The Measure of Injury

Race, Gender, and Tort Law

Martha Chamallas, Jennifer B. Wriggins

• Publisher: NYU Press
• Year: 2010
• ISBN:
  9780814717332
• Topic: Law
• Subtopic: Tort Law
• Index: Law

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.

1
Theoretical Frames

Few look upon tort law as a field of intellectual inquiry rich in theory. Instead, most students and practitioners approach torts as an inherently practical enterprise, with little thought to the theories that purport to explain or justify the rules and practices of this particular system of compensation for injury. Similarly, the torts curriculum in law schools tends to be practiceoriented. The typical first-year course in torts rarely gets beyond articulating the basic objectives behind the torts system—the twin goals of compensation and deterrence, with perhaps mention of a subsidiary goal of reinforcement of social norms.¹ There is little time for exploring “big-picture” theoretical questions or examining the scholarship of tort theorists.

In academia, however, the theoretical currents are much stronger than they were a generation ago.² Tort theory has now emerged as a recognizable—if still small—genre of scholarship that gives some meaning and organization to various arguments and proposals for change in courtrooms, legislatures, and the wider community. Even though many tort scholars still do not feel the need to situate their work within a larger theoretical framework, we find value in being explicit about starting points and assumptions and attempting to acknowledge intellectual debts.

In this book, we describe our approach to tort law as a “critical” approach, signaling our kinship with the broader intellectual forces of feminist theory, critical race theory, and critical theory more generally. We do so with some reluctance. Like most scholars, we are aware of the hazards of labels and are more interested in clarifying our approach than in aligning ourselves with any particular school of thought.³ To that end, this chapter sets out a theoretical frame for the rest of the book: it locates our approach within the larger theoretical landscape, articulates our major theoretical influences and commitments, and surveys the existing body of critical torts scholarship that serves as part of the foundation for our work.

Such a critical approach to tort law is still quite rare in the torts literature. One reason it is unfamiliar to many students of tort theory is that it does not fall within either of the two tort theories that currently dominate the field. Moreover, the critical torts scholarship that exists often gets categorized exclusively as critical theory, without also penetrating the contours of tort theory.⁴ Before describing our critical torts approach in more depth, we first present a shorthand sketch of the two most visible tort theories in contemporary torts scholarship—“law and economics” and “corrective justice.” Our brief description does not attempt to delineate the varieties of distinct approaches that arguably fall within the two camps⁵ but serves only as background and contrast to our critical theoretical stance.

There is little dispute that, since its emergence in the late 1960s and early 1970s, law and economics has been the “dominant theoretical paradigm for understanding and assessing law and policy.”⁶ It has left its imprint upon torts in large part through the influential writings of Judge Richard Posner and Ronald Coase,⁷ two of the founders of the Chicago school of law and economics. The other visible approach in tort theory—“corrective justice”—grew up partly as a response to law and economics at roughly the same time. As the main competing theory in torts scholarship, it tends to be positioned opposite to, and subordinate to, law and economics.

Scholars generally regard law and economics as an instrumental approach that views tort law as aimed at the paramount goal of “efficiency,” as that term is understood in the discipline of economics. As explained in a leading text, law and economics sees tort law as “a system of rules designed to maximize wealth so as to minimize the costs associated with engaging in daily activities.”⁸ It is noteworthy that, in the lexicon of law and economics, the notion of “harm” is transformed into one of “costs.” Law and economics scholars are preoccupied with ascertaining the cost-justified level of accidents, a goal distinct from that of promoting safety more generally⁹ and one that seeks to deter only “inefficient” accidents that impose greater costs than the costs expended to avoid them. In this process, law and economics scholars usually steer clear of notions of morality in explaining or justifying human behavior, preferring to rely on “rational choice” models that presume all actors are equal, rational agents who express their preferences through uncoerced, consensual behavior.

Corrective justice theory, on the other hand, rests on a noninstrumental account of law that fixes on the law’s role in “correcting” harm done by a particular actor (the defendant) to another person (the plaintiff) and explaining the normative basis behind the defendant’s duty of repair.¹⁰ It has its roots in moral theory, stretching back to Aristotle, who first drew a distinction between corrective justice and distributive justice.¹¹ Corrective justice theorists employ a morally laden language of wrongs and wrongful conduct and generally seek to ground the defendant’s duty in the relationship between defendant’s conduct and plaintiff’s harm. In contrast to law and economics, corrective justice theorists do not believe that tort law, properly understood, deals or should deal with “macro” issues, such as maximizing wealth. Their writings emphasize the particular structure of the torts system, which requires payment only from the offender, even when efficient results would be promoted by compensation from another source. Most important, from a corrective justice viewpoint, compensation to the victim is central to tort law. Law and economics, in marked contrast, views deterrence as the primary function of tort law and regards compensation merely as a means of achieving the optimal level of deterrence of accidents.

Despite their placement on opposite ends of the theoretical pole, law and economics and corrective justice share one important core feature: they each give pride of place to the negligence principle and center accidents in their account of tort law. For the most part, law and economics considers intentional torts to be a peripheral matter, perhaps better left to the criminal law.¹² Even corrective justice theory, despite its language of morality, also has little to say about intentional torts, treating the subject largely as a closed matter of little relevance to tort theory or contemporary tort law.

If we look through a larger intellectual lens, it may seem odd that, at the beginning of the 21st century, law and economics and corrective justice are thought to be the two competing paradigms in torts scholarship. They certainly do not represent opposite ends of the political spectrum. Although there are scholars of every political stripe within the umbrella of law and economics, the movement is commonly associated with the right wing in academia and has been heavily dominated by conservative thinkers. Corrective justice, in contrast, has no discernible political orientation.

In academia today, law and economics is a powerhouse affecting many areas of law and public policy. It qualifies as an intellectual movement, complete with summer camps for aspiring scholars, schools for judges, think tanks and well-funded opportunities for scholarship and career advancement.¹³ Corrective justice, on the other hand, is simply too small in scope to be considered a movement. It is mainly limited to tort theory and is still relatively unknown outside its particular confines.

What is striking about the conventional description of tort theory is the absence of critical theory, the other intellectual powerhouse and movement that is so firmly established outside the legal academy. Critical theory has had a strong presence in legal scholarship since its beginnings in the Critical Legal Studies movement in the early 1980s.¹⁴ Critical Legal Studies, feminism, and critical race theory groups have hosted their own summer camps, inspired innumerable academic conferences, and have been remarkably generative in producing scholars and offshoot groups with a steady stream of new adherents.¹⁵

Like adherents of law and economics, critical legal theorists draw their sustenance primarily from intellectual currents outside the law. Rather than being tied to one particular discipline, however, critical legal scholars draw heavily from the interdisciplinary scholarship coming out of interdisciplinary programs, such as women’s studies, black studies, and cultural studies, as well as from English, history, comparative literature, and other “traditional” departments that are now thoroughly saturated with varieties of critical theory. Particularly outside legal circles, the rise of critical theory has been prominently linked to that giant of intellectual trends “postmodernism,” with its emphasis on the social construction of the self, the importance of discourse in the construction of individual identity and power in society, and the rejection of liberal concepts of objectivity, neutrality, and universal truth.¹⁶ Putting aside for the moment the harsh divisions among scholars who employ some version of critical theory,¹⁷ there can be little doubt that it is an intellectual movement of the left. Its invisibility from tort theory creates the misimpression that left-leaning theories and discourses have no value for tort law and that the only choice is between efficiency and Aristotelian moral philosophy.

In this book, we address this omission by connecting critical theory to tort law. Unlike the dominant tort theories—which pay virtually no attention to race and gender—the significance of race and gender is a highly developed topic in critical theory, as evidenced by the proliferation of critical approaches that emphasize one or more “outsider” identity, such as critical race theory or Lat Crit theory.¹⁸ The gender and racial lens of this book thus borrows heavily from critical theory’s appreciation for the social construction of personal identity, attentiveness to relations of power among legal actors, and critical interpretive analysis in dissecting legal discourse and legal categories.

That being said, our point of departure for this book are not the writings of Foucault or Derrida but rather the approach taken by the Third Restatement of Torts—the closest thing we have at the moment to the “the torts establishment.” As the most prominent law reform project in torts, the Third Restatement builds on the influential tradition of notables, such as William Prosser and Frances Bohlen, who served as reporters for the Second and First Restatement of Torts.¹⁹ We draw upon and criticize this tradition in several chapters of this book. Like the Restatement, moreover, much of what is contained in this book is grounded in traditional torts scholarship, still largely a doctrinal discourse that has not yet been taken over by either law and economics or corrective justice theory.

In his 2003 article mapping tort theories in the 20th century, John Goldberg has astutely noted that the scholarly underpinnings of the Torts Restatement should not be left out of the picture when describing the universe of tort theory.²⁰ In Goldberg’s view, there is an implicit theory that animates the approach of the Third Restatement of Torts, despite the widely held notion that the Restatement project is atheoretical and that many of its most influential scholars—Robert Rabin, (the late) Gary Schwartz, Michael Green, and William Powers, to name only a few—are basically pragmatists engaged in “purposive analysis” and not much involved in theory. Goldberg’s point is that the scholars in this camp have not been called upon to make their theory explicit largely because they are the establishment.²¹

Goldberg traces a narrative behind the Third Restatement that starts from an assumption that courts in our modern society have a lawmaking, policymaking function and that, similar to the ways administrative agencies function, judges and jurors in tort cases inevitably legislate on matters of social policy. In this respect, the Restatement-type scholars are the inheritors of a Legal Realist tradition that looked beyond the adjudication of individual private disputes to glimpse the regulatory power of tort law or, in Goldberg’s words, to transform tort law “from private to ‘public’ law, whereby it functioned to achieve collective, not corrective, justice.”²²

The next frame in Goldberg’s narrative is in our view crucial: he asserts that because of the “nature of the compensatory remedy,” Restatement-type scholars believe that tort law should promote only a “discrete set of policy objectives” and that it is “inherently capable of promoting only two goals: deterrence of antisocial conduct and compensation for those who have been injured.”²³ He thus labels the implicit theory embraced by Restatement-type scholars as “compensation-deterrence” theory and calls the oft-cited proposition that “the function of tort law is compensate and deter” the “baseline proposition” of that theory. According to “compensation-deterrence” theory as described by Goldberg, there is little or no space for other social policy objectives—such as social justice, redistribution of income, or gender or race equity—that cannot be directly poured into the compensation/deterrence mold.

The rest of Goldberg’s narrative traces out the trajectory of contemporary tort law as envisioned by Restatement-type scholars. Similar to the other tort theories, the implicit theory of the Restatement situates negligence cases at the core of the enterprise and treats the fault principle as “the natural expression” of tort law. Unlike the other competing theoretical approaches, however, the Restatement-type theory projects tort law as “moving inexorably toward full implementation of the fault principle” and as gradually shedding arbitrary limitations on liability, such as limited duty rules, immunities, and categorical bans on recovery for emotional and economic harm.²⁴ The expansionist tendencies of this approach are said to be kept in check, however, by a willingness to curb liability in the name of “administrability, fairness and legitimacy.”²⁵ It is at this point that fears of a flood of litigation, disproportionate liability, and frivolous lawsuits come into play to place limits on recovery and justify the denial of protection to some victims of unreasonable conduct.

In articulating the Restatement-type theory, Goldberg separates the interpretive aspect of a theory from the prescriptive aspect of a theory and goes on to categorize various scholars as either interpretive or prescriptive. According to Goldberg, a tort theory is interpretive if it “purports to make sense of the tort law that we have” and prescriptive if it “offers an account of what tort law ought to look like.”²⁶ Here is where we part company with Goldberg. We do not believe that such a strict separation of interpretation and prescription is possible.²⁷ For critical scholars like ourselves, the interpretive/prescriptive dichotomy is inherently unstable, primarily because we believe that the human process of “interpreting” and “describing” the law cannot free itself from normative considerations of what ought to be. From our perspective, an assertion of common sense (or the claim that an interpretation “makes sense” under the current law) is not simply a discoverable fact but also a claim to authority that simultaneously describes reality and constructs reality.

The Restatement project is itself a good example of just such a descriptive/prescriptive endeavor. While purporting merely to restate principles of law already laid down by the courts, the Restatement has been hugely influential in shaping the future direction of tort law.²⁸ Even when the Restatement explicitly ventures “no opinion” on a particular aspect of doctrine—for example, in the commentary explaining the boundaries of its blackletter rules—it cannot be taken at face value.²⁹ Instead, such a disclaimer may be implicitly expressing the normative judgment that the matter is not of sufficient importance to justify taking a position.³⁰ Additionally, the descriptive/prescriptive dichotomy—like so many dualities in law and legal discourse—not only sets up contrasting terms but implicitly privileges one side of the dichotomy,³¹ that is, descriptive over prescriptive analyses. Particularly in the inherently conservative field of law, a “descriptive” theory that could “make sense” of the law as it currently exists has a great advantage over a “prescriptive” theory that argues for major changes and acknowledges that it is substantially rewriting the law. That is why arguments for change are often couched in terms of perfecting the current scheme, recognizing that we are operating in a common law system that honors precedent. Thus, it is not surprising that unmasking assertions of “fact” as “argument” is a well-known move in critical theory.

Therefore, we approach the implicit theory behind the Third Restatement as pa...