In this Essay, Professor Matsuda argues that the narrow dyadic focus of tort law perpetuates very real, and remediable, social harms. Using tort causation doctrine as her starting point, Professor Matsuda demonstrates how the tort system sacrifices human bodies to maintain the smooth flow of the economic system. Time after time, tragedies occur: school systems fail, first graders shoot each other, women live in constant fear of rape. Yet each tragedy is met with the same systematic response: those without resources, those least able to correct the harm, are considered the legal cause of the harm. The economic and corporate interests that created the structure in which these tragedies occurred are absolved of legal and moral responsibility. Professor Matsuda proposes two changes to this system: First, when determining legal cause, we must expand tort liability in consideration of the ability of defendants to avoid, prevent, and redress social harm. Second, we must exchange our egocentric notion of responsibility for a communal and connected understanding of social responsibility. For instance, when I walk over a homeless man on my way to law school, I must recognize that it is not just a social failing that caused his plight; it is a personal failing on my part. Professor Matsuda argues that we exist in, and benefit from, a society that makes his position possible, and under current understandings of responsibility, even inevitable.
Columbia Law Review 100 (2000): 2195.
These words are written in difficult times. We may choose, now, to join in the celebration of what some describe as unprecedented prosperity, a growth curve without a horizon, spurred by technology that responds with friendly efficiency to our mouse clicks. Or, we can spoil the party. We can speak of the unspeakable human pain that goes on outside the banquet halls. As I sat to write this lecture, a sick knot of tension lodged in my stomach. If I were a violent person, I might have felt the urge to hit someone. Instead, I am a gardener, and I did the only thing I know to do with that knot in my gut. I went to shovel manure.
At the stables in Rock Creek Park, people rent stalls for horses and when the stalls are shoveled out, mountains form for hauling away. I [Page 2196] shoveled and bagged pungent gold for my garden until I was breathing hard. As the knot in my stomach gave way to work, this lecture took shape in my head and I looked up to see a cheery sign on the oversized dumpster at my side: "Pine View Hauling