Torts Opinions Rewritten

The purpose of this volume in the Feminist Judgments series is to broaden and expand to tort law the insights of the series about how feminist reasoning can influence judicial opinions to make the law more equitable, inclusive, and responsive to the interests, needs, and perspectives of women and other marginalized groups. Tort law, dealing with compensation for personal injuries, is a foundational legal subject matter that is a required part of the first-year curriculum in every U.S. law school. Tort law is a bedrock aspect of the legal culture, and has permeated social and political culture as well, to the extent that it is a subject of intense political and media interest. Tort law provokes debates about the appropriate levels of societal investment in safety and tolerance of risk, about balancing improved safety and risk deterrence with economic growth and innovation, about what human interests and types of harms are deserving of recognition and protection through tort compensation, and about personal responsibility and individual or institutional accountability.

Tort cases often involve many issues that have long been of central concern to women and to feminist legal theory and legal activism: (i) injuries from domestic violence, sexual assault and harassment, (ii) reproductive and other medical harms that may be exacerbated by implicit or explicit bias or failure to fully value women’s needs and perspectives, and (iii) harms that tear at the familial and relational connections that are so fundamental to human life. Yet many of these issues and harms have been treated as peripheral or less important within tort law, and thus have not been sufficiently explored in law school teaching materials, in torts scholarship, and in judicial opinions. This neglect or second-class status within tort law has in turn led feminist activists and women’s rights advocates to not recognize fully tort law’s potential as a tool for addressing problems such as domestic violence and sexual assault.

There has been a rich body of feminist legal scholarship focusing on implicit gendered biases often embedded in many aspects of seemingly neutral tort doctrine. This scholarship ranges from critiques of the purported objectivity of the “reasonable person” standard for assessing negligence, to profound questioning of the way in which tort law values physical injury leading to economic harm over relational and emotional harm, to analyses of the gender bias in tort reform caps on non-economic damages and in the use of gender- and race-based past earnings data to predict future earnings as an item of damages. Indeed, the proposed editors of this volume, and many of the proposed contributors, have written several of the leading articles that use feminist legal theory to critique tort law. Some of these critiques have begun to influence some judges and attorneys, particularly in the area of caps on non-economic damages and calculation of lost earnings damages.

This volume aims to accelerate and expand that incipient feminist influence by demonstrating how the insights of feminist legal theory and methods, when incorporated into the judicial task of interpreting and evaluating facts and precedents and applying policies that influence doctrinal developments, can significantly influence and change tort doctrine. This influence can impact all areas of tort law, from the standards for assessing whether actions are negligent, to whether individuals or business entities owe any legal duty or obligation to protect people against certain types of harm, to determining whether an injury entails physical or emotional harm, to whether all-too-commonplace forms of harassment should be deemed beyond the acceptable bounds of social decency.

Economic theory – particularly conservative neoclassical “welfare maximizing” cost-benefit economics known as “the Chicago School” – has had significant impact on some topics within both judicial opinions and torts teaching materials. This volume aims to demonstrate that feminist theory and methods can and should be at least as influential, if not more influential, as sources for interpreting and applying tort principles. Feminist theory and methods can lead to a more equitable body of tort law that better comprehends and protects widely valued human needs and interests. The volume proposes to accomplish these goals by rewriting fifteen major U.S. torts cases from state appellate and federal courts from a feminist perspective, with a commentary on each case that explains the original decision, places it within its social and legal context, highlights the feminist innovations of the revised opinion, and identifies the ways in which the law would have developed or will develop if the feminist opinion were adopted.

As with the original Feminist Judgments volume focusing on U.S. Supreme Court opinions, and subsequent volumes in the series (tax law, family law, reproductive justice), authors of the rewritten torts opinions will be writing opinions (in the form of majority opinions, concurrences or dissents) that could actually have been adopted at the time of the original case. Authors will be limited to citing precedents and secondary sources that were available at the time and framed the boundaries for the actual judges, and authors will have to work within the actual facts and procedural posture of the case. The volume will demonstrate that incorporating feminist theories and methods into tort cases is consistent with judicial duties and accepted methods of legal interpretation. It will also demonstrate that much of what have been assumed to be gender-neutral principles and doctrines are neither neutral nor inevitable, and that implicit and explicit biases can be overcome through feminist reasoning. The volume thus aims to make a significant contribution to showing a path forward to make tort law more equitable in its impact on women and other marginalized people, and more accessible as a tool to redress and reduce gendered injuries.

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