• Choose a category
• All
• Classic-Fiction

By Root 426 0

debate is so-called tort reform. For the past few years, Congress has been struggling over whether to limit the types of personal injury lawsuits that can be brought and the amounts that juries can award a successful plaintiff. The debate has focused on medical malpractice, with a leading argument in favor of tort reform being that patients should not be able to sue for injuries suffered in medical procedures that they choose to undergo while knowing their inherent risks. There have also been efforts to protect fast food companies and gun manufacturers, and Congress has considered bills barring suits by people claiming harm from these companies’ products. The bill protecting fast food companies, called the Personal Responsibility in Food Consumption Act, was explicitly based on the notion that customers who choose to eat fast food should not be able to seek redress for harm that befalls them from that choice.8

Another prominent example of the political use of choice rhetoric is the area of gay rights. Questions from whether gay sex can be made criminal to whether same-sex couples can marry are discussed in terms of whether homosexuality is an “orientation”—something that is not a choice—or a “preference.” Those opposing gay rights have claimed that some individuals have changed their preferences from gay to straight. Sarah Palin, in her ill-fated interview with Katie Couric during the 2008 presidential campaign, said that one of her best friends, who is gay, had made a “choice that isn’t a choice that I have made.”9 Meanwhile, those supporting gay rights have cited scientific studies showing that orientation is hard-wired.

The assumption on both sides is that if sexuality is a choice it should be less protected; if it is not a choice then it should be more protected. If it is a choice, LGBT people are responsible for it and for whatever comes their way because of it. It is no wonder that millions of people care immensely about the outcomes of scientific studies into the biological basis of sexual orientation. It may be bizarre to think that civil rights should turn on whether one’s sexuality is chosen (your religious beliefs are protected even though they are not hard-wired), but that is where the debate stands.

The most prominent example of choice rhetoric of politics is around the topic of abortion. Historian Rickie Solinger traces the use of the word “choice” in this context to a 1969 decision by the National Abortion Rights Action League to name its first national action Children by Choice.10 “Choice” became the watchword of the abortion rights movement because it permitted advocates to talk about a difficult subject without alienating moderates. Solinger writes, “Many people believed that ‘choice’—a term that evoked women shoppers selecting among options in the marketplace—would be an easier sell.”

3.

In law, the notion of choice is also fundamental, driving legal decisions and underlying a host of legal doctrines. Choice goes by a number of names in the law: assent, consent, free will. It can also be defined as the absence of coercion or duress. There are gradations of meaning, but the concept, by whatever name, occupies a dominant role in virtually every area of United States law. The cases mentioned in the previous chapter—the falling axes and the baseball in the face—show the centrality of consent notions in tort law. Beyond that, the examples go on and on:

Contract law. A couple of years ago I got a home equity loan to pay off some credit card debt. It was the thing to do at the time. In my final meeting with the banker, he had me sign the last signature page and asked, as required by state law, “Do you sign this as your free act and deed?” He also informed me that if I had second thoughts, I had three days to back out of the contract. These requirements embody the legal notion that contracts depend on consent; the validity of a contract turns on whether it was entered into freely by both parties. The law validates those contracts because of the belief that a contract resulting from the assent