Less Torts, More Contracts and Crimes?

I'm not referring to actual events, but to the modes of legal governance we bring to the always complex stew of relationships and conflicts in American society. At a provocative lecture this week at Berkeley's Law and Economics workshop, legendary legal theorist and 2nd Circuit Judge, Guido Calabresi outlined an intriguing theory of how modes of legal governance (my term, not his) vary with the relative political economic organization of society. Calabresi, citing Leon Lipson, suggested a historical explanation for the rise of tort law in the mid-20th century US. The more social-democratic the policies of a society, the more tort law. In contrast, as a society turns more individualistic it embraces more contract law. As a society turns more collectivist, it embraces more criminal law. Tort law, and its adjunct like workers compensation, constitute a middle ground where individual parties receive compensation based on collective values.

Judge Calabresi went on to declare tort law alive and well. But in retrospect, we can see that tort law and other forms of loss spreading and compensation like insurance, has come increasingly under attack by legislation and in the courts over the last several decades. When Calabresi's famous book, The Cost of Accidents, was published in 1970, social democratic policies in the US were at their high point. Since then we have experienced a considerable turn back to market individualism (often identified by the term "neo-liberalism"). Consistent with the Calabresi/Lipson thesis, we have seen a resurgence of contract law as a form of social ordering (think how often one clicks such an agreement), which was being declared almost "dead" in the 1970s.

Yet if our society is becoming more individualistic, how do we explain that criminal law (that agent of collectivism) is also on the rise? (For the claim that it is, see my book, Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (OUP 2007)).