Guest Post by Martha Chamallas, cross-posted from TortsProf Blog.
If you are not a torts professor, you might think it odd that the two approaches that currently dominate tort theory are “law and economics” and “corrective justice.” Although there are major differences in the two approaches — with “law and economics” fixed on efficiency and deterrence, while “corrective justice” is more concerned with fairness to the parties – they certainly don’t represent opposite ends of the political spectrum. Instead, the L&E movement is still heavily dominated by conservative thinkers, while corrective justice has no discernible political orientation. What is striking about this state of affairs is the seeming absence of critical theory, the other intellectual powerhouse that is now so firmly established outside the legal academy.
It’s not that there isn’t a body of critical torts scholarship. Since Richard Delgado first published Words that Wound: A Tort Action for Racial Insults, Epithets and Name Calling in 1982, there has been a steady stream of torts pieces inspired by feminism, critical race theory and postmodernism. Often, however, this work gets coded only as “critical theory” or “feminism” and does not seem to make a dent in what is regarded as tort theory. I was disappointed to see that John Goldberg simply left out critical theory altogether in his formidable article on Twentieth-Century Tort Theory (2003), stating in a footnote this was not a “judgment of the merits of the omitted scholarship,” but simply reflected his decision “to focus on theories that have set the terms of ‘mainstream’ debate among tort scholars.” John also devoted only 3 out of 64 pages to what he called “social justice theory” where he discussed writings by Richard Abel, Anita Bernstein, Carl Bogus, Thomas Koenig, and Michael Rustad. Is that really a full description of the contemporary progressive voice in American torts scholarship? (As you can guess, I don’t think so.)
This skewing of tort theory to the Right has had consequences. The dominant tort theories pay virtually no attention to race or gender or other dimensions of personal identity, while those topics are highly developed in critical theory, as evidenced by the proliferation of critical approaches that emphasize one or more “outsider” identity, such as critical race theory, Lat Crit theory or queer theory. In our new book, The Measure of Injury: Race, Gender and Tort Law, Jennifer Wriggins and I have tried to connect critical theory more closely to tort law by exploring how race and gender have shaped contemporary U.S. tort law – from the types of injuries recognized, to judgments about causation, to the valuation of injuries. (the book is scheduled for publication in May 2010 from NYU Press)
Our book is organized like a conventional torts treatise, with chapters on intentional torts, negligence, causation and damages, framed by chapters on tort theory and tort history. It is not your grandmother’s treatise, however, because we concentrate on those areas of tort law in which considerations of gender and race have been most salient, such as intentional tort claims for workplace harassment and domestic violence, negligence claims for emotional distress, lead paint and wrongful birth litigation, and the calculation of economic damages. We also theorize about the various ways that considerations of gender and race find their way into tort law, even though tort doctrine is facially gender and race-neutral. The main ingredients of our critical approach come from feminism, critical theory, and cognitive psychology. But like all good torts professors, our point of departure is the new Restatement (Third) of Torts because that endeavor still represents the mainstream “torts establishment.” (and btw, it is a very impressive and useful document)
We noticed that the Torts Restatements have evolved, if ever so slowly. In the beginning, the individual of tort law was an abstraction, disembodied, with no race or gender, who seemed to live outside of society. This creature had no name and appeared in the examples of the First and Second Restatement of Torts as simply A, B, or C. Today, however, most courts and torts scholars acknowledge that tort law is not autonomous or self-contained and they realize that tort doctrines are not simply abstract principles, but rules that operate in social context. Perhaps in recognition of this shift, the Third Restatement now provides first names for the hypothetical individuals used in its examples of black letter rules, subtly introducing gender into some scenarios. And sometimes the gendered nature of the tort appears quite prominently, even if the Reporters may not have been fully aware of this feature of the doctrine. For example, by my count, 10 of the 13 illustrations in the commentary to Section 45 dealing with the tort of intentional infliction of emotional distress deal with misconduct implicating sexual or reproductive behavior, ranging from a stepfather who sexually abuses his stepdaughter, to the inappropriate touching of preschooler, to a police officer who stalks a woman with whom he is obsessed. And in “direct victim” negligent infliction of emotional distress cases under Section 46, there is a similar preoccupation with sexual exploitation and reproduction, including claims against doctors for having sex with their patients under the guise of therapy and scores of cases brought by women who suffer emotional distress from stillbirths, miscarriages, and sterilizations caused by physician negligence.
So how has tort law dealt with these and other gender-related claims? How should it? One major theme of our book is the degree to which courts have allowed principles and norms from constitutional law and statutory civil rights law to migrate into torts. Currently, the case law is marked by ambivalence and lack of uniformity.
Many states, for example, are very reluctant to declare that workplace sexual or racial harassment is “outrageous” conduct and virtually rule out recovery for intentional infliction of emotional distress in such cases. A minority of states, however, have imported concepts from Title VII hostile environment law to provide a basis for tort recovery and treat the racial or sexual character of the harasser’s conduct as a marker of “outrageousness.” Likewise, several states still refuse to allow a claim for negligent infliction absent proof of a “physical manifestation” of the injury. Other courts, however, have cited statutes against sexual exploitation and constitutional rulings protecting a women’s right to procreative choice as a reason for imposing a duty a due care when a defendant’s conduct impairs a plaintiff’s interest in sexual autonomy or reproduction. And most directly, many states still allow experts and juries to calculate a victim’s loss of future earnings potential on the basis of gender or race-based tables that dramatically lower awards for women and minority men. In the recent Staten Island ferry crash case, however, Judge Weinstein held that the use of race-based tables to calculate tort damages was unconstitutional on equal protection and due process grounds. (McMillian v. City of New York, 253 F. R. D. 247 (E.D.N.Y. 2008). His ruling went a step further than Kenneth Feinberg who had earlier rejected the use of female-only tables on public policy grounds in administering the September 11 Victim Compensation Fund.
Our book makes the case for increasing and accelerating the migration of civil rights and constitutional principles into tort law in a self-conscious effort to weave gender and race equality into basic tort principles. We argue that the tort concept of “outrageousness” ought to be expanded to cover discriminatory harassment and that courts should change the dominant (but outmoded) view of what is regarded as an actionable affront to dignity. With respect to negligent infliction claims, we propose that courts impose a duty of due care to protect against emotional distress in cases that implicate a plaintiff’s interest in sexual integrity or reproductive rights. Our justification for giving priority to such claims is that they affect fundamental constitutional rights and important norms of liberty and equality. And we push for the rejection of gender and race-based tables to calculate damages – and for the adoption of blended tables — noting that the Constitution prohibits the use of explicit gender and race-based classifications which serve to reinforce historic patterns of social inequality.
These proposals have gained some sustenance from developments outside the U.S. In 2005, for example, the Israeli Supreme Court relied on considerations of equality and social justice to reject the use of gender and ethnic-based statistics to calculate a damages award for an Arab girl from a poor village who was injured in a road accident when she was five months old. The defendant in that case contended that women living in the child’s village generally were not employed outside the home and sought to lower damages based on these local conditions. The Israeli Supreme Court disagreed and concluded that the appropriate method for computing future loss of earnings should be based on tables for the average wage throughout the country. The Court made the significant determination that an award of tort damages should not simply return the tort victim to the status quo ante, but to a “just and fair” status that does not reproduce past inequalities among social groups. (Migdal Ins. v. Rim Abu Hanna – I hope my translation of the opinion is correct! The Israeli Supreme Court does not translate its opinions into English.)
Early on in the project, we realized that our critical approach to tort law was not a unified theory of torts. And it is worth mentioning that our racial and gender lens on tort law does not mean that we believe that gender and race equity should be the only goal of tort law or even the most important goal of tort law in every context. In the end, we were happy to align ourselves with Chris Robinette and other “pluralists” who think that tort law can best be understood as furthering a variety of objectives, including compensation, deterrence, and the promotion of important social policies such as gender and race equity. But we do insist that there is room in tort law for social equality and critical theory and have hopes that our book will alter the mainstream vision of the field.