Bright Ideas: Chamallas and Wriggins on The Measure of Injury

The Measure of InjuryToday’s Bright Idea comes from Martha Chamallas and Jenny Wriggins. Martha Chamallas is the Robert J. Lynn Chair in Law at the Ohio State University, Moritz College of Law and is the author of Introduction to Feminist Legal Theory, and Jenny Wriggins is the Sumner T. Bernstein Professor of Law at the University of Maine School of Law. Both Martha and Jenny have written extensively about some of the ways in which tort law fails to adequately respond to the experiences of marginalized groups such as women and racial minorities. In The Measure of Injury, published earlier this last year by NYU Press, the authors draw on their expertise (and a stunning array of mind-boggling real-life examples) to systematically demonstrate that tort law undervalues women and racial minorities, both historically and into the present. It’s an incredibly valuable contribution which also makes for a fascinating read. For the Bright Ideas series, we asked the authors a few questions about the book and also about their larger project.

1. As a general observer it seems to me that there is a moderately widespread public perception that race and gender inequalities are largely a thing of the past. What would you say in response to that idea?

The conventional wisdom about tort law certainly is that the field is gender and race neutral. In that respect, our book’s emphasis on gender and race bias cuts against the grain. In writing this book, we had to confront the reality that few people realize that tort law was historically marked by sharp distinctions based on race and gender. This lack of awareness contrasts with general assumptions about other parts of the legal system. There is a widespread perception, for example, that at one time the criminal justice system was racist. Historical inequalities in tort law, however, are just as striking and also merit attention, particularly since their legacies are imprinted in contemporary law.

Moving to the present era, we show that inequalities based on race and gender persist in certain areas. For example, damage caps on pain and suffering damages impact women and racial minorities more than white men. Also, courts to this day use race-based and gender-based earnings tables in calculating lost earnings for plaintiffs who lack an individualized earnings history, such as lead-poisoned children, who are also likely to be members of racial minorities. We regard these practices as an extension of past discriminatory practices.

2. With some exceptions, progressive and critical legal scholars have tended to focus on a few specific areas of law, such as constitutional law, criminal law, statutory civil rights laws, and legal theory. Progressive and critical discussions of Brown or Roe greatly outnumber any such analyses of tort. What made you focus on this area of law? And, what can progressive legal academics gain from a sustained discussion of race and gender in tort law?

We both love tort law and find it fascinating precisely because it is decentralized, messy, and in a sense, more democratic than constitutional law, yet no less significant. Tort law is important because it plays such a central role in signaling what our society values and what counts as harm. Since the late 1960s, the meaning of equality has changed radically and has left its mark on public law. Yet many of these civil rights-type advances have not yet found their way into tort law. For example, domestic violence and sexual and racial harassment are still not likely to give rise to actionable tort claims and it is still difficult for female torts plaintiffs to recover for interference with their reproductive rights. The artificial boundary line between tort law and civil rights/civil liberties leaves the impression that injuries that arise from social inequalities are somehow not as important as the more traditional or more “basic” injuries to persons or property. Progressive scholars who delve into the private law subjects, such as tort law, can also start to assess the advantages and disadvantages of private enforcement mechanisms in the long struggle for social equality.

For example, the treatment of African-Americans’ tort claims was not equal and was not fair, but it was better, we think, than their treatment by the criminal justice system in the first half of the twentieth century. The private enforcement mechanisms of tort law may be part of the reason that torts provided fairer treatment of African-Americans’ tort claims than the public enforcement mechanisms of criminal law provided for African-Americans accused of crimes.

3. Your chapter on causation offers a devastating critique of the traditional approach. In particular, you describe ways in which neutral-sounding concepts like but-for causation work to reinforce race and gender hierarchies. Could you briefly describe for blog readers — what are the problems that you see with existing concepts of causation?

When judges and juries decide causation issues and apply the venerable “but for” test, they actually engage in a complex counterfactual inquiry trying to imagine “what might have been” if events were different. Recent research in cognitive and social psychology tells us that this mental process is often affected by stereotyping and common cognitive biases. In our book, we examine wrongful birth cases and lead paint cases to show how gender and race bias can influence this causal attribution process, even when decision makers do not deliberately intend to discriminate. In lead paint cases, for example, there is reason to believe that courts have been more willing to conclude that a minority child’s cognitive deficits are traceable to their heredity or upbringing rather than to exposure to lead paint. Because causation doctrine still uses quasi-scientific language (most notably, cause-in-fact) to describe this element of proof, it misses the policy dimension of the process and fails to recognize the danger of implicit or cognitive bias.

4. The category of “emotional harm” has a long history – and, as you point out, has regularly been used to marginalize women, deny recovery, and generally construct harm as a male concept. How did this happen? What are the dangers of the “emotional harm” designation, and what sorts of alternate approaches should courts employ instead?

Many of the prominent early emotional harm cases involved pregnant women who suffered miscarriages or stillbirths as a result of fright. Today we would classify such cases as physical harm cases because the death of a fetus is a physical event that injures a woman’s body as well as her emotional well-being. However, many early courts treated these cases as emotional harm cases because they associated emotional harm with women and failed to understand the nature of the relationship between a woman and her unborn child. Most importantly, special barriers were erected that made it more difficult to recover for emotional harm, regardless of the gender of the plaintiff. In our book, we discuss the approach of the new Third Restatement of Torts which has begun to recognize emotional distress as a “stand alone” harm worthy of redress. Similar to the Restatement, we argue for greater recognition of emotional injuries when the harm is severe and when the injury implicates a plaintiff’s fundamental sexual or reproductive interests.

5. The Measure of Injury illuminates a variety of race and gender inequities in tort law, and in doing so does a remarkable service. But of course, other axes of marginalization exist. What can your work tell us about the ways in which tort law privileges or marginalizes on the basis of age, (dis)ability, sexual orientation, religion, or other categories?

By necessity our research touches on several other axes of marginalization because of the interlocking and reinforcing nature of discrimination. For example, tort doctrines that deny emotional distress damages to “bystanders” who witness accidents have not only disadvantaged mothers who have seen their children killed or injured, but have also denied recovery to same-sex partners and extended family members who witness injuries to loved ones. In determining recovery for wrongful death and loss of consortium, many states still use traditional definitions of “family members” that privilege married couples and families that enshrine middle-class ideals, to the disadvantage of many different groups. We know that we have just scratched the surface in investigating the inegalitarian structure of tort law. In the conclusion of our book, we list some prescriptions for progressive change, such as breaking down artificial boundaries between torts and public law, that we believe could benefit many socially marginalized groups.

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