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Princeton University Press
Injury: The Politics of Product Design and Safety Law in the United States

Injury: The Politics of Product Design and Safety Law in the United States

by Sarah S. Lochlann Jain
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Product Details

ISBN-13: 9780691119083
Publisher: Princeton University Press
Publication date: 03/26/2006
Pages: 248
Product dimensions: 6.00(w) x 9.25(h) x (d)

About the Author

Sarah S. Lochlann Jain is Assistant Professor of Cultural Anthropology at Stanford University.

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The Politics of Product Design and Safety Law in the United States
By Sarah S. Lochlann Jain

Princeton University Press

Copyright © 2006 Princeton University Press
All right reserved.

ISBN: 0-691-11908-2



REFERRING TO A class action in which several black youths sued McDonald's for the injury of obesity, this political cartoon spoofs the American turn to litigation as a means of solving economic and social issues. By juxtaposing one of the plaintiffs in what became known simply as the "McDonald's obesity suit" against third world famine, the cartoon poses a rich set of paradoxes: a large American with a bag of food set against a malnourished subaltern with an empty bowl offering the naïve advice to use an already suspect litigation strategy in the face of the "genuine" complexity of poverty. Furthermore, the astronaut-like precision of the U.S. flag hints at a past American greatness besmirched by the impropriety and ubiquity of injury lawsuits-a once great nation now littered with empty soda cups. The satire, then, parodies the misplaced confidence of this woman and her black vernacular appeal to litigation. Can litigation be the answer to the web of problems that includes obesity, famine, and global politics? Is obesity not the only one of these issues that can at least be attributed to personal responsibility? Toconsume is American. To sue is American. In the interstices of these positions lies a culture of injury only hinted at in the layers of this cartoon. Herein lies the central theme of this book.

For parents of an infant injured by a poorly designed baby carrier, for someone who loses a spouse after a door lock failure, or even for someone who wants to lay blame for accidental pregnancy after spreading contraceptive jelly on toast, tort law is an obligatory passage point. It is the place one must go to have injuries recognized, health care bills paid, and moral outrage salved. The arena gives form, if only in a highly structured and artificial way, to deep-seated anxieties about the body, technology, consumption, agency, and injury. In this way, throughout the twentieth century injury law has held a critical place in the United States to a degree unmatched in any other country, and it remains a key infrastructure for negotiating the responsibilities that manufacturers should have in product design, given the ease with which human flesh is injured.

In many ways, as legal theorists such as Laura Nader and Richard Abel have argued, tort law offers a radical potential for social justice. Waves of cases, typified recently by a group of litigants whose children were accidentally killed by guns, result from frustration with federal regulation of industry and attempt to enforce the development of safer designs through litigation. Similarly, resource-intensive lawsuits have had striking success in bringing attention to cigarettes, asbestos, Agent Orange, and the Dalkon Shield where other methods of regulation have failed. These cases demand careful consideration because they take seriously-and assert-the right that injury law promises: the right of consumers not to be injured by mass-produced consumer objects. These cases raise the politics of design through issues such as how easily features such as safety locks and ballistics fingerprinting could have been and could yet be integrated into handgun designs or how guns are purposely made attractive to young children or to those with potentially criminal intent. Indeed, groups such as the National Rifle Association and the tobacco industry have lobbied hard to ensure that their products have been exempt from the regulatory reach of federal agencies. Furthermore, specificities of American culture such as the high cost of medical care and a regulatory system open to political suasion, as well as a tort system that unlike in Canada or Europe allows for high punitive damages, has led several tort theorists to argue that after bad accidents many Americans have no choice but to litigate. In these "activist" senses, tort law can be understood as a back door, private way of regulating dangerous products when the government refuses to do so.

While injury law demands to be understood in the context of a battery of civil rights advocacy strategies, this activist standpoint has also obviated a more thorough analysis of the cultural politics of injury and the ways that injury law and product design produce American subjects. The famous American tort cases, as well as the more modest ones I examine closely in this book, illustrate that the law does far more than recognize, measure, and compensate injuries. It does the political and social work of determining what will count as an injury and, ultimately, how it will be distributed through product designs.

In these ways, close and contextualized readings of legal texts can lead us beyond the question of efficacy in realizing the stated goals of the institutions addressed to the problem of injury and toward an analysis of how physical injuries are made material (made to count), how they circulate, and how their distribution creates the material conditions of everyday life. This shift in analysis, in which I interrogate not only how the law adjudicates claims of product defect and personal injury, but how legal entities (guns, consumers, injuries, defects) are constituted allows us to better examine how the law is deeply political in ways that are central to and constitutive of American citizenship, consumerism, wounding, and the distribution of responsibility. These central cultural and political questions are merely glossed over by these laws; they determine who pays for and what counts as national progress. But further, they sustain the separation and individuation of the consumer as the very basic tenet of consumer capitalism, allowing for the liberal chooser who rationally selects the items he consumes. This allows for the logical step of understanding injury as a by-product, not central to production and consumption.

Injury laws pervade American consciousness as a central and unique drama, one whose complexities are often posed in the media and block-buster films as parodies of pure good meeting pure evil. The form of the trial pits private citizen against huge institution, with law structured as a neutral seeker of the facts and objective adjudicator. It so well captures-and structures-an American framing of right and wrong that fact-based suits are played out again and again in films such as A Civil Action and Erin Brockovitch. Tort laws "make sense" to Americans in a way that tends to mystify Canadians and Europeans. Tort laws hold a peculiarly vital place in the United States, given-undoubtedly as a result of-the lack of universal health care coverage, the dearth of regulatory bodies (and so the hint that bodies are used as guinea pigs or canaries), and the particular qualities of money, which can mutate in purpose from compensation to punishment, while so easily mutating again through desire and greed. These laws also fit within an individualized notion of American citizenship, understanding injury not as a structural premise of capitalism and a condition of its possibility but as an accidental side effect-a problem that can be rectified at the level of the individual and the particular facts of her case. Nevertheless, American injury culture is produced and consumed in a global economy, one in which injury and risk can also be outsourced to poorer nations who are willing to use pesticides or child labor.

In its vernacular reiteration in popular domains such as film and media, the law is a powerfully interpellative discourse, posing cross-cutting narratives of the "small guy" versus the "vast corporation," and the "valid" versus the "frivolous" case. Both of these accounts indicate that though appealed to as an objective adjudicator of facts, legal institutions addressed to the law of personal injury offer powerful social technologies for deciding how (and which) human wounding will carry political, economic, and social weight. These two narrative axes also begin to hint at the complexities of popular understandings of injury law. As Elizabeth Povinelli argues in the context of state recognition of race and rights in Australia, the difficulty of law as a primary conduit for politics is that "moral obligation-moral sensibility-is exactly where critical rationality is not." Since institutions addressed to injury law pose as both moral and rational, they remain susceptible to political manipulation. This is evidenced by well-publicized iconic cases such as the "McDonald's hot coffee case," in which an elderly woman was burned by a cup of hot coffee and sued McDonalds. The misinformation campaign that followed this case, Leibeck v. McDonald's Restaurants, and the related pathologization of the "ambulance chaser" demonstrate the high stakes in conditioning how this form of private judicial activism will be understood by the American public. Individuated injury claims, while providing an outlet for private justice, can be picked up and ridiculed in formats easily translated into sound bites by parties interested in conservative tort reform, whereas the complicated stories that lead to complaints such as Leibeck do not tend to translate so well. Further pitfalls of assuming the validity and efficacy of the stated goals of the law include an erasure of the problematic case-law approach, which enables single judges to make far-reaching and value-laden precedents. Other issues lie with legal assumptions that injuries can be narrowly traced to single products and incidents and that large punitive awards serve as sufficient deterrents.

Despite their central role in the production of American culture, in themselves these laws provide us with only an emaciated language with which to understand the material world and its relations with human sentience, or corporate capitalism and its human costs. In this book, then, I step outside of the questions of frivolous cases and junk science to offer an examination of how injury laws determine how human wounding and risk subjectivities are distributed both prior to and through litigation. As I will analyze and argue in detail, legal trials structure narratives about injuries and differences; they are a key site at which a common sense about object use, design, and consumer expectations is both constituted and articulated. They are central to the valuation and reproduction of consumer culture.

Injury takes seriously the ways that commodity design harbors assumptions about sociality, behavior, and human action. This observation has been well noted in recent work in material culture studies, which has recognized that objects "acquire their full significance only if one takes account of their double role in both the 'practical' order, which includes social arrangements for maintaining life, and the 'expressive' order, which creates hierarchies of honour and status, and which enjoys priority over the former." What this dichotomy glosses over too quickly is the way in which human and nonhuman actors always act in themselves only partially and always within fields of distributed agency. Thus in the chapters that follow, I trace the ways in which humans and non-humans act among one another, implicating each other to constitute safe or dangerous passages through everyday life. In these passages, wellness and wounding will always be at play within various cross-cutting hierarchies.

Injury law inserts itself into these fluid relations, separating out the terms through which agents will be understood, responsibility distributed, and inequalities recalibrated. In assuming that injury is always incidental to American culture, tort law and its promise of reparable harms redistribute human wounding-already distributed through the prior machinations of consumption and capitalism-with vast implications of whose bodies the costs of progress fall into. This insertion is constitutive: should cars, or certain kinds of cars, be crashworthy by definition in a 45 to 0 miles-per-hour side-impact crash? For what size person? What if the driver was drunk or not wearing a seatbelt? What if she slipped under the airbag? Should she have done more research before buying the car, or should she have depended on the automaker or the agencies in charge of auto safety? What if the vehicle was advertised as being safe for everyone, but what if each car had a warning sign that stated that people under five feet tall should not sit in the front seat?

In one sense, wounding itself brings a mode of attention to objects into being. Heidegger noted this point with his famous example of the carpenter's tools, in which objects only emerge as separate from the craftsperson when something goes wrong. But injury law furthers this distinction-one depended on also in consumer capitalism. Injury laws provide a discourse through which the fluidity of everyday interactions are stilled, and thus they allow the analyst to understand how its categories are made sensical. Thus, these laws can be understood as a mechanism for maintaining, reproducing, and challenging unequal social relations-continually setting and resetting the acceptable relations between markets and bodies-isolating the body as an atemporal artifact from the temporality, the process, of the acculturated self. Injury laws present a moment through which to understand how bodies, products, and their agencies are consolidated and attributed and, through time, how regulations recursively enable the coding of these assumptions through product design.

The cartoon at the beginning of this chapter presents one example in its illustration, albeit in crude terms, of the recursivity of bodies consolidated through consumption. A group of young, racially marked individuals were either targeted or otherwise vulnerable to the consumption of certain products, which in this case, they claim, made them fat and unhealthy. They then attempted to stabilize this identity-as fat and unhealthy-at a place from which they could claim to be "injured," and assert their rights to citizenship vis-à-vis claims to the right not to have been injured. The court, on the other hand, understood these teenagers to have been freely choosing agents who partook too liberally in an everyday part of American culture. As the wide debates about obesity, health, and mass-produced food that this case spurred demonstrates, the law itself-as a process, a body of rules, an administration, a group of people-is ill-equipped to handle the grand social questions about markets and human wounding that are presented to it.

The Book

As a legal term of art, "injury" is structured by a concept of rights. Deriving from the Latin "in" meaning against, and "jus," meaning something done against the right of another person, injury was described by Blackstone in 1768 as an "infringement of private rights." This is the basic structure that the term has held through the centuries, with the crucial difference that now each person holds the rights to his or her own body (rather than in the early century, say, when a husband held the rights to his wife's body).

Legal theorists seek to balance how the importance of the body will be weighed in terms of economic and technological notions of progress and profit, such that manufacturers will ensure that their products are reasonably safe. They do this in a variety of ways that vary from cost-benefit "tests" to theories based on insurance models, as I will outline later in this chapter. When these equations have caused "unjust" losses, reallocation takes place through compensatory damages, which cover the costs of the injury (medical, loss of consortium, pain and suffering, and so on). In the case of egregious misconduct, such as premarket knowledge of a serious defect or fraudulent advertising, a court may decide to award punitive damages as way of literally "punishing" a company. The injury law requires the physical body to come to the table as a preceding artifact being reclaimed after having been unjustly altered. This reclamation is an act of citizenship both in the individuated terms of literally reclaiming the body through compensation and in the ways referred to by certain tort scholars as fulfilling one's social duty to keep corporations honest. Thus the physical body serves as the collateral for the "justness" of that culture such that certain practices-child labor, dumping toxic waste-become morally reprehensible or unacceptable. (The necessity for these can be outsourced to other areas of the global economy.)


Excerpted from Injury by Sarah S. Lochlann Jain Copyright © 2006 by Princeton University Press. Excerpted by permission.
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Table of Contents

Preface ix

Introduction: Injury in U.S. Risk Culture 1

Chapter 1: American Injury Culture 33

Chapter 2: Sentience and Slavery The Struggle over the Short-Handled Hoe 60

Chapter 3: Keyboard Design The Litigation Wave of the 1990s 86

Chapter 4: "Come Up to the 'Kool' Taste" African American Upward Mobility and the Semiotics of Smoking Menthols 124

Conclusion 147

Notes 157

Index 209

What People are Saying About This

J. Fischer

This is anthropology at its best, intervening in social problems that are hotly debated at various levels in society. It shows how the dynamics of injury law unfold at much deeper discursive and structural levels than cultural critics normally allow.
Michael M. J. Fischer, Massachusetts Institute of Technology

Elizabeth Povinelli

A landmark work in the cultural study of American law and social inequality—creatively conceived, richly researched, and provocatively written.
Elizabeth Povinelli, Columbia University

Michael M.J. Fischer

This is anthropology at its best, intervening in social problems that are hotly debated at various levels in society. It shows how the dynamics of injury law unfold at much deeper discursive and structural levels than cultural critics normally allow.
Michael M. J. Fischer, Massachusetts Institute of Technology

Jonathan Simon

Personal injury lawsuits and the complex body of legal doctrines that shape them are rarely discussed outside of courts and law schools, except in the narrow polemical framework of campaigns to limit 'frivolous lawsuits.' This is unfortunate, because as Sarah Jain documents in this haunting and accessible study, injury law is not only a back door to regulating the economy, it is also a kind of cultural unconscious; a place guarded by legal fictions, where American society goes to imagine the nature of injury, draw the boundaries of the self, and assign the burdens of our risky ambitions.
Jonathan Simon, University of California, Berkeley

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