Friday, February 11, 2011

Deardorff reviews Chamallas and Wriggins, "The Measure of Injury"

The Law & Politics Book Review has posted a review of Martha Chamallas and Jennifer Wriggins, The Measure of Injury: Race, Gender, and Tort Law (New York University Press, 2010).

Here's how reviewer Michelle Deardorff (Jackson State University) introduces the book:
Historically, it has been easy for political scientists to make clear disciplinary distinctions between the institutional and systemic impact of public law and the narrower relevance of private law on the republic. We frequently emphasize the significance of public law to the detriment of an understanding of the larger societal implications of private law in realms such as torts. While critical race and critical feminist scholars have applied theories of structural inequities to private law for many years (Ross 1996, Berry 1999), it is the specific application to the axioms and precedents of American tort law that is novel. This book attempts to challenge these assumptions by underscoring the nature of this false dichotomy through a careful application of critical legal theory to tort law.
Readers might also be interested in this paragraph, in which Deardorff addresses the authors' use of history:
In “Historical Frames,” the second chapter, the authors examine early twentieth century cases to show the explicit impact of perspectives of race and gender on the construction of tort law. It is assumed that the demise of slavery and the end of coverture, as well the slow assumption of formal equality, forced tort law to become gender and race neutral. Chamallas and Wriggins, however, find that “[g]ender and race may have vanished from the face of tort law, but consideration of gender and race remained relevant to the recognition and valuation of injury” (p.36). Using a series of “nervous shock,” “racialized fear,” and wrongful birth cases, the authors emphasize that the race and gender of claimants are revealed through judicial opinions, the choice of language and analogies, as well as in the tone of the rulings themselves. For instance, litigated nervous shock cases were often related to miscarriages that did not result from a physical violation but emerged from a mental disturbance caused by another’s negligence. Courts split on their rendering of tort law’s expectations of these cases, with decisions both requiring and denying physical impact for a legitimate tort injury. Chamallas and Wriggins comprehend this interpretative conflict as reflecting the gender stereotypes of the day, which perceive women in separate spheres from men requiring protection from the world, yet simultaneously creating women with excessively delicate sensibilities that a “reasonable man” could not comprehend. The intersection of race and gender in this period was demonstrated also by the distinction in treatment and perceptions of women based on their race: “at its base, the separate spheres trope was race-specific: only white women were regarded as fragile, delicate, timid, and in need of protection, in stark contrast to prevailing images of black women as stoic and impervious to pain” (p.48). These racialized distinctions, while not explicitly stated by courts, were also reflected in comparisons of the valuation of lives in wrongful death cases where the lives of white sons were much more highly valued in damage awards than similarly situated African-American sons. Chamallas and Wriggins successfully argue that these base [*47] assumptions have been repeated in tort law for over a century: “The mapping of gender onto the debate over physical versus mental harm, the operation of white racial privilege and the devaluation of claims brought by racial minorities are dynamics that have shaped the law of intentional torts, negligence, causation, and damages” (p.61).
Deardorff concludes by praising the book for "expand[ing] the scope of critical legal theory and rais[ing] a challenge to the field of tort law by encouraging us to reconsider the social construction of its parameters and its current as well as historic assumptions."

You can read the full review here.