By Martha Chamallas
ISBN-10: 0814716768
ISBN-13: 9780814716762
Tort legislations is the physique of legislations governing negligence, intentional misconduct, and different wrongful acts for which civil activities will be introduced. the traditional knowledge is that the principles, thoughts, and constructions of tort legislation are impartial and independent, freed from concerns of gender and race.
In The degree of Injury, Martha Chamallas and Jennifer Wriggins turn out that tort legislations is whatever yet gender and race impartial. Drawing on an in-depth research of case legislations starting from the Jim Crow South to the September 11 sufferer repayment Fund, the authors display that girls and minorities were under-compensated in tort legislations and that conventional biases have resurfaced in up-to-date varieties to perpetuate styles of disparate restoration in accordance with race and gender. Grappling with tort concept, the intricacies of criminal doctrine and the sensible results of felony principles, The degree of Injury is a distinct treatise on torts that uncovers the general public and cultural dimensions of this always-controversial area of non-public law.
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Extra resources for The Measure of Injury: Race, Gender, and Tort Law
Sample text
68 For pluralists, tort law can best be understood as “based on multiple rationales” and as furthering a variety of objectives, encompassing compensation, deterrence, and the promotion of social policies, including the particular goal of race and gender equity. 69 There is no substitute for a close examination of how various objectives complement or compete with one another in Theoretical Frames | 33 a particular class of cases. Thus, as the organization of this book suggests, we have constructed our approach to tort law in an “applied” fashion, after first investigating how gender and race operate to shape and affect doctrine in a variety of specific contexts.
The broad themes of cultural feminism come out most clearly in our discussions of the devaluation of emotional distress and tort law’s tepid response to women’s reproductive and relational injuries. In particular, cultural feminists have sought greater support for maternal activities and have criticized the failure to recognize and attach a positive value to caring, nurturing, empathy, and intimate human connections. This failure can be seen most readily in tort law’s reluctance to compensate pregnant women for losses stemming from miscarriages and stillbirths caused by physician negligence and for trauma experienced by mothers and other family members precipitated by the wrongful killing or injuring of children under their care.
In short, there was no denying that race and gender held a central place in tort recovery, mirroring their overriding importance in larger society. | 35 With the end of slavery and the formal abandonment of coverture in the latter part of the 19th century, tort doctrine began to look increasingly gender and race neutral. It is striking that throughout the period discussed in this book—from the turn of the 20th century to the present—judges have shown very little inclination to enunciate gender-specific or race-specific tort rules, even in times when gender-specific and race-specific thinking was the order of the day and regarded as unproblematic.