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Fellow-Feeling and Gender in the Law of Personal Injury

85 Pages Posted: 12 Feb 2010 Last revised: 21 May 2010

Anita Bernstein

Brooklyn Law School

Date Written: February 9, 2010


American personal injury law has two problems with sympathy, according to observers. Too much, says one group of critics, deploring the power of a poignant or vulnerable plaintiff to tug at jurors’ heartstrings. Too little, says another cohort, which argues - mostly but not entirely from feminist premises - that emotion ought to play a larger role in adjudication.

The concept of fellow-feeling, introduced to moral philosophy by Adam Smith in his Theory of Moral Sentiments, helps to understand sympathy as it functions in the reception and adjudication of modern personal injury claims. Building on Smith, this Article accepts portions of both objections regarding sympathy. It agrees with the first criticism that the rendering of sympathy has led to unjust results in personal injury liability; it joins the second group of critics by focusing on biases against women. Because many groups of plaintiffs that have claimed that particular products injured them have been predominantly either female or male, products liability offers a proving ground for hypotheses about gender and fellow-feeling in personal injury law.

Suggested Citation

Bernstein, Anita, Fellow-Feeling and Gender in the Law of Personal Injury (February 9, 2010). Journal of Law and Policy, Forthcoming; Brooklyn Law School, Legal Studies Paper No. 190. Available at SSRN:

Anita Bernstein (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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