Professor Martha Chamallas
Robert J. Lynn Chair in Law
Moritz College of Law
Very few persons see a connection between "ordinary" tort claims and claims for violations of civil rights. Historically, the two domains have developed separately, and civil rights attorneys are a separate and distinct group from personal injury litigators. Issues of social justice - particularly the equitable treatment of women and minority social groups - rarely surface in personal injury litigation with its seemingly neutral rules for determining duty, causation, and damages. I argue, however, that this standard account of the law is flawed and that the shape of tort law has been affected by the social identity of the parties and prevailing cultural views on race and gender.
We see the influence of race and gender when courts interpret a broad concept, such as the standard for "outrageous" conduct, which determines liability in intentional tort claims for domestic violence and for misconduct in the workplace. Considerations of gender and race have also affected judgments of causation in "wrongful birth" cases and in recent lead paint cases brought on behalf of poor and minority children who suffer cognitive injuries. Most pervasively, race and gender continue to play an important role in setting a value on injuries, through the methods experts and courts use to calculate damages for future loss.
I argue that it is time to connect civil rights to tort law and to import civil rights and human rights principles into the basic legal doctrine governing the trial of ordinary civil claims. The important public policies behind civil rights statutes should be permitted to migrate to torts to inform the law's - and our -- understanding of dignity, responsibility, and value. I will attempt to show that this is the kind of tort reform that may proceed incrementally from both courts and legislatures and would thus follow the best tradition of the common law