Torts, Race, and the Value of Injury, 1900-1949
40 Pages Posted: 22 Feb 2010 Last revised: 11 May 2010
Date Written: 2005
The Article begins a systematic examination of race and torts. Despite the barriers posed by racist exclusionary structures and violence, many African-Americans sued for and received compensation for personal injuries in the first half of the twentieth century, winning verdicts and appellate decisions in all regions. However, the fact that black plaintiffs sometimes won does not mean that they were treated equally with whites. Examples from all stages of the litigation process demonstrate that race and racism have been significant in devaluing injuries to black plaintiffs. The process of racial categorization was a significant mechanism in devaluing black plaintiffs’ claims. Powerful actors in the tort system focused on the race of black people in the course of measuring their injuries, finding that their race made their injuries from torts worth less than injuries to whites. Some judges even measured harm caused by the deaths of black family members based only on earlier cases involving deaths of blacks; in other words they used segregated precedents to measure blacks’ injuries. This categorization process was one way that decisionmakers ignored the principle that like cases should be treated alike. The torts system’s individualized focus, with no exacting requirement that results in cases be compared, gave free rein to whites’ bias and unfavorable treatment of blacks' claims, and also made such bias very difficult to detect. Aggregate analysis of awards in dozens of fatality cases shows that awards to black families for the loss of a loved one were less than half of those to white families in similar situations. Tort cases both reflected and reinforced racial inequality. Going forward, although race is no longer on the surface of tort law, it is important to be mindful of the ways that different aspects of the tort system may contribute to devaluing tort claims of African-Americans and other racial minorities.
Keywords: race, torts, legal history, racism, devaluation
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