why torts?

The new machines [of the Industrial Revolution] had a marvelous, unprecedented capacity for smashing the human body.

– Lawrence Friedman, 2005
A History of American Law

I simply love this quote. There's something spectacular about the words "marvelous, unprecedented capacity for smashing the human body" that really speaks to me.

AND, perhaps more importantly, they helped me to understand the purpose of the law of torts. In a complex society such as we now live in (thanks to the machinery made possible by the industrial revolution) unintended injuries are unavoidable. The costs of these injuries can either be left to lie where they fall, caught in a well-weaved social welfare net, or distributed in some other way.

Tort Law functions as the third option. Since Capitalist America won't be having any of that social welfare stuff, but we still hold dear to ideals such as equity, Tort Law serves to distribute the costs of injuries more evenly among the members of society. (Caveat: My understanding of all this may yet change; for instance, I can't yet speak to intentional torts; it is, after all, only the 2nd week of class.)

Regard Maxine Hammontree, who was working in her bicycle shop one sunny afternoon when a car comes crashing into the wall, injuring her and damaging her shop. The driver, Tom Jenner, suffered an epileptic seizure and lost control of his car. Maxine files a tort action to gain access to Tom's insurance, and in doing so seeks to distribute the costs of her injury where it can better be absorbed.

Nevermind the outcome of the case or the finer points of law I've been analyzing for a week. It was the first case in Torts for a reason: it perfectly illustrates the need for the Law of Torts. Folks get hurt all the time for reasons that were out of their control. They incur medical bills, and sometimes they can't go back to work. They need help, and often there's not any available unless an action can be brought based on the law of torts.

I used to think tort law was a flimsy mechanism by which greedy lazy folks leeched off of large corporations. Now I see that tort law exists for a genuinely good reason, which makes me much more interested in the subject matter of this class.

old hat

Universal insurance, if desired, can be better and more cheaply accomplished by private enterprise.

– O.W. Holmes, 1881
The Common Law

While I haven’t the time to elaborate and/or share my own perspective regarding the health care debate, I just wanted to share this little reminder of the fact that history does have a way of repeating itself.

why history?

Karl Marx noted that:

Man makes his own history, but he does not make it out of the whole cloth; he does not make it out of conditions chosen by himself, but out of such as he finds close at hand. The tradition of all past generations weighs like an alp upon the brain of the living. At the very time when men appear engaged in revolutionizing things and themselves, in bringing about what never was before, at such very epochs of revolutionary crises do they anxiously conjure up into their service the spirits of the past, assume their names, their battle cries, their costumes to enact a new historic scene in such time-honored disguise and with such borrowed language.

which seems quite apt. I've been thinking a lot lately about distinctions between disciplines and my motivation for choosing to pursue my studies in history when my interests rum the gamut of the humanities, from anthropology to sociology.

Marx's insight seemingly encapsulates the essence of the importance of studying history, and is certainly more eloquently stated than the plain fact of the matter: history matters to us all and inevitably influences the making of tomorrow's history.

new semester angst

I've learned that I cannot take my chosen two political science classes as planned. Apparently, since I am enrolled through the history department, I must take at least one class there. And what with me only being able to take two classes at no cost, I must sacrifice one of the pol sci classes.

Alas, this will require serious consideration, as I had my heart set on them both...

PS 532: Blacks and the American Political System An assessment of the position of Blacks in the political system of the United States, both historical and contemporary, with special attention to alternative political strategies for the present political epoch. Special emphasis will be placed on urban political systems.

I lean towards this class because it would expand my understanding of the ways the law interacts with societal minorities, but I'm dissuaded by the "emphasis on urban political systems" aspect. Partly, that's because I'm not sure what that indicates: is it a focus on municipal political system, or an investigation into the unique legal mechanisms utilized in urban areas? Perhaps I ought to e-mail the Professor...

PS 535: Constitutional Law and Separation of Powers An analysis of leading Supreme Court decisions dealing with the use of and curbs upon federal powers to enact economic and social legislation with special attention to urban issues. Resolution of conflicts engendered by the federal system and separation of powers also will be studied.

This is the other class,and for some reason I just love the idea of a constitutional law class. I've also already talked to this Professor, and I like her. Then again, I could likely embark upon a course of independent readings and get as much out of it; surely she would be happy to guide me unofficially in such an endeavor.

And there I have it. After writing it through, I see the course of action that I should take in this regard. Yay for blogging!

The other consideration at hand is 'Which history class to take?' I've narrowed it down to three --

HIST 502: Contemporary Africa A study of the emergence of Africa since 1945 with emphasis on the role of nations of the continent in both regional and world affairs.

HIST 521: History of Women in America An examination of the problems, challenges and experiences of American women from the colonial period to the 21st century.

HIST 546: Historical Research A course designed to assist students, especially those completing a thesis, in honing both their research and writing competencies.

The only course I haven't already taken as an undergraduate is the Africa class. Generally I'm interested in Atlantic World studies, but more so in the slave trade era. And African diaspora and colonization studies are also quite interesting, but I'm not immediately drawn to the "since 1945" era. Then again, it is admittedly a time and place about which I am not very knowledgeable. And I will likely have to select a field off minor concentration for any of my Ph.D. programs, and I'm already well situated to do that with African and/or African-American studies, so I might be well served to take this class.

I have until next Thursday to make up my mind, so I'll be giving the matter all due consideration over the weekend.

abortion in historical perspective

I wrote this a while back, but came across it recently and realized that it ought to be posted here:

Abortion has always been a women’s issue. It has not always been a medical issue, or a legal issue, but it has always been an issue of personal liberty and reproductive freedom for women.

As a historian-in-training, I’m convinced of the value of perspective. All too often people don’t stop to consider the larger picture, and so they fail to see the context surrounding our many “contemporary social problems.” I think that, just as with any number of other such problems, abortion can and should be analyzed and considered in historical context; not as some abhorrent aberration, but as the result of complex historical happenstance. By seeking to understand the history surrounding the current debate we can reach a more nuanced, profound comprehension of the issue.

This is by no means meant to be an exhaustive telling of the history of birth control; rather, it is intended as a sketch of the sexual politics and power that have held sway over women’s lives for so many millennia, which is being played out presently, in part, in the abortion debate.

Before the advent of a reliable oral contraceptive in the 1950s, women’s lives were controlled by birth. Prior to that, a woman could not exert much control over her sexual and reproductive functions – that was the province of her father, her husband, or her brother. There was no such thing as reproductive freedom; ordinary women’s very lives were at the mercy of their husband’s sex drives. Who can imagine the countless sorrowful women who died in childbirth or from pregnancy complications? And how many of those pregnancies were unintentional?

Abortion is a form of birth control. For as long as women have been sentient they have dealt with issues of birth control, including abortion and infanticide. Since the dawn of civilization The Powers That Be have legislated dictates proscribing when and how such acts are acceptable. These are not new issues.

Women have not historically been afforded the personal liberty to determine for themselves when they might reproduce. They have been beholden unto their husbands' desires, and not free to decide whether or when they wanted to be mothers. It was a given: women were, by their biological nature, wives and mothers.

Only in the modern world have women been granted the freedom and – through the birth control pill and other, newer contraceptive innovations – the license to exercise any significant influence over the sexual and reproductive aspects of their persons. The abortion debate is about how much reproductive freedom society is willing to allow women. It is not about the sanctity of human life; that is an issue in the debate, no doubt, but it is not the central issue. The central issue of the abortion debate is female autonomy, and it always has been.

Women have always sought to control their procreative function — be it via contraception or abortion or infanticide — as a way to exert some measure of influence over their lot in life, and they always will. And that is precisely why they continue do so today, and why ardent feminists will always be in favor of granting women access to safe abortions.

gender: a primordial socio-cultural innovation

Gender constructs constitute one of the most fundamental organizational mechanisms of human society. This has been almost universally true throughout time and space. The practical implications and the real consequences of this fact have profoundly impacted the course of human history. For this reason the phenomenon of gender, as opposed to the existence of two biological sexes, demands extensive inquiry. I could dedicate my life to pursuing myriad avenues of research into the varying application of gender constructs in human society and the resulting influences on world events.

As a bit of an aside:
Likewise, technology - from the plow to the cellular telephone - has profoundly influenced the course of human history. Technological innovations that allow for changes to human society deserve investigation, particularly those which directly and indirectly engage socio-cultural innovations.

technological dependence

It seems to me that even a cursory perusal and/or casually inquiring glimpse of the history of humanity indicates an intimate relationship between the domination of humankind over the rest of the planet and our technological innovations. Just think of how obsessively humanity has created tools and made the very best possible use of them throughout time. This begs the question: does the evidence really support humanity's seeming dependence on technology as the sole mechanism of progress?

this I know: race still matters

A little over 45 years ago, on a humid June night in Jackson, Mississippi, Medgar Evers was gunned down by a White Power Asshole. Medgar was unpacking "Jim Crow Must Go" tshirts from his car at the time he was shot, while his wife and three children waited for him to return home from a long day's work as Field Secretary for the NAACP.

Last night I spent an hour in the house where Medgar was shot. I heard the story of his life's work for racial equality in Jim Crow Mississippi and the ways his family coped with the dangers associated with that work. I saw his blood on the concrete in the carport, and heard the tale of his unjust treatment the night of his death: how there were no ambulances nor police patrol cars available to transport him to the hospital, how his family and neighbors made a makeshift ambulance by placing one of his children's matresses down in the back of a station wagon, and how he was refused treatment at the hospital once he finally arrived.

A 1942 law segregated facilities at hospitals in Mississippi. In 1963 white doctors did not treat black patients to save their lives and the life-saving blood of white folks was withheld from those with black skin. Such pernicious racist practices culminated on the night of June 12, 1963 with the death of Medgar Evers.

It took 30 years to convict the racist son of a bitch whose bullet killed Medgar and left Myrlie Evers a widowed housewife with three small children.

At the Evers' home last night, my husband and I were the only white people present.

Some Many people think that in the year 2008 racism doesn't matter any more; that the problems of slavery and Jim Crow have been left behind as the years have passed, but I'm convinced that these people are wrong. They are either ignorant or blind to the fact of the matter: that racism still plays heavily in the day-to-day lives of many Americans.

So it goes that I'm convinced that racism in America is the second-most insidious socio-cultural innovation to be implemented by humankind for the exploitation of one group by a more powerful group. (The all-time winner of that esteemed honor is, of course, gender.)

thoughts on case studies to investigate

The most interesting cases of human technological advancements are those wherein socio-cultural and material technologies come together and create progress. Other areas of interest include those wherein socio-cultural and material technologies combine in ways that are more confrontational than harmonious.

{As a philosophical aside, one must wonder: what exactly is progress?}

Robert McElvaine noted the instance of gender roles and agriculture occurring close enough in time to influence and propel the furtherance of one another in a sort of symbiotic, mutually dependent relationship.

Indeed, other examples abound throughout the history of humanity, such as:

Religion as a socio-cultural technology that aided in the consolidation of power wielded by early city-state rulers;
Spoken language as a socio-cultural technology that led to the development of the material technology of a written language;
Racism as a socio-cultural innovation that made feasible the material technology of a slave-labor system in the United States;
the Rule of Law as a socio-cultural technology which led to the legitimization of socio-political power structures, state sovereignty, and the like;

and countless others...

There are any number of instances where socio-cultural and material technologies have interested and interacted to profoundly affect the course of human history, if only I train myself to consider the world in such a manner.

interdisciplinary ideas

During my sociology 455 class today I realized that I must find a way to coalesce some of the various assorted branches of the humanities (namely history, sociology, and anthropology) through the course of my future scholastic endeavors.

My genius idea about classifying gender and race as socio-cultural technologies seems to fit nicely with a functionalist sociological framework, although I was not consciously aware of that when I came upon the idea in the brambles of my mind.

I’m wondering if and how the ideas of latent and manifest functions, and dysfunctions, might be applied to this idea, but I have a good feeling that this course will point me in the right direction. That is, if it doesn’t outright provide an explanation/answer…

my mind cut in sheets

By way of an unexpected happenstance it has occurred to me that perhaps my future in academia lies ahead via studies in Anthropology instead of History.

As exciting as this is it's also somewhat terrifying. I thought I knew I wanted to be a historian; I had no idea I might be working to be an anthropologist instead. The whole idea of a new concept of my future is hard to swallow after planning in the direction of History for so many weeks and months. Nevertheless, the more I look into the field the more excited I become. . .

I shall continue to anxiously await the trip to SUNY Binghamton. The plane tickets have been purchased and it's just a matter of weeks now.

I must remember to breathe deeply in the meanwhile.