Academic journal article The Journal of Gender, Race and Justice

Foreword-Institutional Responsibility for Sex and Gender Exploitation

Academic journal article The Journal of Gender, Race and Justice

Foreword-Institutional Responsibility for Sex and Gender Exploitation

Article excerpt

Splashed across recent newspaper and internet pages are stories of organizations increasingly being held accountable for sex and gender exploitation perpetrated by individuals who are associated with them. In 2012, the NCAA imposed unprecedented sanctions against Pennsylvania State University for its officials' roles in covering up the sexual abuse perpetrated by Jerry Sandusky.* 1 Victims of sexual abuse by clergy have finally been somewhat successful in their tort suits against the Catholic Church.2 Another series of lawsuits, filed against USA Swimming, the national governing body for competitive swimming, allege that the organization ignored sexual abuse complaints and failed to report them to authorities.3 The EEOC recently settled a class action lawsuit in which the company owners failed to respond when a customer repeatedly harassed female servers.4

These seemingly scattered events are part of a larger mosaic in which civil remedies, particularly in tort and employment law, are being used to address sex and gender exploitation.5 The idea of litigating toward gender justice by making institutional actors responsible for various forms of sex and gender discrimination unites the articles in this Symposium.

This Foreword begins by tracking the evolution of tort law from its early vindication of isolated individual claims to its much more recent incarnation as an instrument of social reform for collective interests. The second part addresses legal impediments that prevent redress of certain types of gendered harms-ranging from areas that are virtually unregulated to court decisions that cabin the reach of existing laws to pragmatic difficulties of using tort and employment litigation to provide remedies for individual wrongs, let alone effect larger institutional changes. The third part introduces the articles in this Symposium. These papers were presented at the program of the Section on Women in Legal Education at the 2013 annual meeting of the Association of American Law Schools. The hope of the Section on Women in Legal Education was to bring some of the most prominent and inventive legal minds to begin the theorizing about litigation, legislation, corporate governance, and pedagogy that will work toward gender justice.

I. The Sweep of Tort Law From Atomistic to Collective Responsibility

In the very early days, ancient laws regarding wrongdoing did not distinguish between civil and criminal penalties, and actually permitted the imposition of collective responsibility on a wrongdoer's clan.6 In the late eighteenth and early nineteenth century, civil law began separating from criminal law, and the idea of tort law was essentially synonymous with the law of personal or "private wrongs."7 By the mid-nineteenth century, tort law was developing as a body of doctrine distinct from property, contracts, and criminal law, and the emphasis was on individual responsibility. The primary discussions concerned responsibilities of people to their neighbors, with the hope of deterring individual actors from treating their fellow community members in malicious ways.8

The rise of the industrial revolution and the increasingly common phenomenon of worker accidents forced judges to begin thinking about institutional liability and prompted the development of negligence principles.9 Negligence theories, under which plaintiffs had to prove the failure to use reasonable care, supplanted earlier theories of strict liability used against manufacturers.10 This allowed nascent industries to grow, but also meant that workers would not be left without compensation. The fault standard for negligence invoked a normative consideration of a community standard for reasonable care." Yet, torts were still considered "isolated, ungeneralized wrongs,"12 and theories of causation and responsibility were still highly atomistic.

Older rules, such as the proximate cause idea of the "last human wrongdoer,"13 looked for the single, simple location of fault. …

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