This guide is part of a series of guides with readings about issues of race, class, gender, sexuality and disability in traditional first-year courses.
Leslie Bender, A Lawyer's Primer on Feminist Theory and Tort, 38 J. Legal Educ. 3-37 (1988), [HeinOnline]
The following essay is intended to be both a primer that introduces a few of the major components of feminist theory and an example of how feminist theory might be used to examine a particular area of law. . . . I hope that the essay increases your understanding so that you will think about how feminism's insights might benefit your teaching, writings, and practice, and that it piques your curiosity so that you will seek out the rich scholarship that feminists are producing. Feminist insights and methodology have guided my thinking in the area of tort law, especially in examining negligence law to see how it perpetuates traditional male values and perspectives. Tort law needs to be more of a system of response and caring than it is now. Its focus should be on interdependence and collective responsibility rather than on individuality, and on safety and help for the injured rather than on "reasonableness" and economic efficiency. . . . My reflections on negligence law are interwoven with a primer on feminist theory in order to suggest how feminist theory can help us think about the traditional structures of our laws, legal analyses, and legal system.
Anne Bloom, Regulating Middlesex, in Fault Lines: Tort Law as Cultural Practice 137-155 (David M Engel & Michael W McCann eds., 2009), Classified Stacks (K923 .F37 2009)
W. Jonathan Cardi, The Search for Racial Justice in Tort Law, in Critical Race Realism: Intersections of Psychology, Race, and Law 115-24, 303-06 (Gregory S. Parks et al. eds., 2008), Classified Stacks (KF4755.C749 2008)
Martha Chamallas, Race and Tort Law, in The Oxford Handbook of Race and Law in the United States (Devon Carbado, Emily Houh & Khiara M. Bridges eds., 2022), [link (UW)]
Amy H. Kastely, Out of the Whiteness: On Raced Codes and White Race Consciousness in Some Tort, Criminal, and Contract Law, 63 U. Cin. L. Rev. 269-315 (1994), [HeinOnline]
Harry J.F. Korrell, The Liability of Mentally Disabled Tort Defendants, 19 Law & Psychol. Rev. 1-57(1995), [HeinOnline]
Adam A. Milani, Living in the World: A New Look at the Disabled in the Law of Torts, 48 Cath. U. L. Rev. 323-417 (1999), [HeinOnline]
Abstract: My aim in this article is to illuminate the common law of torts and its relation to and with ideas about gender difference, by focusing on three sets of cases involving injured women, spanning the time between approximately 1860 and 1930. . . . In the first set of cases, discussed in Part I, women were injured as passengers in cars and wagons, usually when their husbands were driving. During the entire period surveyed, the cases establish courts' views of the gendered relationship of wife to husband were of central analytic importance to their legal assessments of a woman's right to recover against a third party who caused an accident. . . . Part II discusses a second set of cases, in which women drivers of wagons were injured. Some nineteenth-century court decisions in this category acknowledged and treated a perceived gender difference - that women were inferior drivers to men. These opinions examined numerous doctrinal possibilities for the role gender should play, but settled on none of them, showing that a particular shared understanding about gender does not answer the question of how gender should bear on the injured female tort plaintiff's right to recover. Later opinions dealing with female drivers, by contrast, generally did not discuss gender at all. Part III presents a third and final set of cases, in which women were injured boarding and disembarking from trains. Underlying these decisions was yet another, and related, shared understanding of a gender difference—that women had more difficulty than men negotiating the world of train and streetcar travel. . . . Although their facts otherwise vary, the three sets of cases do share one obvious factual feature—all involve transportation-related injuries. This focus on transportation reflects early tort law's similar focus rather than any claim that gender was at issue only in this subset of personal injury cases. And of course, courts also discussed gender in cases that did not involve accidents at all. Divorce cases, rape cases, cases about such gendered torts as seduction or alienation of affections C all were among the arenas in which lawyers and courts discussed women and the law's relationship to and expectations for them. This Article presents just one piece of the puzzle.
Sarah L. Swan, Tort Law and Feminism, in The Oxford Handbook of Feminism and Law in the United States (Deborah Brake, Martha Chamallas & Verna Williams eds., 2021), [link (UW)]
Debora L. Threedy, United States v. Hatahley: A Legal Archaeology Case Study in Law and Racial Conflict, 34 Am. Indian L. Rev 1-75 (2009), [HeinOnline]
This article is a case study of United States v. Hatahley using the methodology of "legal archaeology" to reconstruct the historical, social, and economic context of the litigation. In 1953, a group of individual Navajos brought suit under the Federal Tort Claims Act for the destruction of over one hundred horses and burros. The first section of the article presents two contrasting narratives for the case. The first relates what we know about the case from the reported opinions, while the second locates the litigated case within the larger social context by examining the parties, the history of incidents culminating in the destruction of the Navajo horses, and the litigation that preceded Hatahley. The remainder of the article examines the role of racial conflict in various aspects of the case. Part II looks at the problem of cross-cultural damages and how the courts grappled with assigning money damages where the plaintiffs live in a non-market-based society. Part III examines the intersection of race and power, particularly the paradoxical role of law in both maintaining and challenging racial hierarchies. Part IV examines the question of judicial bias from a unique perspective. The case ultimately was assigned to another judge due to the trial judge's alleged partiality in favor of the Navajos. The section explores whether the lack of prejudice, when contrasted with a background societal prejudice, could be read as partiality. The epilogue points out how this question has a modern application.
Carl Tobias, Gender Issues and the Prosser, Wade, and Schwartz Torts Casebook, 18 Golden Gate U. L. Rev. 495 (1988), [HeinOnline]
Abstract: The essay explains reasons why tort law deserves more attention from feminists than it has received. For example, although tort law does not talk much about equality or discrimination, it talks about changing behavior, injury, and harms, all central concerns of feminists. Race and gender have affected the application of legal concepts such as duty, harm, and injury. Race and gender have also affected the recognition of injury. The essay first explores two previously little-known appellate tort cases, Gulf, Colorado & Santa Fe Railway v. Luther, 90 S.W. 44 (Tex. Civ. App. 1905) and Bullock v. Tamiami Trail Tours, Inc., 266 F.2d 326 (5th Cir. 1959), that highlight issues of gender and race in ways bearing on classic torts issues of damages and liability. In Gulf, race and gender play critical roles in formulating the injury, a status injury to a white woman. Bullock is a civil rights case as well as a torts case, and played a significant role in the desegregation of interstate transportation. Its imposition of duty and liability also challenged sexualized racism. Acknowledging the context of gender and race shows that tort cases, by their determinations of liability and damages, both reinforce and challenge racial and gender hierarchies. The essay also examines and critiques the almost total absence of domestic violence from the torts lexicon, despite its obviously tortuous nature. Focusing on domestic violence as a torts issue, the article examines the significance of the lack of insurance in the context of domestic violence, and proposes an approach of mandatory insurance covering injuries from domestic violence.
Jack W. Snyder et al., Injury and Causation on Trial: The Phenomenon of "Multiple Chemical Sensitivities", Widener L. Symp. J., 97-162 (1997), HeinOnline
Section II and III of this Article compares and contrasts medical, scientific, and legal approaches to the concepts of injury, risk, disability, and causation. In reviewing these value-laden terms, a unifying theme is offered. We suggest that divergent views regarding causation can be largely attributed to equally divergent views of what represents "injury." p. 111
This project initiates a conversation about patient negligence and trust in the medical setting and offers a test to determine whether patient negligence should be considered in litigation. The project examines the line at which a physician’s impermissible conduct should become reasonably obvious to a patient and therefore trigger a reasonable response. Absent a reasonable response by patients, this project considers whether comparative negligence attaches. Goodwin and Richardson argue due diligence, an aspect of loyalty, is treated as a value fiduciaries owe their clients, rather than a reasonable step that clients owe themselves. In this collaboration, the authors imagine and unpack a new theory of trust; one which is animated by tort theory, and reads reasonableness and bi-directionality into the trust relationship. In setting the tone of the paper, the authors offer a brief background in tort law’s comparative negligence regime and offer an analysis of medical trust in the United States, locating contemporary reproductive monitoring in a historical context. Goodwin and Richardson consider whether the goals of established trust discourse properly and realistically align with contemporary medical problems. In this thought experiment, they begin to articulate the appropriate ex post inquiries for determining whether a patient acted reasonably in trusting her medical provider. Here, the authors propose a test that considers the patient’s competence, knowledge, prior experience, access to information, and resources to investigate. The authors argue that this test provides a more nuanced approach for ascertaining the circumstances under which it might be reasonable or unreasonable for a patient to rely on a physician’s diagnosis and treatment.
Richard W. Bourne, Introduction, 57 Mo. L. Rev. 351362 (1992), HeinOnline (introducing symposium in which five law professors look at one case from perspectives of critical legal studies, critical race theory, feminist theory, law and economics, and the "traditional" law school approach).
Taunya Lovell Banks, Teaching Laws with Flaws: Adopting a Pluralistic Approach to Torts, 57 Mo. L. Rev. 443-454 (1992), HeinOnline (critical race theory)
Richard W. Bourne, A "Traditionalist’s" Approach to Teaching O'Brien and to Ideology in the Classroom, 57 Mo. L. Rev. 455-499 (1992), HeinOnline
Jay M. Feinman, The Ideology of Legal Reasoning in the Classroom, 57 Mo. L. Rev. 363-369 (1992), HeinOnline (critical legal studies)
Robert H. Lande, A Law & Economics Perspective on a "Traditional" Torts Case: Insights for Classroom and Courtroom, 57 Mo. L. Rev. 399-441 (1992), HeinOnline
Ann C. Shalleck, Feminist Legal Theory and the Reading of O'Brien v. Cunard, 57 Mo. L. Rev. 371-397 (1992), HeinOnline
Abstract: In this Article, Professor Pruitt discusses conceptions of the injury associated with defamation law, focusing in particular on sexual slander cases that were brought in the early nineteenth century, before statements that impugned a woman's chastity were deemed slander per se. During this time, women had to prove so-called special damages in order to state a cause of action. Courts showed some flexibility in what they recognized as constituting special damages, even stretching to recognize pecuniary harm in damaged personal relationships. Nevertheless, courts refused to recognize injuries stemming from and related to emotional distress injuries, and they were often skeptical that a variety of harms claimed by women were the direct and natural consequences of the offending statement. In studying what courts viewed to be special damages and therefore worthy of redress in this context, Professor Pruitt's work reveals several insights. First, we learn something of the nature of the reputational interest protected by defamation law. In particular, Professor Pruitt argues that courts viewed these slandered women's reputations as a form of property, and they ignored the dignitary nature of the injury. In addition, these cases provide an opportunity to see another example of the gendered trends in tort law that have been identified by scholars such as Professor Martha Chamallas. Professor Chamallas has argued that tort law values property and economic injury over relational and emotional injury, and that injuries may be judicially characterized as one or the other based upon the gender of the sufferer. Professor Pruitt's analysis points out the presence of these value hierarchies in sexual slander cases, just as Professor Chamallas has established their presence elsewhere in tort law. Finally, Professor Pruitt argues that sexual slander law was an additional way in which women's sexual propriety was commodified, ultimately to the benefit of their fathers and husbands. She argues that a preferable scheme would have permitted courts more expansive jurisdiction over sexual slander claims, as well as power to provide a more expansive array of remedies. That is, drawing on the remedies of apology and repentance that had been available in English ecclesiastical courts - remedies remarkably similar to retraction and declaratory judgment remedies that are associated with contemporary defamation reform - nineteenth-century courts could have avoided propertizing women's virtue. At the same time, they could have provided appropriate remedies to more of the women who had been injured by sexual slander.
Mark C. Weber, The Common Law of Disability Discrimination, 2012 Utah L. Rev. 429-474 (2012), HeinOnline
In many cases alleging race and sex discrimination, plaintiffs append common law claims to cases asserting federal or state statutory causes of action. In other race and sex cases, plaintiffs put forward these common law claims without making any federal or state statutory claims. Less frequent, and much less frequently discussed by scholars, are common law claims for conduct constituting disability discrimination. Nevertheless, there are sound theoretical and practical reasons to develop a common law of disability discrimination.
On the theoretical side of the discussion, federal statutory disability discrimination claims are not exclusive, and the common law can both draw from and influence statutory developments. The evolution of the common law can be part of the adaptation of the social and legal environment that is needed to achieve equality for people with disabilities. Practically speaking, there are numerous obstacles to statutory disability discrimination claims; the common law may provide redress when statutory remedies are blocked Common law claims may face difficulties of their own, however, and the law may need to be reformed to facilitate just results in common law cases.
Existing scholarship includes several prominent discussions of disability and the law of torts, but there has been little development of the most important tort and contract remedies for disability discrimination. This Article seeks to contribute to the scholarly discussion by considering common law remedies for disability discrimination in a systematic way and discussing how to align the remedies more closely with the goal of protecting civil rights of individuals with disabilities.
Ellen M. Bublick, Tort Suits Filed by Rape and Sexual Assault Victims in Civil Courts: Lessons for Courts, Classrooms and Constituencies, 59 SMU L. Rev. 55-122 (2006), HeinOnline
[T]his article is organized into three discrete sections. Section I provides information about recent appellate court rulings in tort suits that stem from rape and sexual assault. The section notes changes in the case law over the last thirty to forty years, and takes a particular look at cases in which tort actions are being used as an alternative to criminal trials and convictions. It also identifies some broad characteristics of current third-party litigation. Section II looks at the potential procedural and substantive advantages to victims of filing tort as opposed to criminal claims. This section notes also potential obstacles that victims may encounter in the tort law. Finally, Section III identifies important unresolved issues presented in the third-party case law that warrant further thought and coordinated analysis by decision-makers. pp. 57-58. Ellen M. Bublick, Citizen No-Duty Rules: Rape Victims and Comparative Fault, 99 Colum. L. Rev. 1413-90 (1999), LexisNexis Abstract: In this Article, Professor Bublick examines the generally accepted practice of allowing third parties like hotels and landlords, and occasionally rapists themselves, to take advantage of broad defenses of rape victim fault in civil law rape cases. As the law currently stands, whatever limits courts have placed on rape victim comparative fault defenses arise solely from the moral culpability of the defendants. Bublick argues that courts' exclusive focus on defendant culpability overlooks a second, equally compelling factor for deter mining whether courts should allow defenses of rape victim fault - - citizen entitlements. She argues that regardless of defendants' culpability, citizens have independent interests in not being legally required to shape their conduct around the reality of pervasive rape and fear of rape in our society. Those interests stem from concerns for citizen freedom and equality, and are not outweighed by deterrence considerations. She then outlines three ways in which the law could be changed to incorporate both plaintiff-entitlement and defendant-culpability considerations. Specifically, the Article advocates judicial creation of citizen "no-duty rules" in the context of civil rape cases. The concept of no-duty rules was recently endorsed by the newly-enacted Restatement (Third) of Torts: Comparative Apportionment.
Merle H. Weiner, Domestic Violence and the Per Se Standard of Outrage, 54 Md. L. Rev. 183-241 (1995), HeinOnline
This Article . . . inquires whether the tort of intentional infliction of emotional distress can provide a viable remedy for domestic violence victims. . . . Under traditional doctrine, there are four factors that arguably support a finding of outrageousness in cases involving domestic violence: a special relationship exists between the parties; domestic violence typically involves a pattern of harassment; an abuser usually exploits a known hypersensitivity of his victim; and a historic and gendered distinction between public and private spheres persists, which should make violence in the private sphere seem particularly outrageous. Notwithstanding these considerations, the use of the tort by domestic violence victims is problematic under current law. . . . This Article argues for a per se standard of outrage whereby the defendant's conduct would be outrageous as a matter of law if he violated an injunction issued for a woman's protection.
Jennifer Wriggins, The First-Year Curriculum—Domestic Violence in First-Year Torts, 54 J. Legal Educ. 511-526 (2004), HeinOnline
This Article systematically looks at domestic violence as a torts issue and also critiques how tort theory prioritizes accidents over intentional torts. After showing how domestic violence fits within the categories of intentional torts including battery, assault, false imprisonment and intentional infliction of emotional distress, the article highlights the disjunction between the prevalence of domestic violence and the virtual absence of tort suits seeking compensation for domestic violence injuries. The article analyzes the reasons for that absence and finds a range of explanations. Some of the explanations are practical, such as the ‘intentional acts exclusion’ in liability insurance and short statutes of limitations for intentional torts, which together with other factors guarantee that there will be little litigation in this area. This in turn means that the torts system is not serving deterrence or compensation functions and is leaving domestic violence unaddressed. More broadly, the torts system considers intentional torts more serious than negligence, but promotes compensation for negligence rather than intentional torts. The article calls for creative responses to the problem of domestic violence torts, and proposes a revised approach to auto insurance which would include a required minimum coverage for domestic violence torts, spreading the costs rather than letting them fall solely on the victims. Finally, the article critiques the accident-centered focus of twentieth-century tort law, calling for a focus that includes a broader range of harms.
Regina Austin, Employer Abuse, Worker Resistance, and the Tort of Intentional Infliction of Emotional Distress, 41 Stan. L. Rev. 1-59 (1988), HeinOnline
The focus of concern throughout this article will be the working conditions and experiences of black and Latino employees of both sexes, and female workers, black, brown and white, all of whom occupy the lower tiers of the labor force. . . . [M]inority and female low status workers appear to have little economic clout with which to combat such supervisory abuse. They do, however, criticize their work situations and resist them to a limited extent. This article explores how the law might be useful in maximizing the affirmative politically progressive potential of their informal, local, and largely defensive cultural opposition to mistreatment on the job.
Martha Chamallas with Linda K. Kerber, Women, Mothers, and the Law of Fright: A History, 88 Mich. L. Rev. 814-64 (1990), HeinOnline, excerpted in Robert L. Rabin, Perspectives on Tort Law 305-21 (4th ed. 1995), KF1249.R3 1995 at Reference Area
The law has often failed to compensate women for recurring harms - serious though they may be in the lives of women - for which there is no precise masculine analogue. This phenomenon is evident in the history of tort law's treatment of fright-based physical injuries, a type of claim historically brought more often by female plaintiffs. There are two paradigm cases of fright-based physical injury: the pregnant plaintiff who suffers a miscarriage or stillbirth as a result of being frightened and the mother who suffers nervous shock when she witnesses her child's injury or death. These claims were classified in the law as emotional harms and a number of special doctrinal obstacles were created to contain recovery in such cases.
88 Mich. L. Rev. at 814.
Abstract: It is not always appreciated that proven discrimination on the basis of race or sex may not amount to a tort and that even persistent racial or sexual harassment may not be enough to qualify for tort recovery. This Article explores the question of whether discriminatory and harassing conduct in the workplace is or should be considered outrageous conduct, actionable under the tort of intentional infliction of emotional distress. In recent years, courts have taken radically different approaches to the issue, from holding that such claims are preempted to treating the infliction tort as a reinforcement of civil rights principles. The dominant approach views tort claims as mere gap fillers that should come into play only in rare cases that do not fit comfortably under other recognized theories of redress.
To place the current approaches in perspective and determine the proper location for harassment claims, this Article analyzes the respective domains of torts and civil rights, discussing the prototypical harms and animating philosophies behind the two regimes. It provides a history of the intentional infliction tort—with particular emphasis on how early courts and commentators treated issues of gender, race, and sexuality—and explains a new scholarly turn toward universalism and protection through common law. The Article identifies major innovations in the development of the hostile environment claim to ascertain which basic principles could be transported to tort law. This Article concludes with a critique of the gap filler approach and an argument for adapting the limited migration approach of the new Restatement of Torts to allow emerging norms from civil rights to influence the adjudication of tort claims.
Richard Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling, 17 Harv. C.R.-C.L. L. Rev. 133-81 (1982), HeinOnline, excerpted in Critical Race Theory: The Cutting Edge 131-40 (Richard Delgado & Jean Stefancic eds., 2d ed. 2000), Classified Stacks (KF4755.C75 2000)
Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography): Early article on discourse, focusing on hate-speech. Analyzes harms stemming from such speech and tort law's inadequate response. Outlines a proposed course of action against such speech.
Cristina Tilley, The Tort of Outrage and Some Objectivity about Subjectivity, 12 J. Tort. L. 283 (2019) [SSRN] (pre-publication version)
Martha Chamallas, Discrimination and Outrage: Exploring the Gap Between Civil Rights and Tort Recoveries, in Fault Lines: Tort Law as Cultural Practice 119-136 (David M. Engel & Michael W. McCann eds., 2009), Classified Stacks (K923 .F37 2009)
Abstract (from SSRN): In this case study, the author examines the ways in which race affects the progress and outcome of litigation under the Federal Tort Claims Act. The litigation is brought by individual Navajo plaintiffs against the federal government for the destruction of over a hundred horses and burros. The background conflict over access to public land is laid out, and then the article looks at the difficulty in assessing damages, the impact of the litigation on the underlying land claims, and the question of judicial bias.
Jennifer B. Wriggins, Whiteness, Equal Treatment, and the Valuation of Injury in Torts, 1900-1949, in Fault Lines: Tort Law as Cultural Practice 156 (David M. Engel & Michael W. McCann eds., 2009), Classified Stacks (K923 .F37 2009)
Anita Bernstein, Hymowitz v. Eli Lilly and Co., Markets of Mothers, in Torts Stories 151-178 (Robert L. Rabin and Stephen D. Sugarman, eds., 2003), Reference Area (KF1249.R33 2003)
Anita Bernstein recounts the human story behind Hymowitz v. Eli Lilly and Co.
Alberto Bernabe, Do Black Lives Matter: Race as a Measure of Injury in Tort Law, 18 Scholar 41-72 (2015), HeinOnline
Discussions of race-related issues are a constant in American society. Within the last year alone, there have been several high profile events that have prompted important debates about race. Most of the events attracting nationwide attention involved the conduct of law enforcement agents, including incidents in which unarmed black men died at the hands of police officers, peaceful protests that turned violent following the failure to indict the police officers involved in those cases and the use of excessive force on black teenagers attending social events and while at school. Other events included the racial identity controversy regarding a member of the National Association for the Advancement of Colored People (N.A.A.C.P.), as well as the release of the movies Selma and Black or White. Events like these, and other events not as widely reported in the news, continue to fuel a growing discussion about race and identity that serves as a constant reminder of the racial divide that is still very much alive in the heart of American society." Much of the current debate revolves around police brutality and legal injustice. However, prior to the incidents that prompted these debates, the nation's media was captivated briefly by another legal question related to race which originated in a complaint in a case called Cramblett v. Midwest Sperm Bank: whether the race of a child can be used to measure the harm done to the child's parents as part of a torts claim based on the "wrongful birth" of the child. Nevertheless, once the media's attention turned to the events that resulted in racial unease in places like Ferguson, Missouri, the discussion about whether someone's racial identity could be used as a measure of injury, unfortunately, faded from the national spotlight. Yet, the issues raised by Cramblett are too important and interesting to be dismissed in the continuing debate on racial issues. The case not only offers the opportunity to discuss the issue of using race as an element in a tort law claim, but also poses interesting questions about the extent to which modern reproductive technologies change the way we think about injuries for purposes of tort law.
This Article argues that the costs of recognizing wrongful life and birth actions are too high. Part II begins by detailing the theoretical models of disability and the role they play in shaping public attitudes and legal remedies. Although race and gender theories have infused into mainstream legal discourse in the past several decades, disability theory has been a relative latecomer to the table. Because wrongful birth and life cases lie at the intersection of tort law and disability law, these theoretical models of disability provide an essential interdisciplinary foundation for evaluating the negative imagery of disability reinforced by these torts. Part III then describes the evolution of wrongful birth and life actions in the United States. This Part pays particular attention to the disparate approaches courts take when dealing with the birth of healthy but unwanted children and the birth of children with genetic defects. Part IV deconstructs the disabling message of the case law by using the combined tools of therapeutic jurisprudence and social disability theory. . . . Part V addresses the belief that lines can be drawn between actionable and non-actionable disabilities by consensus and explores the inherently subjective decisions that these actions require juries to make. Part VI then addresses the problem of deterrence and the concern that the absence of a cause of action will permit negligence in genetic testing to flourish. Finally, Part VII argues that the collective identity of disability inspired by the minority group model must prevail over the medical model of disability in this expanding frontier of liability. Absent a focus on the civil rights and collective well-being of people with disabilities as a group, disability will retain its position as an inherently limiting concept that controls one's identity in society. Tort law should not serve as a tool of injustice under the guise of benevolent intervention on behalf of individuals with disabilities. Because relief to individual litigants in wrongful birth and wrongful life actions is purchased at a cost to society as a whole, neither action should be recognized by state legislatures or the courts.