Margo Schlanger, Washington University Law School, had posted an article, Injured Women Before Common Law Courts, 1860-1930. It appeared in the Harvard Women's Law Journal. Here's the abstract:
My aim in this article is to illuminate the common law of torts and its relation to and with ideas about gender difference, by focusing on three sets of cases involving injured women, spanning the time between approximately 1860 and 1930.
My conclusions run counter to two approaches scholars have frequently taken in analyzing gender and the common law of torts. Some tort scholars neglect gender completely, omitting it as an important axis of analysis. Other scholars, though not themselves erasing women or omitting gender, find that historical tort law itself committed a similar act of exclusion or subordination in the development of an objective standard of care. But notwithstanding the recent explosion in feminist torts scholarship, little scholarship actually examines and discusses old accident cases to test a hypothesis of exclusion and consistent oppression against their particular language and holdings. This Article essays such a test, using as the field of study three categories of cases, involving injuries to women who were passengers in cars and wagons, injuries to female drivers of wagons, and injuries to women boarding and disembarking from trains. Reported decisions in these categories evince common understandings of gender differences courts considered relevant: that wives had less authority than husbands, that women were less competent in the public sphere of transportation than men, and that women were less physically agile than men. This Article presents the interplay of those understandings and tort doctrine.
The results of this interplay were as complex as gender difference and tort law themselves, and my project is one of thick description - to complicate rather than to present a unified field theory of gender and tort. Nonetheless, one solid conclusion to be drawn from all three categories is that, as might be expected given the existence of female accident victims and the importance of the ideology of gender to social ordering, the accusation of erasure of gender difference is incorrect. Far from naively erasing gender by subsuming women into the male category of "reasonable men" or a purportedly neutral, but no less male category of "reasonable persons," courts actually treated gender as an important factor in assessing appropriate standards of care. Neither do the cases support a charge of invariable refusal to take account of women's experience, or of consistent deprecation of women's capabilities. Each of the three categories of opinions serves as a case study of tort law's intricate interaction with gender difference, illuminating the diversity of possible and actual legal approaches to thinking about women's agency, authority, and capabilities. Together, in rhetoric, analysis, and result, they present a world frequently, though not uniformly, friendly to women and their needs.
In the first set of cases, discussed in Part I, women were injured as passengers in cars and wagons, usually when their husbands were driving. During the entire period surveyed, the cases establish courts' views of the gendered relationship of wife to husband were of central analytic importance to their legal assessments of a woman's right to recover against a third party who caused an accident. Part I-A explains that although the cases display a relatively unchanging construction and presentation of the marital relationship B assigning the wife, at least in the public space of the roads, to a subordinate role to her husband B doctrinal changes from 1860 to 1930 precisely inverted the legal result of this assignment. In the early part of the period, courts concluded from women's subordinate position in marriage that a female passenger could not recover against a third party if her husband's driving had negligently contributed to the accident. But in 1890 or 1900, the results shifted, and courts concluded from the same subordination that a female passenger could recover in the same circumstances. Part I-B demonstrates additionally that courts deciding whether a female passenger had herself been contributorially negligent also considered gender norms relevant to the inquiry; the idea that female authority and competence was lessened in public spaces contributed to some courts' decisions that the injured women passengers before them had not been contributorially negligent.
Part II discusses a second set of cases, in which women drivers of wagons were injured. Some nineteenth-century court decisions in this category acknowledged and treated a perceived gender difference - that women were inferior drivers to men. These opinions examined numerous doctrinal possibilities for the role gender should play, but settled on none of them, showing that a particular shared understanding about gender does not answer the question of how gender should bear on the injured female tort plaintiff's right to recover. Later opinions dealing with female drivers, by contrast, generally did not discuss gender at all.
Part III presents a third and final set of cases, in which women were injured boarding and disembarking from trains. Underlying these decisions was yet another, and related, shared understanding of a gender difference B that women had more difficulty than men negotiating the world of train and streetcar travel. Here, the defendant railroads' legal status as common carriers framed how judges incorporated perceived gender difference into their analysis. As in the first set of cases, though not the second, as courts in this third category repeatedly confronted the perceived difference of women from men, and decided whether and how to accommodate that difference, some particularized rules and a fairly consistent caselaw developed. In a contextual analysis that was not quite feminist, but not anti-feminist either, courts were more likely to invite women into public spaces and to enforce access rules for them than to exclude them, and were more likely to treat women as adults with adult capabilities and responsibilities of self-care, than as children unable to take care of their own safety.
Although their facts otherwise vary, the three sets of cases do share one obvious factual feature B all involve transportation-related injuries. This focus on transportation reflects early tort law's similar focus rather than any claim that gender was at issue only in this subset of personal injury cases. And of course, courts also discussed gender in cases that did not involve accidents at all. Divorce cases, rape cases, cases about such gendered torts as seduction or alienation of affections C all were among the arenas in which lawyers and courts discussed women and the law's relationship to and expectations for them. This Article presents just one piece of the puzzle.