Whiteness, Equal Treatment, and the Valuation of Injury in Torts, 1900-1949

38 Pages Posted: 16 Aug 2007

See all articles by Jennifer Wriggins

Jennifer Wriggins

University of Maine - School of Law

Date Written: August 13, 2007


The essay explores the relationships between U.S. tort law, race, and legal culture in the first half of the twentieth century. The essay begins by highlighting two ways in which tort law and legal culture were glaringly white. First, whiteness was the default in the sense that litigants and witnesses were presumed to be white unless otherwise identified, and second, African-American people were excluded from decision-making roles in the tort system. Despite the whiteness of the civil justice system, black plaintiffs brought and won tort cases in all regions during this period. The tort system's institutional commitment to private enforcement and individualized resolution of claims resulted in significant access to the civil justice system for black plaintiffs. However, that same commitment to individualized resolution of tort claims allowed bias and inequality to devalue black plaintiffs' claims at every stage of tort litigation, in ways that were impossible to challenge. Despite the racist exclusions of the legal system and wider culture during this period, a theoretical commitment to equal treatment of tort victims persisted as an undercurrent in legal culture. Judges and others used a variety of attempted justifications, different in content but similar in structure, to rationalize their unequal treatment of black tort plaintiffs.

Keywords: Torts, Race, Damages, History, Whiteness, Racism

Suggested Citation

Wriggins, Jennifer, Whiteness, Equal Treatment, and the Valuation of Injury in Torts, 1900-1949 (August 13, 2007). Available at SSRN: https://ssrn.com/abstract=1006246 or http://dx.doi.org/10.2139/ssrn.1006246

Jennifer Wriggins (Contact Author)

University of Maine - School of Law ( email )

246 Deering Avenue
Portland, ME 04102
United States

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