Blood Money, New Money and the Moral Economy of Tort Law in Action

Abstract

This manuscript reports the results of a qualitative study of personal injury lawyers in Connecticut. Building on the results of an earlier study of lawyers in Florida (Transforming Punishment Into Compensation: In the Shadow of Punitive Damages, 1998 WIS. L. REV. 211), the study describes and explores the implications of professional norms and practices that govern tort settlement behavior. In particular, the study explores the moral and practical barriers to collecting blood money (money from individual defendants, as opposed to liability insurance companies), as well as the moral and practical explanations for victims' apparent ability to partially trump the claims of subrogating workers compensation and health insurance carriers. The results pose a challenge to the conventional understanding that tort law in action is a simpler, more streamlined version of tort law on the books. In addition, the results suggest that compensation and retribution concerns figure far more prominently in tort law in action than the deterrence concerns emphasized in much of the theoretical and doctrinal literature.