Constitution Day Lecture: Constitutional Law and Tort Law: Injury, Race, Gender, and Equal Protection

Abstract

The lecture focuses on how the equal protection clause of the fourteenth amendment relates to tort law. It was the Annual Constitution Day Lecture given at the University of Maine School of Law on September 17, 2010. The equal protection clause requires that "all persons similarly circumstanced shall be treated alike." Royster Guano v. Virginia, 253 U.S. 412, 415 (1920). This formal equality requirement applies to tort law as to other areas of law. Yet it is difficult in torts to discern whether the requirement has been violated, because of the decentralized and individualized method of adjudication used to resolve tort claims. Tort law since the end of slavery has not had clear statutory exclusions based on race, unlike areas such as education or transportation. Individual court decisions, however, can constitute state action that violates the equal protection clause, as seen in cases such as Palmore v. Sidoti, 466 U.S. 429 (1984), in the family law arena.

Clear examples from the history of tort law show that some tort decisions devalued African-Americans’ tort claims and thus violated the equal protection clause, as discussed in Part II. Equal protection continues to be relevant to tort law. Race-based and gender-based tables are still used in court to predict a plaintiff’s earnings or life expectancy for determining tort damages. Such admission is arguably state action and can not be justified by any compelling state interest, Part III explains. The admission of these tables in court is a violation of plaintiffs’ equal protection rights.

Keywords: Keywords: torts, race discrimination, gender discrimination, equal protection, race-based tables, life expectancy tables, gender-based tables, worklife tables, fourteenth amendment, state action