Blindsight: How We See Disabilities in Tort Litigation
University of the Pacific - McGeorge School of Law
Paul Steven Miller
University of Washington School of Law
Washington Law Review, Forthcoming
Tort litigation operates with a distorted perspective of disability. It suffers from blindsight; it does not see people with disabilities the way they see themselves. Disability advocates emphasize that most people with disabilities lead happy lives. Deeply rooted biases, however, make it difficult for this perspective to be recognized. Tort litigation’s heavy emphasis on medical testimony and its repeated portrayal of plaintiffs as “less than whole” over-emphasize the physical aspects of disability and unfairly depict people with disabilities as tragic. When legal actors embrace these views, they reinforce harmful stereotypes outside the courthouse doors. Newly disabled plaintiffs are also likely to internalize this distorted perspective, as they are repeatedly exposed to it in the course of the litigation. This Article recommends several ways that tort litigation can present plaintiffs with disabilities in more empowering ways, while still recognizing the severity of the injuries involved, and without sacrificing the recovery of hedonic damages or otherwise reducing the plaintiffs’ awards.
Number of Pages in PDF File: 45
Keywords: Disability, disabilities, body, torts, tort law, personal injury litigation, medical model, social model, hedonic damagesAccepted Paper Series
Date posted: December 13, 2011 ; Last revised: January 10, 2012
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