Indiana Law Review
Volume 54 2021 Number 1

ARTICLES

CRISIS AND CULTURAL EVOLUTION: STEERING THE NEXT
NORMAL FROM SELF-INTEREST TO

CONCERN AND FAIRNESS

ROBERT A. BOHRER*

Are we at a turning point in history? We are in the midst of the COVID-19
pandemic, and we face a threat to our health and well-being that has not been
seen since the Great Depression and World War II. At the same time, the cold-
blooded murder of George Floyd has transformed our national conversation about
racism and justice in America—a preliminary signal that this is indeed a
transformational moment. Life right now is changed in a way that is
unprecedented. Both these extraordinary events raise “now” questions but also
press us to imagine the world of our future. The pandemic questions of “now” are
pressing: What testing do we need to begin to reopen our own economy? How do
we help those most in need right now? When will we have a vaccine, and what
level of antibodies indicates immunity? These questions and a multitude of others
urgently demand answers. However, for those of us who are not epidemiologists,
pharmacologists, immunologists, or infectious disease experts, whom we hope
can give us answers to those “now” questions, it is not too soon to begin to think
about life after COVID-19, when we will have effective vaccines and highly
effective therapeutics. While it is likely that there will be a widespread call to
restructure our healthcare system, we are called to imagine more broadly what we
want our system of justice to be, from the way in which we compensate persons
who are injured, to the way in which we interpret and enforce contracts, whether
those contracts are contracts of employment, leases of apartments, or for the
provision of cell phone services. If this is a turning point, what should justice
look like? What will our next normal be?

There are many voices in the current period of crisis asking, “Are we all in
this together?”1 For better or for worse, we ARE all in this together— all of us are

* Professor of Law, California Western School of Law. I am grateful to the editorial board

of the Indiana Law Review for their assistance with this article during this difficult time. I am

indebted to Leslie Bender, Susan Bisom-Rapp, Sohail Inayatullah, Nancy Kim, John Noyes, Judith

Resnick, and my California Western writing group: Emily Bezahdi, Tim Casey, Paul Gudel,

Catherine Hardee, Ken Klein, Erin Shelley, and India Thusi for many helpful comments and

suggestions. My research assistant Dakota Hickingbottom provided valuable assistance. The errors

and omissions that remain are my own.

1. See, e.g., Michael J. Sandel, Are We All in This Together?, N.Y. TIMES (Apr. 13, 2020),



2 INDIANA LAW REVIEW [Vol. 54:1

confronted by the risks of disease and economic decline, by our need to confront
our country’s history of racism and the ugliness of our political discourse. The
question is not whether we are all in this together, but what do we want our next
normal to be? What do we think a more just normal would be like? An answer to
those questions requires us to look at the ideas that have brought us here as well
as the ideas that may guide us in a new direction. This Essay provides a synopsis
of the intellectual currents which drove us here over the past fifty years and offers
a brief sketch of how our society and our law can evolve in response. Crises of
this scale are evolution-forcing events, and I argue that the current moment can
move us towards a fundamentally different vision of law and justice.

Part I is about some of the most powerful currents in twentieth-century ideas:
classical free-market economics, behavioral economics, and sociobiology. Part
II is a review, in an equally summary fashion, of how those ideas are reflected in
two very different views of justice and fairness—that of John Rawls and that of
his colleague Robert Nozick. Despite the great differences between the ideal
Rawlsian state and the ideal Nozickian state, both belong squarely within the
liberal tradition that is grounded in individual autonomy and the pursuit of self-
interest. Both represent major threads in the political and social debates of the
past fifty years. Part III provides a synopsis of a third, very different view of
justice and fairness, as represented in the work of feminist scholars Carole
Gilligan and Leslie Bender, to present a possible next normal that will be shaped
by a sense of connectedness and empathy. Part IV briefly examines the way self-
interest and caring are accommodated in tort law. Tort law, after all, reflects both
our values and the compromises we make to accommodate our desire for
economic growth and our concern for persons who have been injured, while
contract law provides the basic framework for our economic lives. In deciding on
the balance between freedom to act and freedom from harm, and between the
often-conflicting demands of efficiency and autonomy,2 we are forced to confront
our sense of fairness and justice. It is possible, perhaps even likely, that in the
next normal, we will have a new and different sense of what is fair, what is just,
and what our responsibilities are to one another. If tort law balances resources and
compassion, contract law provides the framework with which we order our work
lives and our non-work transactions with others—from online purchases to cable
service and travel. Part V provides examples of just a few ways that the law of
torts could be reshaped to embody ethics of care and mutual respect, and contract
law could find a better balance between sheer economic power and fairness.

A pandemic is an evolution-accelerating event on a biological level but also
on a cultural level. The social forces created by the pandemic have brought us to
a turning point. I conclude with an admittedly hopeful answer to the question of
what we could become when the next phase of our history begins.

https://www.nytimes.com/2020/04/13/opinion/sunday/covid-workers-healthcare-fairness.html

[https://perma.cc/R9GW-7SHV].

2. I do not list community as one of the competing values here because it is not part of the

law that I have been teaching for so many years but will be a basis for the law as I hope it will

be—see infra Part III.



2021] CRISIS AND CULTURAL EVOLUTION 3

I. TWENTIETH-CENTURY BIG IDEAS: CLASSICAL FREE MARKET ECONOMICS,
BEHAVIORAL ECONOMICS, AND SOCIOBIOLOGY

Classical free market economics began well before the twentieth century, in
1776, with the publication of Adam Smith’s The Wealth of Nations.3 However,
while Smith viewed prosperity and economic growth as deriving from individuals
rationally pursuing their own self-interest, his book, The Theory of Moral
Sentiments, recognized that humans were not exclusively selfish creatures of self-
interest: “How selfish soever man may be supposed, there are evidently some
principles in his nature which interest him in the fortune of others and render their
happiness necessary to him though he derives nothing from it except the pleasure
of seeing it.”4

Nevertheless, in the twentieth century, the free-market essence of Adam
Smith’s theory took root in the United States and flourished, while his
speculations on human morality were largely ignored. The intellectual center of
free market economics was at the University of Chicago, where the “Chicago
School” of Economics became synonymous with the superiority of free markets
to markets that were disrupted by governmental intervention or regulation.5  An
anti-regulation position was inherent in the Chicago School’s free-market theory,
as represented in the work of Milton Friedman and George Stigler, both of whom
were University of Chicago faculty awarded a Nobel Prize in Economics.6 Their
rational actor, free market views also became a basis for normative, ethical
theories in the writings of Richard Posner and others who incorporated Chicago
School economic theory into a theory of law and economics.7 Posner argued that
since transactions in free markets were founded on the consent of both parties to
the transaction, and the transaction reflected their rational preferences, therefore
free market transactions were wealth-maximizing because both parties were made

3. Adam Smith (1723–1790), LIBR. ECON. & LIBERTY, http://www.econlib.org/library/Enc/

bios/Smith.html (last visited Jan. 17, 2021) [https://perma.cc/FV7B-KFEJ] [hereinafter LIBR. ECON.

& LIBERTY]; see also ADAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH

OF NATIONS (Edwin Cannan ed., Oxford Univ. Press 1976) (1776). 

4. LIBR. ECON. & LIBERTY, supra note 3 (quoting ADAM SM ITH, THE THEORY OF MORAL

SENTIMENTS 1 (D.D. Raphael & A.L. Macfie eds., Oxford Univ. Press 1976) (1759)).

5. H. Laurence Miller, Jr., On the “Chicago School of Economics”, 70 J. POL. ECON. 64,

67 (1962).

6. Id. at 64; Rachel Rosenberg, Papers of George Stigler, Harry G. Johnson to Deepen

Understanding of Field-Defining Research, UCHICAGO NEWS (Oct. 25, 2018), https://news.

u c h i c a g o . e d u / s t o r y/ a r c h i v e s - t w o - g i a n t s - e c o n o m i c s - d o n a t e d - u c h i c a g o - l i b r a r y

[https://perma.cc/3XZG-ZMCJ].

7. John J. Donohue III & Ian Ayres, Posner’s Symphony No. 3: Thinking About the

Unthinkable, 39 STAN. L. REV. 791, 793 (1987) (reviewing RICHARD A. POSNER, ECONOMIC

ANALYSIS OF LAW (3d ed.) (1986)). See also David Campbell, The End of Posnerian Law and

Economics, 73 MOD. L. REV. 305 (2010) (reviewing RICHARD A. POSNER, A FAILURE OF

CAPITALISM: THE CRISIS OF ‘08 AND THE DESCENT INTO DEPRESSION (2009)).



4 INDIANA LAW REVIEW [Vol. 54:1

better off by the exchange.8 Posner further argued that wealth maximization was
an appropriate norm or foundational ethical principal.9

Although Posner’s argument for wealth maximization as a norm drew
significant criticism,10 it is fair to say that efficiency, the central concept of his
attempt at integrating law and economics, became one of the dominant modes of
legal scholarly discourse from the 1980s to the present time. Major changes in
governmental policy in that period were to a very large degree a result of the
ideological dominance of the Chicago School in public discourse.11 In the wake
of the collapse of the financial markets in 2007, Posner acknowledged that his
beliefs had been shaken, at least in terms of the efficiency of markets and the
need for regulation.12 “In a soft voice, he said, ‘I think the challenge is to the
economics profession as a whole, but to Chicago most of all.’”13 

A. Behavioral Economics—Faulty Self-Interested Decision Making

The free market ideology of the Chicago School continued to influence public
policy discourse throughout the period and still finds adherents in positions of
power in the government.14 However, within the field of economics as an
academic and scholarly discipline, its foundational assumptions were being

8. Richard A. Posner, Wealth Maximization Revisited, 2 NOTRE DAME J. L., ETHICS & PUB.

POL’Y 85, 88 (1985).

9. Id. at 95.

10. Jules L. Coleman, Efficiency, Utility, and Wealth Maximization, 8 HOFSTRA L. REV. 509,

512 (1980); see also Lucian A. Bebchuk, The Pursuit of a Bigger Pie: Can Everyone Expect a

Bigger Slice?, 8 HOFSTRA L. REV. 671 (1980). 

11. BUILDING CHICAGO ECONOMICS: NEW PERSPECTIVES ON THE HISTORY OF AM ERICA’S

MOST POWERFUL ECONOMICS PROGRAM XLVI (Robert Van Horn et al. eds., 2011). 

12. John Cassidy, After the Blowup: Laissez-faire Economists Do Some Soul-Searching—and

Finger-Pointing, NEW YORKER (Jan. 4, 2010), https://www.newyorker.com/magazine/2010/

01/11/after-the-blowup [https://perma.cc/7M42-2QFL].

13. Id.; see also Richard A. Posner, Uncertainty Aversion and Economic Depressions, 52

CHALLENGE 25 (2009). For a rather hilarious critique of Posner’s conversion to Keynesian

economics and Posner’s law and economics scholarship generally, see Campbell, supra note 7.

Most recently, the New York Times published a special section of the Sunday New York Times,

entitled “Greed Is Good. Except When It’s Bad.” The New York Times section is focused on Milton

Friedman’s 1970 article in the New York Times Magazine, “The Social Responsibility of Business,”

and includes reflections on the Friedman article by a number of contemporary economists. A major

portion of the Supplement highlights changes in the distribution of income and wealth from 1970

to the present. For example, the ratio of average CEO’s compensation to typical workers’

compensation skyrocketed from 24:1 in 1970, to 320:1 in 2019. Greed is Good. Except When It’s

Bad., N.Y. TIMES: DEALBOOK NEWSL. (Sept. 13, 2020), https://www.nytimes.com/2020/09/13/

business/dealbook/milton-friedman-essay-anniversary.html [https://perma.cc/6EL7-KSGZ].

14. President Trump’s Historic Deregulation Is Benefitting All Americans, WHITE HOUSE

(Oct. 21, 2019), https://www.whitehouse.gov/briefings-statements/president-trumps-historic-

deregulation-benefitting-americans/?utm_source=link [https://perma.cc/W3FY-3MSG].



2021] CRISIS AND CULTURAL EVOLUTION 5

challenged even before the 1980s, when it was in ascendancy as a political
movement.15 The scholarly assault on the assumptions and models of classical,
Chicago School economics actually has its origins in the work of two
psychologists, Amos Tversky and Daniel Kahneman.16 The significance of the
work of these two outsiders to the field of economics led to Kahneman receiving
the 2002 Nobel Prize in Economics (sadly, Tversky had died before the Prize was
awarded, and Nobel Prizes are never awarded posthumously).17

Why and how did two academics trained in psychology and members of the
psychology department at Hebrew University transform the field of economics?
Tversky and Kahneman studied how people actually make decisions, particularly
under conditions of uncertainty.18 To quote one of their early seminal works:

How do people assess the probability of an uncertain event or the value
of an uncertain quantity? . . . [P]eople rely on a limited number of
heuristic principles which reduce the complex tasks of assessing
probabilities and predicting values to simpler judgmental operations. In
general, these heuristics are quite useful, but sometimes they lead to
severe and systematic errors.19

Of course, virtually all significant investment decisions are made under
uncertainty (or there would not be both buyers and sellers in every financial
market), so the implications of Tversky and Kahneman’s work for free market
economics is clear. Markets, far from being perfect, efficient engines of resource
allocation, are driven by investors whose cognitive biases and imperfect
information lead to markets that can fail.20 Richard Thaler, who collaborated with
Tversky and Kahneman, pushed the field of economics even further from the
assumptions of rational actors interacting to maximize their individual wealth.21

We then discuss three important ways in which humans deviate from the
standard economic model. Bounded rationality reflects the limited
cognitive abilities that constrain human problem solving. Bounded

15. See Timothy J. Muris & Jonathan E. Nuechterlein, Chicago and Its Discontents, 87 U.

CHI. L. REV. 495 (2020).

16. Elizabeth Kolbert, What Was I Thinking?, NEW YORKER (Feb. 25, 2008), https://www.

newyorker.com/magazine/2008/02/25/what-was-i-thinking [https://perma.cc/DS74-TCBN]. 

17. Daniel Altman, 2 Americans Awarded Nobel for Economics, N.Y. TIMES (Oct. 9, 2002),

https://www.nytimes.com/2002/10/09/business/2-americans-awarded-nobel-for-economics.html

[https://perma.cc/44W7-DNSY].

18. Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics and

Biases, 185 SCI. 1124, 1124 (1974).

19. Id. (emphasis added).

20. See Brigitte C. Madrian, Applying Insights from Behavioral Economics to Policy Design,

6 ANN. REV. ECON. 663 (2014).

21. Sendhil Mullainathan & Richard H. Thaler, Behavioral Economics (Nat’l Bureau of

Econ. Research, Working Paper No. 7948, 2000), https://www.nber.org/papers/w7948 [https://

perma.cc/3TTU-H78L].



6 INDIANA LAW REVIEW [Vol. 54:1

willpower captures the fact that people sometimes make choices that are
not in their long-run interest. Bounded self-interest incorporates the
comforting fact that humans are often willing to sacrifice their own
interests to help others.22

Thaler received the Nobel Prize in Economics in 2017 “for his contributions
to behavioural economics.”23 Thaler became a collaborator with Cass Sunstein,
the law professor who spearheaded the incorporation of behavioral economics in
legal academia, much the way Posner had led the legal academy into the field of
classical law and economics.24 However, while behavioral economics may have
exposed the faults in the foundation of classical, Chicago School economics, they
share one foundational assumption: economic actors are generally self-interested
actors who seek to maximize their own self-interest, although that self-interest
may, at times, be “bounded.”25 Tversky, Kahneman, Sunstein, and Thaler, among
others, point to the ways in which those actors inevitably base their decisions on
imperfect knowledge and cognitive biases that distort reality, but their homo
economicus, however irrational and imperfect, is still nevertheless autonomous
and self-interested.26 Sunstein and Thaler’s twist in law and economics was to
simply assume that those actors’ biases require a gentle “nudge” to guide them
towards the decisions that they would make from self-interest if only those actors
were aware of the errors in their assumptions and perceptions.27

“Sociobiology” is, as its name suggests, an effort to explain human behavior,
individually and collectively, through biological mechanisms.28 When looking at
intellectual history, it is often difficult to understand fully the relationship
between diverse intellectual movements, and almost certainly even more difficult
in an abridged, condensed intellectual history such as this one. However, it hardly
seems coincidence that as the Chicago School of Economics was gaining
ascendancy in popular thought in the 1970s, sociobiology began as an attempt to
demonstrate how evolutionary biology explained human behavior and social

22. Id.

23. Press Release, Nobel Prize, The Prize in Economic Sciences 2017 (Oct. 9, 2017),

https://www.nobelprize.org/prizes/economic-sciences/2017/press-release/ [https://perma.cc/L3KW-

FKSS].

24. See Anuj C. Desai, Libertarian Paternalism, Externalities, and the “Spirit of Liberty”:

How Thaler and Sunstein Are Nudging Us Toward an “Overlapping Consensus”, 36 L. & SOC.

INQUIRY 263, 265 (2011).

25. See Tversky & Kahneman, supra note 18; see also Mullainathan & Thaler, supra note

21.

26. Kolbert, supra note 16.

27. Desai, supra note 24, at 265. I do not mean to imply that “nudging” individuals to make

choices that are in their best interest is always, or even often, not the appropriate policy, but rather

that it is not always the optimal policy when their individual self-interest may not manifest an ethos

of concern for others.

28. Michael Boyles & Rick Tilman, Thorstein Veblen, Edward O. Wilson, and Sociobiology:

An Interpretation, 27 J. ECON. ISSUES 1195, 1208 (1993).



2021] CRISIS AND CULTURAL EVOLUTION 7

interactions in a way that is jarringly parallel to the classical economic view.29 If,
in the Chicago School of Economics, individuals acted in a rational manner to
maximize their self-interest, the sociobiologists posited that the behavior of
organisms from stickleback fish to humans was designed, or more literally
impelled, by biological principles to maximize the likelihood that their genome
would survive.30 While sociobiology may have originated in the work of E.O.
Wilson, it found its most extreme expression in the work of Richard Dawkins,
whose 1976 book was aptly entitled The Selfish Gene.31 The impact of Dawkins’s
book might be reflected in the fact that it was voted the most influential science
book of all time in a 2017 British Royal Society poll!32 

While a full exploration of Dawkins’s theory and the debates that it has
engendered would require many pages, for the purpose of this Essay it is
sufficient to say that it found eager acceptance among the proponents of the
politics of individualism and opponents of collective action through the state, or
in terms of American politics, the conservative movement.33 The idea that
humans, like all other organisms, are biologically driven to behaviors that
maximize their own self-interest and, in decreasing degrees of concern, their
biological kin, had obvious appeal for those who favored individual choices in the
marketplace as inherently preferable to regulation and for those who viewed
governmental taxation and wealth redistribution as contrary to the public good.34

In the words of a recent article:

At this point, it is evident that Wilson’s sociobiology has become a
species of political ideology. Certain political and ideological objectives
are said to be impossible to achieve because the human biological and
genetic structure will not permit their attainment.35

There are numerous serious critiques of Dawkins’s individual organism-centered
view of sociobiology.36 On one level, Dawkins’s view flies in the face of our own
experience of heroism and self-sacrifice for complete strangers: for example, the

29. See Miller, supra note 5.

30. Manfred Milinski, TIT FOR TAT in Sticklebacks and the Evolution of Cooperation, 325

NATURE 433, 433-35 (1987).

31. See RICHARD DAWKINS, THE SELFISH GENE (1989).

32. Claire Armitstead, Dawkins Sees off Darwin in Vote for Most Influential Science Book,

GUARDIAN (July 20, 2017), https://www.theguardian.com/books/booksblog/2017/jul/20/dawkins-

sees-off-darwin-in-vote-for-most-influential-science-book [https://perma.cc/82LG-D865]; The

Selfish Gene Tops Royal Society Poll to Reveal the Nation’s Most Inspiring Science Books, ROYAL

SOC’Y (July 19, 2017), https://royalsociety.org/news/2017/07/science-book-prize-poll-results/

[https://perma.cc/9SDU-TZ6P].

33. Joshua S. Goldstein, The Emperor’s New Genes: Sociobiology and War, 31 INT’L STUD.

Q. 33, 39 (1987).

34. Id. 

35. Boyles & Tilman, supra note 28, at 1208.

36. See, e.g., Stephen Jay Gould, Exaptation: A Crucial Tool for an Evolutionary Psychology,

47 J. SOC. ISSUES 43, 49 (1991).



8 INDIANA LAW REVIEW [Vol. 54:1

September 11th first responders and the healthcare workers who moved cross-
country to work at New York City hospitals in the COVID-19 pandemic.3 7 It is
not merely our intuitive rejection and numerous counterexamples that point us
away from Dawkins’s sociobiology and the political expressions of its tenets.
Evolutionary science has moved significantly away from the selfish gene,38

without a comparable shift in theories of how we ought to structure our society.

II. COMPETING VISIONS OF A JUST SOCIETY: RAWLS AND NOZICK

Economists do not claim to describe what is good or just; rather they claim
only to be interested in describing how the world works, or at least the economic
world in which property and labor are bought and sold. Part I described how the
Chicago School of Economics purported to explain how the world works while
assuming that the persons who operate in that world are rational actors whose
actions are guided by their desire to maximize self-interest.39 The Chicago School
model of the economic world was ultimately displaced by a more realistic school
of behavioral economics, in which the actors in the economic world are
recognized as flawed decision makers, both by their internal cognitive biases and
the difficulty of decision making in a world of complex and uncertain
information.40 However, despite the differences in the fundamental assumptions
of both schools of economics, they share one very significant fundamental
assumption, which is that economic behavior is driven primarily by the desire to
maximize self-interest, whether or not that desire is expressed in rational decision
making or in biased and often flawed decision making.41 At the same time, the
sociobiologists posited that the self-interested behavior assumed by the
economists was based on fundamental principles of evolutionary biology.42 In
contrast to these supposedly “positivist” accounts of human behavior, it has long
been the domain of the philosophers to put forth theories of what is good or just,
rather than simply describing what is. In the second half of the twentieth century,
while the classical economic theories of Chicago’s Friedman and Stigler
competed with the new behavioral economics propounded by Tel Aviv’s
Kahneman and Tversky, and as Dawkins and Stephen J. Gould battled over

37. Mike Freeman, These San Diego Nurses Took Jobs in COVID-19 Hot Zones. Here Are

Their Stories, SAN DIEGO UNION TRIB. (May 17, 2020), https://www.sandiegouniontribune.

com/business/story/2020-05-17/a-tale-of-three-traveling-nurses-in-the-time-of-covid-19 [https://

perma.cc/27Y8-HB7Y]; see also Soumya Karlamangla, A Nurse Without an N95 Mask Raced in

to Treat a ‘Code Blue’ Patient. She Died 14 Days Later, L.A. TIMES (May 10, 2020), https://www.

latimes.com/california/story/2020-05-10/nurse-death-n95-covid-19-patients-coronavirus-

hollywood-presbyterian [https://perma.cc/A4KV-Z73P].

38. See Martin A. Nowak et al., The Evolution of Eusociality, 466 NATURE 1057 (2010). 

39. See supra Part I.

40. Id.

41. Id.

42. Id.



2021] CRISIS AND CULTURAL EVOLUTION 9

biology and evolution,43 a parallel intellectual battle was being waged by two of
the era’s leading political philosophers, Robert Nozick and John Rawls, both
members of the Harvard faculty. A central point of conflict between the two was
over the distribution of the rights and benefits that result from the marketplace.

Rawls began the debate with the 1971 publication of his widely acclaimed A
Theory of Justice.44 It is a lengthy, detailed exposition of Rawls’s theory of a just
state. The theory of justice that Rawls articulated would be based on the
organizing principles of a just society, which could best be deduced by imagining
the rules that would be agreed to by persons behind the veil of ignorance.45 These
bargainers behind the veil would be without any knowledge (i.e. ignorant) of their
own individual talents or afflictions but would be fully aware that the society in
which they would live would be comprised of persons who varied in significant
ways that were largely beyond their own control.46 The real world is comprised
of persons with great talents and health and also persons with less talent or
significant disability or poor health, as well as persons who were born into wealth
and persons born into poverty.47 Rawls posited that if bargainers were not aware
of their own advantages or disadvantages, they would wish to assure themselves
both that society would sufficiently reward the talents of the most advantaged (as
they might be fortunate and occupy that position) to induce them to exercise their
talent fully, while assuring themselves that the additional surplus generated by the
most talented would be allocated to minimizing the disadvantage of the least
fortunate (as that might also be their position).48 Rawls termed this resulting
principle of fairness the “maximin criterion.”49 Thus, some redistribution of
wealth from the most advantaged to the least advantaged is fundamental to
Rawls’s vision of a just society.

Nozick responded to Rawls in his Anarchy, State, and Utopia.50 Nozick
developed an elegant argument for a minimal libertarian state, with no
redistribution of goods or rights whatsoever, so long as those goods or rights had
been originally acquired in accordance with justice, and any subsequent transfers
of those goods or rights were freely made.51 Nozick grounded his anti-
redistributive position in Kantian principles, arguing that to take what is rightly
A’s to make B better off is to violate Kant’s categorical imperative: “So act that
you treat humanity, whether in your own person or in the person of any other,

43. See Roger Lewin, Punctuated Equilibrium Is Now Old Hat, 231 SCI. 672, 672-73 (1986).

As Lewin’s article recognizes, Gould was central to a major debate over the nature of evolution.

See Gould, supra note 36.

44. See JOHN RAWLS, A THEORY OF JUSTICE (1971) [hereinafter RAWLS, THEORY].

45. See id.

46. See id.

47. See id.

48. See id.

49. See John Rawls, Some Reasons for the Maximin Criterion, 64 AM. ECON. REV. 141

[hereinafter Rawls, Maximin Criterion] (author providing a concise summary of his argument).

50. See ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA (1974).

51. Robert Nozick, Distributive Justice, 3 PHIL. & PUB. AFF. 45, 47 (1973).



10 INDIANA LAW REVIEW [Vol. 54:1

always at the same time as an end, never merely as a means.”52

While Nozick and Rawls have diametrically opposing views on distributive
justice, both philosophers root their arguments in the liberal Contractarian
tradition.53 Rawls posits that the individuals who bargain for the governing rules
of their society would wish to protect themselves against any misfortune due to
brute luck, while Nozick builds his Lockean case for a minimalist state on
Kantian respect for the autonomy of others.54 

Their common roots in the Lockean liberal tradition mean that both Rawls
and Nozick choose as a starting point individual autonomy and a state founded
on actors pursuing their individual self-interest, despite their opposing views of
distributive justice. Neither posits a model of justice or a just society in which the
primary governing rules are not merely equal rights but equally requires concern
for others. In Rawls’s description of the original position, he first asks us to
“imagine that everyone is deprived of certain morally irrelevant information.”55

Rawls continues with, “They do not know their place in society, their class
position or social status, their place in the distribution of natural assets and
abilities, their deeper aims and interests, or their particular psychological
makeup.”56 Rawls, unlike Nozick, is concerned with the inequality that is self-
perpetuating or the result of bad brute luck, but his social contract, like Nozick’s,
is built on a foundation of self-interest.57 So, where in the currents of intellectual
and political theory can we begin to “imagine” the rules that would be agreed
upon if everyone was imbued with the knowledge that they would feel concern
for other persons? What would be the rules for the society that we would create
if we acknowledged that we care about and feel pain at the suffering of other
persons and the deprivations endured by others? There may be other answers, but
certainly a primary source of a model of justice built on concern, caring, and
empathy can be found in the work of feminist scholars Carol Gilligan and Leslie
Bender.

52. Samuel Kerstein, Treating Persons as Means, STAN. ENCYCLOPEDIA PHIL. (Apr. 13,

2019), https://plato.stanford.edu/entries/persons-means/ [https://perma.cc/X5RC-BXQF] (citation

omitted).

53. See RAWLS, THEORY, supra note 44; see also Leif Wenar, John Rawls, STAN.

ENCYCLOPEDIA PHIL. ARCHIVE, https://plato.stanford.edu/archives/spr2017/entries/rawls/ (last

updated Jan. 9, 2017) [https://perma.cc/J2ZZ-49H8] (“The move to agreement among citizens is

what places Rawls’s justice as fairness within the social contract tradition of Locke, Rousseau and

Kant.”); Justin P. Bruner, Locke, Nozick and the State of Nature, 177 PHIL. STUD. 705, 706 (2018).

54. Julian Lamont & Christi Favor, Distributive Justice, ST AN. ENCYCLOPEDIA PHIL.

ARCHIVE, https://plato.stanford.edu/archives/win2017/entries/justice-distributive/ (last updated

Sept. 26, 2017) [https://perma.cc/Z7FP-BTQA].

55. Rawls, Maximin Criterion, supra note 49, at 141 (footnote omitted).

56. Id.

57. Lamont & Favor, supra note 54.



2021] CRISIS AND CULTURAL EVOLUTION 11

III. A FEMINIST PHILOSOPHY OF JUSTICE: A WORLD OF CARING
AND CONNECTION

In classical and behavioral economics, in twentieth-century evolutionary
biology, and in liberal political philosophy, whether libertarian or Rawlsian,
humans are self-interested at their core. However, at the same time that those
major forces in twentieth-century intellectual history were working out visions
of the world based on self-interest, a very different vision of the world was being
developed in a major branch of feminist theory by, among others, Carol Gilligan
in social science and Leslie Bender in law.58 Carol Gilligan’s book, In a Different
Voice: Psychological Theory and Women’s Development, has generated an
enormous body of literature, discussion, and criticism.59 The book is a rich
exploration of the moral reasoning of men and women. The voices of Gilligan’s
research subjects, as they spoke to her during the course of her research, are the
primary data for her book.60 While Gilligan herself points out that gender is not

58. Since some readers of this Essay may be unfamiliar with feminist theory, it is worth

clarifying that there are a great number of different and even conflicting “feminist” approaches to

social theory, law, and politics. Feminist social theory and feminist legal scholarship have many

strands, with feminist scholars in literature, sociology, psychology, political science, and law each

looking at issues in their discipline through a variety of lenses that explore gender identity in

culture, and society. For a brief discussion of the range of feminist theory and the significant

differences among them, see, e.g., JANET HALLEY ET AL., GOVERNANCE FEMINISM: AN

INTRODUCTION 24 (2018). For a brief discussion of the broad outlines of feminist legal scholarship,

see GARY MINDA, POSTMODERN LEGAL MOVEMENTS: LAW AND JURISPRUDENCE AT CENTURY’S

END 128-48 (1995). My effort here is not to provide an overview of or guide to feminist social or

legal theory but simply to draw on the works of two significant feminist scholars that inform my

own understanding of the world in general and in relation to our current world in crisis.

59. A search of JSTOR’s online database of scholarly literature performed on June 1, 2020,

found that the book had been reviewed or cited in over 18,000 publications, in fields ranging from

Art & Art History (275 articles or chapters) to Science and Technology Studies (142 articles or

chapters).

60. Ann Manicom, Book Review, 165 J. EDUC. 217 (1983) (reviewing CAROL GILLIGAN, IN

A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN’S DEVELOPMENT (1982) [hereinafter

GILLIGAN, IN A DIFFERENT VOICE]). For a thoughtful critical response to Gilligan, see Deborah L.

Rhode, Missing Questions: Feminist Perspectives on Legal Education, 45 STAN. L. REV. 1547

(1993). I think that Rohde’s own contribution to the discussion of feminist legal theory in that

article is eloquent and persuasive; however, I think that her criticism of Gilligan misses Gilligan’s

most important contribution to the discussion of moral reasoning, which is the opposition of

reasoning based on connection and relatedness and reasoning based on deductions from a hierarchy

of axioms. For an excellent analysis of Gilligan’s different voices in the context of legal education,

see Paul J. Spiegelman, Integrating Doctrine, Theory and Practice in the Law School Curriculum:

The Logic of Jake’s Ladder in the Context of Amy’s Web, 38 J. LEGAL EDUC. 243 (1988).



12 INDIANA LAW REVIEW [Vol. 54:1

an absolute determinant of a person’s style of moral reasoning, she finds that the
two approaches to moral reasoning that she identifies are associated with gender:

The different voice I describe is characterized not by gender but theme.
Its association with women is an empirical observation, and it is
primarily through women’s voices that I trace its development. But this
association is not absolute, and the contrasts between male and female
voices are presented here to highlight a distinction between two modes
of thought and to focus a problem of interpretation rather than to
represent a generalization about either sex. In tracing development, I
point to the interplay of these voices within each sex and suggest that
their convergence marks times of crisis and change. No claims are made
about the origins of the differences described or their distribution in a
wider population, across cultures, or through time.61

These two alternative forms of reasoning need not be tied to gender in order to
be recognized as representing significantly different approaches to moral
reasoning, and it is for that purpose that I draw on Gilligan’s work in this Essay.
In a later article, she describes those opposing styles of moral reasoning:

The values of justice and autonomy, presupposed in current theories of
human growth and incorporated into definitions of morality and self,
imply a view of the individual as separate and of relationships as either
hierarchical or contractual, bound by the alternatives of constraint and
cooperation. In contrast, the values of care and connection, salient in
women’s thinking, imply a view of self and other as interdependent and
of relationships as networks created and sustained by attention and
response. The two moral voices that articulate these visions, thus, denote
different ways of viewing the world.62

Central to Gilligan’s description of a different conceptualization of justice or
moral choice is her ethics of care, which is founded on the values of care and
connection and can best be described in her own words: “The ethics of care starts
from the premise that as humans we are inherently relational, responsive beings
and the human condition is one of connectedness or interdependence.”63

Gilligan’s ethics of care is, in turn, a focus of Leslie Bender’s work on a feminist
approach to tort law.64 Bender states this succinctly, “Perhaps we have gone

61. GILLIGAN, IN A DIFFERENT VOICE, supra note 60, at 2.

62. Carol Gilligan, Mapping the Moral Domain: New Images of Self in Relationship, 39

CROSSCURRENTS 50, 55 (1989).

63. Interview with Carol Gilligan, Professor, New York University, ETHICS OF CARE (June

21, 2011), https://ethicsofcare.org/carol-gilligan/ [https://perma.cc/9GKE-D9QJ].

64. See e.g., Leslie Bender, A Lawyer’s Primer on Feminist Theory and Tort, 38 J. LEGAL

EDUC. 3, 30 (1988) (“Our legal system must learn from Gilligan’s study; it must attend to the

relationships between people, our interdependencies and interconnectedness, to our responsibilities

for and toward one another, and to the need to be responsive and caring. It must also recognize that

it has been formulated in one voice, the masculine voice, and that it must listen to the meanings of



2021] CRISIS AND CULTURAL EVOLUTION 13

astray in tort-law analysis because we use ‘reason’ and caution as our standard of
care, rather than focusing on care and concern.”65

In her A Lawyer’s Primer on Feminist Theory and Tort (“Feminist Theory”),
Bender begins by explaining how she drew on feminist theory to begin the task
of reimagining a very different system of tort law:

Feminist insights and methodology have guided my thinking in the area
of tort law, especially in examining negligence law to see how it
perpetuates traditional male values and perspectives. Tort law needs to
be more of a system of response and caring than it is now. Its focus
should be on interdependence and collective responsibility rather than on
individuality, and on safety and help for the injured rather than on
“reasonableness” and economic efficiency.66

Much of Bender’s Feminist Theory explores how tort law developed entirely
within a world in which women’s values, voices, and even worth were ignored
or diminished.67 For example, the central concept that traditionally determined the
obligation to compensate others for their injuries was whether or not the person
who caused the injury took the care that the “reasonable man” would have taken
to avoid the injury.68 While that wording has now been almost universally
reworded as the care of the “reasonable person” or simply “actor,” the change
only succeeds in avoiding a gender-specific label but does not change the
standard itself.69 Bender persuasively argues that the reasonable person, of
whatever gender identity, still has the legal culpability of her actions judged by
the same common law standard of the reasonable man: “Today we are taught to
consider women reasonable when they act as men would under the same
circumstances, and unreasonable when they act more as they themselves or as
other women act.”70 

different voices and reconstitute itself accordingly.”).

65. Id. at 25; see also Jennifer Nedelsky, The Practical Possibilities of Feminist Theory, 87

NW. U. L. REV. 1286 (1993). In this article, Professor Nedelsky focuses on the concept of

relationship, which has a significance that is somewhat different from concern and caring, as a

superior principle for legal rules. Yet another major approach to feminist theory and law is focused

on the ubiquity of vulnerability and its normative significance for law. For an introduction to this

approach, see Anita M. Superson, Book Review, 125 ETHICS 1210 (2015) (reviewing

VULNERABILITY: NEW ESSAYS IN ETHICS AND FEMINIST PHILOSOPHY (Catriona Mackenzie et al.

eds., 2014)).

66. Bender, supra note 64, at 4.

67. See id. 

68. RESTATEMENT (SECOND) OF TORTS § 283 (AM. LAW INST. 1975).

69. RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM § 7 (AM.

LAW INST. 2010).

70. Bender, supra note 64, at 25. For a wonderful illustration of the way in which tort law

embraces a male cultural norm in the context of recovery for emotional distress, see Martha

Chamallas & Linda K. Kerber, Women, Mothers, and the Law of Fright: A History, 88 MICH. L.

REV. 814 (1990).



14 INDIANA LAW REVIEW [Vol. 54:1

The reasonable care required by tort law embodies a largely male world
vision of autonomous persons acting to pursue their own ends, who are only
obligated to pay for those injuries when in their actions they fail to take those
precautions that are justified by a marketplace norm of “efficiency.”71 Both the
actor and the injured person’s loss are viewed through a disconnected, economic
lens. As Richard Posner succinctly stated: “As we shall see, a negligence standard
of liability, properly administered, is broadly consistent with an optimum
investment in accident prevention by the enterprises subject to the standard.”72

After Bender deftly critiques the values of the liberal tradition and the tort
system that embodies those values, she turns to the task of developing an
alternative vision of a tort system.73 Bender envisions a system in which
compensation is required when a person who could have prevented the loss failed
to act in a way that adequately manifested his connection to and concern for the
losses of others.74 Bender struggles to formulate it in more general terms but
ultimately frames the issue this way: “If we are wedded to the idea of an objective
measure, would it not be better to measure the conduct of a tortfeasor by the care
that would be taken by a ‘neighbor’ or ‘social acquaintance’ or ‘responsible
person with conscious care and concern for another’s safety’?”75 This
“responsible person with conscious care and concern for another’s safety” is the
most general embodiment of Bender’s suggested reformulation of tort law.76 

In one of her examples of doctrinal reform, Bender discusses the “no duty to
rescue” doctrine, which is often referred to in torts as the “drowning stranger”
problem.77 In my own class, I have long begun the discussion of the “no duty to
rescue” doctrine using a hypothetical where I am in Balboa Park in San Diego,
near a large circular fountain known to almost all my students. If I saw a toddler,
seated on the low ledge encircling the fountain’s basin, fall into the fountain and
struggle unsuccessfully to surface, I would be under no duty to reach over the
ledge and pull the child out. I summarize the rule with this—if it is not my baby
and not my fountain, absent any relation to the child or the risk, I would not be
liable for damages if I simply and calmly watch the child drown.78 In Bender’s

71. See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947).

72. Richard A. Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29, 30 (1972). For

example, suppose an enterprise estimated the economic/damages value of a truck driver’s index

finger at $75,000, because her earning capacity is largely undiminished and the medical bills and

physical “pain and suffering” would not exceed that. In that case, the reasonable person, in this

longstanding view of the duty of reasonable care, should not be required to invest anything more

than $75,000 in safety measures to avoid such an injury. And as long as the enterprise made an

economically “optimum” investment in safety, the loss of the finger would be borne by the injured

person.

73. See Bender, supra note 64, at 30.

74. Id. at 37.

75. Id. at 25.

76. Id.

77. Id. at 33.

78. See RESTATEMENT (SECOND) OF TORTS § 314, cmt. c, illus.1 (AM. LAW INST. 1965)



2021] CRISIS AND CULTURAL EVOLUTION 15

“Restatement” of torts, the reasonable person who cares appropriately for the
well-being of others would certainly be liable for failing to reach over the ledge
to pull a drowning child from the water.79 Clearly, the “no duty to rescue”
doctrine in American law answers the question, “Are we all in this together?”,
with a resounding, “No.” However, a slightly more nuanced approach to the
question of collective responsibility and the law of rescuers can be found in
admiralty law and in cases in which rescuers themselves are seeking
compensation.

IV. SELF-INTEREST AND CARING IN TORT LAW: OF TEMPESTS AND RESCUERS

The COVID-19 pandemic is a new threat, but the problem of sudden threats
to the life and property of a community is a very old one in the law of torts.
Mouse’s Case, an English admiralty case decided in 1609, was a suit brought by
a passenger on a ferry that had been caught in a sudden tempest.80 The boat was
in danger of being lost.81 To save the ship, cargo was thrown overboard by
another passenger in order to lighten the load.82 The court held that if the loss of
the cargo was caused by the ferryman’s decision to take on too heavy a load, then
the ferryman was liable, but if the threat to the boat was due to an Act of God,
then the passenger who hastened to lighten the load and tossed the plaintiff’s
goods into the sea was not liable for the plaintiff’s loss.83 However, the economic
cost of saving the vessel and its cargo and passengers did not fall entirely on the
passenger whose goods were jettisoned.84 Since at least the time of the Romans,
the law of the sea has provided that when cargo is jettisoned to save a ship, all
aboard share the loss equally under the rule of general average contribution.85

The rule at sea that all share equally in the losses occasioned by the forces of
nature conflicts with the common law rule for analogous emergencies on land.
For takings on land, when public necessity requires the destruction of one
person’s property to save the lives or property of others, there is no obligation to
compensate the person whose property was taken.86 The question that these two
opposing rules confronts us with is: At what point, in the face of forces beyond
our control, do we no longer recognize that we are, at least metaphorically, all in

(illustrating the rule with a slightly different scenario: A sees B, a blind man, about to step into the

street in front of an approaching automobile. A could prevent B from so doing by a word or touch

without delaying his own progress. A does not do so, and B is run over and hurt. A is under no duty

to prevent B from stepping into the street and is not liable to B.).

79. See Bender, supra note 64, at 33.

80. Mouse’s Case (1609) 77 Eng. Rep. 1341; 12 Co. Rep. 63. 

81. Id.

82. Id.

83. Id.

84. Id.

85. J. Lowell, Qui Sentit Commodum Sentire Debet et Onus, 9 HARV. L. REV. 185, 187

(1895).

86. Bowditch v. Boston, 101 U.S. 16, 18 (1879).



16 INDIANA LAW REVIEW [Vol. 54:1

the same boat? The narrow legal distinction is between necessity on land and
necessity at sea, but of course that begs the question of whether there is any
possible satisfactory moral distinction between exigency at sea and ashore.87

While general average contribution and the common law rule of public
necessity govern compensation for property sacrificed in an emergency, a rather
different issue is raised when a would-be rescuer voluntarily risks her own life
and is killed or injured in the effort.88 In Eckert v. Long Island Railroad Co.,
Henry Eckert saw a young child, of three or four years of age, standing on a
railroad track, with a train heading towards the child with no apparent effort to
stop.89 Eckert rushed forward and managed to throw the child to safety, but was
struck by the train and died that night.90 His estate brought a suit against the
railroad.91 The question before the New York Court of Appeals was simply
whether Eckert should be barred from recovery by the doctrine of contributory
negligence.92 The defendant urged that Eckert’s death was a result of his own lack
of care, since the reasonable person would take care to avoid an oncoming train.93

The court rejected the railroad’s argument, ruling that in an emergency, where a
human life is in danger, the impulse and actions of a would-be rescuer cannot be
judged by the standards of normal times.94 Thus, the Eckert court recognized the
human impulse to care for others and allowed that impulse to override the usual
self-interested, wealth-maximizing negligence standard. 

In Wagner v. International Railway Co., the plaintiff/rescuer fell from a
railway bridge, which he was walking on in an effort to save his cousin, who had
been jarred from the train as it was crossing the bridge.95 Justice Cardozo’s
analysis on the issue of the rescuer’s risk-taking and the railway’s risk-creation
is among his most often-quoted opinions:

Danger invites rescue. The cry of distress is the summons to relief. The
law does not ignore these reactions of the mind in tracing conduct to its
consequences. It recognizes them as normal. It places their effects within

87. My colleague Paul Gudel has suggested that the reason for the distinction might be that

it is easier to identify those whose property was saved in the case of the cargo on a ship that was

likely to have sunk than it is to define the boundaries of those whose property is saved when an out-

of-control fire is threatening a city. However, while that may be a practical difficulty, the moral

issue remains, and the practical solution to that is simply to pay compensation from the same local

jurisdiction’s funds that would have been used to acquire the property by eminent domain.

88. Eckert v. Long Island R.R. Co., 43 N.Y. 502, 505 (1871).

89. Id.

90. Id. at 503.

91. Id. at 503-04.

92. Id. at 505; Contributory-Negligence Doctrine, BLACK’S LAW DICTIONARY (11th ed.

2019) (“The principle that completely bars a plaintiff’s recovery if the damage suffered is partly

the plaintiff’s own fault”).

93. Eckert, 43 N.Y. at 505.

94. Id. at 506.

95. Wagner v. Int’l Ry. Co., 133 N.E. 437, 437 (1921).



2021] CRISIS AND CULTURAL EVOLUTION 17

the range of the natural and probable. The wrong that imperils life is a
wrong to the imperiled victim; it is a wrong also to his rescuer.96

While Wagner is usually cited as support for the “rescue doctrine,”97 Cardozo’s
timeless words have a much broader significance, which is that humans are
capable and even prone to acts of heroism, of risking their own lives to save the
lives of others. The first responders at the World Trade Center and the healthcare
workers in our COVID-19 wards are widely recognized examples of this aspect
of ourselves. Eckert and Wagner provide at least a bit of doctrinal support for our
better natures, although the “no duty to rescue” doctrine remains a monument to
our traditional reverence of autonomy, separation, and wealth maximization.98

While it is true that liability in negligence limits autonomy to serve efficiency, it
is a limit that necessarily places the burden of “efficient losses” on the victims of
self-interested actors who contribute to an increase in overall social wealth
through efficient precautions, without regard to the distributional consequences
that result.99 Neither our interdependence nor our extraordinary willingness to
sacrifice for was recognized by the major currents of twentieth-century
intellectual or political theory in the United States.

V. RECONCEPTUALIZING TORT LAW AND CONTRACT LAW

A. An Ethics of Care for Tort Law

In Justice Traynor’s famous concurrence in Escola v. Coca Cola, he struggled
to bridge the efficiency norm that shaped tort doctrine with his own empathic
understanding of what injuries are:

Those who suffer injury from defective products are unprepared to meet
its consequences. The cost of an injury and the loss of time or health may
be an overwhelming misfortune to the person injured, and a needless one,
for the risk of injury can be insured by the manufacturer and distributed
among the public as a cost of doing business.100

96. Id.

97. See RESTATEMENT (THIRD) OF TORTS § 32 (AM. LAW INST. 2010).

98. See Wagner, 133 N.E. at 437; see also Eckert, 43 N.Y. at 505.

99. But see Kenneth S. Abraham, Strict Liability in Negligence, 61 DEPAUL L. REV. 271, 283

(2012). Abraham is among those who argue that the current tort system can be normatively justified

in a corrective justice framework. I would argue, as above, that limiting compensation to instances

where precaution taking was less than that justified by the risk is corrective justice that is blind to

those injured when precaution taking was efficient in risk/benefit terms. For a similarly critical

view of major normative torts theorists, see Robert L. Rabin, Law for Law’s Sake, 105 YALE L.J.

2261 (1996) (reviewing ERNEST J. WEINRIB, THE IDEA OF PRIVATE LAW (1995)).

100. Escola v. Coca Cola Bottling Co. of Fresno, 150 P.2d 436, 441 (Cal. 1944) (Traynor, J.,

concurring). I think it is fair to say that Traynor’s express willingness to fundamentally reshape tort

doctrine to better reflect empathy is a giant step past the not uncommon instances where empathy

clearly plays a role in a particular decision. See PETER KARSTEN, HEART VERSUS HEAD: JUDGE-



18 INDIANA LAW REVIEW [Vol. 54:1

While Traynor wrestled to justify this seedling of strict liability in economic
terms, it is easier to see Traynor’s empathy for the injured Gladys Escola as
justifying his proposed strict liability regime for product liability than to prove
its economic superiority.101 It is not difficult to see in his opinion a conception of
torts where those who are injured are taken care of, where enterprise liability is
founded not on efficiency grounds but a notion of fairness based on caring.102 If
losses are best distributed “among the public as a cost of doing business,” then
we would be, at least metaphorically, all in the same boat.103 If our activities or
our products injure someone, our sense of connectedness and relation should
move us—or legally obligate us—to assist him in dealing with the consequences
of those injuries.104 Further, in a reimagined tort law, the concept of enterprise in
“enterprise liability” should be more broadly construed than simply “that business
enterprises ought to be responsible for losses resulting from products they
introduce into commerce.”105 Rather than an economic or cost-shifting
conceptualization of the obligation to compensate for injuries as it has been
defined, in a tort law founded on an ethics of care, we might understand
“enterprise” to embrace any of the activities that we undertake, even as
individuals, that might result in harm to others. It is strict liability that is based on
the notion of empathy and care: I unintentionally have caused harm to
someone—I am obligated to help him.

B. Contract Law Through a Caring Lens

While a full description of the way our laws can reflect the values of caring

MADE LAW IN NINETEENTH-CENTURY AMERICA (1997) for an at-length exploration of the subject

of empathy in judging.

101. See Escola, 150 P.2d at 441.

102. See id.

103. Id.

104. I am not the first to argue for enterprise liability on the basis of fairness. In his article, The

Idea of Fairness in the Law of Enterprise Liability, 95 MICH. L. REV. 1266 (1997), Gregory C.

Keating argues for enterprise liability on fairness grounds. However, Keating attempts to do so

within a classic liberal framework, postulating “a family of principles embraced by a social contract

conception of accident law as a realm of equal freedom and mutual benefit. . . . Enterprise liability

thereby establishes more favorable conditions for free and equal persons to pursue their conceptions

of the good on mutually beneficial terms.” Id. at 1273. Thus, Keating, like Traynor, struggled to

join autonomy and enterprise liability. However, Keating rested his argument not on a general

notion of concern or caring but in contractarian terms. “[E]qual freedom and mutual benefit” allows

Keating to posit that enterprise liability represents an arrangement that is justified by liberal social

contract theory: “When the enterprise liability principle of fairness reconciles the competing claims

of liberty and security more fairly and favorably than negligence liability, social contract theory

calls for its adoption in place of the reciprocity of risk criterion traditionally embraced by social

contract scholars.” Id.

105. George L. Priest, The Invention of Enterprise Liability: A Critical History of the

Intellectual Foundations of Modern Tort Law, 14 J. LEGAL STUD. 461, 463 (1985).



2021] CRISIS AND CULTURAL EVOLUTION 19

and empathy is beyond the scope of this Essay, one more brief example of the
reimagining of another of the great common law subjects can further illustrate
what our next normal might be. Perhaps no subject is more grounded on a
conception of autonomous individuals freely pursuing their ends than contract
law.106 The principles of limited government, individual autonomy, and the value
of free markets are the foundation on which binding compulsory arbitration is
imposed in virtually all consumer contracts, from car rentals to mobile phone
service and the use of social media. Similarly, a great many other prominent
features of adhesion contracts determine the rights and liabilities of ordinary
individuals in their dealings with corporations. For most individuals, their job is
the determinant of how they spend much of their time, where they will be able to
afford to live and, for a great many, how healthy they will be and, as a result, how
long they might expect to live.107

The notion that the terms and conditions of employment were the product of
individual autonomy in a free market was recognized as transparently absurd
more than a century ago by no less a scholar than Roscoe Pound. Pound’s critique
was succinct and scathing. Pound quoted a sociologist: “Much of the discussion
about ‘equal rights’ is utterly hollow. All the ado made over the system of
contract is surcharged with fallacy.”108 Further:

To everyone acquainted at first hand with actual industrial conditions the
latter statement goes without saying. Why, then do courts persist in the
fallacy? Why do so many of them force upon legislation an academic
theory of equality in the face of practical conditions of inequality? Why
do we find a great and learned court in 1908 taking the long step into the
past of dealing with the relation between employer and employee in
railway transportation, as if the parties were individuals—as if they were
farmers haggling over the sale of a horse? Why is the legal conception
of the relation of employer and employee so at variance with the
common knowledge of mankind?109

106. The linkage between classical liberal philosophy, free-market economics, and contract

law was elegantly expressed by the great Roscoe Pound in his seminal article Liberty of Contract,

18 YALE L.J. 454 (1909): “The idea that unlimited freedom of making promises was a natural right

came after enforcement of promises when made, had become a matter of course. It began as a

doctrine of political economy, as a phase of Adam Smith’s doctrine which we commonly call

laisser faire. It was propounded as a utilitarian principle of politics and legislation by Mill. Spencer

deduced it from his formula of justice. In this way it became a chief article in the creed of those

who sought to minimize the functions of the state, that the most important of its functions was to

enforce by law the obligations created by contract.” Id. at 456-57 (citations omitted).

107. See M. G. Marmot et al., Inequalities in Death—Specific Explanations of a General

Pattern?, 323 LANCET 1003 (1984), for a classic study of the inequalities in health and life

expectancy between employees in higher grade positions and those in lower grade positions.

108. Pound, supra note 106, at 454 (quoting LESTER F. WARD, APPLIED SOCIOLOGY 281

(1906)).

109. Id. (citation omitted).



20 INDIANA LAW REVIEW [Vol. 54:1

While this passage in Pound’s article is directed at Justice Harlan’s opinion in
Adair v. United States,110 the enshrinement of liberty of contract into a substantive
due process right protected by the Fifth and Fourteenth Amendments was begun
three years earlier in the infamous Lochner v. New York decision.111 Lochner
invalidated a New York statute that prohibited bakeries (and similar businesses)
from requiring their employees to work more than sixty hours in a week.112 As
Justice Peckham reasoned:

The statute necessarily interferes with the right of contract between the
employer and employees, concerning the number of hours in which the
latter may labor in the bakery of the employer. The general right to make
a contract in relation to his business is part of the liberty of the individual
protected by the 14th Amendment of the Federal Constitution.113

The short, unhappy life114 of Lochner’s enshrinement of liberty of contract as a
constitutionally protected right was succinctly summarized in the joint opinion
of Justices O’Connor, Kennedy, and Souter in Planned Parenthood of
Southeastern Pennsylvania v. Casey:

The Lochner decisions were exemplified by Adkins v. Children’s
Hospital of District of Columbia, 261 U.S. 525, 43 S. Ct. 394, 67 L. Ed.
785 (1923), in which this Court held it to be an infringement of
constitutionally protected liberty of contract to require the employers of
adult women to satisfy minimum wage standards. Fourteen years later,
West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S. Ct. 578, 81 L. Ed.
703 (1937), signaled the demise of Lochner by overruling Adkins. In the
meantime, the Depression had come and, with it, the lesson that seemed
unmistakable to most people by 1937, that the interpretation of
contractual freedom protected in Adkins rested on fundamentally false
factual assumptions about the capacity of a relatively unregulated market
to satisfy minimal levels of human welfare.115

The “demise” of Lochner during the Great Depression and the collapse of the
United States economy ushered in numerous social reforms that aimed to strike
a more just balance between employers and employees, and between the most

110. See Adair v. United States, 208 U.S. 161 (1908) (holding unconstitutional a federal

statute prohibiting interstate carriers from discriminating against employees on the basis of

membership in a union).

111. Lochner v. New York, 198 U.S. 45 (1905).

112. Id. at 64-65.

113. Id. at 53 (citing Allgeyer v. Louisiana, 165 U.S. 578 (1897)) (emphasis added).

114. I reference here the well-known Ernest Hemingway story, “The Short Happy Life of

Francis Macomber.” While Macomber met his demise at a high-point moment in his life, Lochner’s

demise came during the misery of the Great Depression. Ernest Hemingway, The Short Happy Life

of Francis Macomber, in THE FIFTH COLUMN AND THE FIRST FORTY-NINE STORIES (1938).

115. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 861-62 (1992).



2021] CRISIS AND CULTURAL EVOLUTION 21

fortunate members of society and the least fortunate. Chief among these was the
Fair Labor Standards Act of 1938, which provided a minimum wage, a forty-hour
standard work week, the end of child labor, and the enactment of the Social
Security Act to provide a minimum income for the disabled and elderly.116

However, while statutes have eliminated some of the most abusive workplace
conditions, the current pandemic reveals how much further we need to go. A
recent article in The Journal of the American Medical Association studied the
characteristics of “essential” workers who continued to work in situations that put
them at risk, either through continuous exposure to the public (e.g. healthcare,
transportation, or grocery workers) or exposure to their coworkers (e.g.
manufacturing, meat processing, or construction).117 According to the study,
“25% of essential workers were estimated to have low household income, 18%
to live in a household with at least 1 uninsured person, and 18% to live with
someone 65 years or older.”118 Similarly, a Centers for Disease Control and
Prevention study of COVID-19 infections in the poultry industry found both a
high rate of infection and working conditions that were likely to put workers at
continued risk.119 

For most people, the world of contracts is divided into two major categories:
the contracts between them and their employer (employment contracts) and
contracts for the goods and services they buy (consumer contracts). In the
category of employment contracts, reforms may be provided in the way that
previous reforms have been delivered—by comprehensive statutes that impose
limits on the terms and conditions of employment and increase the bargaining
power of workers. In the wake of the Great Depression, major changes were
statutorily created in child labor and statutes governing wages and hours, marking
the beginning of an effort to ensure safe working conditions.120 The Great
Depression also provided the impetus for the enactment of the National Labor
Relations Act to protect workers’ rights to organize and bargain collectively.121

However, these United States labor reforms were piecemeal efforts to solve
particularly egregious problems, while the essential framework for employer-
employee relations in the United States remains anchored by an assumption that
free market negotiations between employers and employees are the optimal way

116. Alan Brinkley, The New Deal Experiments, in THE ACHIEVEMENT OF AMERICAN

LIBERALISM: THE NEW DEAL AND ITS LEGACIES 7-8 (William H. Chafe ed., 2003).

117. Grace McCormack et al., Economic Vulnerability of Households with Essential Workers,

J. AM. MED. ASS’N 388, 388-89 (2020).

118. Id. at 389.

119. Michelle A. Waltenburg et al., Update: COVID-19 Among Workers in Meat and Poultry

Processing Facilities ̄  United States, April–May 2020, 69 MORBIDITY & MORTALITY WKLY. REP.

887 (July 10, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6927e2-H.pdf [https://

perma.cc/B3E8-CHJF].

120. Anna P. Prakash & Brittany B. Skemp, Beyond the Minimum Wage: How the Fair Labor

Standards Act’s Broad Social and Economic Protections Support Its Application to Workers Who

Earn a Substantial Income, 30 ABA J. LAB. & EMP. L. 367, 373-74 (2015).

121. 29 U.S.C.A. § 151 (West 1947).



22 INDIANA LAW REVIEW [Vol. 54:1

to deal with everything from wages to sick leave.122 The time has come for a new
statutory foundation for employment contracts in the United States that provides
a much fairer balance between the interests of employers and employees than the
marketplace has achieved. While the details of such a statutory foundation far
exceed the scope of this Essay, there are models from Europe that can be a
starting point for assuring that workers are paid a living wage with reasonable job
security and benefits.123

In the world of consumer contracts with which we are now all too familiar,
transactions generally involve lengthy documents containing many pages of fine
print that we either sign or “click to agree,” whether it is in order to rent a car,
buy a cell phone plan, book a room at a hotel, or buy anything from Amazon.
Traditionally, the primary limit that the law of contracts places on the ability of
the drafters of those contracts to impose whatever conditions they choose is the
doctrine of unconscionability.124 Comment b to the Restatement (Second) of
Contracts § 208 cites Hume v. United States for the historical and traditional
definition of unconscionability:

That an agreement to pay $1.200 a ton [for goods], actually worth not
more than $35 a ton, is a grossly unconscionable bargain, defined in
Bouvier’s Law Dictionary to be “a contract which no man in his senses,
not under delusion, would make, on the one hand, and which no fair and
honest man would accept on the other,” nobody can doubt. Such a
contract, whether founded on fraud, accident, mistake, folly, or
ignorance, is void at common law. . . . Courts of law will always refuse
to enforce such a bargain, as against the public policy of honesty, fair
dealing, and good morals.125

The problem with that standard of unconscionability is that on its face, it allows
the stronger party to draft contracts that impose conditions that are onerous, one-
sided, and are simply a reflection of the relative bargaining power of the parties;
such conditions go right up to the line of terms that “no man in his senses” would

122. See JOSEPH E. STIGLITZ, FREEFALL: AMERICA, FREE MARKETS, AND THE SINKING OF THE

WORLD ECONOMY 261 (2010).

123. See Cathie Jo Martin & Kathleen Thelen, The State and Coordinated Capitalism:

Contributions of the Public Sector to Social Solidarity in Postindustrial Societies, 60 WORLD POL.

1, 1-36 (2007). Martin and Thelen examine a variety of factors contributing to the results of state

and labor models in Germany and Denmark, as well as examples from several other European

countries. Their analysis seems particularly relevant to our current time of crisis and transition. See

also Henry Hansmann, Worker Participation and Corporate Governance, 43 U. TORONTO L.J. 589

(1993).

124. RESTATEMENT (SECOND) OF CONTRACTS § 208 (AM. LAW INST. 1981); U.C.C. § 2-302

(AM. LAW INST. & UNIF. LAW COMM’N 2020). There are other limits as well (for example,

illegality); however, the most general way that contract law limits parties’ ability to contract is

unconscionability.

125. Hume v. United States, 21 Ct. Cl. 328, 330 (Ct. Cl. 1886).



2021] CRISIS AND CULTURAL EVOLUTION 23

accept.126 
This problem with the standard is a serious issue for virtually everyone. I am

writing this document in Microsoft Word, which I acquired as part of my
purchase of Microsoft Office 365. The Microsoft Services Agreement that covers
my use of Word in writing this Essay is approximately thirty-three pages long.127

As a lawyer, it is easy for me to read and understand it, although it might not be
easy for other users. For example, here is the clause limiting the damages I might
recover if a bug in the software were to trash my hard drive, causing me to lose
approximately 450 hours of work product128:

13. Limitation of Liability. If you have any basis for recovering damages
(including breach of these Terms), you agree that your exclusive remedy
is to recover, from Microsoft or any affiliates, resellers, distributors,
Third-Party Apps and Services providers, and vendors, direct damages
up to an amount equal to your Services fee for the month during which
the loss or breach occurred (or up to $10.00 if the Services are free). You
can’t recover any other damages or losses, including direct,
consequential, lost profits, special, indirect, incidental, or punitive. These
limitations and exclusions apply even if this remedy doesn’t fully
compensate you for any losses or fails of its essential purpose or if we
knew or should have known about the possibility of the damages. To the
maximum extent permitted by law, these limitations and exclusions apply
to anything or any claims related to these Terms, the Services, or the
software related to the Services.129

Is a limit of $8.33130 on my damages for the loss of several thousand hours of
work an agreement which “no man in his senses” would make? Was I not in my
right mind when I clicked “agree”? Or, more likely, did I simply click “agree”
without reading all of the agreement (prior to writing this), knowing that I did not
have any power whatsoever to negotiate the terms? Perhaps Microsoft’s lawyers

126. Id.; see generally Robert Kuttner & Katherine V. Stone, The Rise of Neo-Feudalism, AM.

PROSPECT (Apr. 8, 2020), https://prospect.org/economy/rise-of-neo-feudalism/ [https://perma.cc/

8B42-YXUS] (arguing that the mid-twentieth-century was a time in which there was a movement

towards incorporating a duty of good faith and fair dealing into contract law, specifically with

U.C.C. §§ 1-201(20) and 2-314, and describing the subsequent retreat from that movement and

other efforts at law reform: “The trend in contract law took a U-turn in the 1980s, as the law and

economics movement began to permeate the judiciary. The new ‘efficiency’ theory of contract law

held that all contracts should be enforced, notwithstanding either deception or vast power

inequalities between the parties.”). 

127. Microsoft Services Agreement, MICROSOFT, https://www.microsoft.com/en-us/

servicesagreement (last updated Aug. 1, 2020) [https://perma.cc/C7D9-9YXT].

128. I do have a cloud backup that is current but let us assume that I back up only once every

two or three months, and that my documents in that period represent about 150 “billable hours” of

law professor work per month resulting in the loss of two months of work, or 300 hours.

129. Microsoft Services Agreement, supra note 127, § 13.

130. This amount is based on one month’s cost of Office 365 with an annual cost of $100.



24 INDIANA LAW REVIEW [Vol. 54:1

were also knowingly overreaching and willing to take their chances in arbitration
or small claims court. In California, the small claims court can hear cases
involving disputes up to $10,000,131 which still does not seem like fair
compensation for my three hundred hours of work. Such overreaching clauses are
popular in online contracts in part because of their in terrorem effect,
discouraging consumers from pursuing an adequate remedy.132

The Hume standard of unconscionability finds a new expression in Section
5 of the most recent tentative draft of the Restatement of the Law of Consumer
Contracts (“Draft RCC”), which defines unconscionability as: “(1) substantively
unconscionable, namely fundamentally unfair or unreasonably one-sided, and (2)
procedurally unconscionable, because it results in unfair surprise or results from
the absence of meaningful choice on the part of the consumer.”133 Notice the
conjunction “and,” which requires that the clause be both substantively
unreasonably one-sided and procedurally unconscionable. Is Microsoft’s
limitation on damages unconscionable under the Draft RCC? Microsoft’s
limitation is a fraction of the cost of the product. Are limits that are a small
multiple of the cost of the product, such as $1,000 rather than $10, reasonable?
Should such limits instead reflect a balance between the gross profits on the sale
of the product over time in relation to the total losses that could result from the
use of said product? The Draft RCC does not attempt to provide clear answers to
these questions, nor does it aim at writing a law of contracts that has fair contracts
as its goal. Rather, the Draft RCC, which may be an admirable effort to reflect
“the law as it is” rather than as it should be, simply entrusts the adversarial
process and future court decisions to work out when a contract becomes so totally
one-sided and unreasonable as to cross the unconscionable line.134 Making such
determinations a matter of judicial decisions on an ad hoc, contract-by-contract
basis simply adds uncertainty and cost to the process of contracting and dispute
resolution.

What we need is not a Restatement of Consumer Contracts that reflects “the
law as it is” but a Model Code of Contracts that embraces contract law as it
should be.135 A clause that attempts to relate any limit on the seller’s potential
liability to the seller’s profits would at least consider the fairness of the agreement

131. If You’re the Plaintiff ... Filing Your Lawsuit, CAL. DEP’T CONSUMER AFF.,

https://www.dca.ca.gov/publications/small_claims/file.shtml (last visited Jan. 17, 2021) [https://

perma.cc/2XEQ-VSFY].

132. Colin P. Marks, Online Terms as in Terrorem Devices, 78 MD. L. REV. 247, 285 (2019).

133. RESTATEMENT OF CONSUMER CONTRACTS § 5 (AM. LAW INST., Tentative Draft No. 1-5,

2019).

134. Steven O. Weise, The Draft Restatement of the Law, Consumer Contracts Follows the

Law, ALI ADVISER (Apr. 5, 2019), http://www.thealiadviser.org/consumer-contracts/the-draft-

restatement-of-the-law-consumer-contracts-follows-the-law/ [https://perma.cc/N79H-VGBF].

135. See generally Nancy S. Kim, Ideology, Coercion, and the Proposed Restatement of the

Law of Consumer Contracts, 32 LOY. CONSUMER L. REV. 456 (2020) (criticizing the Draft RCC);

see also NANCY S. KIM, CONSENTABILITY: CONSENT AND ITS LIMITS (2019) (providing a powerful

and comprehensive critique of contract law in our age of vast power inequality).



2021] CRISIS AND CULTURAL EVOLUTION 25

to both parties. A Model Code could be negotiated and drafted by representatives
of businesses and consumers given a mandate to achieve fairness. While it is not
my purpose in this Essay to provide a detailed proposal for contract law reform,
I do believe that specific statutory reforms for employment law are very much a
possibility in the near future and that a Model Code of Contracts is also possible.
It is hard to envision that a Model Code of Contracts premised on respect and
concern would provide a limitation on damages that does not reflect both the
possible harm to the buyer as well as the capacity of the seller to foresee and
insure against such losses by adequately pricing the goods or services being sold.
In the next normal, such a Model Code could be rapidly adopted by state
legislatures, creating a marketplace that is shaped more by fairness than relative
economic power.

VI. CONCLUSION

It may be coincidence that the great recession of 2007, which shook the belief
of numerous economists in Chicago School market theory,136 was also followed
by a revolution within sociobiology. E.O. Wilson, who began the field of
sociobiology, moved away from Dawkins’s position to an acknowledgement that
there are differing behavior patterns in different groups, and that there is an
evolutionary selection process that occurs at group-level.137 When groups
compete, Wilson’s revised account of sociobiology acknowledges the interplay
of culture and genes and can, at least in part, be best summarized by this short
quote: “Human beings are prone to be moral—do the right thing, hold back, give
aid to others, sometimes even at personal risk—because natural selection has
favored those interactions of group members benefitting the group as a whole.”138

Wilson’s departure from a vision of humans as biologically driven by a principal
of individual genetic “selfishness” to a vision of humans with a drive to
contribute to the good presents a paradigm shift in a major social scientist’s
understanding of evolution and human society. The pandemic and the death of
George Floyd are disruptive events in the American society of a scale not seen in
generations. They are evolution-accelerating events.139 How will American
society evolve following this period of disruption?

136. See Cassidy, supra note 12; see also Robert Skidelsky, The Relevance of Keynes, 35

CAMBRIDGE J. ECON. 1, 5 (2011) (“When the financial system crashed in 2008, dragging down the

real economy with it, governments stepped in everywhere with ‘stimulus packages’ made up of a

mixture of bailing out insolvent banks, printing money, providing tax rebates or subsidies for

private spending and big increases in loan-financed public spending. This was all according to

Keynesian prescription. Even Robert Lucas, high priest of Chicago economics, admitted that ‘we

are all Keynesians in the foxhole.’”).

137. EDWARD O. WILSON, THE SOCIAL CONQUEST OF EARTH 247 (2012).

138. Id. 

139. I borrow here from the theory of punctuated equilibrium espoused by Niles Eldredge and

Steven J. Gould that holds in part that “once a species has arisen it remains essentially unchanged

for most of its history, but when change occurs it does so swiftly.” Lewin, supra note 43, at 672.



26 INDIANA LAW REVIEW [Vol. 54:1

The primacy of self-interest or selfishness was at the heart of biological,
economic, legal, and political theory throughout much of the twentieth century.140

However, with the primacy of self-interest now questioned by scholars across a
variety of disciplines, ranging from Edmund Wilson (biology) to Kristen
Renwick Monroe141 (political science), there is now the potential for a major shift
in our cultural and legal norms. The global pandemic has been an unplanned and
awful experiment in which differing cultural responses to the threat are being
tested. It is becoming clear that our culture, in which individual autonomy has
been widely elevated over collective responsibility and concern, has failed in its
response. While numerous countries across Europe and Asia have brought the
rate of infections under control and have significantly lower per capita deaths
from COVID-19 than the United States,142 death rates in the United States are
again rising.1 4 3 A recent research report concluded that the rate of death from
COVID-19 correlated very strongly with one simple factor—wearing masks.144

The assertion that compulsory mask wearing is an infringement on individual
autonomy and freedom145 is simply an assertion that individual choice and
perceived self-interest trump (no pun intended) responsibility and concern for
others. Our culture can adapt or else slip further and further into decline. The
national mood makes the time ripe for change—a recent Pew survey found a
stunning 87% of Americans dissatisfied with the way things are going in this
country today, while 71% describe themselves as angry and 66% as fearful.146 But

140. See generally Kristen Renwick Monroe, A Fat Lady in a Corset: Altruism and Social

Theory, 38 AM. J. POL. SCI. 861 (1994). 

141. See id.

142. Mortality Analyses, JOHNS HOPKINS U. MED. CORONAVIRUS RESOURCE CTR.,

https://coronavirus.jhu.edu/data/mortality (last visited Jan. 17, 2021) [https://perma.cc/8GKD-

4DDH].

143. Coronavirus in the U.S.: Latest Map and Case Count, N.Y. TIMES, https://www.nytimes.

com/interactive/2020/us/coronavirus-us-cases.html (last visited Jan. 5, 2021) [https://perma.

cc/WT7X-NDFS].

144. See Daisuke Miyazawa & Gen Kaneko, Face Mask Wearing Rate Predicts Country’s

COVID-19 Death Rates: With Supplementary State-by-State Data in the United States, MEDRXIV

(July 14, 2020), https://www.medrxiv.org/content/medrxiv/early/2020/07/14/2020.06.22.20137745.

full.pdf [https://perma.cc/P3R5-XWPA]; see also John T. Brooks et al., Universal Masking to

Prevent SARS-CoV-2 Transmission—The Time Is Now, 324 J. AM. MED. ASS’N 635 (2020). 

145. See, e.g., Press Release, Freedom Foundation Lawsuit Alleges Mask Order Violates Free

Speech, FREEDOM FOUND. (July 7, 2020), https://www.freedomfoundation.com/press-release/

freedom-foundation-lawsuit-alleges-mask-order-violates-free-speech/ [https://perma.cc/7U6U-

JVL2]; see also Morgan Chalfant, Trump Says He Won’t Issue National Mask Mandate, THE HILL

(July 17, 2020), https://thehill.com/homenews/administration/507908-trump-says-he-wont-issue-

national-mask-mandate [https://perma.cc/HT6Z-AWJ8] (“President Trump says he will not issue

a national mandate requiring Americans to wear masks in order to slow the spread of the novel

coronavirus. ‘I want people to have a certain freedom and I don’t believe in that, no,’ Trump said

in an interview with Fox News’s Chris Wallace that will air in full on ‘Fox News Sunday.’”). 

146. Majorities Feel Anger, Fear with State of Nation; Few Feel Proud, PEW RES. CTR. (June



2021] CRISIS AND CULTURAL EVOLUTION 27

this dark mood makes the desire for change stronger. There is hope. The rate of
mask wearing has increased,147 while public support for universal healthcare has
also increased.14 8 We can imagine tort law building on the empathy of Justice
Traynor and embracing an ethics of care articulated by Leslie Bender. Consumer
contract law could be guided by fairness rather than by the extreme standard of
unconscionability. As the pandemic increasingly forces us to recognize our
interdependence, reforms in healthcare, childcare, and the workplace become
possible. If selfishness is no longer viewed as a biological imperative or economic
necessity,149 then we are not only free to transform our society—we must.

30, 2020), https://www.pewresearch.org/politics/2020/06/30/publics-mood-turns-grim-trump-trails-

b id e n -o n -m o st-person al-traits-m ajor-issu es/pp_ 0 6 -3 0 -2 0 _ pu blic-m ood-tru m p-0 0 -0 /

[https://perma.cc/2YY2-NGZB]. 

147. Press Release, CDC Calls on Americans to Wear Masks to Prevent COVID-19 Spread,

CTRS. FOR DISEASE CONTROL & PREVENTION (July 14, 2020), https://www.cdc.gov/media/

releases/2020/p0714-americans-to-wear-masks.html [https://perma.cc/MN7B-Z8KA]. 

148. Yusra Murad, As Coronavirus Surges, ‘Medicare for All’ Support Hits 9-Month High,

MORNING CONSULT (Apr. 1, 2020), https://morningconsult.com/2020/04/01/medicare-for-all-

coronavirus-pandemic/ [https://perma.cc/UM7Y-F6VQ]. 

149. For the biological recognition of altruism, see WILSON, supra note 137. For the economic

recognition of altruism and cooperation, see STEVEN G. MEDEMA, THE HESITANT HAND 197-99

(2009). 



28 INDIANA LAW REVIEW [Vol. 54:1

EPILOGUE

This article was completed in August of 2020. Since that time, a great deal
has occurred that reinforce the thesis of this article: “A pandemic is an evolution-
accelerating event on a biological level but also on a cultural level. The social
forces created by the pandemic have brought us to a turning point.” At the same
time, much that has occurred has shown how difficult it is for our society to
respond to the need for social change. For possibly the first time in our nation’s
history, or perhaps the first time since the election of Abraham Lincoln and the
subsequent Civil War, a presidential election did not result in a peaceful transfer
of power, as a mob used force in an attempt to prevent the certification of the
election of President Joe Biden. While ultimately democracy prevailed, blood was
shed in protecting that democratic process, and conspiracy theories concerning
both the election and questioning the reality of the pandemic are widely shared.150

We are indeed at a turning point, and the need for our culture to evolve is more
apparent than ever. Whether we will remains to be determined.

150. Thomas B. Edsall, The QAnon Delusion Has Not Loosened Its Grip, N.Y. TIMES (Feb.

3, 2021), https://www.nytimes.com/2021/02/03/opinion/qanon-conspiracy-theories.html [https://

perma.cc/A5Q5-8FX8].