by Martha Chamallas and Jennifer B. Wriggins. New York: New York University Press, 2010. 228 pp. Hardback. $40.00. ISBN: 9780814716762.
Reviewed by Michelle D. Deardorff, Department of Political Science, Jackson State University. Email: michelle.d.deardorff [at] jsums.edu.
Historically, it has been easy for political scientists to make clear disciplinary distinctions between the institutional and systemic impact of public law and the narrower relevance of private law on the republic. We frequently emphasize the significance of public law to the detriment of an understanding of the larger societal implications of private law in realms such as torts. While critical race and critical feminist scholars have applied theories of structural inequities to private law for many years (Ross 1996, Berry 1999), it is the specific application to the axioms and precedents of American tort law that is novel. This book attempts to challenge these assumptions by underscoring the nature of this false dichotomy through a careful application of critical legal theory to tort law. Challenging the traditional interpretation of tort law as a gender and racial neutral legal structure, this work examines the ways in which current tort structures are influenced by both the gender and racial identities of the litigating parties and by the cultural understanding of these identities. More specifically, Martha Chamallas and Jennifer B. Wriggins pay “close attention to the social construction of harms, unconscious cognitive bias that affect legal reasoning, and the tacit measures by which the law places a dollar value on human suffering” (p.1); in so doing, they shatter the perception of tort law as inherently private in its impact.
In chapter one, “Theoretical Frames,” Chamallas and Wriggins begin by applying the assertions and findings of Critical Legal Studies scholarship to the intellectual approach taken toward torts. This chapter was particularly helpful to this political scientist who was not well-versed on the assumptions underlying tort law. The authors carefully delineate the two dominant theories behind tort law – “law and economics” and “corrective justice.” The “law and economics” school emphasizes economic efficiency as the systemic goal in which “harm” is measured by costs and deterrence is perceived to be the primary goal of the tort structure; this model is largely predicated on rational choice theory. Opposing this interpretation is the school of “corrective justice,” which emphasizes correcting harm as the structural goal in which compensation to the victim is posited as central to tort law. This model is rooted in Aristotelian distinctions between corrective and distributive justice. The authors articulate the current state of tort law by relying on the Third Restatement of Torts, which is seen as the best representation of the tort establishment. Under this interpretation, tort law is moving from private to public law, with an emphasis on collective – not corrective – justice. Its primary policy [*46] function is to both compensate and deter antisocial conduct, but it has no other social justice objective. Using critical legal theory to challenge this narrow understanding of tort law to articulate the need for reform, Chamallas and Wriggins argue for changes in the way defendants’ conduct is evaluated and compensation is measured. In particular, we make the case for expanding the idea of ‘antisocial behavior’ to take full account of involving civil rights notions of racial and sexual discrimination and harassment. With respect to compensation, we criticize current methods for measuring compensation and look for ways to ensure that compensation is distributed equitably among tort plaintiffs and not inequitably along racial and gender lines (p.20).
By utilizing critical theory’s emphasis on relying upon the petitioner’s perspective – or the “position of the governed” – to evaluate the meaning and impact of the law, a new interpretation of law is possible. In this theory chapter, Chamallas and Wriggins provide one of the most clear and well-articulated summaries of critical theory and its many manifestations that I have had the pleasure of reading.
In “Historical Frames,” the second chapter, the authors examine early twentieth century cases to show the explicit impact of perspectives of race and gender on the construction of tort law. It is assumed that the demise of slavery and the end of coverture, as well the slow assumption of formal equality, forced tort law to become gender and race neutral. Chamallas and Wriggins, however, find that “[g]ender and race may have vanished from the face of tort law, but consideration of gender and race remained relevant to the recognition and valuation of injury” (p.36). Using a series of “nervous shock,” “racialized fear,” and wrongful birth cases, the authors emphasize that the race and gender of claimants are revealed through judicial opinions, the choice of language and analogies, as well as in the tone of the rulings themselves. For instance, litigated nervous shock cases were often related to miscarriages that did not result from a physical violation but emerged from a mental disturbance caused by another’s negligence. Courts split on their rendering of tort law’s expectations of these cases, with decisions both requiring and denying physical impact for a legitimate tort injury. Chamallas and Wriggins comprehend this interpretative conflict as reflecting the gender stereotypes of the day, which perceive women in separate spheres from men requiring protection from the world, yet simultaneously creating women with excessively delicate sensibilities that a “reasonable man” could not comprehend. The intersection of race and gender in this period was demonstrated also by the distinction in treatment and perceptions of women based on their race: “at its base, the separate spheres trope was race-specific: only white women were regarded as fragile, delicate, timid, and in need of protection, in stark contrast to prevailing images of black women as stoic and impervious to pain” (p.48). These racialized distinctions, while not explicitly stated by courts, were also reflected in comparisons of the valuation of lives in wrongful death cases where the lives of white sons were much more highly valued in damage awards than similarly situated African-American sons. Chamallas and Wriggins successfully argue that these base [*47] assumptions have been repeated in tort law for over a century: “The mapping of gender onto the debate over physical versus mental harm, the operation of white racial privilege and the devaluation of claims brought by racial minorities are dynamics that have shaped the law of intentional torts, negligence, causation, and damages” (p.61).
In chapter three’s discussion of “Intentional Torts,” Chamallas and Wriggins note that the precedential and theoretical emphasis on negligence, as opposed to the imposition of intentional harm, results in such gender and racial-specific consequences as excluding domestic violence and workplace harassment from tort coverage. Both are “comfortable” fits in tort law under intentional liability claims where there would be much greater latitude for victim’s claims and compensation than is currently granted under family law and Title VII of the Civil Rights Act of 1964. The authors demonstrate the applicability of intentional tort law and evaluate the ways in which these claims have been excluded, resulting in the devaluing of domestic violence and workplace harassment claims and leading to their undercompensation, even when harm is found. “Although there is no longer a categorical denial that these behaviors qualify as intentional torts, the intricate doctrines that impede tort recovery for these injuries send the clear signal that torts is the wrong domain to handle such cases and that such harms are not to be regarded as ‘core’ personal injuries” (p.87). Current tort theory reinforces the notion that tort law is about negligence and reduces the potential for significant civil rights protections to both society and the individual.
The discussion of “Negligence” in chapter four emphasizes that under the current interpretation of tort law, negligence plus causation of harm equals tort liability. However, judicial interpretations have evolved to comprehend that such liability applies only to physical injury and property damage, neglecting to protect emotional harm and relational loss; after exploring the changing rationales for such exclusions, Chamallas and Wriggins articulate their key concerns regarding the consequence of such a narrow definition of “damage.” They note “the gender dynamic in these cases is not that of favoring individual male plaintiffs over the individual female plaintiffs. Rather, gender disadvantage flows from disfavoring the type of claim that women plaintiffs are likely to bring [e.g., claims of coerced or forced sex], thus placing them – and any male plaintiffs who bring similar claims – at a structural disadvantage” (p.92). The relative estimation of damages demonstrates an emphasis in tort law on maintaining property rights as opposed to the valuing of emotional and relational intimacy (e.g., forced sterilization, mothers who witness the accidental death or mutilation of a child, or wrongful birth cases) . Chamallas and Wriggins determine that the “essential cultural activities associated with women, such as childbearing and childrearing, have been undervalued” (p.93).
Chapter five’s examination of “Causation” focuses on how race and gender can contribute to legal findings of causation of harm, particularly in the “wrongful birth” and “lead paint [*48] exposure” cases. The first set of cases, those of “wrongful birth,” center around medical negligence claims where a lack of medical disclosure prevents parents from making an informed decision regarding abortion or childbirth, and usually involve a genetic disorder or maternal illness (e.g., rubella) with serious physical or mental consequences for the fetus. The lead paint cases are generally toxic tort cases in which a family – typically low-income and disproportionately members of racial minority groups – sues a landlord for negligence because a child was exposed to lead paint and claims that cognitive impairment resulted. Interestingly, the authors rely on cognitive and social psychology to demonstrate the ways in which gender and racial assumptions result in differing standards of causation from other similar forms of physical tort claims.
The last substantive chapter of the book, entitled “Damages,” explores the impact of recent tort reforms and new scholarship on the relationship between the computation of damage awards and race and gender. After noting the distinction between compensatory and punitive damages and the larger societal goals of the tort system – restoration and retribution – Chamallas and Wriggins consider the consequences for the legal system as a whole, arguing that “considerations of race and gender equity – as expressions of important societal norms – are properly taken into account in setting damage awards and should not be ruled out of bounds as foreign to the enterprise of measuring damages” (p.198). Their concerns encompass the way in which gender- and race-based earnings and life expectancy tables are used to calculate lost income can simply reinforce societal inequities. They note these tables reflect past trends and that when used in a society rapidly undoing centuries of discrimination and bias, these tables are inaccurate in predicting potential futures. Similarly, caps on non-economic compensatory damages reinforce societal preferences for economic damages over relational, having the “most negative impact on those persons whose injuries defy monetization and disproportionately affect women, children, the elderly, and minorities, who are unable to prove the value of their loss in market-based terms” (p.171). While they recognize the concern for potential abuse in relational claims and the difficulties in making a proper valuation of the loss, in their analysis Chamallas and Wriggins find these concerns equally relevant and historically addressable in property damage claims and see no reason this approach cannot be extended.
Chamallas and Wriggins conclude with three prescriptions to allow and encourage tort law to promote social equality. First, they believe that there should be a conscious effort “to increase and accelerate the migration of [*49] these civil rights principles and norms into tort law in a self-conscious effort to weave gender and race equality into basic tort law principles” (p.188). Civil rights should be seen as a basic tenet of both public and private law. Second, sexual autonomy and reproductive concerns should be named as “special interests that trigger a duty of care in negligence law” (p.189), thus integrating constitutional and tort realms. Finally, they would expand the parameters of tort law by affording greater protection to reproductive, sexual and domestic violence harms. Essentially, the goal of these recommendations is to make the boundaries between tort law and public law more permeable and to use tort law to pursue greater social equality.
The book manifests a unique perspective on tort law that is well-explained and carefully developed, and it is one of the best written books on critical legal theory that I have read; it avoids jargon and clearly explains both the authors’ assumptions and agenda for reform, albeit in a slightly repetitive format. As it is written by two of the leading legal theorists on this specific subfield, it is less of a summary of past research and more of an attempt to create a comprehensive revisioning of tort law. It does share the common weakness of this research genre in that it is hard for a non-specialist in this area of law who does not know the scope of the precedent to determine how typical are the examples used to support the authors’ interpretation of the historical context. In conclusion, the book has challenged implicit assumptions of tort law and by extension private law in ways many disciplines have not previously considered. It expands the scope of critical legal theory and raises a challenge to the field of tort law by encouraging us to reconsider the social construction of its parameters and its current as well as historic assumptions.
Berry, Mary Frances. 1999. THE PIG FARMER’S DAUGHTER AND OTHER TALES OF AMERICAN JUSTICE: EPISODES OF RACISM AND SEXISM IN THE COURTS FROM 1865 TO THE PRESENT. New York, NY: Knopf Publishing.
Ross, Thomas. 1996. JUST STORIES: HOW THE LAW EMBODIES RACISM AND BIAS. Boston, MA: Beacon Press.
© Copyright 2011 by the author, Michelle D. Deardorff.