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Martha Chamallas, "Gender-Inclusive Tort Law: Aren't We There Yet?"

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"On Race, Gender, and Radical Tort Reform: A Review of Martha Chamallas" by Vincent R. Johnson

Thanks for telling us about the problem. Return to Book Page. The Measure of Injury: Tort law is the body of law governing negligence, intentional misconduct, and other wrongful acts for which civil actions can be brought. The conventional wisdom is that the rules, concepts, and structures of tort law are neutral and unbiased, free of considerations of gender and race.

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In The Measure of Injury , Martha Chamallas and Jennifer Wriggins prove that tort law is a Tort law is the body of law governing negligence, intentional misconduct, and other wrongful acts for which civil actions can be brought. Grappling with tort theory, the intricacies of legal doctrine and the practical effects of legal rules, The Measure of Injury is a unique treatise on torts that uncovers the public and cultural dimensions of this always-controversial domain of private law. Hardcover , pages. To see what your friends thought of this book, please sign up. Superior Court, P.

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Archdiocese of Milwaukee, N. In a famous early example of judicial recognition of personal autonomy and integrity in sex-related matters, the court held that a doctor could be liable for failing to disclose that the young man he brought with him to help deliver a child lacked medical qualifications, De May v. The authors accurately note that "the most formidable barrier to tort recovery for domestic violence victims lies The solution to the lack- of-insurance problem is not obvious.

Reproductive Injuries Chamallas and Wriggins devote great attention to torts involving sexual relations and what might be called "reproductive injuries," harm related to sterilization, conception, pregnancy, and birth. With vivid illustrations drawn from actual disputes, and detailed consider- ation of cases that were badly decided, they probe issues related to compensation for emotional distress and relational injuries, as well as ancillary issues, such as consent.

At some junctures the discussion is breathtaking, such as the authors' explanation that a federal court in Maryland held that forced sterilization was not actionable as battery "because it did not cause any additional physical pain, injury or illness other than that occasioned by the C-Section procedure," when the plaintiff was unconsensually subjected to bilateral tubal ligation. Wriggins has explored potential remedies on other occasions.

Cross-Boundary Traditionand Precedent In many respects, the authors' argument on this point is well- rooted in American legal precedent and practice.

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It has long been regarded as appropriate for tort law to take cognizance of non-tort legislative enactments in deciding which grievances to remedy. The most obvious example is liability imposed under a negligence per se theory based on legislation which neither expressly nor implicitly creates a civil cause of action. For example, the fact that a victim of a deliberate falsehood might or might not be able to sue a defendant for violating the state's deceptive trade practices act normally does not foreclose a claim based on common law fraud principles.

Feltmeier,the Illinois Supreme Court reasoned that its recogni- tion that domestic violence could give rise to an action for intentional infliction of emotional distress was consistent with state laws against domestic violence.

In Print: The Measure of Injury: Race, Gender and Tort Law

City of New York, the New York Court of Appeals similarly found that the issuance of a statutorily authorized domestic violence protective order was an important factor supporting its decision to impose tort liability based on failure to provide police protection to a child.

But see Robert F. Three such arguments, pertinent to the authors' thesis, relate to legislative resolution ofdivisive issues, protec- tion of the integrity of legal principles, and inefficiency resulting from remedial duplication. Deference to the Legislature First, judicial recognition of a new tort remedy can undercut the balance struck by legislation addressing a difficult social issue. This would seem to be particularly true with regard to statutes dealing with race and gender. In these situations, creation of a new remedy by the judiciary may displace the bargain struck by the more democratically responsible branches of government, the legislative and the execu- tive.

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Anticipating this point, the authors focus on the question of whether relevant civil rights legislation in- cludes language expressly preempting, or not preempting, common law remedies. This argument is weakest ifjudges are elected, rather than appointed. This is par- ticularly true in light of the Supreme Court's ruling that judges and judicial candidates may announce their views on controversial issues. See Republican Party ofMinn. Presumably, the policy favoring deference to co-equal branches of government has less force where legislative or executive action is likely to be distorted by the lobbying of special interest groups, the under-representation of victims in the decision- making process, or lack of adequate funding.

The authors point out, however, that even courts faced with statutes containing non-preemption language have resisted recognition of tort remedies for race- and gender- related discrimination. DoctrinalIntegrity Second, there are some boundaries between fields of law that are important to recognize because they protect the integrity of legal principles.

A useful example can be drawn from the context of defective product-related tort claims. Suppose that a product purchased by the plaintiff turns out to be ineffective or does not work at all, but causes neither personal injury nor damage to other property. It is widely agreed that the plaintiffs only recourse is under contract law, and the terms of the parties' bargain cannot be circumvented by suing under tort principles.

Purely economic product-related losses fall on the contract side of the boundary line which sometimes runs between torts and contracts. This arrangement works because the Uniform Commercial Code has been ubiquitously adopted. This would be a significant risk in cases where a tort cause of action such as intentional infliction of emotional distress is interpreted to cover the same basic type of conduct for which a statute has already defined the conditions and terms oflegal remedies.

In this type of situation, supplanting statutory civil rights or domestic relations legislation with common law princi- ples would reverse the normal trend of legal development. The ten- dency in American law has been to replace rag-tag common law Still, it is hard not to sympathize with the idea that tort law should be expanded to provide remedies for types of race- and gender- related discrimination for which there is, in many cases, no statutory avenue for redress. This might include such forms of conduct as dis- crimination against persons based on "how they perform their identity" by resisting stereotypes, as in the case of effeminate men, or resisting assimilation, such as by adopting "ethnic" hairstyles.

However, the authors argue that tort law should do much more than take a "gap filler"" approach to workplace harassment. They argue in favor of pervasive remedies under tort law which reflect the public policies found in anti-discrimination statutes.

More specifically, they urge that tort law can borrow from Title VII to give meaning to the outrageous conduct requirement in tort actions for inten- tional infliction of emotional distress. Duplication and Inefficiency Third, any expansion of common law remedies into the provinces now occupied by civil rights law and domestic relations statutes would pose a risk of remedial duplication and inefficiency. These types of costs are sometimes significant because there are limited judicial resources available for the resolution of disputes. For example, in the legal malpractice field, a judge may dismiss a breach of contract claim in a suit that also alleges negligence, if the breach of contract claim amounts to nothing more than an argument that the representation was incompetent and negligent.

In The Measure of Injury, the authors do not address this issue, focusing instead on the importance of providing better civil remedies for workplace discrimina- tion and domestic violence. Despite the fact that the authors compellingly state their case, their quest faces great obstacles.

With respect to actions for intentional Wells Fargo Bank, No. It will be difficult or impossible to reverse this course of development because the tort of outrage has been much litigated and the accretion of unfriendly precedent is substantial. Moreover, insofar as negligent infliction is concerned, the law viewed nationally is so muddled 0 6 that it is hard to imagine that this tort will someday offer a reliable path to recovery for seriously injured plaintiffs in cases not involving observation of the tortiously caused death or serious injury of a family member.

However, the authors can take comfort in the fact that the Supreme Court of Tennessee recently opined that "the development of the law in the United States relating to negligent infliction of emotional distress claims has been to enlarge rather than to restrict the circumstances amenable to the filing of a negligent infliction of emotional distress claim. Rather, the authors argue that judicial reluctance to provide compensation for emotional distress "cannot be explained or justified solely by the difficulty of measuring intangible injuries or finding a logical stopping point for liability.

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Defense counsel may dispute the reasonableness of such expendi- tures or the accuracy of the numbers, but the jury nevertheless has access to concrete evidence to guide its assessment of how much damage was caused by the defendant's tortious conduct. You could not be signed in.

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