Thursday, May 17, 2018
Mary Anne Franks (University of Miami School of Law) has posted Injury Inequality (Injury and Injustice: The Cultural Politics of Harm and Redress (2018)) on SSRN. Here is the abstract:
Social and legal understandings of injury play a key role in structuring society. They shape our sense of moral obligations to each other, help us assign blameworthiness, and govern how our collective resources – economic, psychological, and political – are to be distributed. In particular, judgments about injury determine allocations of risk and responsibility in society. Accordingly, distorted assessments of the quality, nature, and significance of injury can have serious consequences. In social and legal systems characterized by “injury inequality,” injuries affecting the powerful are exaggerated, while those affecting the vulnerable are downplayed. This is a serious cause for concern for several interconnected reasons. First, overinflated claims of injury do violence to the concept of injury itself, warping society’s collective understanding of harm. Second, injury inequality preserves the lion’s share of resources for addressing the injuries of the privileged, leaving little for those already less equipped to cope with injury. While elites can expect that their injuries will be accommodated in the structure of law and society itself, the marginalized must make do with self-help.The effect is not limited to economic, legal, or physical resources, but extends to psychological resources: injury inequality discourages empathy and compassion to the harms suffered by the less powerful. This results in legal and social practices that reinforce an unjust and perverse allocation of risks, burdens, and benefits. Such practices send social messages that directly conflict with a commitment to equality across race, gender, and class. At a minimum, out-sized solicitude for elite injuries creates indifference to marginalized injury. In the worst case, such solicitude affirmatively promotes marginalized injury as a sacrifice necessary to preserve the interests of the powerful. This article focuses on three categories of legal and social norms in the United States that demonstrate the harms of injury inequality: justifiable use of deadly force, freedom of speech, and sexual assault.