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

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

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

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

Synopsis

Tort law is the body of law governing negligence, intentional misconduct, and other wrongful acts for which civil actions can be brought. The conventional wisdom is that the rules, concepts, and structures of tort law are neutral and unbiased, free of considerations of gender and race.

In The Measure of Injury , Martha Chamallas and Jennifer Wriggins prove that tort law is anything but gender and race neutral. Drawing on an in-depth analysis of case law ranging from the Jim Crow South to the 9/11 Victim Compensation Fund, the authors demonstrate that women and minorities have been under-compensated in tort law and that traditional biases have resurfaced in updated forms to perpetuate patterns of disparate recovery based on race and gender. Grappling with tort theory, the intricacies of legal doctrine and the practical effects of legal rules, The Measure of Injury is a unique treatise on torts that uncovers the public and cultural dimensions of this always-controversial domain of private law.

Excerpt

Despite its social importance, the topic of the significance of race and gender in the law of torts has not received sustained attention largely because, on its surface, the world of torts appears divided between those who suffer injury and those who inflict injury, categories that are race and gender neutral. To be sure, there is a vague awareness that particular social groups are more likely to sustain certain types of injuries, for example, that women are disproportionately hurt by domestic violence and that African American children are at greater risk than white children of suffering injury from exposure to lead paint. However, the conventional wisdom is that the legal rules, concepts, and structures for liability no longer take account of the race or gender of the parties.

This book contests that conventional wisdom and explores how the shape of contemporary U.S. tort law—from the types of injuries recognized, to judgments about causation, to the valuation of injuries—has been affected by the social identity of the parties and cultural views on gender and race. At a time when formal doctrine is neutral on its face and rights and liabilities are stated in universal terms, considerations of race and gender most often work their way into tort law in complex, subtle ways. This book thus pays close attention to the social construction of harms, unconscious cognitive bias that affects legal reasoning, and the tacit measures by which the law places a dollar value on human suffering. We examine the basic building blocks of tort liability—the concepts of intent, negligence, causation, and damages—for evidence of hidden race and gender bias, and we identify the gender and race implications of deep-seated assumptions that mark out the boundaries of the field.

The story we tell is a complex one. Not all tort rules disadvantage women and racial minorities, and it is important to recognize that tort law has been a site for promoting equality as well as for perpetuating hierarchies. Particularly in the past two decades, certain principles and concepts first enunciated in statutory civil rights litigation have migrated into tort law to produce a . . .

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