Whiteness, Equal Treatment, and the Valuation
of Injury in Torts, 1900–1949
JENNIFER B. WRIGGINS
This chapter focuses on the relationship between U.S. tort law, race, and legal culture in the first half of the twentieth century. For purposes of this chapter, my definition of tort law is a narrow one, consisting of legal doctrine and court decisions. My idea of legal culture is based on David Nelken's concept that legal culture ranges “from facts about institutions such as the number and role of lawyers or the ways judges are appointed and controlled, to various forms of behavior such as litigation or prison rates, and at the other extreme, more nebulous aspects of ideas, values, aspirations, and mentalities” (Nelken 2004, 1). This view of culture includes informal practices, institutional features, and decisionmaking frameworks that contribute to how law actually operates. Legal culture overlaps with and cannot be clearly detached from the wider culture. Similarly, tort law, even as I have narrowly defined it here, is infused with culture and affects culture.
The chapter begins by highlighting glaring ways in which U.S. tort law and legal culture from 1900 to 1949 were “white.” The next section shows that the whiteness of litigants and witnesses served as the default in published court decisions, and that African American people were excluded from decision-making roles in the tort system, consistent with the racism of the wider culture and the rest of the legal system. After highlighting these conspicuous facets of whiteness, the essay then turns to an important tension in tort law and legal culture. The tension is between the dominant practice of resolving tort claims on an individualized basis and the conflicting but weaker principle, which served as an undercurrent,