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

Sarah Lochlann Jain's book puts the "jury" back into injury. Noting that the etymology of the word is explicitly legal, Injury cross-fertilizes several different areas, including but not limited to cultural anthropology, the history of product design, and law and society. This is done through three vignettes (Jain denies they are case studies [p. 8]): the short-handled hoe, repetitive strain injury, and the marketing of mentholated cigarettes to African Americans.

There are obvious drawbacks to such an episodic approach, and historians may hanker for a more general historical narrative of the development of "American injury culture." The vignettes generally rely on extensive secondary research, with the notable exception of Jain's use of an archive of materials on the short-handled hoe compiled by the California Rural Legal Assistance. She adopts the historiographically provocative approach of treating the archive itself as an object of analysis, one that was "created" by a lawsuit and that in turn "created" human bodies and, indeed, the short-handled hoe itself (p. 63).

Jain argues against tort law's tendency to view injuries as unexpected accidents, insisting instead that injuries are expected, and accepted, products of capitalist economies. Indeed, she argues that other scholars have overlooked the contributory role that injuries play in the economy. In short, "[i]njury is good for the economy" (p. 45), an insight that is "astonishingly undertheorized in economic and social theory" (p. 56). Injury is inextricably bound up with inequality; injuries—socially accepted "costs" of capitalism—are not distributed across society in an equitable manner. Injury law presupposes the normalized healthy body as the currency through which injuries are compensated; legally, tort remedies are intended to render bodies whole again, whether literally or only figuratively. The crux of Jain's sophisticated argument is that in order to be compensated, the plaintiff must be recognized as having had a whole body—full citizenship, in a sense—before the injury. This, she argues, is not the case for disenfranchised victims of injury such as Mexican migrant farmworkers, women employed in menial office jobs, or African-American smokers who are viewed as already having had less than completely franchised bodies—as being "preinjured" (p. 79). The disenfranchised are, in a sense, not fully human and therefore cannot be injured.

Jain might be accused of reinventing the discipline of law and society while, at the same time, critiquing it. Her contention that "law is primarily understood as an objective system of adjudication" (p. 34) is certainly not true of most law-and-society scholars, and yet some of that field's tort-law scholars such as Richard Abel and Laura Nader are criticized for accepting the "rhetorical positioning of the body from the liberal framework of injury law" (p. 28). Indeed, some of Jain's conclusions are basic law-and-society points: "the law was unable or unwilling to understand the conditions of inequity that virtually enabled the injurious design of the keyboard to begin with" (p. 120); "the law is fraught with problems" (p. 122); and "the law is far from an ideal public sphere where everyone comes with complaints and openly debates problems of health, injury, and design" (p. 151). To suggest that "the law was unable to understand the very semiotics that give meaning to the everydayness of the QWERTY keyboard and the invisibility of typing" (p. 123) would seem to be at once unsurprising and expecting rather much of the law.

It is not entirely clear whether Jain's purpose is normative or purely analytic. At times, she disavows any purpose other than demonstrating "the difficulties courts had in determining how objects and humans act in relation to each other" (pp. 121–22); at others, it seems that she would like to teach "institutions to comprehend the co-constitution of objects and persons" (p. 123). If that is indeed Jain's aim, she...