Kip M. Hustace (Seattle University School of Law) has posted Negligence Law as Antidomination in the Second Gilded Age (DePaul Law Review, Volume 76, Issue 1) on SSRN. Here is the abstract:
Negligence is often cast as mere accident law, the crass, prosaic way we seek compensation for injuries inadvertently caused. It seems especially unconnected to democracy, epitomizing private law and operating far from public governance. This Article argues, however, that negligence litigation serves a vital role in democracy by realizing freedom as nondomination, republican theory’s ideal of the absence of unaccountable power. From toxic products and shoddy engineering to insecure data storage and eradicable diseases, ubiquitous hazards form part of this structural unfreedom, especially in a landscape of enfeebled legislative and regulatory processes. By bringing and resolving negligence claims together, individuals and their communities constrain the otherwise untrammeled power of industries, corporate titans, and other elites to impose unreasonable risks on others. In doing so, they effect further aspects of nondomination: affirming their status as equal rightsholders and quasi-legislators in democracy, and creating an intergenerational record of risks and desired precautions with which they and their successors can seek future accountability. Under this account, negligence litigation provides an essential site of contestation and popular self-learning even in a legal regime that compensates injuries through social insurance or administrative claims processing. In developing this argument, the Article explains both how negligence law contains a core of antidomination potential and how negligence doctrine has changed to deliver more fully on that potential.
Highly Recommended! This nifty paper draws on the republican concept of freedom as nondomination. If you are interested in this idea, a good starting place is the work of Philip Pettit, including Republicanism: A Theory of Freedom and Government (Oxford University Press, 1997).
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