I had a thought about the stuff I’m looking at about law and injury and disability, some tentative hypotheses. It seems to me there’s a paradox in the legal handling of compensation for pain and suffering, in that on the one hand it’s recognized that money doesn’t really compensate for agony and anguish and so in one important sense damage awards for pain are not really calculable – there’s no clear monetary equivalent, no easy quantification. These damages were still awardable at law, though, and money is quantitative so awards were always in specific amounts. So the law authorized a calculation which wasn’t clearly calculable, not subject to clear rational reconstruction in its particulars (why this amount or that amount), and it allowed (actually, because of appeals by defendants who lost, it forced) judges to consider whether some awards were excessive, which implies some standards of calculability at least at the level of rough estimates. That’s the legal paradox at the level of ideas. It intensified into a strong contradiction with the accident crisis, because so many people got hurt so much so often (this also formed a legitimation crisis and threatened to become an economic crisis); the accident crisis made courts have to deal with pain and suffering awards with greater and greater frequency and so face up to the difficulties of those awards. Those awards were also a vehicle for flexibility in awards – meaning, upward pressure – which in turn helped create incentives for policy changes (ultimately, workers comp). One other thought on this first thing –this is about exchanges of unequals, and was at least partially recognized as such, I think.

Second thing, and briefer because I’m very tired, alongside of (and, I have a hunch but no clear argument, as a result of) that paradox-intensified-into-contradiction there was also an emergent category and practice, with the identification of disability with inability to work and the erosion of disabled people’s employability. This happened for sure after workers comp, but I think it began before workers comp, with assumptions and arguments in court cases about workers’ ability to work after injuries. I have a hunch that there’s some important connection here beyond a sort of analogy (both are about cultures of commodification, so to speak), but I’m not sure what that additional connection is yet.

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