Thursday, June 10, 2010
I would like to begin by thanking Martha and Jennifer for their fine book and for asking me to comment on it. If you are planning to read one book on torts in the next five years this should be it. This was a book that was waiting to be written. Twenty five years ago, many of us were interested in a feminist and critical analysis of tort law, but none was forthcoming. Tort law seemed to be ripe for feminist commentary. After all, it was centered upon that most masculine of creatures, the average reasonable man. In addition, it purported to balance the needs of victims and perpetrators and was perhaps the only area of law where it was conceded that perpetrators have needs too. And finally, torts had rendered women and people of color virtually invisible as identity groups. When we asked the feminist question – Where are the women? – the answer was: Here, there and everywhere but not clustered around feminist concerns. Nevertheless, thirty years after MacKinnon’s book on sexual harassment had shown how feminists could revolutionize whole areas of the law, no book was forthcoming. Until now. Finally we have such a book and the question is: Why did it take so long. Thinking about this question will help us to understand what a brilliant book this is. It will also help us to appreciate that there is nothing simple about critical theory and that this is especially true when it analyzes a subject such as torts where the subordinated have been rendered invisible.
Contrast tort law with family law or civil rights law. Gender and race figure prominently in the legal analysis of these areas. Since women and racial groups are highly visible, critical theory pursues an obvious agenda. The critic analyzes traditional law in order to show its contradictions as well as the racist and sexist assumptions on which it is based; (s)he then develops a more adequate description of the experience and needs of subordinated groups; and finally reconstructs the law to take account of these concerns.
Traditional common law subjects are harder to deconstruct. Perhaps property is the easiest since it invites discussion of ownership and the use of this concept to organize society into haves and have nots. It also has a history of legitimizing the ownership of persons through slavery and coverture. Contracts and torts, however, present real methodological difficulties – How can we analyze their effect on groups that do not seem to be present? Wriggins and Chamallis begin with exactly the right questions – Where are the women and people of color? And why can’t we see them through the lens of tort law?This requires them to think carefully about the function and purposes of tort law. Why do we have a tort law? What purposes is it meant to achieve and how have these aspirations failed subordinated groups? They also think imaginatively about society. They ask: if women and people of color had designed tort law, what would it do for us? What sorts of wrongs might it address? Their answer, not surprisingly, focuses on three main areas: 1) losses with respect to reproduction; 2) remedies for domestic violence; and 3) injuries associated with bias and discrimination. With these answers in hand, they proceed to launch their critical inquiry. They ask: what are the intellectual structures of tort law that prevent it from addressing these injuries?
It is important to see that the answers to these questions are not simple. It is not this doctrine or that that rules out recoveries for these harms. They are literally excluded by the basic structures of tort law. In particular, the authors point to two distinctions that matter. One is the distinction between negligence and intentional torts with the heavy favoring of negligence recoveries. The second is the distinction between physical and emotional harm with the heavy favoring of physical harm. These two preferences – for physical harm and negligence theories – literally rule out of court many of the claims that women and people of color might press. This is not an obvious explanation. Surely women’s reproductive harms are physical rather than emotional. But the truth is, as Wriggins and Chamallis amply demonstrate, most of these complaints are treated as either emotionally caused or as resulting in emotional not physical damage. For example, if my horse rears up in front of you, causing you a miscarriage, the tort law would treat this as an emotional harm despite the fact that I am physically injured. It reasons that, since the miscarriage was caused by fear (an emotion) and not by physical contact, you have been harmed in an emotional rather than physical way.
The problem with the intentional torts/negligent torts dichotomy is also not obvious. Nevertheless it operates in an unexpected and ironic way to exclude claims of sexual or racial harassment. Civil rights plaintiffs often lose their civil rights cases because they are unable to show that the defendant treated them badly because of their race or gender. They may have been yelled at, threatened, disadvantaged and disparaged, but still there is a need to prove that all of this was motivated by racial or gender prejudice. The plaintiff, having failed at a civil rights claim because the defendant had not disclosed his true intentions, is left to pursue an intentional tort claim – the assumption is that whatever wrong she has suffered is intentional and cannot be judged by the standard of reasonability. It is relegated instead to the centuries old mechanisms of intentional torts – a landscape that it is mined with technical requirements and counterintuitive results. The modern alternative – the relatively new tort of Intentional Infliction of Emotional Distress – requires a stiff showing of “extreme and outrageous” conduct paired with “severe” emotional harm. In ruling on these claims, some courts have made the common sense observation that being subjected to bad behavior because of one’s race meets the test of “extreme and outrageous,” but not all courts have made this move. This latter group of courts have separated the behavior from its motivation and simply said that the behavior is not extreme enough to meet the standard.
Thus, Chamallis and Wriggins help us to see why tort law has seemed so non-responsive to feminist concerns. Accomodating the most common tortuous injuries that women suffer requires of full reconceptualization of tort law. BUT this is not the only problem. There are at least three others.
1. Tort law deals with accidents and unexpected occurrences of every kind. Therefore it places little reliance on rules. Instead tort doctrines are expressed in terms of general instructions that are read to juries. As I have argued elsewhere these instructions do little more than provide a vocabulary for juries to use in their deliberations. This means that the unacknowledged and unconscious bias that juries bring into the jury room remains an important element of their final decision. For example, the authors show how wrongful death awards in Louisiana from 1900 to 1940 reflected these biases with awards for the death of black victims only half of those awarded for white victims.
2. Tort law also relies heavily on the concept of causation. Causation is not a scientific concept. A belief that event A causes event B is a product not only of our understanding of how things work but also our understanding of what should be taken as normal and what is out of the ordinary, what is important and what is not. These baseline evaluative judgments may rest on stereotypes and may result in judgments that take male or white as normal and female and being of color as somewhat less than normal.
3. Finally much of the bias in the tort system is hidden in the evidence. How do we characterize people’s attitudes and behavior? What is perceived as threatening?
More particularly there is the question of valuation. Is a woman’s arm more or less valuable than a man’s. Surely, defendants can’t argue that women are worth less than men; but they can, as the authors point out, use scientific tabulations of earnings that are based on gender and race.
When you put all this together – and document it thoroughly as the authors do – the result is a much different picture of tort law and the possibilities it represents. Suddenly, those of us who think about tort reform and progressive change have something that looks like an agenda. Not surprisingly, it is not a simple agenda. It does not focus us on changing the phrasing in one section or another of the Restatement. Rather it is a program for using the tort law. For example, more suits need to be brought for domestic violence. Given that such claims are not covered by most liability insurance, we need to figure out how to fund them, how to try them, and how to collect on judgments. We need to bring more cases of race and sex harassment and we need more social science to document the harms they cause.
So I thank Jennifer and Martha for their book. I thank them for the light they have shed on tort law and equally for the light they shed on the mechanisms of racial and gender subordination.