Faculty Scholarship Digest
Martha Chamallas, Gaining Some Perspectives in Tort Law: A New Take on Third-Party Criminal Attack Cases, 4 LEWIS & CLARK L. REV. 1351 (2010).
In this article, Martha brings a continuing area of her research focus, the duty of reasonable care in torts, to a new category of cases: claims of liability against A by V for D’s attack on V— for example, a tenant’s suit against a landlord for an attack that occurred on the unsecured premises. As usual, Martha’s careful analysis leaves the reader with a new perspective and understanding of existing doctrine and its consequences. Martha begins by reviewing the new (2005) Restatement Third of Torts’ treatment of the “reasonable person” standard. While the language has changed from reasonable man to reasonable person, Martha documents the myriad ways in which tort law has maintained the “objective” “universal” view of reasonableness, resisting the large body of scholarship attacking the legitimacy of the concept and the movement of other areas of law toward more openly accounting for perspective.
Yet, although perspectives of race and gender have not found their way into negligence doctrine, Martha describes how, in third-party criminal attack cases, courts have made “determinations of duty and reasonable care that frequently bear on the gender, race or economic status of the victims.” Most especially in sexual attack cases, “some courts have imposed a duty and have begun to articulate a norm of reasonable care that takes into account women’s disproportionate vulnerability to rape and sexual assault, requiring defendants to make their premises equally safe for men and women.” The terrain is nuanced and unsettled, with cases showing more appreciation of perspective with regard to gender than to race or low-income status, and Martha provides a careful and enlightening critical description of that terrain, thereby providing a new understanding.
Martha Chamallas, Vicarious Liability in Torts: The Sex Exception, 48 Val. U. L. Rev. 133 (2013).
This article grew from Martha’s address for the Monsanto Lecture in Tort Law, a leading annual lecture in the field. In this article, Martha employs her patented interweaving of doctrine and interdisciplinary theory to document, analyze and address what she calls “sexual exceptionalism:” the strong tendency in U.S. tort law to avoid imposing vicarious liability on employers for sexual abuse by their employees, even in contexts in which vicarious liability typically would be applied for other violent tortious acts by employees and even though legal recognition of sexual injury in other contexts suggest that tort law would be adapting. As Martha notes, lately “trusted institutions --- from the Catholic Church, to the Boy Scouts, to Penn State and BBC --- have become embroiled in scandals involving allegations of widespread sexual abuse.” If victims can establish that such institutions and employers were independently negligent in allowing the abuse to happen, then liability is clear. This is a much more difficult burden for plaintiffs, however, and a smaller class of cases than would come from vicarious liability --- the automatic employer liability for torts committed by their employees in the “course and scope of their employment.”
Martha starts by canvassing the cases and concludes that, although the legal “tests” are the same, courts are distinctly less likely to impose vicarious liability in sex abuse cases than in other cases of violence, for example when “enraged and often drunken male employees engage in acts of violence.” Why? The article next considers the academic justifications---both those grounded in efficiency and those grounded in fairness---for vicarious liability and finds that these justifications support the use of the more expansive of the two sets of tests for vicarious liability (those grounded in “enterprise risk” or in foreseeability). Even when courts follow this path, however, they disproportionately find sexual abuse claims outside of the class, and so Martha next looks beyond tort literature to explain the sexual exceptionalism phenomenon. The article relates scholarship in feminism, cognitive psychology (particularly with regard to the fundamental attribution error) and research on institutional cultures with a common theme. Vicarious liability springs from viewing harms that result from risks created or caused by the employer, and each of these three sources provide means for understanding how professional settings facilitate or inhibit sexual conduct and how employee sexual abuse may arise out of an employment situation in a manner that the law ought---but predictably fails---to recognize. A final section draws on the preceding analysis to examine potential solutions and ultimately advocates a rule-based test: vicarious liability should be employed “if an employer materially increases the risk of tortious action either by conferring power or authority on its employees over vulnerable persons or by regularly placing its employees in situations of intimate or personal contact with clients, customers, or other potential victims.”
Martha Chamallas, Discrimination and Outrage, Exploring the Gap Between Civil Rights and Tort Recoveries, in FAULT LINES, TORT LAW AS CULTURAL PRACTICE (David M. Engel & Michael McCann eds. Stanford 2009).
This book chapter explores, with clarity and insight, the connection between tort law, in particular the tort of “outrage” (more commonly known as intentional infliction of emotional distress) and the civil rights laws, paying particular attention to claims of various forms of sexual harassment. It makes a fascinating tale. Intentional infliction of emotional distress is a relatively recent creation, dating to the 1940s. From the start, the chapter demonstrates, the “tort has been knee-deep in issues relating to gender, sexuality, and personal morality.” Reflecting dominant cultural mores, the tort protected female chastity by allowing recovery for false accusation of immoral sexual conduct. As to what we now think of as sexual harassment, the tort was inhospitable in the precivil rights era. Sexual solicitation cases failed under the view that “there is no harm in asking.”
The tort also offered “little protection against severe emotional distress inflicted by racist behavior.” In time, however, the emergence of sexual harassment law overthrew this premise, at least in some contexts. Thus, feminist activists seeking legal remedies for sexual harassment at first distrusted a torts-based approach, given the historical limitations. Through civil rights laws, however, sexual harassment law “now recognizes how disparities in power and status can produce offers that cannot be refused and can construct unequal working conditions for targeted workers.” As Chamallas summarizes: “The change in vocabulary from ‘solicitation’ to ‘harassment’ effectively conveys the distance traveled, from harmless offer to form of abuse.” Yet civil rights law has bumped up against a variety of limitations canvassed in the chapter. As a result of these limitations, “there has been a turn to tort law,” with its potential as a “vehicle for protecting a new equality-centered conception of dignitary harm.” At this point, however, Chamallas concludes that this result is “only speculative.” Time will tell.
Martha Chamallas, Backlash, Covering and the State of Feminist Legal Theory, 9 Issues in Legal Schol. 1 (2011).
Few if any scholars are better positioned than Martha Chamallas to offer insightful perspective on the state of feminism in the legal academy, and in this article she does so by considering external reasons that might be affecting feminism in law schools generally and in the volume and tone of scholarship in particular. Although legal feminism is in a “quiet phase,” and “generally tolerated,” she explains, it remains “decidedly devalued,” with the result of encouraging “sympathizers to keep their feminism under wraps, in a new academic version of ‘I am not a feminist, but . . . .’”
Using Susan Faludi’s work as a jumping off point, Martha examines the extent of a post-9/11 backlash against feminism in comparison to the backlash of the 1980's, and considers how the former has left feminism culturally “bruised,” and the resulting impact on current law students and young scholars. Part of that impact she describes are “covering” (the tendency of those with feminist related views to downplay their connection) and “masking” (the tendency to cloak opposition to feminism in neutral terms), and the article gives examples of both practices in both the language and decisions of faculty members and students. In keeping with the article’s focus on the responsibility of external forces for the “quiet phase” of feminism in the academy, Martha suggests that “a jolt from the outside world” may be required to inspire and embolden, describing a turn of events in Italy that had such an effect. A final section of the paper identifies three emerging lines of feminist-oriented legal scholarship that have the potential to “enlarge our views of legal feminism” when it moves forward from its current state—trans theory, masculinities theory and social justice feminism—and sketches their contributions and potential.
Martha Chamallas, Beneath the Surface of Civil Recourse Theory, 88 Ind. L.J. 527 (2013).
At the 2012 AALS Annual Meeting, the Torts & Compensation Section included a panel on civil recourse theory, Twenty-First Century Tort Theories: A New Audit of Civil Recourse Theory. Martha Chamallas was on the panel. Her critique of civil recourse theory presented at the conference appears in final form in this article. John Goldberg and Benjamin Zipursky are chiefly credited with developing civil recourse theory. This theory emerged as an attempt to unify tort law around the concept of private wrongs. By arguing that the point of tort law is to empower victims to rectify civil wrongs against them, civil recourse theory offers a means to reduce the plurality of theories that have dominated tort scholarship since the 1970’s. Despite the rhetoric of rights and empowerment, Chamallas believes the failure of civil recourse theory to account for group identity limits its usefulness. She sees civil recourse theory as merely “an updated version of classical legal theory.” Her main concern with civil recourse theory rests on the central image of the empowered tort victim—too rosy an image to capture the real world of injured persons. According to Chamallas, for tort claimants from less privileged groups—particularly women, racial and ethnic minorities, and low-income persons—tort law has not yet delivered on this promise of empowerment. Chamallas contends that civil recourse theory is limited by its failure to consider “tort law’s spotty record in protecting the rights of marginalized groups.”
Martha Chamallas, Unpacking Emotional Distress: Sexual Exploitation, Reproductive Harm, and Fundamental Rights, 44 WAKE FOREST L. REV. 1109 (2009).
The gradually forthcoming RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM marks an important underlying shift in the law regarding emotional distress claims. Martha explains that the Restatement recognizes that the question has critically changed from “whether to provide compensation for negligently inflicted emotional distress to when to provide such compensation.” That not only intentional, but also negligent, infliction of emotional distress can be actionable is now clear; what remains is to settle, in the words of the Restatement, which “activities, undertakings, or relationships” ought to provide potential grounds for such liability, beyond the generalization of those “likely to cause serious emotional disturbance.”
In this article, Martha provides a partial answer to that question. She argues the certain interests, particularly those recognized as fundamental from a constitutional perspective, should be among those triggering the duty of care against inflicting emotional injury. Two such interests are sexual autonomy and reproduction, and Martha argues that negligent infliction of emotional distress should be a ground for recovery in sexual exploitation cases (e.g., the plaintiff whose then-boyfriend secretly videotaped them having sex and then passed around the video with the result, among others, that she became known as the “porno queen” to her college classmates) and reproductive-harm cases (e.g., coercive sterilization of poor mothers). She argues that early rules used to cabin this liability—such as requirements of a “physical manifestation” of the emotional harm or of a contractual relationship—miss the key connection of many of the cases “to intimate human relationships and personal interests” unrelated to either physical harm or contract. Far better, the article concludes, to offer protection where “fundamental constitutional interests” that “represent important norms of liberty” come into play.
Martha Chamallas, Ledbetter, Gender Equity and Institutional Context, 70 OHIO ST. L. J. 1037 (2009).
In this article, part of a symposium at the Mortiz College of Law examining Justice Ginsburg’s first fifteen years as a Supreme Court Justice, Martha uses Justice Ginsburg’s dissent in the Ledbetter case to identify an institutional perspective in Justice Ginsburg’s gender equity jurisprudence, which sometimes operates to the benefit of discrimination plaintiffs, but other times works to the benefit of defendants.
In Ledbetter, the Supreme Court held (5-4) that in a Title VII pay discrimination case the statute of limitations runs from the time of the employer’s initial discriminatory pay decision, rejecting the “paycheck accrual rule” under which courts had found a relevant violation “each time an employer issued a paycheck to an employee that was tainted by discrimination.” Justice Ginsburg dissented orally from the bench, signaling the strength of her objection to the Court’s ruling, and invited Congress to override the decision, an invitation Congress accepted in passing the Lilly Ledbetter Fair Pay Act.
The article brings salience to two important features of Justice Ginsburg’s dissent, that Martha shows are consistent with Justice Ginsburg’s approach in cases involving gender. First, Justice Ginsburg attended to the “real-world characteristics” of pay discrimination, noting that it is often made up of small discrepancies that only become apparent over time and through processes often hidden from employees’ points of view.
Second, Justice Ginsburg stressed that management at Ledbetter’s company at least should have known about the discrimination and yet did nothing to correct it, and noted the special context of sex-based pay disparities, which an employer gains from “in a way it does not from a discriminatory denial of promotion, hiring or transfer.” Only in the pay disparity case does the employer actually reduce its costs. Thus, Martha emphasizes, this institutional perspective led Justice Ginsburg to conclude that “something had to be done to ameliorate” the results of this special circumstance. Although this “institutional perspective” cut in the plaintiff’s favor in this case, the article also discusses a Ginsburg opinion in which the institutional perspective helped the defendant—the Suder case in which Justice Ginsburg wrote the majority opinion holding that an employer should not automatically be vicariously liable for a supervisor’s harassment of an employee.
Martha Chamallas, Past as Prologue: Old and New Feminisms, 17 MICH. J. OF GENDER & L. 157 (2010).
This article is the printed version of a speech Martha gave at the University of Michigan as part of a symposium on the present and future of feminist legal theory. Drawing on a taxonomy of feminist legal theories articulated by Rosalind Dixon, Martha surveys first the current state of what she calls the “Big Three” feminisms (liberal, dominance, and cultural) and the “New Three” feminisms (partial agency, intersectional, and postmodern/post-structural). The first part of the article points to the continuing relevance of each of the Big Three; whether or not expressly invoked by theorists and advocates, Martha argues, each continues to bring critical insight and, sometimes, change. With regard to liberal feminism and its emphasis on equal treatment, Martha points to the Lilly Ledbetter Fair Pay Act. With regard to cultural feminism, Martha highlights important recent changes in family leave policies and Equal Employment Opportunity Commission guidance on treatment of caregivers. With regard to dominance feminism, Martha points to scholars who highlight the importance of pornography to the internet and cyberlaw.
Turning to the New Feminisms, Martha positions partial-agency feminism as a challenge to “the premises of both dominance and cultural feminism” that stresses “possibilities for the exercise of women’s sexual agency, rather than focusing principally on . . . victimization.” This brand of feminism challenges characterizations of sex as dangerous and illegitimate, as well as the legal consequences of such characterizations. Intersectional feminism, in turn, “resists finding commonalities among all women,” paying close attention to the intersection of gender with race, class, age, and other characteristics. Martha sees in this strand the “promise of diversifying the feminist movement and keeping feminism relevant.” Post-modern feminists “target sex-based categories” by rejecting “the still-dominant conception that the sexes are opposite” and that the categories “men and women” can neatly sum things up. While noting that these scholars often “presume that the law is the problem” and have a “deregulatory impulse,” Martha also points to some powerful effects postmodern feminism has had in sexual harassment law. For the future, Martha predicts continued growth and relevance for postmodern feminism and intersectional feminism. With regard to the latter, she sees a connection to programs that john powell describes as “Targeted Universalism;” solutions that are “framed in universal terms,” but capture how “people are differently situated, and targets those who are the most marginalized.” As an example, she points to certain proposed changes to the Family Medical Leave Act.
Martha Chamallas (w/Jennifer B. Wriggins), THE MEASURE OF INJURY, RACE, GENDER, AND TORT LAW (NYU Press 2010).
In this book, a capstone achievement of years of study and analysis, Martha and her coauthor 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. The topics covered are simply too numerous to describe in a brief summary without doing them a disservice, so examples will have to do.
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.” Martha and her coauthor 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 Martha 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.
Martha Chamallas, INTRODUCTION TO FEMINIST LEGAL THEORY (Wolters Kluwer 3rd ed. 2012).
The word “introduction” in the title of Martha’s treatise appropriately signals its wonderful accessibility—the volume can be read and understood by a novice to feminism, or even by nonlawyers. But do not let it fool you. The book is a tour de force. It organizes, relates and describes more than 40 years of scholarly and legal developments in a field that grew from new movement to mature yet evolving subject. The book concisely illuminates the central debates of the era and explains the basic concepts and vocabulary of feminism in a legal context. The influence of these ideas has been such that even readers without previous explicit exposure to feminism concepts will likely recognize some of the issues and perspectives. At the same time, with Martha’s outstanding treatment and with the combination of experience and currency she brings, all readers—from novice to expert, from skeptic to true believer—will see the world around them differently after reading this book.
There have been many developments in the decade since Martha’s previous edition, and they are thoroughly integrated into the work. Nonetheless, there are perhaps a couple of signal new achievements to mention. First, in an effort to advance understanding as well as perhaps assist feminism in moving beyond problematic division into “camps,” the book provides an “enemies list” for feminism—six problems on which feminists have focused—that Martha uses to frame subsequent sections of the book. The enemies, in order of appearance: Difference, Subordination, Devaluation, Essentialism, Victimization, and Normalization (if you don’t know what some of these are, don’t worry, just read pp. 28-30). Second, as feminism has developed into a deeper, more complicated and diverse field, the substantial enrichment of legal understanding that results from exposure to feminism (through this book) has grown commensurately.
Martha M. Chamallas, Of Glass Ceilings, Sex Stereotypes, and Mixed Motives: The Story of Price Waterhouse v. Hopkins, in WOMEN AND THE LAW STORIES (Foundation 2010).
Martha becomes the latest Moritz faculty member to participate in this outstanding Foundation series that addresses fields of law by assigning classic cases to leading scholars for both the human story behind the case and as a jumping off point for the author’s particular perspective. Price Waterhouse’s “compelling narrative [of a woman] who struggles to advance in [a] male-dominated profession,” is set in the early 1980's, when a highly credentialed Ann Hopkins failed to become the 8th woman partner out of the 662 partners at an elite accounting firm, at least in part because she failed to conform to sex stereotypes (she was told by the head of her office that, to make partner, she should “walk more femininely, talk more femininely, [and] dress more femininely . . .”). The chapter describes Hopkins’ courtroom victories, from the trial level through the Supreme Court, and their considerable, and remarkably distinct, influences.
Martha describes how, from the beginning, Price Waterhouse was significant, both for and beyond its “glass ceiling” context. Price Waterhouse endorsed a “mixed-motivation” framework in Title VII cases that allowed plaintiffs to go forward by proving that discrimination played a role in a challenged employer action, and Congress shortly thereafter endorsed this approach (essentially, Congress gave “plaintiffs such as Ann Hopkins . . . a legally enforceable right to a discrimination-free decision-making process”). Martha characterizes these mixed-motivation developments as “one of the most important developments in Title VII doctrine since the 1970's,” with ongoing and expanding reverberations. Price Waterhouse also influenced the debate as to whether “intentional” (as opposed to unconscious) bias must be proven in disparate treatment cases, was an important landmark for the use of expert testimony in Title VII cases, and most recently has been “keenly felt in harassment cases and begun to transform the meaning of ‘sex discrimination’ under Title VII.” With regard to the last of these, Price Waterhouse’s so-called “sexual stereotyping theory of liability,” has proven the key element in leading courts to find liability in cases related to sexual orientation and gender identity, in short form because “if Ann Hopkins could not be penalized for being too masculine, it was unlawful to penalize a male employee because he was too effeminate or because his co-workers thought he was gay.” In a final section, Martha discusses the influence of Price Waterhouse in feminist theory, beyond the legal system. It is highly relevant to both “structuralist” research, which examines how organizational features (e.g., promotion practices) can reinforce or disrupt “sex role traditionalism,” and post-modern feminism, which considers gender as socially constructed and challenges the “binary view of gender.”
Martha Chamallas, Warm Reasoning and Legal Proof of Discrimination, in Jon Hanson ed., IDEOLOGY, PSYCHOLOGY, AND LAW (Oxford Univ. Press 2012).
Martha’s comment is part of an interdisciplinary volume in which chapters from one discipline are followed by comments from another, in this case a chapter from psychology followed by a comment from law. The chapter traces the intellectual history of the debate within psychology over whether judgments are rooted in motivations and emotions (so-called “hot” processes) or in cognitive, rational operations, so-called “cold” processes. Martha summarizes: “As is the fate of most dichotomies, they report that the latest thinking in the field now generally endorses a ‘warm’ view of human reasoning that concedes the importance of both processes” and now focuses on how they interact. With “‘warm’ reasoning,” Martha notes, “it is axiomatic that individuals are seldom fully aware of the factors influencing their judgments and often mistakenly believe they are objective and unbiased.”
Martha discusses the relevance of these conclusions from social psychology to critical ongoing issues of anti-discrimination law: (i) disparate treatment analysis vs. a requirement of conscious discrimination, and (ii) the relevance and application of “mixed motivations” when an employment decision is affected by both legitimate and illegitimate factors. The comment notes that the conclusions of psychology provide “considerable ammunition” for some of the traditionally liberal sides of these debates. The prevalence of unconscious bias undermines the demand for proof of conscious discrimination, and “human beings are so adept at selectively marshaling principles to support a desired result that . . . . the only way to ferret out inconsistency and bias is to look at a larger pattern of decisions. . . .” Moreover, in mixed-motivation cases, attempting to assess the relative weights of the “legitimate” and “illegitimate” factors amounts to such a fiction that “the law would be better directed toward answering the normative question of whether the disparate treatment was justified under the circumstances.” On the other hand, she notes that the human mind’s “warm” reasoning to use principle to match its preference “can be as robust in situations favoring minorities as it is in anti-minority cases,” putting liberals to the hard choice of endorsing a broad psychologically informed definition of causation in all cases, or to “shift ground and . . . argue for adoption of an asymmetric, antisubordination approach” that limits antidiscrimination law to “dismantl[ing] entrenched social hierarchies.”
Martha Chamallas, Civil Rights and Civil Wrongs, in Andrew F. Popper, MATERIALS ON TORT REFORM (West 2010).
This brief essay is part of a series in a new law textbook on tort reform. Martha’s is one of seven essays in a section entitled “Tort Reform: Justice Delayed, Denied, or Enhanced.” Martha explains that, although “tort reform” is now used to connote support for “limit[ing] liability for defendants and reduc[ing] the amount or type of damages plaintiff’s receive,” prior to the 1980's tort reform often eased recovery for injured parties (e.g., comparative negligence) or offered advantages to all sides (e.g., no fault compensation for automobile accidents or workers compensation) by simplifying liability findings in return for limiting damages. The essay contends that the connection between tort litigation and civil rights is underappreciated and provides examples of some of the ways in which tort litigation is civil rights litigation (as anyone familiar with Martha’s work will understand) and examples of ways tort litigation should be informed and shaped by the connection. This is the tort reform the essay calls for.