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Professor Chamallas Co-Authors Compelling New Book on Tort Law

September 2, 2010 | Faculty

In The Measure of Injury: Race, Gender, and Tort Law, The Ohio State University Moritz College of Law Professor Martha Chamallas and Jennifer Wriggins, a University of Maine School of Law professor, put tort law under a critical magnifying glass and reveal with extraordinary clarity the pervasive effects of race and gender in the law of torts, effects often not visible upon a cursory glance because of the facial neutrality of many contemporary legal rules. The book gives the reader a full and compelling picture that indelibly alters the traditional understanding of torts.

Chamallas and her co-author, drawing on an in-depth analysis of case law ranging from the Jim Crow South to the 9/11 Victim Compensation Fund, demonstrate that women and minorities have been under-compensated in tort law and that traditional biases have resurfaced in updated forms to perpetuate patterns of disparate recovery based on race and gender. 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.

Tort law “is built around the dual premises that accidental injury lies at the core of tort law and that physical injury, rather than emotional harm or injuries to relationships, is of paramount concern.” The coauthors demonstrate how this paradigm has disabled tort law from stemming domestic violence and sexual exploitation; they also expose the approach’s normative underpinnings to demonstrate that the result is more than an unfortunate coincidence.

In considering these matters, the book explains at the micro, doctrinal level, but also at the broader, abstract level — placing tort law in the context of contemporary and historical examples of the legal mechanisms that produce gender and racial hierarchy. Negligence, what counts as injury, how we understand fault and causation (and mixed causation), how we define and measure damages: no portion of tort law is spared rigorous scrutiny, and the shadow of gender and racial bias is consistently revealed, without reliance on polemic and with consistent attention to the nitty-gritty of tort doctrines.

Fundamentally, as Chamallas and her coauthor describe, tort law is most often understood as independent of “the identity of the parties or the particular context in which [the claim] arose.” By paying attention “to the social identity of tort victims and the context of their injuries,” the book brings a new understanding to the law and identifies six different but related pathways by which race and gender influence tort law. The book also offers some prescriptions for the problems it identifies: importing more principles from civil rights law into tort law; prioritizing the constitutionally protected interests of sexual integrity and reproduction within tort law by providing them heightened status requiring duties of care; and rethinking what constitutes the “core” vs. the “marginal” in tort law to give greater weight to the claims of women and minorities.

Chamallas, the Robert J. Lynn Chair in Law at Moritz, teaches Employment Discrimination and Gender and the Law. Prior to joining Moritz College of Law in 2002, Chamallas served on the faculties of the University of Pittsburgh School of Law, the Louisiana State University Law Center, and the University of Iowa College of Law.