by Christopher J. Robinette
This is a hot topic. Judge Weinstein issued a ruling in late July and Tony Sebok blogged about the decision at New Private Law. Now, in recent postings to SSRN, Ronen Avraham and Alberto Bernabe take up the topic.
Avraham's piece, Is Race- and Sex-Based Targeting Efficient? A Look at Tort Law's Discriminatory Damage Awards, has the following abstract:
Under traditional law and economics analysis, it is deemed efficient to target individuals and communities based on race and gender when doing so results in the lowest tort liability for a rational actor. This results in the targeting of low income minorities and women - a fact which law and scholars economics would stamp with analytical approval, but are likely embarrassed to admit. Surprisingly, the basis for this targeting is the seemingly neutral use of race- and gender-based statistical tables (for example life expectancy or worklife expectancy) which, when used in tort damage calculations, result in a large disparity between damages awarded to whites versus blacks, and men versus women. First, this paper provides a full account of courts' existing discriminatory practices, identifying both theoretical and actual examples of race and gender targeting. It then challenges the conventional wisdom that the use of race- and gender-based tables are justified on efficiency grounds, pointing out fatal flaws inherent in the tables, in how the tables are used in courts to calculate damages for individuals, and in the incentives they create. Under the status-quo, tort law’s remedial damage scheme both perpetuates existing racial and gender inequalities and creates ex-ante incentives for potential tortfeasers to engage in future discriminatory harm (discriminatory targeting) towards women and minorities. The paper then shows that similar discriminatory practices surprisingly and ironically exist in federal law such as the ADA and even Title VII. After discussing the legal and theoretical background, statistical shortcomings, and efficiency concerns associated with the use of race- and gender-based statistical tables, this paper proposes a feasible, low cost, and logical solution to save American courts as well as the law and economics movement from this great embarrassment, and push towards a more efficient, and fair tort law remedial system.
Bernabe's piece, Do Black Lives Matter?: Race as a Measure of Injury in Tort Law, has the following abstract:
Much of the current debate over race relations in the United States revolves around police brutality and legal injustice. However, prior to the events that made the phrase “black lives matter” the signature message of a protest movement against racism in the American justice system, the nation’s media was captivated briefly by another legal question: whether a child’s race should be used as a measure of injury to the child’s parents as part of a torts claim based on the “wrongful birth” of the child. Unfortunately, once the attention turned to the events that prompted the protests and the debate that has developed since, the discussion about whether someone’s racial identity could be used as a measure of injury faded.
Yet, the issues raised by the case are too interesting and important to be relegated to the background of the debate. The case not only offers the opportunity to discuss the issue of using race as an element in a tort law claim, it also poses interesting questions about the extent to which modern reproductive technologies change the way we think about injuries for purposes of tort law.
Obviously, there have been many wrongful birth and wrongful pregnancy cases in the past, but this one is different. Because the mother wanted to have a child and because the child was not born with a disability, the basis of the complaint is that the child’s race should be considered to be an injury to her and that the child’s existence should be considered to be an injury to the mother. If we are ready to recognize a claim in cases where the child is born with a condition that could have been avoided had the defendant not been negligent, should we also recognize a claim if the child turns out to have different physical traits than planned, or expected?
Yet, the issues raised by the case are too interesting and important to be relegated to the background of the debate. The case not only offers the opportunity to discuss the issue of using race as an element in a tort law claim, it also poses interesting questions about the extent to which modern reproductive technologies change the way we think about injuries for purposes of tort law.
Obviously, there have been many wrongful birth and wrongful pregnancy cases in the past, but this one is different. Because the mother wanted to have a child and because the child was not born with a disability, the basis of the complaint is that the child’s race should be considered to be an injury to her and that the child’s existence should be considered to be an injury to the mother. If we are ready to recognize a claim in cases where the child is born with a condition that could have been avoided had the defendant not been negligent, should we also recognize a claim if the child turns out to have different physical traits than planned, or expected?
Martha Chamallas and Jenny Wriggins, who have focused on this topic for years, must be smiling.
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