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The Measure of Injury

The Measure of Injury: Race, Gender, and Tort Law

Martha Chamallas
Jennifer B. Wriggins
Copyright Date: 2010
Published by: NYU Press
Pages: 244
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  • Book Info
    The Measure of Injury
    Book Description:

    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.

    eISBN: 978-0-8147-9006-9
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-xii)
  4. Introduction
    (pp. 1-12)

    Despite its social importance, the topic of the significance of race and gender in the law of torts has not received sustained attention largely because, on its surface, the world of torts appears divided between those who suffer injury and those who inflict injury, categories that are race and gender neutral. To be sure, there is a vague awareness that particular social groups are more likely to sustain certain types of injuries, for example, that women are disproportionately hurt by domestic violence and that African American children are at greater risk than white children of suffering injury from exposure to...

  5. 1 Theoretical Frames
    (pp. 13-34)

    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 practice-oriented. 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...

  6. 2 Historical Frames
    (pp. 35-62)

    It is not difficult to see the influence of gender and race on the recognition and valuation of injuries in judicial decisions of the past, particularly in cases decided before the Civil War. This enhanced visibility is partly a result of the fact that until the mid-19th century, recovery was linked to the legal and social status of the injured party. Race and gender determined who had a right to file a claim for injury in court and affected the nature and existence of substantive claims.

    The institution of slavery, as well as the legal regime of coverture that denied...

  7. 3 Intentional Torts
    (pp. 63-88)

    In the first few weeks of law school, beginning students discover that intentional torts are at the margins of contemporary tort law. Although most first-year torts courses still start with intentional torts, the professor generally moves quickly onto negligence liability and stays there for most of the semester, perhaps reserving some limited time at the end of the course to examine strict liability.¹ This pedagogical centering of negligence and downplaying of intentional torts mirrors an understanding of what is considered to be the intellectual and practical “core” of the field. At this core lie accidental injury and the rules governing...

  8. 4 Negligence
    (pp. 89-118)

    It is well recognized that negligence is the preeminent theory of liability in U.S. tort law. Generations of law students have dutifully memorized the five elements of a plaintiff’s prima facie case of negligence: duty, breach, cause-in-fact, proximate cause, and damages. In common parlance, the first two elements—duty and breach—are often lumped together and referred to as the negligence inquiry. Strictly speaking, however, the two elements are separate: there can be no requirement to act reasonably (i.e., nonnegligently) unless there is an antecedent duty imposed on the defendant to take care to safeguard plaintiff’s interests. Absent a duty,...

  9. 5 Causation
    (pp. 119-154)

    A central proposition in tort law is that, without proof of causation, there can be no liability, regardless of the wrongfulness of the defendant’s behavior. It is causation that ties the defendant’s act to the plaintiff’s harm and justifies singling out the defendant as the party who should provide compensation for the plaintiff’s loss. On the surface, there may seem to be no obvious link between causation on the one hand and gender and race on the other. In this respect, causation initially seems different from tort concepts such as “outrageous conduct” or “negligence,” discussed earlier, which require the court...

  10. 6 Damages
    (pp. 155-182)

    Proof of damages is an essential element of most tort actions. Except for some intentional torts in which plaintiffs are entitled to recover nominal damages once they establish their cause of action, in all other cases plaintiffs are required to demonstrate actual harm and to provide individualized evidence of the extent of their loss. Despite the importance of the damages element, however, the subject of damages was much neglected in the torts curriculum and in torts scholarship until quite recently.¹ This technical, practically oriented corner of the law was generally left to upper-class courses on remedies and rarely was the...

  11. Conclusion
    (pp. 183-190)

    Tort law is most often thought of as individualistic and universal, as the area of law that defines private rights and obligations between individuals apart from contract. Despite the singular importance of the individual to tort law, however, tort doctrines do not generally approach the individual as an actual person. Instead, the individual of tort law has largely been an abstraction, disembodied and living outside of society. Historically, this creature of legal theory had no name and fittingly appeared in the examples of the First and Second Restatement of Torts as simply A, B, or C.

    This book has offered...

  12. Notes
    (pp. 191-222)
  13. Index
    (pp. 223-227)
  14. About the Authors
    (pp. 228-228)