The Measure of Injury: Race, Gender, and Tort Law

Article excerpt

The Measure of Injury: Race, Gender, and Tort Law, by Martha Chamallas and Jennifer B. Wriggins (New York, NY: New York University Press, 2010), 228 pp., $40.00.

The Measure of Injury: Race, Gender, and Tort Law by Martha Chamallas and Jennifer Wriggins, challenges the traditional view of tort law as neutral and objective, and aims to demonstrate instead that tort law is littered with, if not substantially shaped by, gender and racial bias. When the first page asserts that "from the types of injuries recognized, to judgments about causation, to the valuation of injuries," tort law "has been affected by the social identity of the parties and cultural views on gender and race," traditionalists and moderates cannot help but read the rest of the book with more than an insubstantial level of skepticism. The basic notion that tort law is less accepting of claims by women and minorities simply would not strike many readers as immediately plausible because negligence and intentional tort claims, on their face, know no race or gender. Most students of tort law can search their knowledge of the subject and not call to mind any more than maybe a few examples that fit Chamallas and Wriggins' claim. While not perfect, tort law's open ended concepts of negligence, intent, fault, and harm would seem immediately available to all on equal terms. Thus, against this backdrop, the book's aim is no small task, nor its success a foregone conclusion, which is what makes the book so insightful and compelling in the end.

Through a methodically critical examination of the premises that underlie tort law, the authors build an unassailable mountain of examples and principles that reveal the presence of race and gender influences so prevalent that one ultimately wonders how we managed to miss them. And that we have missed these influences for so long offers an indictment not only of tort law itself, but our capitulation to it. The authors do not directly address why this problem has largely gone unnoticed, but the answer seems to be that tort law on its face is incredibly neutral and objective, and those aspects that are not can only be found at the subtle core of torts. The subtle core of torts involves fact finders and courts determining what is tortious and nontortious conduct, based far too often on subconscious social norms for torts to stand as a triumph over racial and gender inequity where other areas of the law have failed. Yet, because we have infrequently viewed torts in this manner, it is only the excavation this book performs that manages to bring the racial and gender inequity in torts to our attention. In this respect, the book carries the heavy theoretical and doctrinal load for future reforms, but leaves no shortage of serious case by case work in the meantime for lawyers, psychologists, and their colleagues in the other social sciences. In particular, the professionals supporting tort claims by women and minorities must assist in reshaping the theoretical and practical frames with which courts and jurors view individual cases. This means assisting courts and jurors in deconstructing their own false sense of neutrality and accounting for biases that should play no role in their factual and legal determinations.

The book proceeds in six chapters. The first chapter begins with a discussion of the theoretical frameworks for evaluating gender and race influences in tort. The second chapter canvases torts historically, pointing to pre-civil rights era examples where race and gender stereotypes were accepted factors of analysis that limited the claims recognized on behalf of women and minorities. For instance, the stereotypical notion of feminine fragility was used to excuse harm caused by what was otherwise faulty conduct by others (pp. 41-42), just as the lowered social status of African Americans was used to deflate the harm they suffered at the hands of whites and inflate the harm that they caused to whites (pp. 51-54). …