Considering Tortious Racism

Abstract:     
This article focuses on the disparate treatment of African Americans in the area of mental health, and how tort law may be utilized in order to achieve racial recompense. Justice Ginsberg in her dissent in Grutter v. Bollinger acknowledged the ongoing consequences of both conscious and unconscious racism, in terms of its social and economic impact in the United States. The social disparity that exists for African Americans in terms of education and residence also contributes to the disparate treatment of African Americans’ physical and mental health.

The intentional tort law doctrines of assault, battery, and infliction of nervous shock are considered together with the negligence law proximate cause doctrines of the Thin-Skull plaintiff and Eggshell personality as capable of providing legal remedies for mental and physical harms caused by racial abuse. This article explores these theories through the prism of racial contextualization, how these tort law doctrines allow for the consideration and effects of cumulative racism, and how the law might provide recompense to those abused by systemic and individualized racism.

Number of Pages in PDF File: 66

Accepted Paper Series