the legal
culture has been redistributive, not productive. This is a most
unfortunate development for our country -really for the productivity of
the world-because many other countries are affected by our legal
culture. Redistributive cultures thwart economic growth. They diminish
gains from economic growth that otherwise would add longevity and
enjoyment to life.
Over the past century, we have observed many cultures that are
essentially redistributive. The most significant of these cultures-
communism- failed; but in only some areas has been replaced by a
culture of greater productivity. A second example is the culture of
bribery and corruption of the underdeveloped world, which has kept
those countries with small exceptions to an economic base closely
resembling that of the Middle Ages.
The U.S. economy of course starts from a far stronger base. I am
not claiming that the culture of modem tort law will lead us to the fate of
the communist states or the Third World. But, we should not be led to
complacence by what is today a happy comparison. Our measures of
economic growth in this country are deceptive because they count the
totality of resources devoted to modem law as contributing to the
national product. Some surely do, but there is no empirical evidence
confirming that the great expansion of tort law has had any productive
effect. And the proportion of our country's resources devoted to this
culture continues to increase.
The slow rise of the redistributive state after World War ll in
socialist countries such as Sweden progressively choked off that nation's
economic growth. We must reevaluate the redistributive culture of
modem tort law-with models and analysis much richer than those of
modem law and economics -in order to avoid a similar fate.
2000] 579
Priest: The Culture of Modern Tort Law
Produced by The Berkeley Electronic Press, 2000
Valparaiso University Law Review, Vol. 34, No. 3 [2000], Art. 7
https://scholar.valpo.edu/vulr/vol34/iss3/7


The Culture of Modern Tort Law

Valparaiso University

Valparaiso University Law Review Volume 34 Number 3 Summer 2000 pp.573-579 Summer 2000 The Culture of Modern Tort Law George L. Priest Follow this and additional works at: https://scholar.valpo.edu/vulr  Part of the Law Commons Recommended Citation George L. Priest, The Culture of Modern Tort Law, 34 Val. U. L. Rev. 573 (2000). Available at: https://scholar.valpo.edu/vulr/vol34/iss3/7 This Monsanto Lecture is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at scholar@valpo.edu. THE CULTURE OF MODERN TORT LAWGeorge L. Priest'In this speech, I would like to address a feature of legal regimesin general that is too often ignored in the study of how law operates.Though I believe that the concept is relevant to many different areas oflaw, I shall focus on modern tort law. I wish to address what I will callthe "culture" of our modem law of torts. By culture, I mean a set ofattitudes and expectations embedded in the conceptual basis of the lawthat is only captured in a limited way by the principal legal doctrines ofthe area of law themselves.I believe that those of us who work in the field of law andeconomics, especially, have neglected the broader impact of the cultureof modem law. As a consequence, we have failed to understand thesignificant consequences that have derived from the shift in the cultureof tort law that occurred in the 1970s and 1980s from what is typicallycalled the regime of "negligence" to the regime of increasedresponsibility for risk identified with the adoption of the standard ofstrict products liability. I have argued separately, including in thisforum,' that the strict liability idea extends far beyond the products field.Here, I want to examine that extension more carefully.Let me present a primary example of the failure of law andeconomics to appreciate the role of culture. According to the most basicprinciple of law and economics, there is very little difference in effectbetween the standards of negligence and strict liability. Indeed, whenthose standards and their defenses are appropriately defined accordingto economic analysis, there is virtually no difference, except in anextremely limited number of cases in which the injurer and the victimare in a position of exact equipoise with respect to fault. According toeconomic analysis, at this point, the strict liability standard compels theinjurer to become an insurer of the victim. In all other contexts,however, strict liability and negligence (again, attended by economicallyappropriate incentives) generate exactly identical effects.This analysis-though widely accepted-is belied by basic factsknown to us all. This analysis asserts that negligence and strict liability* John M. Olin Professor of Law and Economics, Yale Law School.'George L. Priest, Modern Tort Law and Its Reform, 22 VAL. U. L REv. 1 (1987).573Priest: The Culture of Modern Tort LawProduced by The Berkeley Electronic Press, 2000574 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 35are indistinguishable. Yet, over the past 20 years, we have seen a vastincrease in the number of suits, in the number of settlements, and in themagnitude of liability payouts and insurance premiums.2 We have seenin response a vast increase in the size of the plaintiffs' and defense bars,its training and its sophistication, as well as the development of anindustry of expert witnesses, all unlike anything seen in the legalprofession before, reflecting extraordinary investment towardredistributing resources in society through tort litigation. Law andeconomics on the whole has had nothing to say about these phenomena.The reason is that law and economics has neglected the importance ofthe broader culture of modem tort law.3What was the nature of the shift in legal culture? If one readscases from the turn of the 20th Century through roughly the 1960s, aperiod we associate with the negligence doctrine (though I think theterm "negligence" does not capture its essence), we observe a legalculture in which our system of civil liability played a relatively minorrole. The method of analysis of legal disputes was chiefly categorical:Did the defendant's behavior depart substantially from some vision ofnormal behavior to justify making the defendant liable for the plaintiff'slosses? Unless that departure from the normal was extreme, the answerwas "no" and the plaintiff was left to bear his or her losses alone. Theeconomic implications of this approach toward civil liability werereliance on the market and reputation to create incentives for safety andan allocation to consumers-users of the responsibility of selecting theright products or services and, then, to watch out for themselves howthey used them in order to prevent injury. A regime of this nature is notaccurately described as one dominated by a conception of "negligence"--especially as the term "negligence" is defined by modern law andeconomics. The regime may be better considered as one in which"departure from normalcy" defines the most common grounds forfinding liability.In a story well-known to all,4 roughly from the period of themid-1960s through the mid-1970s, there was a change in the law. Ibelieve that, over time, this change developed into a profound2 George L. Priest, Products Liability Law and the Accident Rate, in LIABILITY: PERSPECTIvESAND POLICY 184 (Robert E. Litan & Clifford Winston eds., 1988); George L. Priest, How toControl Liability Costs, FORTUNE, Apr. 24, 1989, at 323.My talk at the Inaugural Monsanto Lecture, Modern Tort Law and Its Reform, 22 VAL. U. L.REV. 1 (1987), also neglected this broader culture.4 For one version, see George L. Priest, The Invention of Enterprise Liability: A Critical Histonof the Intellectual Foundations of Modern Tort Law, 14 J. LEGAL STUD. 461 (1985).Valparaiso University Law Review, Vol. 34, No. 3 [2000], Art. 7https://scholar.valpo.edu/vulr/vol34/iss3/7CULTURE OF MODERN TORT LAWtransformation in the legal culture of tort law. The change beganmodestly with the alteration of a certain set of principles with noexpectation of large scale changes in the effect of the law or inunderlying behavior.5 But the underlying conceptual basis for thechange and the way the change occurred meant that the change wouldhave far-reaching effects beyond what could ever have been anticipated.The change began in the products field with the adoption of thestandard of strict liability which, in the first instance only placedmodestly greater responsibility on product manufacturers to protectconsumers. 6 But the underlying shift in attitudes and in the conceptionof the role of law extended far beyond the modest adoption of the strictliability standard.Many law and economics scholars have claimed that the strictliability standard is economically efficient.7 There is no question thatstrict liability can be defined in a way consistent with economic efficiency.But the underlying conception of strict liability is significantly broader:it is that repeat defendants-typically corporate parties-are in a vastlysuperior position than consumers to protect and insure against injuryand loss.Because of the change in the culture-not in the legal standard-defenses to strict liability central to the claim of economic efficiency, butmeaningless to the culture, have never been seriously entertained. Thus,the defense of contributory negligence has been almost entirelyabandoned. While many courts entertain a misuse defense, in practicethe application of the defense operates far short of contributorynegligence as defined in law and economics. Similarly, thoughnominally, many courts have retained an assumption of risk defense, ithas largely been swallowed in the expansion of the duty of the injurer towarn of potential dangers, again reducing very dramatically theobligations of consumers that law and economics analysis assumes willapply.These changes occurred because the development of productslaw was dominated and directed by a culture of the law, not byeconomic analysis. Indeed, to the extent that the field of law and5 George L. Priest, Strict Products Liability: The Original Intent, 10 CARDOZO L. REv. 2301(1989).6 See generally id.7RICHARD A. POSNER, EcoNoMIc ANALYSIS OF LAW (4th ed. 1992); WILLIAM M. LANDES &RICHARD A. POSNER, THE ECONOMIC STRUcTURE OF TORT LAW (1987).2000] 575Priest: The Culture of Modern Tort LawProduced by The Berkeley Electronic Press, 2000576 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 35economics was successful in defining an economic interpretation of thenegligence standard just at the beginning of the change in legal culture inthe early 1970s,8 many courts intentionally sought to define a strictliability standard that departed from this definition, for example,through elaboration of the maxim that strict liability was addressed tothe nature of the product, not to the behavior of the manufacturer, amaxim that is meaningless in law and economics.More generally, building on the underlying idea that strictliability constituted liability without fault of the manufacturer, courtsbegan to ignore and increasingly have ignored the behavior, the choice,the position and the role of consumers -with respect to product usealmost entirely, focusing on some technological definition of an idealproduct, not on the economic question of defining the set of consumerand producer inputs that optimizes safety.This has led to an extraordinary transformation in the law.Today, in the products field, as a general matter, the only question forthe jury is whether a safer product could have been designed or built thatwould have prevented the accident to the injured plaintiff in the case.This is not the standard that prevailed prior to the 1960s in which thejury was asked whether the product deviated too substantially fromsome norm. Nor is it the standard promoted by economic analysiswhich evaluates whether some greater level of consumer or producerinvestment at the margin would have prevented the accident, acceptingthat many accidents will occur that are not, from an economicperspective, worthwhile preventing. The adoption of the new approach--generated by the culture of the law, not by the legal rule itself--isresponsible for the transformation of product suits from trials overmanufacturing normalcy to trials over the disparate claims of productdesign experts.It should be obvious that a culture which defines principalresponsibility on corporate entities to either prevent or insure for lossesis not by any inherent meaning limited in application to the productsfield. Indeed, this change of attitude has extended beyond the productsfield into all areas of corporate activity. The question again undermodem culture is, could some change in corporate behavior haveprevented the harm suffered by the injured plaintiff in this case?8 See generally GuIDo CALABRESI, THE COSTS OF ACCIDENTS (1970); RICHARD A. POSNER,ECONOMIC ANALYSIS OF LAW (1st ed. 1972); Richard A. Posner, A Theory of Negligence, 1 J.LEGAL STUD. 29 (1972).Valparaiso University Law Review, Vol. 34, No. 3 [2000], Art. 7https://scholar.valpo.edu/vulr/vol34/iss3/7CULTURE OF MODERN TORT LAWI believe that this change in approach is better understood as acultural change, than only as a change in legal rules. First, theunderlying attitudes and conceptions of our modem culture of tort laware entirely different both from the preceding regime and from economicanalysis. The modem approach incorporates a method of analysis--anattitude--completely different from the categorical analysis of previousregimes in which the dominant question was whether the defendant'sbehavior had substantially deviated from the norm? Today the questionis, could anything have been done to have prevented the injury? Underthe culture of modem tort law, defendants prevail only where theaccident was truly freakish or, to a large extent, self-inflicted.Second, the conception underlying the culture of modem tortlaw is almost infinitely expandable. In the products field, focusing insome technological sense on the product, not conduct, and asking couldanything be done to make the product safer, means that defendantliability is nearly certain to follow. In this country, we believe inperpetual progress. There is always something that can be done toimprove a product, especially when the only template for improvementis the single accident in the underlying case before the jury.Third, under this approach, the question of comparativeresponsibility as between plaintiffs and defendants largely disappears.Defendants are held liable as long as the plaintiffs behavior at the pointof the accident was in some way foreseeable to the defendant. If theplaintiffs behavior-however incautious-was foreseeable, and theaccident or injury still occurred, it follows that the defendant did not doenough to protect the plaintiff from the foreseeable consequences of theplaintiff's own actions. For repeat defendants, such as corporations, allactions of those citizens with whom they interact are foreseeable at somelevel of generality. Thus, it is not a defense in this legal culture thatplaintiffs incur injuries while driving drunk, failing to wear seatbelts, orneglecting other common sense safety precautions. Standards and rulesof this nature cannot be defended by economics; they reflect a culturealien to economics.Fourth, because our system delegates decisions in liability casesto juries, lay juries have become the most important safety regulators ofour society. The costs imposed on corporate actions by juries are fargreater than costs imposed by the entire set of state and federalregulatory agencies. And juries operate in substantially different ways.A regulatory agency such as the National Highway Traffic SafetyAdministration, or the Food and Drug Administration, for example,2000] 577Priest: The Culture of Modern Tort LawProduced by The Berkeley Electronic Press, 2000578 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 35studies auto accident statistics or the results of drug tests in theaggregate and adopts regulations or imposes safety standards onlywhere there is a strong statistical basis for believing that a differentdesign might significantly save lives. Juries may be presented similardata, but the jury has to answer a different question. The jury is notasked, "Is there sufficient statistical support for believing that a productdesign change would improve welfare for consumers in the aggregate?"The jury is asked, instead, "Should this severely injured person sittingbefore you be compensated for the horrible and tragic losses or be forcedto suffer the losses himself or herself?" A defendant may attempt toredefine the question as whether cars would be more or less safe on thewhole if the plaintiff's expert's proposed design were adopted. But thejury is compelled to address the claim of this victim alone and is forcedby the culture of the law if it is to render a defense verdict, to state to thevictim, "You cannot recover because you yourself are totally responsiblefor your injuries" or "You cannot recover because the design you proposemay have adverse effects on some unknown person in the future." If theplaintiff's expert is able to identify some alleged design improvement--and again, every product can be improved-the jury cannot reject theinjured person's claim.It is, thus, not a surprise that we have seen a dramatic rise in thecreation of an industry of experts testifying that improvements toproducts could have been made, because the truly unpreventable isextremely rare. Our modem culture of tort law has vastly expandedlegal liability. What are the consequences of this change in the legalculture? Despite the extraordinary increase in the extent of legal liability,no single study has been able to demonstrate any consequentimprovement in safety or any reduction in the accident rate. Do notmisunderstand me-the world is getting safer in every respect. There aremany forces and reasons for that development. Yet, for every productand for every activity, the trend in accident reduction has been constantfrom the end of World War H to the present-there has been no additionalincrease in safety or in accident reduction that can be attributed to theexpansion of liability.This finding, however, is devastating to the ambitions of theculture of modem tort law. It means that the principal effort of thechange in the legal culture has not been productive and not enhanced thewelfare of American citizens. There have resulted far greater earnings toattorneys-both plaintiffs' and defendants' attorney-far greaterearnings to experts, vastly greater recoveries to individual plaintiffs, butfor no clear productive end. There is no demonstrable increase in safety.Valparaiso University Law Review, Vol. 34, No. 3 [2000], Art. 7https://scholar.valpo.edu/vulr/vol34/iss3/7CULTURE OF MODERN TORT LAWIt follows that the principal effect of the change in the legalculture has been redistributive, not productive. This is a mostunfortunate development for our country -really for the productivity ofthe world-because many other countries are affected by our legalculture. Redistributive cultures thwart economic growth. They diminishgains from economic growth that otherwise would add longevity andenjoyment to life.Over the past century, we have observed many cultures that areessentially redistributive. The most significant of these cultures-communism- failed; but in only some areas has been replaced by aculture of greater productivity. A second example is the culture ofbribery and corruption of the underdeveloped world, which has keptthose countries with small exceptions to an economic base closelyresembling that of the Middle Ages.The U.S. economy of course starts from a far stronger base. I amnot claiming that the culture of modem tort law will lead us to the fate ofthe communist states or the Third World. But, we should not be led tocomplacence by what is today a happy comparison. Our measures ofeconomic growth in this country are deceptive because they count thetotality of resources devoted to modem law as contributing to thenational product. Some surely do, but there is no empirical evidenceconfirming that the great expansion of tort law has had any productiveeffect. And the proportion of our country's resources devoted to thisculture continues to increase.The slow rise of the redistributive state after World War ll insocialist countries such as Sweden progressively choked off that nation'seconomic growth. We must reevaluate the redistributive culture ofmodem tort law-with models and analysis much richer than those ofmodem law and economics -in order to avoid a similar fate.2000] 579Priest: The Culture of Modern Tort LawProduced by The Berkeley Electronic Press, 2000Valparaiso University Law Review, Vol. 34, No. 3 [2000], Art. 7https://scholar.valpo.edu/vulr/vol34/iss3/7

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The Culture of Modern Tort Law

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