Main 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

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I N J U RY

I N J U RY
The Politics of Product Design and Safety Law
in the United States

Sarah S. Lochlann Jain

PRINCETON UNIVERSITY PRESS
PRINCETON AND OXFORD

Copyright © 2006 by Princeton University Press
Published by Princeton University Press, 41 William Street,
Princeton, New Jersey 08540
In the United Kingdom: Princeton University Press, 3 Market Place,
Woodstock, Oxfordshire OX20 1SY
All Rights Reserved
Library of Congress Cataloging-in-Publication Data
Jain, Sarah S. Lochlann, 1967–
Injury : the politics of product design and safety law
in the United States / Sarah S. Lochlann Jain.
p. cm.
Includes bibliographical references and index.
ISBN-13: 978-0-691-11907-6 (cloth : alk. paper)—ISBN-13: 978-0-691-11908-3
(pbk. : alk. paper)
ISBN-10: 0-691-11907-4 (cloth : alk. paper)—ISBN-10: 0-691-11908-2 (pbk. : alk. paper)
1. Personal injuries—United States. 2. Product safety—Social aspects—United States.
3. Wounds and injuries—Social aspects—United States. I. Title.
KF1257.J35 2006
346.7303'23—dc22

2005054464

British Library Cataloging-in-Publication Data is available
This book has been composed in Palatino
Printed on acid-free paper. ∞
pup.princeton.edu
Printed in the United States of America
10 9 8 7 6 5 4 3 2 1

T O M Y PA R E N T S
Evelyn and Sudhir Jain

Contents

Preface

Introduction
Injury in U.S. Risk Culture

ix

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

Preface

A few years ago, at a seminar on the typewriter and the material production of literature, I remarked on the way that typewriters had been
the primary means by which women entered the labor force. The response was silence. Even more intriguing was a colleague’s comment
on litigation stemming from keyboard-induced injuries. This latter
comment gnawed at me as I made the long commute home over the
Santa Cruz mountains. Suing? Over a repetitive strain injury? By reputation I knew that Americans sued each other. And having lived in the
United States for a year I had by that time seen several news stories
on the phenomenon. Though they tended to dismiss such lawsuits as
frivolous, I became curious about the logic that must have rendered
them legible within some larger legal and social system.
The more I inspected injury lawsuits, the more intrigued I became.
First, there were the stories themselves: the seemingly endless number
of ways that human sentience came under siege through everyday
products. Then there were the various narratives employed to make
sets of arguments about the agency of objects and people in the law:
how could it not matter that someone was drunk when his door handle
malfunctioned as his car hit the median? How could a particular WalMart parking lot be defectively designed when it looked like every
other suburban parking lot? How could a damage award against a
huge corporation, intended to be punitive in virtually every statement
and theory of tort law, be reduced to a paltry sum because it infringed
on a corporation’s constitutional rights to due process?
Then there always seemed to be an edge of investigative reporting to
this research. Newspapers invariably got the facts wrong, misreported
crucial details, or squashed the legal analysis into a space that required
the amputation of all the interesting parts. In a sense, injury law—this
central site of American culture making—was invisible through its
overrepresentation in popular culture.
But most important, recorded opinions and archived complaints
provide an astonishing testament to the ingenuity of plaintiffs who
were in so many ways the losers to the technologies that “progress”
tendered. In 1905 after ten-year-old Branch Lewis Jr. was hit and killed
by an automobile on an Atlanta street, his mother brought a potentially
revolutionary complaint. She sued Mr. Amorous, the owner of the vehicle, for allowing an unlicensed young man to drive his car, which
she described as “a large and heavy machine, capable of going at a

x

PREFACE

great rate of speed.” This was the mark she left. We know nothing else
about her—whether she was white or black, rich or poor, whether she
had other children, where her husband was, or whose idea it had been
to bring the complaint. Yet the complaint, and the legal opinion that
dismissed it, articulate the competing interests of American industry
and commodity ownership of the period. Social and technical forces
collaborated to render a nearly inevitable ruling against Lewis. But the
complaint registers a possibility that things might have been otherwise—that an alternative world that recognized the dangers posed by
automobiles was once imaginable. In Lewis v. Amorous, had the judge,
the court, or the logic been otherwise—had responsibility for the dangers of autos been placed with owners in the way that Lewis was suggesting—the United States would be a very different place. The legal
archive is filled with such imagined other worlds.
As my research continued, I also began to note on the one hand a
high political content, one that can at times seem to verge on an arbitrary application of logic and rules. This effect is what Duncan Kennedy has termed the “bad faith” of law. On the other hand, Americans
still believe—albeit amid great cynicism—that there is such a thing as
“the law” and in its inherent justness, finality, and ultimately, transparency. This was indicated to me in the response I received to a funding
application to analyze tobacco trials, in which a reviewer wrote, “[T]his
issue is already being resolved through legal channels,” as if those
legal channels themselves were beyond scrutiny. This faith in the transparency of the law, despite its frequent demonstrable bad faith, infuses
everyday life in America.
Anthropologists write about strange cultural phenomena, and the
American culture of litigation certainly fits this mandate. At cocktail
parties it became clear to me that Americans, too, find it a bizarre cultural practice. Everyone has a story to add, some deadly serious, some
funny: relatives with long, drawn-out deaths from cancer and emphysema; friends killed in and by sport utility vehicles; bizarre warning
labels on recent purchases; grandparents undergoing needless surgery.
Injury, causation, and agency are central to personal agendas, consumptive behaviors, and life in America.
Then, as I was writing, a strange thing began to happen—Canadians
began suing each other in greater numbers. They began both literally
suing each other and using litigation as a convenient device to explain
why certain things were happening—why playgrounds were being
torn down in Toronto, or why school trips were being phased out in
Vancouver. In real civil questions—such as what kind of warnings
should be placed in outdoor nature parks or what would be appropriate supervision on school trips—litigation (or fear of litigation) has

PREFACE

xi

become the vernacular explanation for a series of decisions that may
have more straightforward, predictable, or democratic arenas for debate. And so what are Canadians and, increasingly, Europeans importing? I believe that in importing American injury law, other countries import more than a simple logic, more than a commonsense way
of understanding and explaining. Injury law presents an entire infrastructure for thinking about social relations. More, it provides a powerful index of the defensive responses to privatization of interests in
health and welfare.
Finally, as I studied design process in more detail, it became clear
that the American world of commodities is produced in highly speculative contexts in which designers imagine potential users—from their
size to how they might take up new products. Corporations control
budgets and imagine various bottom lines (including one for potential
lawsuits). These are always approximations. As approximations, with
built-in sets of agencies structuring what they can and cannot do, objects can only ever simulate a full consumer fantasy. An airbag inspires
the notion that it will increase safety for all consumers, but, in fact, it
will “work” better for some people and actually pose a threat to others,
depending on human factors such as height. Thus, injury provides a
way to analyze the social discrepancies inherent to material culture
and often missing from anthropological and science studies theories of
human and object interaction.
In a nation committed to consumerism as a means of expressing economic and social citizenship, injury provides both a shocking moment
of disjuncture and a predictable outcome of design and market systems. Any culture will have to address the problem of what to do when
its members are physically wounded and to what extent health for its
own sake will be a goal of the society. But in the United States, a country with no universal national health care and yet a well-developed
rhetoric of individual well-being, injury law has a unique valance. It
offers people not only an opportunity to tell their stories and have their
day in court, but for some, a means of survival. It also poses as a highly
rational and formalized arena for sanitizing and then adjudicating the
messy and contradictory sets of goals, ideals, and desires of commodity culture. The location of injury and its distribution powerfully bring
into view the dynamics of contemporary American culture as it undergoes further privatization in the arenas of welfare and health care.
The number of people who have talked to me about this project and
shared their expertise in the many areas this research has required are
too numerous to mention. I was inordinately lucky to meet so many
people along the way who shared, indulged, or forbore my work.

xii

PREFACE

Quite simply, the book would have taken a different and lesser form
without the sustained critical readings of a number of colleagues and
friends: Aneesh Aneesh, Nick Blomley, Erica Bornstein, Deborah
Bright, Wendy Brown, Victor Buchli, Nancy Chen, Elizabeth Churchill,
Jim Clifford, Kris Cohen, Jane Collier, Ruth Schwartz Cowan, Angela
Davis, Rozita Dimova, Paula Findlen, Michael Fischer, Carla Freccero,
Janet Halley, Donna Haraway, Caren Kaplan, Matthew Kohrman, Jake
Kosek, Steve Kurzman, Celia Lowe, Samara Marion, Bill Maurer, Catherine Newman, Joy Parr, Jason Patton, Alain Pottage, Elizabeth Povinelli, Matt Price, Hugh Raffles, Teemu Ruskola, Jeffrey Schnapp, Derek
Simons, Mimi Sheller, Vivian Sobchack, Lucy Suchman, Anne Stott,
Marilyn Strathern, Neferti Tadiar, Miriam Ticktin, James Todd, Sherrie
Tucker, Martha Umphrey, Nina Wakeford, Ann Weinstone, and Sarah
Whatmore.
Still others have offered mentorship, granted extensive interviews,
offered invitations for talks, and provided the kind of lively debate and
support that makes academic research not only possible but, for so
much of the time, outright enjoyable: Ann Annagnost, Bettina
Aptheker, Adam Arms, Lee Balefsky, Frank Bardacke, Stephane
Barnes, Sharron Beamer, Genevieve Bell, Carolyn Bledsoe, Susan Boyd,
Ruth Buchanan, Judith Butler, Ermalinda Campani, Jamie Cassells,
Ellen Christensen, Andrew Coburn, Deborah Cohler, Shelly Coughlan,
George Collier, Marianne Constable, Fosca d’Acierno, Cletus Daniel,
Carol Delaney, Gina Dent, Joe Dumit, Kathy Durcan, Paulla Ebron,
Donna Evens-Kesef, Dana Frank, Marge Frantz, Estelle Freedman,
Margot Geary, Angelica Glass, Jennifer Gonzales, Leif Granberg, Victoria de Grazia, Akhil Gupta, Cindy Hahamovitch, Dixie and Richard
Hayduck, Marty Glick, David Hess, Rajeev Kelkar, Anita Jain, Kamini
Jain, Luis Jaramillo, Maurice Jourdane, Ann Katten, Chris Kelty, Audrey Kobayashi, Hannah Landegger, Michael and Hannah Laurence,
Linda Layne, Cynthia Leighton, Michael MacNabb, Dick Maltzman,
Purnima Mankekar, Chris Marion, Jacques Marion, Wayne McCready,
Ramah McKay, Donna Medley, Michael Millner, Jennifer Mnookin, Michael Montoya, Mike Mueter, Benji Newman, Maureen O’Malley, Leonard Ortolano, Nelly Oudshoorn, Colleen Pearl, Jane Perna, Kay Peterson, Adriana Petryna, Sheila Peuse, Steven Phillips, Jo Plante,
Richard Pollay, Laura Punnett, Robert Rabin, Daniel Reilly, David Rempel, Rick Robinson, Hector de la Rosa, Renato Rosaldo, Becki Ross,
Asher Rubin, Michael Rucka, Megan Sanderson, Austin Sarat, Lea
Scarpelli, Mimi Sheller, Stephen Sheller, John Sherry, Ann Stoler, Anne
Stott, Florentine Strzelczyk, Charles Taylor, David Thompson, Ellen
Timberlake, Victoria Vesna, Don Villarejo, Barb Voss, Wendy Waters,
David Watson, Robert Weems, Miriam Wells, Jim Willson, Eric Wright,
Claire Young, and Earnie Susan Zieff, among others too many to name.

PREFACE

xiii

Thanks also to my editors at Princeton, Mary Murrell and Fred
Appel, as well as my two reviewers, Elizabeth Povinelli and Michael
Fischer, who provided critical, encouraging, and insightful feedback as
the manuscript expanded to what I could no longer in good conscience
ask colleagues to read.
For research funding, I gratefully acknowledge the Program on
Urban Studies, Stanford University; Marilyn Yalom Research Fellowship; Killam Foundation Postdoctoral Fellowship; Social Sciences and
Humanities Research Council of Canada Postdoctoral Award; the
American Association of University Women; the History of Consciousness Department; a National Science Foundation Grant; and the Chicano/Latino Research Center at University of California—Santa Cruz.

I N J U RY

FIGURE 1. Joel Pett, CWS / CartoonArts International.

Introduction
Injury in U.S. Risk Culture
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.1 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 naı̈ve 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.2 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? To consume 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.3 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.4
Waves of cases, typified recently by a group of litigants whose children

2

INTRODUCTION

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.5 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.6
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

I N J U RY I N R I SK C U LT U R E

3

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 blockbuster 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.7
In its vernacular reiteration in popular domains such as film and
media, the law is a powerfully interpellative discourse, posing crosscutting narratives of the “small guy” versus the “vast corporation,”
and the “valid” versus the “frivolous” case.8 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.”9 Since institutions addressed
to injury law pose as both moral and rational, they remain susceptible

4

INTRODUCTION

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.10 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.11 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.12 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.13
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.”14 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

I N J U RY I N R I SK C U LT U R E

5

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?15 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.16 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, under-

6

INTRODUCTION

stood 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.”17
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).18
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 costbenefit “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.)
But if we take the body—wounded or well—as a material repository
of culture on every level of the onion, from language to gender to
health to education and behaviors, the political and economic sense of

I N J U RY I N R I SK C U LT U R E

7

such claims makes less sense. If this is the case, who or what is the
preceding subject that does the work of claiming, and what is being
claimed? A consumer culture will have palpable interests in maintaining a strict division between subjects and objects, for the distinction
does the work of maintaining the liberal framework of the free consumer-chooser.19 But if we understand these distinctions between subjects and objects as far from self-evident, as problematic temporal and
discursive formations, we will be better able to consider how injury
laws themselves—including their human (lawyers, plaintiffs, judges,
clerks) and nonhuman participants (amicus briefs, complaints, texts,
restatements)—are key actors in the cultural reproduction of material
difference.
This paradox of the acculturated body, or the ways that state and
corporate power negotiate physical bodies, entitlement, costs, and
progress, can be approached through a recollection of the importance
of materiality to governmentality. In his explication of governmentality,
Michel Foucault traces the way in which power gains its influence
through subject formation. Control over a contemporary citizenry is
gained not through repression and punishment, as it once was, but
through the subject’s own interpellation into regimes of conduct. He
further focuses on the capacity of the material world to distribute
power as an instrument of governmentality: “one governs things. . . .
The things, in this sense, with which government is to be concerned are
in fact men, but men in their relations, their links, their imbrication with
those things that are wealth, resources, means of subsistence, the territory with its specific qualities . . . and finally men in their relation to
those still other things that might be accidents and misfortunes such as
famine, epidemics, death, and so on.”20 As the subsequent chapters of
this book demonstrate, what will count as rational conduct or what is
taken as common sense privileges certain forms of behavior and modes
of citizenship. This book is not about whether or not a person “truly”
was injured or hurt, but presents a fine-grained analysis of the specifics
of several injury claims in light of their roles in governmentality.
The legal infrastructure for adjudicating injury brings us back to the
Durkheimian paradox. Americans are required to examine and explain
each injury accident in isolation—as an event that could have not happened. As Durkheim writes in Suicide, although we cannot know in
advance how many people will commit suicide each year, we can predict with tremendous accuracy that several thousand people will. The
paradox, then, to which I return below, is that while injury laws tend
to understand each wound as an avoidable side effect of American economics—and can sometimes be translated into a legal injury deserving
of compensation—they miss the structural ways that wounding is cen-

8

INTRODUCTION

tral to American society. Approximately 45,000 people will die—violently—in car crashes this year, no matter how avoidable each of those
crashes may retroactively be understood to have been. Thus, in this
book I take this effect seriously to ask how, if we understand human
wounding to be a central feature of capitalism, the “accident” or “side
effect” lens of injury laws affects how suffering is both distributed and
made legible.
In the chapters that follow, I focus on elucidating different aspects
of this argument through an analysis of several different objects, injuries, and legal struggles. In the remainder of this chapter, I examine
more fully the ways in which injury laws have circumscribed and addressed the rise of consumer technologies and human wounding. In
chapter 1 I lay out in further detail the paradoxes of what I am calling
American injury culture. I work out what I understand to be some of
the key consequences of this specifically American way of understanding injury. To do this I juxtapose the “rhetorical effect” of law—or the
way in which it sets out injury as the exception to normal exchange
patterns—and the “inequality effect” of material culture—by which I
mean the ways in which fields of production and consumption are simultaneously wounding and enabling. Furthermore, injury itself is a
productive force. In chapters 2, 3, and 4, I analyze, respectively, the
short-handled hoe and its attendant back injuries suffered primarily
by Mexican American laborers; the computer keyboard and repetitive
strain injuries suffered by typists; and mentholated cigarettes and the
injuries suffered by African American smokers.
The chapters that follow are not intended to be case studies; they do
not set about to prove or reiterate the arguments I lay out here. Read
as a collection, each illustrates different facets of what I have called
injury culture. Read individually, each documents a history of the present, or a genealogy of how particular injuries and objects have come
to be understood at particular moments.

Terminating Accounts
In some ways, a radical assumption inherent to product liability law
is one that has been strongly stated in science and technology studies—
that nonhumans are, as Bruno Latour argues in many contexts, “nothing more than discourse, totally expressible in other media.”21 The Berlin key is one of several examples Latour uses to demonstrate this
point. As a key with a peculiar design, the Berlin key fits into a specialized lock. This lock can be programmed by a building manager so that
on one setting, after the key is extricated the lock will remain locked

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9

on both sides, and on another setting, the lock will remain unlocked
on one side. In that sense, argues Latour, the key does nothing except
“carry, transport, shift, incarnate, express, reify, objectify, reflect, the
meaning of the phrase: ‘lock the door behind you during the night, and
never during the day.”’22 For Latour, in this case, design is a transparent
translation process.23 The key materially inscribes the demand’s compliance such that the human factor is removed: the manager will no
longer have to post directions as to how the door should be left and
depend on tenants to obey. The key, then, inhabits and expresses the
door-locking agency. In an historical analysis of airline accident investigation, historian Peter Galison makes a similar point. Through tracing the ways that accident reconstruction explains cause, Galison concludes that “there is an instability between accounts terminating in
persons and those ending with things. . . . It is always possible to trade a
human action for a technological one: failure to notice can be swapped
against a system of failure to make noticeable.”24 These arguments help
us understand how agency is encoded in the design of objects: the lock
and key that itself decides whether it will be left locked or unlocked, or
the fluorescent dye that did not make itself adequately seen thus causing
the pilot not to notice a mechanical failure. However, the transfers of
agency and responsibility are not as straightforward as these explanations suggest, for they do not provide analysis of how designs and
legal infrastructures in decoding, or translating agency, draw on and
produce various kinds of inequities.
Injury law accepts, even predicates, the Latourian contention that
objects are “full of people.” Galison’s suggestion that the premise that
“actors” or sets of agencies can be stabilized as an end point for explanation is also inherent to this mode of adjudication. A legal defense
team aims to tell a story in which objects are self-evident—the manufacturer has built a product that has been properly made and that must
be responsibly used. The defense seeks to erase any misfit between the
object and its life world and foreground the users as bad actors. Plaintiffs, on the other hand, foreground an object as an actor that embodies
manufacturer carelessness or malevolence.25
These projects require acts of translation whereby the intentions of
and expectations for human and nonhuman actors are made to correspond. Jacques Derrida put this quandary of translation in a way that
could be used to further unpack the moral problem of human and nonhuman agents: “To address oneself to the other in the language of the
other is, it seems, the condition of all possible justice, but apparently,
in all rigor, it is not only impossible (since I cannot speak the language
of the other except to the extent that I appropriate it and assimilate it
according to the law of an implicit third) but even excluded by justice

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INTRODUCTION

FIGURE 2. Produced by World Carfree Network, http://www.worldcarfree.net

as law . . . inasmuch as justice as right seems to imply an element of
universality.”26 At issue, then, is not only what objects say but who gets
to translate that “voice” and how. What are the terms for the object’s
intelligibility? Like any translation, this is an ethical issue.
Whether the plaintiff’s behavior or the corporate mediated object
will be held “responsible” for a given wound (will the wound translate
into an injury?) constitutes the most basic question of injury law. The
initial premise of injury law is based in this commonsense assumption
that objects can be separated from and judged against behaviors.
Therefore, plaintiffs’ lawyers tend not to believe in accidents or acts of
god—they locate the person who made a decision to save some money
and make the tunnel too narrow, resulting in a client’s paralysis; or
someone (or an institution) who decided not to warn about or add a
coloring to a poisonous gas, resulting in a client’s chronic asthma; or
someone who carelessly replaced a brake pad, resulting in a fatal car
accident. The plaintiff’s job is to show precisely how messages of danger “should” have been encoded into products and how the consequences of materialized decisions were visited on specific, real people
and not statistical futures. In other words, the various theorizations of
personal injury law offer different moral codings of how agency in design will be determined and accepted.
But further analysis shows that this retroactive storytelling is misleading, since the physical and behavioral “fit” between any one object
and any particular person is only one of many factors that go into design in a market economy.
Designers and engineers—builders of the material world—make assumptions about users. As FXPal designer Elizabeth Churchill says,
“We simulate.” Designers approximate users and possible worlds in
the process of materially intervening in the future through their distribution networks. This is a simple idea at the outset. But in a mass market, a designer will have multiple and contradictory interests at play

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11

in the creation of these simulations. For one thing, even if safety and
ergonomics were high on a list of important design components, a
mass market will require catering to averages. To take a well-known
example, drivers are assumed to be between 5’6“ and 6’4” and a driver
seat and airbag will be designed accordingly. In this case, drivers’
height becomes a category of risk distribution. Or, in other design decisions having nothing to do with safety, a particular color or shape will
be thought to harbor the desires of the imagined consumer. Or, as tobacco companies found in the 1950s, a cigarette will be found to sell
better when it contains more nicotine.
So within this vast pool of design and marketing concerns, the imagined users and their activities will be approximated, simulated, and,
through a successful product, to some extent, effected. Similarly, the
“corporation” (as a set of individuals acting within a body of economically and legally proscribed interests) will add its own limits and desires to the process in accordance with profit motives and regulation.
The airbag may have to have, according to the National Highway Traffic Safety Administration (NHTSA), two speeds for faster or slower
crashes; the seatbelt buzz may be purposely annoying to try to prevent
further regulation (the buzz says, “Look what we had to do to you in
order to comply with the last crazy set of regulations”); or the assumptions about the size of occupants may need to be altered in response
to an outcry about children’s deaths. Marketers will add their narratives to the object: they may teach consumers how to use it (no ice in
beer, please), or lend imaginative worlds to the product (people will
make space for your SUV), or educate potential users (you will be safer
with your airbag). These strategies may be based on expensive niche
market research.27 Furthermore, as design historians such as Ruth
Schwartz Cowan, Adrian Forty, Joy Parr, and Ellen Lupton have
shown in detail, designs will often narrow and fix possible worlds
based on banal or pernicious stereotypes.28 Ultimately, designs embody
possible worlds and distribute potentials on multiple levels for social
and physical enabling and wounding.
Similarly on the consumptive side, consumers conjure through their
purchases (for themselves and other around them) the promises of material and semiotic worlds. One short driver may attempt to simulate
safety when she decides to purchase a particular car, while another,
having slipped below the inflated bag, may find that she did not fit the
designers’ correlates for imagined safety and thus die in a low-speed
crash. A cyclist may find that the cars around her move faster when
their drivers feel that they are safer with their new airbags. In short,
consumption harbors fantasies about the self in particular social and
physical roles, always in a network of assumptions, ideals, desires, and

12

INTRODUCTION

fears. Bodies assume designs and designs assume bodies. Through
these assumptions and simulations, safe or dangerous passages
through everyday life evolve.
In this product design perspective, injury (in both the legal and vernacular sense) is precisely that place at which the approximations of
some combination of these actors have predictably and unpredictably
not “fit” and the human part of the equation has absorbed that misfit.
As an inevitable consequence of inexact processes of simulation, injury
provides a moment of disjuncture in which object expectations are
breached. It potentially threatens, in the most radical way, the entire
basis of economic rhetoric that insists that production and consumption take place in the interests of the common social good, and therefore produces a need for a rational logic of determining compensation:
this trope of compensation is continually renegotiated through the various theories of injury law, as I will explain later in this chapter. Within
this trope the isolation of the subject is, in legal logic, what allows for
an injury to be counted in market terms such that the injury can in
some sense be, as Elaine Scarry writes, “undone” through the monetary award that will in a rough sense “buy back” what it has taken.29
The spectre or the trope of compensation stands at the far opposite end
of the potential profitability of production, and there sticks its ideal of
deterrence.
As a counter to this threat to economic rhetoric, product liability law
offers only two sites of explanation and blame within this slippery network of design and use: person or thing. Thus, struggles over what
will count as “good” design also harbor assumptions about what will
count as rational behaviors.30 A trial in the business of determining if
a hamburger or stepladder was negligently or dangerously designed
will also need to figure out if the product was eaten in moderation or
climbed when the user was sober. One way for defendants to protect
themselves through this translation exercise is to write their intentions
clearly on the product; this directive is known as the product warning,
and it remains the easiest and cheapest way to alter a product’s “design” to try to avoid the injurious misfit.
Consumers in the United States who began smoking before 1965,
when warnings were introduced in small print on one side of the package, have had considerably greater success than plaintiffs who began
smoking later. This success tends to show that the warning, “Caution:
Cigarette Smoking May Be Hazardous to Your Health,” has been understood by juries as sufficient to give consumers adequate information and to leave open the possibility of rational choice. Each lawsuit,
as it builds on others through the system of precedent, focuses assumptions such as these about reasonable behaviors, further consolidating

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13

FIGURE 3. Canadian cigarette package warnings.

what will count as rational behaviors and whose interests these will
privilege.31 As I will demonstrate in detail in the following chapters,
enormous amounts of discursive energy frame and consolidate what
will count as rational behaviors and whose interests these will privilege. This ability to create the norms of rational behavior constitutes
the cumulative built-in ethics of injury law. Further, the cumulative effect of these judgments recursively stabilizes design in ways that literally allow for the creation of certain material worlds over others. That
car owners or manufacturers were never consistently held accountable
for design in pedestrian injuries and deaths, for example, meant the
deaths of hundreds of thousands of pedestrians through the century
were “accidental,” though avoidable.
The legal question, then, reflects the kinds of anthropological concerns raised by the Berlin key and the airline crash explanations raised
by Latour and Galison: what kinds of intentions fill objects—are they
pernicious or benign? This question is at base about the co-constitution
of humans and nonhumans and first, who should bear responsibility

14

INTRODUCTION

for the ostensibly intractable qualities of each, and second, who gets
to devise the explanations about responsibility. But if one takes, as serious play, Latour’s contention that there exists no logical division between subjects and objects, how would an object such as a cigarette,
like the Berlin key, be “totally expressible in other media”? How might
the cigarette “translate” to English? Most certainly, “Please give RJR
(and by extension its employees, employees’ gardeners, employees’
children’s teachers, and the ‘economy’ more generally) a little money
each day for as long as you live.” Again, quite clearly, “I need a home
for particles that disintegrate as I am smoked, and your mouth, throat,
and lungs, will do the job nicely.” These concepts are materially inscribed in the commodity form of the cigarette as an object whose social function is to be smoked. But the cigarette itself would not express
its terms in the moral language of injury, as in “I want to ‘hurt’ you,”
or “My presence in your lung will cause grief to those around you.”
Rather, the cigarette through its own agency causes a series of reactions
that then bring the smoker into new social and material relations: hospitals, experimental cancer treatments, sociological studies on smoking, litigation. Counterreactions in this case included targeting less educated groups for its products, covering up medical evidence of
product failure, halting research of “safe cigarettes,” and establishing
its own channels to publicize false medical research.
But the cigarette itself does not care to injure. Even the industry, for
all its duplicity and counter to its actual actions, would not want to
wound, let alone kill, a consumer. Rather—if a corporation could have
its own desires—it would want to keep consumers returning to the
product. That the corporation could not stop wounding as a matter of
course was merely an unfortunate side effect of its main aim, which
was to make money for its shareholders. We might also say that the
cigarette does not itself precisely injure (in the legal sense). Rather a
relation of its particles and a human lung will likely result in the
growth of another entity: a cancer. This cancer will change the way that
the human is noticed in social networks. Some of these networks will
now interpellate the human as a potential member of a class for a class
action, understand her as a site for experimentation for new cancer
drugs, or perceive him as a bad investment for a life insurance policy.
Another social network will notice the capacity of that cancer to take
from its host friendship, consortium, and labor power, and may attempt to locate a site for compensation against this loss.32 Thus to have
a wound or an accident translate to an injury and thus a set of responsibilities requires this lineup of recognitions and intelligibilities. The legal
“injury” (if the company loses the suit) is not per se the cancer, but
a legal attribution. In the 1980s and 1990s, no one doubted that Rose

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15

Cipollone’s cancer was caused by tobacco smoke. Nevertheless, courts
wrangled over whether or not the tobacco companies should be responsible for her death. The legal question was one of interpretation:
should the responsibility for the wounding she suffered by smoking
convert through the courts to an infracted right not to have been injured? To make the wound intelligible, the law demands a convincing
enrollment of the terms of injury itself, and often these terms are contingent. Before the activism of MADD popularized the notion that
drunk driving was legal homicide, drunk driving deaths were just accidents; before Unsafe at Any Speed and the regulation of windshield
glass, car occupants regularly (and accidentally) were beheaded in lowspeed crashes in what was popularly called the “glass guillotine.”33
Injury is a project of translation through which the co-constitutive
effects of agency are interpreted and distinguished. This translation
exceeds the terms of responsibility (object or person) itself and thus
the political charge to the translation project. Through the process of
litigation, the cigarette can potentially be socially registered as a new
form of actor in the world that not only needs to be transported, marketed, held in a certain way, kept dry—but also one that injures. Precisely this movement in the 1990s allowed parties to cohere under categories such as those injured by smoking, those unaware of smoking’s
dangers, those vulnerable to or targeted for more dangerous cigarettes,
and those who suffered from secondhand smoke.34 These laws are part
of the network through which the cigarette—as an object that both can
and cannot be traced back solely to the corporation—becomes a political actor in the world and spawns stakes in its economic, injuring, and
sociopolitical meanings.35 Thus if objects and laws are standardized
and if people and objects are always only partial—implicating each
other in day-to-day life—the wounded people who come to the law
for compensation are different in layered ways that identity and subordination theories cannot capture. To get at this, we need to go beyond Latour.36
The legal framework is an actor, or merely an adjudicator, in the injury
drama. As Francois Ewald writes, “[T]he fact that bodily damage can
. . . be transformed into a cash price may lead an insured person to
speculate on his or her pain, injury, disease or death, so as to extract
the maximum profit from them.”37 This profit motive is only one of a
number of possible intentions a plaintiff may have in launching a suit.
Others include a desire for public recognition that a person has been
“wronged” or a desire to make similar injuries less likely in the future.
Furthermore, the existence of the equation to begin with may encourage new behaviors, thus undermining the purported goals of injury

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INTRODUCTION

law itself. Thus, the suit itself is a primary actor in the injury drama—
as much as it mediates, it constitutes how injury is understood. As an
actor, a lawsuit isolates certain moments within injury culture and defines those as key in framing what injury will mean.
Attempts to terminate accounts in persons or things shift with varying understandings of material and rhetorical articulations of the product on the body. A potential plaintiff may be at different times (or at
the same time) a defensive smoker and an outraged litigator, or he may
move among positions of choosing, addicted, medical, and legal subject. Each of these will work within promises, fantasies, or attempts to
gain various abilities, freedoms, communities, and rewards. But when
subjects shift so fluidly among agentive moments—liberal chooser,
wounded consumer, ill citizen with or without a health insurance plan,
injured litigant—who and where is the preceding subject? Which of
these positions are descriptive, and which are constitutive of the legal
positioning? Where and from whom is the injury of, say obesity, to be
claimed? Is it poverty, poor health and physical education, bad parenting? Who is at fault? Parents, the McDonald’s Corporation, Ronald McDonald, the state, the food industry, the public health system, the
American Medical Association for its continuing lobby against socialized medicine? Are increasing obesity- and fast food-related diseases
simply to be accepted as a result of so-called American lifestyles and
choices, and to be distributed invariably among poor communities of
color? The point here is precisely that explanations cannot interchangeably terminate in persons or things. Human and nonhuman agencies
are not parallel and interchangeable in some larger system, but affect
the quality and potential of civil action and the material quality of
human action. As subjects are constituted through and by objects, the
legal institutions addressed to the law of personal injury separate and
articulate distinctions just long enough to interpret what the stakes are
in maintaining these boundaries. Lawsuits act rather than arbitrate,
consolidate contestants rather than solve health and design questions,
trade rather than decipher.
In one of the few accounts that critically investigates the product
liability trial, Elaine Scarry uses grander claims for the political ramifications of termination points of explanation. For Scarry, the stakes lie
in the very nature of the human body and the nature of the artifice.38
Injury law confronts the most basic political and economic questions
in a culture that bases most of its indices of success on increasing the
production and consumption of “goods.” The question scholars such
as Latour, Galison, and Scarry leave us with is this: what does the location of cause tell us about power relations, and how do these attributions recursively make material worlds?

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Agentive moments mutate as easily as bodies, but which ones
“count” and which bodies matter? How are different facets of injury
(race, gender, defective design) stabilized? Subjects and objects are continually remade through practice. Thus, concepts such as harm, work,
and race are contingent and change over time and space. In this project
I trace specific histories and phenomenologies of contingent interactions to analyze how, through these interactions, inequality is projected
onto and absorbed by others in product design and consumption, and
then how this interaction is picked up again by those who want to
redefine it (advocacy groups, lawyers, lawmakers, capitalists, lung tissues, scientific studies) in the courtroom—this time as injury.
Because each of the issues I take up in subsequent chapters could
easily overflow the bounds of a book, I have limited the arguments in
each carefully. Nevertheless, each offers both a particularity and universalism that I intentionally leave open for now. For example, the cigarette, it has been claimed, is a unique product in that it injures as a
matter of course when used as intended and, furthermore, that nicotine is addictive exactly contravenes the definition of rational behavior.
Eve Sedgwick takes this paradox a step further, beyond the cigarette
and to “the present discursive constructions of consumer capitalism,”
in which “the powers of our ‘free will’ are always already vitiated by
the ‘truth’ of compulsion, while the powers attaching to an acknowledged compulsion are always already vitiated by the ‘truth’ of our free
will.”39 In this locution, one that as an open question will underwrite
the analysis posed in this book, the cigarette is not unique. It writes
large the addictive underpinnings of consumption in the United
States,40 and the fetished commodity separated from the conditions of
its production and consumption.

Recursive Objects
Critical commentators on the injury problem in capitalism have tended
to focus on the productive side of the equation. Marxist interpretations
of injury try to determine how much labor power, for example, can be
“taken” from the always already injured worker. In these accounts, the
problem of commodity production is one of injury produced by production itself. For example, Adam Smith recounts in his famous pin
factory analogy how a laborer working at one of a number of total
procedures available in machinic culture “generally becomes as stupid
and ignorant as it is possible for a human creature to become.”41 This
necessary wounding of the worker is required by the growth of social
wealth and, indeed, according to Smith, operates in the worker’s favor

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INTRODUCTION

as he emerges from the process as the well-heeled consumer.42 Smith
weighs injury against the benefits of increased production and finds
the trade-off worthwhile.
On the other hand, Elaine Scarry locates class difference in the materiality of the physical body: “[T]he problem of the haves and have nots
is inadequate to express its [class’s] concussiveness unless it is understood that what is had and had not is the human body.”43 In this tradition of thought, one that I will expand on, inequity is materially
grounded in the body itself. In this sense, wounding and inequality are
inextricable: the former an expression of the latter. In thinking about
production, as Scarry is describing Marx’s ruminations on capitalist
production, the problem of wounding emerges as one of physical takings through labor: the workers’ compensation laws instigated after
Marx’s death might be read as an attempt to codify how much of a
worker’s physical body may be spent in the process of production.
“Excess” wounding will count as injury.
Workers’ compensation schemes and product liability laws share the
same basis in torts, though the former has followed a different historical trajectory. It is well known that the accident rates in early industrialism were unbelievably high. In 1913 there were 25,000 industrial fatalities and 700,000 injuries resulting in more than four weeks of
disability among the 38 million workers in the United States. To put
this another way, between 1907 and 1912, ten percent of male deaths
were caused by industrial accidents.44 Still, injured workers had little
success in obtaining compensation for five key reasons. First, laborers
had to be able to hire experts to show proof of proximate cause. Second, the “fellow servant rule” provided that if an accident was caused
by another employee, the employer could not be blamed. Third, it was
understood that the worker assumed any risks associated with the job
by accepting employment. Fourth, the employer could avoid liability if
he could show any contributory negligence on the part of the worker.45
Finally, employees could be fired for bringing a suit.46
Between 1885 and 1910, most states enacted employer liability laws
that considerably weakened the previous barriers to the tort system.
The new availability of legal redress to workers hastened the development of a workers’ compensation system in the 1910s, and between
1913 and 1920 all but eight states passed workers’ compensation laws.47
In a detailed historical study, Anthony Bale outlines the ways in which
the passage of state workers’ compensation laws in the 1910s resulted
from the interplay of four factors. In addition to the huge number of
worker injuries and the activist class politics of the period, the rising
and uncertain costs in tort trials made it desirable for companies to
drastically lower awards even if it meant paying a higher percentage

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of claims. Finally, and crucially, corporations realized that the fault discourse inherent to tort trials was an explicit critique of the morality
of production. The substitution of the explicitly no-fault discourse of
workers’ compensation allowed companies to continue a paternalistic
language of worker responsibility and accidents.48 The Occupational
Safety and Health Act (OSH Act) of 1970 was the first federal regulation to give workers the right to be free from danger, although many
commentators argue that the executive agency in charge of implementing the act, the Occupational Health and Safety Administration
(OSHA), has largely failed to do so.49
To give an example of the vast difference between workers’ compensation and product liability law, consider a case in which a twenty-fiveyear-old worker was severely injured when her arm was pulled into
a six-bladed bolt-making machine. Through a workers’ compensation
claim she was eligible for a maximum of $34,600 and was unable to
sue the employer.50 However, when she brought suit against the manufacturer of the machine for negligent design, the jury awarded her $3.5
million.51 Thus, vast differences exist between workers’ compensation,
which is a no-fault insurance system, and tort law, which is a faultbased compensatory system based in the assertion of the right not be
injured by the everyday products one uses.52 As the tort scholar Robert
Rabin writes, the former is “grounded in a collective model emphasizing needs-based benefits for a community of victims,” while the other
is “grounded in an individual entitlements model of compensating for
harm on a case-by-case basis.”53
The extreme difference between compensation and litigation reflects
a difference in social models of what constitutes adequate compensation and how this compensation will be decided.54 But it might also be
used to examine the different universes of production and consumption. While production has injury embedded in it, consumption is generally not theorized in these terms. Injury is generally figured as being
incidental to, or accidental to, consumption, and the history of injury
law has been led by progressive liberals who have laudably—and
often under great pressure not to do so—wanted to maintain a semblance of consumer autonomy in the face of an increasingly complex
world of objects in which consumer choices were understood as becoming increasingly technical, difficult, and shrouded by puffery.
Compensation for harm, rather than the needs-based benefits of workers’ compensation, has meant that awards can include compensation
for costs already paid by medical insurance (collateral goods); compensation for pain, suffering, and other non-fiduciary losses; and, most
potentially lucrative for a plaintiff, punitive damages. Since the legal
job of punitive damages is to punish, and since there is broad latitude

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INTRODUCTION

given to juries and judges to set them, these damage awards can run
into the millions of dollars where very deep pockets are involved. It is
worth noting as more than a caveat that by far the majority of the
highly publicized and ridiculed punitive damage awards are in fact
reduced by the judge and then further reduced through the appeals
process.55
Astonishingly, though tort is recognized as a major site for public
policy on public health and industrial production, the problem of injury continually overwhelms and overflows the case-by-case approach
of the law. Thus, though so many dimensions of human activity collapse into this venue, little rigorous critical thinking exists among tort
theoreticians about the cultural ramifications of the case law approach
and its methods. For example, tort historian Edward White’s comment
that tort law’s “integrity, and its amorphousness as well, can be linked
to the place of injury in American life”56 may seem unduly tautological.
What is the place of injury in American life? Certainly more than a
link to the place of injury, tort law structures what counts as injury in
American life.
Though the details can become quickly overwhelming, the generic
features of the law are straightforward. Torts covers civil injury claims
as broad as libel and workers’ compensation; here I focus on product
liability, or the law of defective products. These cases are brought in
civil courts by plaintiffs who claim that ordinary products injured
them in the course of ordinary use. Plaintiffs’ lawyers will not charge
an initial fee but will take roughly 30 percent of any settlement or jury
award. Thus for plaintiffs’ lawyers the hint of a gamble requires a negotiation between bread-and-butter and risky but potentially highpaying cases. Manufacturers will have in-house lawyers or will hire
attorneys on a fee basis. Furthermore, claims of loss are tightly circumscribed: a person may sue about her own injury or a spouse’s death,
but a bid for recovery can often not be made by a gay partner and
never by the sandwich maker who loses a customer because of the customer’s injury. This latter point is not trivial, for it taps into law’s history of distributing and legitimating personal relationships, and thus
how suffering can be made to legitimately translate and transfer.57
Theories of product liability law abound, and the minutiae threaten
to swallow the unsuspecting scholar. The most promising way to read
these theories, though, is through the different assumptions that each
carries about requirements for responsibility in design and use of products and as attempts at disciplining objects and behaviors through
competing notions of responsibility and choice and, more globally,
over the human costs of capitalism. Through these assumptions
emerge conceptions about what will constitute negligence on the part

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21

of either party, how proximate cause will be determined, and what responsibilities inhere to the project of manufacturing. For example,
strict liability theories seek to distribute the costs of injury to those
most able to pay, as well as to deter the marketing of unsafe products.
Therein, the equation implies a distributive claim that responsibility
for an injury that may be statistically inevitable (an overstepped ladder) should be shared among those who benefit from a product and
negligence in design need not be demonstrated by the injured party.
The more recent formulation of “reasonable alternative design” (RAD),
on the other hand, switches the responsibility back to the plaintiff to
prove that a product could have been made more safely within reasonably similar conditions such as cost. The claim there is that individuals
need to more carefully consider their behaviors in industrial culture,
and if they do so, individual injuries will be avoidable. Strict liability
is plaintiff friendly, while RAD favors the defendant’s interests.
The history of product liability law taught in American law schools
treks through a fascinating series of cases that offer a genealogy of the
core elements of tort: negligence, proximate cause, defect, contracts,
and damages. Key cases are relied on to teach the main theories of the
law and how they were articulated by judges and taken up by lawyers.
Thus, law is taught through precedent in a way analogous to the practice of law itself. It pays particular heed to certain key cases and their
mind-boggling and mundane anecdotal details. For example, MacPherson v. Buick would be excerpted to demonstrate the extension of a notion of the privity of contract such that an occupant of a defective vehicle can sue a manufacturer. In his recognition that the “reliance [of a
consumer] on the skill of the manufacturer was proper and almost inevitable,”58 Judge Cardozo acknowledged the complex economic relations of industrial production that resulted in the lack of consumer expertise on all the products he or she would buy and use. This noting
of the disempowerment of consumers—as products became more specialized and complex and consumers were more dependent on advertising than research—became the seeds of twentieth-century product
liability law.
MacPherson would be followed in 1928 by Palsgraf, perhaps the most
famous of the early tort cases. In this case, a passenger dropped an
unmarked package filled with dynamite as he was being assisted by a
railway worker. The dynamite exploded, causing a scale to fall on Mrs.
Palsgraf’s head as she waited at the other end of the station. Reversing
the lower court’s “but for” (but for the event, Palsgraf would not have
been injured) decision, Judge Cardozo ruled that the series of events
that resulted in a scale falling on Mrs. Palsgraf’s head was simply too
distant to allow recovery. For that, Palsgraf has taken its place along a

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INTRODUCTION

series of other cases in tort textbooks as a way of explaining the competing notions of proximate cause and duty, and for his “activist”
stance, Cardozo took his place among famous judges who contoured
the laws.
A case book such as Franklin and Rabin’s Tort Law and Alternatives
would then move to introduce the concept of strict liability, which
made its appearance as a theory in 1944 with Escola v. Coca-Cola Bottling
Co. of Fresno.59 In justifying an award to a woman who was injured
when a Coca-Cola bottle unexpectedly exploded in her face, California
Supreme Court Justice Traynor wrote in his concurrence, “I believe the
manufacturer’s negligence should no longer be singled out as the basis
of a plaintiff’s right to recover . . . it should now be recognized that a
manufacturer incurs an absolute liability when an article that he has
placed on the market . . . proves to have a defect that causes injury to
human beings.”60 Here he appealed to the demands of public policy
to fix responsibility, even without negligence, “wherever it will most
effectively reduce the hazards to life and health inherent in defective
products that reach the market.”61
So, in reading hundreds of these cases and their commentaries, the
assiduous law student learns the structure of a legal case. The student
learns how to name certain kinds of injuries, defects, expectations, implied and stated warranties, and problems with product warnings, and
how to argue these within certain legal logics and theories. A year or
two later as a practicing lawyer, she will use the same method of reviewing case history to locate legal theories and decisions to cite as
precedent in her own briefs, petitions, and complaints. As a young
plaintiff’s lawyer she will collect evidence, sometimes sifting through
hundreds of boxes, having been drowned in files by a defendant hoping that she may miss something. Doing work for a senior attorney,
she may, as Dan Bolton did while working on an early silicone breast
implant case, discover the smoking gun and go out on her own and
make stacks of money. She will then learn to put together compelling
stories about corporate misdeeds and human suffering. One set of
these stories will fit into the legal parameters of a complaint (under
what legal theory should IBM be responsible for a secretary’s repetitive
strain injury)? Another set will aim to sway jurors who will be confronted with the contradictions of rational languages of cost-benefit,
stunningly disfigured people, huge corporate profits, and desperation.
By filing a suit using one of a variety of product liability legal theories, a plaintiff registers a complaint against the way that injuries have
been distributed—specifically, that in this case he was injured—and attempts to claim back an ability to fully partake in civil society—
namely, as a consumer. In other words, he seeks a financial settlement.

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The right being claimed varies depending on the theory of liability
used. A plaintiff might claim that he should not have been injured,
period. A drill is easy enough to build properly and no one should be
injured by a faulty drill. Or, the plaintiff might argue that since his was
the one of the 600 inevitable injuries, he should gain compensation on
a cost-spreading theory. The court may argue that 600 burn victims
was a fair calculation, and in order to properly spread the costs of these
inevitable injuries, compensation would be due. Or the court might
argue that 600 injuries was a fair calculation, and given factors such as
the cost of the product, compensation will not be due. Or, as in the
famous Grimshaw case in which Richard Grimshaw was horribly
burned in a Ford Pinto, the court may decide that the company’s initial
calculation of burn deaths was immoral and that with simple design
changes there would have been far fewer burn deaths. But regardless
of the calculus of morality and efficiency used by the state, the plaintiff
claims a vernacular right not to have been injured by an everyday
product.
Another message is buried alongside this genealogy of law: what
counts as reasonable objects and reasonable behaviors evolves jerkily
though the combined logic of many judges’ ideas and ideologies—not
all of which make internal (let alone collective), logical (let alone
moral) sense. In his classic rebuke to the notion that judges simply
apply laws, Edward Levi points out that terms such as “negligence”
do not emerge in law as fully fledged universal touchstones but rather
“must be given meaning by the examples to be included under it.”62
In An Introduction to Legal Reasoning, he outlines the example of “inherently dangerous” objects to examine how cases are grouped as similar
in order to apply precedent.63 The category “inherently dangerous” included at one historical moment a loaded gun and an exploding lamp,
but not a defective coach, while at another it contained poison, gun
powder, and a spring gun, but not an “ ‘iron wheel . . . although one
part may be thicker than another.’ ”64 At stake in these categories were
assumptions about what a consumer could take for granted: that a
loaded gun would not fire willy-nilly, but not that an iron wheel would
consistently roll at speed under the weight of a carriage.65
These deployments of object expectations in turn categorize human
behaviors and the actions of a “reasonable person” or “average man.”
For example, in the 1921 case Hynes v. New York Central Railroad Company, a boy who had been swimming in public waters climbed onto a
plank used for diving by neighborhood children and owned by a railroad company. While on the plank, “high tension wires from one of
the railroad’s poles fell, striking him and flinging him into the river to
his death.”66 Was he a trespasser or a bather in public waters? The

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INTRODUCTION

lower court denied recovery on the basis that he was a trespasser. On
appeal, Judge Cardozo “simply redefined the boy’s status from that of
a trespasser to that of a bather in public waters, thus enabling him to
apply the protections accorded to such persons.”67
Among these categories, each of which disciplines subjects and objects in relation to one another, terms such as “defect,” “knowledge,”
and “inherent” take on different valances in differing judges’ approaches. In studying the use and emergence of legal trends through
cases, it becomes apparent retrospectively that, as Susan Stewart writes
in a different context, “the law hovers.”68 Certainly the law hovers
among ideological, moral, and economic predilections. But the fact that
cases could go either way does not mean that they will arbitrarily do
so. Trends in compensatory awards emerge that tend to follow the race,
class, and gender interests of judges. For example, early cases of rape
were understood to be damage done to a man’s property. Similarly,
convincing evidence shows that compensation follows lines of difference already structured through race, gender, and class, tending to undercompensate members of suspect classes for comparable injuries.69
This difference in awards is underwritten by a logic that assumes the
“value” of a body is already reflected by its compensation on the labor
market—a person making more money will be awarded more money
for categories such as lost wages. But it also has to do with a politics
of sympathy, how judges and juries empathize with plaintiffs and
value their bodies, lives, and work. It can also be about shared knowledge. Consider a 1900 ruling that was made before workers’ compensation had emerged from the law of torts. Judge Holmes did not allow
a plaintiff to recover when a hatchet fell on him from a defective rack,
even though the plaintiff had informed the employer and asked him
to change the situation. Holmes’s assumption was that the plaintiff had
known about—and condoned by virtue of continuing the job—the
dangerous circumstance.70 Not until a new moral framework for understanding workers’ injuries—one that resulted from decades of hard
and dangerous work of labor activism—did this situation change.
After reading several hundred cases one might conclude with legal
scholar Duncan Kennedy that “some part of judicial law making in
adjudication is best described as ideological choice carried on in a discourse with a strong convention denying choice, and carried on by
actors many of whom are in bad faith.”71 Ideology parading as rational
language rings through the product liability tome of opinions. The way
that objects and bodies are rhetorically stabilized as meaningful entities on a case-by-case basis embodies assumptions about ideology, empathy, and proper behaviors in different contexts and encodes them in
terms of objects. Assumptions about reasonable persons are encoded

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25

into technological relations in terms such as “jaywalker” or “negligent
manufacturer” in ways that allow a disciplining of these subjects. But
a case law approach to disentangling fault and blame in injury accidents has a peculiarity that is not quite covered by Kennedy’s charge
of bad faith. Consider that while each car accident will be retroactively
considered avoidable by law (if the driver had paid more attention to
the slippery road, if a manufacturer had properly installed the axle),
the number of annual accidents can be accurately forecast. Francois
Ewald, writing on insurance, considers this theoretical quandary of accidental happenings and statistical inevitability: “When put in the context of a population, the accident which taken on its own seems both
random and avoidable . . . can be treated as predictable and calculable.”72 Product liability law, even in its theorizations underwritten by
insurance (such as strict liability), is not a structural response to injury.
In case law each accident is necessarily understood as a precise set of
events that can be traced back to a series of actions and that could,
therefore, have turned out differently.73 Nevertheless, collectively,
through thousands of cases by more and less important courts and
judges, trends emerge as to what “counts” as injury in law.74
Product liability’s technocratic understanding of injury mirrors engineering approaches to this process of calculating cost-benefits: the
width of Golden Gate Bridge weighs directly against a prediction of
how many injuries will occur; a narrower bridge will correlate with
more traffic fatalities. The law’s job is to patrol these equations and
decide that either the engineers did a fine job of calculating and the
injury costs will be borne by the injured, or that injury was inevitable
but too expensive to foreclose and the cost will by borne by all users
of the bridge through the distributive capacity of the engineering company (or that the accident was more directly caused by drunk driving
than by the width of the bridge).75 Any given life is infinitely valuable,
but as a future abstraction, the width of the bridge is understood as
the necessary economic trade-off.76
Integral to this trade-off between lives and progress is a determination of what will count as a product failure, and what will be relegated
to the category of side effect. In the court, these decisions are at once
central (through the capacity to materialize injury by turning it into a
line item in the calculation of a project cost) and pushed to the side,
since it is up to the defendant to decide when those costs get too high
and to wait to see what happens at trial. Thus, in legal discussions on
injury law, a key slippage occurs between what among organizational
theorists is called “high reliability” and “normal accident” theories.
High reliability theorists, such as Aaron Wildofsky, claim that even in
large organizations, if management is good enough (an attainable

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INTRODUCTION

goal), accidents will not happen. An accident is a result of predictable
and reparable failure. Normal accident proponents, such as Charles
Perrow and Scott Sagan, claim that accidents are an inevitable contingency of any management system.77 This debate has been most vociferously broached by political scientists engaged in international security
issues; however, it also illuminates the politics of injury in capitalism.
This language of transaction central to product liability roughly
poses a superimposition of high reliability and normal accident theory,
though individual theorists integrate them differently. Commentators
such as Marshall Shapo would argue that the goals of the law are to
deter negligence in design through a market theory of injury that
makes injurious design too expensive for manufacturers. According to
this view, laws also acknowledge that injury will be inexorable (someone will overstep the ladder, engineering that would reduce accidental
death is just too expensive) and thus put forward the cost-sharing
proposition: since injuries are inevitable, those most able to pay for
them should do so. This latter supposition basically presents an insurance theory. Guido Calabresi, in his influential 1970 book The Cost of
Accidents, which was written at the height of the pro-plaintiff locutions
of strict liability, proposed that the principal goal of accident law
should be to fairly reduce the costs of accidents—the latter both in
terms of total accident costs and the costs of prevention.78
This approach has come under attack by outspoken critics such as
Peter Huber, who rues the overzealous use of law and its difficulty
adjudicating what will count as scientific evidence. (To be fair, Huber
seems to present a willful caricature of Calabresi’s arguments.) He
writes, in one of his widely read critiques of what he calls “junk science,” “Mainstream science often offers little more than speculation
about the true causes of cerebral palsy and other birth defects. . . . What
then? Whatever we do (many an overeager Calabresian quickly concludes), we must do something. Perhaps the scientist who claims ignorance is just too cautious. The rules must therefore be changed, so that
the oxymoronic scientist—the one too cautious to sound a specific
alarm quite yet—will not stand in the way of the oxymoronic lawyer—
the one whose extreme caution impels him to rush in at once.”79 Huber
stops short of calling for increased regulation or study of chemicals
before they are widely used, limiting his invective to the misuse of inexact science and law rather than to an understanding of risk or the
culture of blame.80
It is not my aim here to play very differently oriented commentators
against each other, or to examine in any detail the strengths and weaknesses of the diverse pro and con positions on the law. The key point is
that tort law, by its very structure, assigns injuries to the status of acci-

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27

dental entailment, inevitable by-product, or statistical cost of the benign
activity of capitalist market exchange, production, and consumption.81
In its case-by-case approach to injury, tort law attempts to reconstitute adequate market relations where someone has been injured. This
assumption underpins product liability theories and tests across the
spectrum, from cost-benefit and risk-utility to implied warranty and
consumer expectations. These theories accept that the proper role of
the law is to compensate individuals for injuries that weighs avoidability in the terms of singular events against the integral and unavoidable
costs of the free market. So while product liability (at least in the theories that tend along insurance lines) admirably harbors the dual aim
of cost spreading and deterrence, it relies on the key assumption that
behaviors of people and objects can (and will) be determined, predicted, and, moreover, retrospectively interpreted. Equally, its mode of
compensation assumes that monetary awards can be weighed against
sentience, and that from those weights, estimations, and forecasts,
product manufacturing decisions can be made. Thus it predicates not
only that body parts can be traded, albeit inexactly, in the marketplace
(that injuries can be compensated for), but that commodities evenly
circulate among sovereign subjects who can—and according to commentators such as Abel and Nader, have a moral imperative to do so—
insist on their rights not to be (or not to have been) injured.
Many legal theorists express exasperation over the way that tort law
negotiates injuries. The standard set of critiques is as follows. Litigation is resource- and time-intensive; a typical suit takes about five years
to resolve. For that reason, the vast majority of product liability cases
are settled out of court. However, settlements often seal records and
thus the supposed deterrent effect of the law is lost; other potential
litigants do not have access to important information. Moreover, when
cases do go to court and punitive damages are awarded, they have to
be vast to fulfill their punitive impulse when set against large or even
mid-sized corporations. Thus, awards may often seem at once tiny in
their actual punitive effects (if set at, say, one day’s net profit for a
particular product) and massive when compared to an individual
plaintiff’s injury. For that reason tort law has been criticized as creating
a lottery, or windfall, justice system in which only a few of the hundreds or thousands injured by, say, Bronco II rollovers will recover an
award equivalent to the one significantly reduced from the original
$290 million awarded to Juan Romo in 2002.82 Others will settle out of
court for much less, will not have the resources to sue, would sooner
just forget it, were killed in similar crashes but will not have qualifying
dependents, or will meet unsympathetic courts and juries. But even an
apparent windfall can be misleading if defendants claim bankruptcy

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INTRODUCTION

as they have in many high-profile class action cases, such as the Dalkon
Shield case. In addition, the punitive effect of tort (namely as a deterrent) has been edged out by the widespread use of insurance and the
limitations on punitive damage awards of some states, as well as the
use of cost-benefit to simply factor in the corporate losses that may
result from bad design.83 In Texas, for example, punitive damages cannot account for more than four times the compensatory damage unless
actual malice has been found by the jury, and recent rulings by the U.S.
Supreme Court have in general instated punitive caps to single-digit
multiples of the compensatory awards.84
But these valid and longstanding critiques miss the crucial way in
which the larger teleology of technical and economic progress at stake
assumes that the material body can stand as a sort of gold standard or
collateral for an economic exchange system, where in the trial, the
body asserts itself in its retroactive claims through law not to have
been injured. Thus the trial forces the question of how economic development or progress may proceed in light of its costs for individual citizens. The citizen’s body becomes, rhetorically, the placeholder—the
limit—for corporate behavior. So on the one hand, in tort, the body
is presented as that rhetorical and material entity whose well-being
underscores the reason for production and whose injury marks the
limits of a system whose profit motive is well understood to clash with
public health. This materiality and singularity of the citizen-body contrasts rather markedly with the everywhere and nowhere of the corporation. In the cartoon that initiated this chapter, a bag of French fries
stands in for the diverse set of interests that designed, marketed, and
sold it. Thus even this cartoon shows how the body and the corporation, or the body and the economy, are simply not equals in the way
that the plaintiff v. defendant would have the competition structured.
There is no there, there; the corporation works within an economy with
its own interests. And so while the corporation is made up of individuals, in itself it is impossible to locate as an agent responsible for injury.
Analysis of this problematic will form the kernel of chapter 1. But the
further point is that when critics accept this rhetorical positioning of
the body from the liberal framework of injury law, as do Nader and
Abel, they accept the logic of the law itself and thus adopt the denunciatory framework that accepts a logic of reparable harm. This logic
misses the broader role of the injury laws in American culture.
Injury laws’ failures are inevitable because unlike corporate marketers, they do not account for the wounding premises of consumption
and thus cannot count them within the fold of injury. Thus, I have here
shifted the terms by which tort law can be understood. In recognizing
that law takes place within and also deeply constitutes injury culture,

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29

injury can be understood in less instrumental terms that can perhaps
allow for a more radical understanding of things like health and inequality in the United States. American-style tort systems, no matter
where they are adopted, hinge on more than just a set of laws; they
operate within a whole moral universe for thinking about rights and
wrongs in the context of health, progress, economics, and commodity
exchange.85 As other countries begin to adopt piecemeal the American
approach to tort law, it is crucial to expose the moralism and the mindless expansion of legalistic appeals, because these take place within a
range of specifically American cultural forms that include its unique
privatized health care system, its culture of regulation, its legal assumptions about corporate personhood, and its media practices.
American law cannot be imported in isolation.86

Structure of the Book
Although I have primarily used tort law to set out the parameters of
the discussion on injury, the cases I read here articulate injury through
a variety of legal venues. In part, then, what the collection of these
injuries and objects illustrates is the problematic way in which legal
institutions addressed to the law of personal injury force a division
among types of product use and the way the resulting injuries will be
understood in the domains of civil rights, workers’ compensation, or
product liability. These overlaps among activities divided into work
and leisure have two major consequences. The first is simply that issues of choice, design, and governmentality vastly exceed such preconceived notions as worker- and consumer- (in thinking about workers’
compensation and product liability) or race-based injury (in thinking
about civil rights claims), even as particular complainants are forced
to appeal to one of these. Second, one of injury law’s foundational notions, that of the “inherently dangerous” object, remains nearly a nonsensical concept. Justice Traynor of the California Supreme Court noticed that objects in themselves are not dangerous—they can only be
considered dangerous when in use. However, plaintiffs with other
complaints have not been so lucky. As the chapters will show, inherent
danger carries many slippages and is vastly open to rhetorical manipulation. Is McDonald’s food only inherently dangerous when eaten? Is
the computer keyboard only inherently dangerous in certain work situations? Are airbags inherently dangerous only for certain sized people?
In chapter 1, I expand on the notion of American injury culture. This
introduction and chapter 1 are intended to be read together as complementary parts of my argument. In chapter 2, I analyze how the agricul-

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INTRODUCTION

tural tool of the short-handled hoe became the pivot point of the struggle for a new recognition of Mexican American farm workers in the
late 1960s and early 1970s. Relying on transcripts of the hearings and
interviews with lawyers from both sides, I examine the way that Mexican American bodies had been paired with the short hoe as an efficient
system and the tool was seen as a natural fit with perceived traits of
the Mexican American body. Farm worker and activist Frank Bardacke
relates a joke told by whites involved in agribusiness: “What do you
get when you cross an octopus and a Mexican? I don’t know, but it
sure can cut lettuce.”87 This joke plays on possible technological improvements of the Mexican body—always already better at cutting lettuce than a white body—as an instrument of production. This discursive framework was ultimately interrupted through administrative
hearings and the California Supreme Court. In chapter 3 I examine the
wave of lawsuits about computer keyboard–induced repetitive strain
injury (RSI) in the 1990s, and I examine the assumptions on which
these complaints were dismissed. In the 1980s RSI emerged as an epidemic that was structured through the configuration of a particular
relationship of women’s hands at the typewriter, the erasure of women’s work as work, and fantasies that imagined the computer as an
instrument in the project of thinking and that thus erased the work of
computer input altogether.
In chapter 4 I turn to the problem of cigarettes. Evidence reveals that
menthol may increase the dangers of cigarettes—and on this basis an
African American group sued tobacco corporations claiming discrimination, through target marketing, based on the Civil Rights Act of 1866.
This strategy, as opposed to the more ubiquitous use of product liability law, raises a host of crucial issues having to do with niche marketing, product design and innovation, and generic liability. Moreover, it
demands that we seriously question assumptions about inclusion and
assimilation in commodity culture.
Thus, inequities presented to and through the law are not simply
blind spots—the law is not “racist”—but they present occasions to examine assumptions about subjectivity that sometimes fracture along
familiar lines of race or gender, and other times require us to broaden
the scope of how commodity objects create new kinds of categories of
inequity.88 After all, consumptive decisions not only affect producer
and consumer but also shape inhabited worlds.
As these chapters will show, laws force plaintiffs to locate blame in
isolated ways, through moralistic claims, from a state that has profound—and shifting—interests in how equations about economic and
public health are recognized. Injury claims that cannot be set in sociopolitical contexts but have to be individualized and attenuated to fit

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legal precedent and formality can make them remarkably easy to dismiss on narrow grounds. Furthermore, these cases help to make evident how the material world constitutes difference, and then how
these differences tend to be—but are crucially not always—recursively
consolidated through court decisions. Production, consumption, and
circulation of objects create and sustain inequality in central ways that
cannot be understood, let alone compensated through the moral and
material logic of repairable harm premised by injury law.
In fact, given the instability of legal claims, lawyers themselves will
try to settle cases rather than take them to court. The grounds for this
are complicated, in part because of the unpredictability of juries and
the huge work burden and expense of the trial. Both plaintiffs and defendants are often interested in maintaining the privacy of matters—
related and unrelated—that risk being aired publicly. These are matters
of strategy, but the more pertinent point here, and one that each of the
chapters that follows will further examine, is that injury claims can
also be very difficult to articulate in legal terms. The courtroom is not
a Habermasian ideal speech arena in which complaints can be made
and carefully debated, but a highly constrained place in which only
certain social relations and motivations can be made to count. Furthermore, through the U.S. legal system’s reliance on stare decisis, or the
cumulation of previous decisions, both parties are dependent on the
political biases of judges and their particular interpretations of legislation, the Constitution, and their self-perceived role in meting out justice. This flexibility of law makes it such a broad and fascinating—if
potentially disingenuous—field of play. But in its narrowing of the
terms of debate, the law can disempower.
Justice and the law are simply two different concepts: judges come
to the table with their own ideas and background; plaintiffs and defendants can have vastly unequal resources; legislation and legal opinions
change in ways that often favor those who are already empowered
against those who suffer various forms of structural disadvantage.89
Furthermore, the rhetoric employed to discuss law is infused with a
putative morality, making it seem like the law’s ultimate work is to
allocate justice rather than set the terms for what will constitute justice.
Particularly for plaintiffs, who may “truly believe they have a good
case” and thereby distinguish themselves from others who launch the
frivolous cases that are the stuff of the media, insisting on the law as
inherently just can be at once self-serving and disempowering. The expanding appeals to the law, then, often fail to address the layering of
differences and inequalities that constitute physical injuries. In that
sense, the culture of injury law in the United States ties integrally to a
larger American injury culture. Injury, therefore, analyzes law’s struc-

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INTRODUCTION

turing of injury claims, premising that how these claims become legible
ultimately affects how material health is understood and distributed.
Rather than smoothly and simply resolving the problem of injury, legal
equations and p