Posted by: yarbel | 20th Oct, 2015

How to Get Away with Negligence: John Goldberg on Robin West — Yonathan Arbel

Post by Yonathan Arbel

Blog editor John Goldberg has written a review on a new paper by Robin West, Gatsby and Tort, posted over at Jotwell.

The abstract of West’s article reads:

The Great Gatsby is filled with potential tort claims, from drunken or reckless driving to assault and battery. In a pivotal passage Nick Carraway, the narrator of The Great Gatsby, judges Daisy and Tom as “careless people,” who “destroy creatures and leave others to clean up the mess.” The carelessness, negligence, and recklessness portrayed by Fitzgerald’s characters shows an absence of due care, long regarded as the foundation for tort law. Although there are torts, tortfeasors, and tortious behavior aplenty in The Great Gatsby, the novel is void of even a mention of tort law. Why?

The first part of this piece discusses tort law during Gatsby’s decade — the beginning of the “era of automobility” — and explains tort law’s absence from the novel: Tort law is absent from The Great Gatsby, in part, because tort law itself was dysfunctional and could not provide meaningful access to the legal system. Tort victims of automobile accidents were largely unable to access legal avenues, and recovery was hindered by a host of rules, prominently the contributory negligence system. The piece then briefly describes a reform movement, led by progressive legal realists, to replace tort recovery for automobile accidents with a no-fault compensation scheme. One consequence of that movement, I suggest, was the loss of tort law’s traditional “moral center,” the idea of the law of torts as a “law of wrongs.” The second part of the piece then discusses the costs of this change, politically and conceptually, and briefly defends traditional “wrongs” and “justice-based” tort law against compensation-minded reforms. I conclude that while the moralistic tort law of Gatsby’s era expressed plenty of blame for tortfeasors, it failed to hold them accountable, thus contributing to the death of our understanding of the law of tort as a law of wrongs — and only partly and fitfully replaced by compensation schemes.

Goldberg’s review notes that:

[A]ccording to West, one can find in Gatsby not only a demonstration of tort law’s inability to right wrongs, but also a foreshadowing of the eventual extinction of any appetite for law that holds wrongdoers accountable to victims. Nick’s concluding description of Daisy and Tom as people who get away with negligence turns out to be an apt description of how our legal system actually operates, and how it got that way. . . . West has imaginatively fashioned a complex, rich, and provocative argument that cuts across literature, theory, and history. There is a lot to chew on here, and readers will have fun doing so.

He then moves to provide some critique:

Tort law aims to empower victims to obtain recourse for having been wronged. Accordingly, it grants victims discretion to sue (or not sue) and to settle their suits regardless of the effects of their decisions on overall deterrence or compensation. Of course we might want a world without torts, or with fair compensation for tort victims. But it hardly follows that tort law is or ought to be designed to maximize deterrence or compensation. Doing so, after all, would almost certainly call for the law to constrain or override victims’ choices about how to respond to wrongful injuries. (Put it this way: Is it really a “failing” of the tort system that it allowed Tom to decline to pursue a criminal conversation claim in response to Gatsby’s affair with Daisy?) West unfairly stacks the deck against the private law of tort by measuring its “bite” using public-law metrics.

Read the whole thing here.


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