Toward a Feminist Revision of Torts
22 Pages Posted: 2 Apr 2010
Date Written: March 31, 2010
The essay explains reasons why tort law deserves more attention from feminists than it has received. For example, although tort law does not talk much about equality or discrimination, it talks about changing behavior, injury, and harms, all central concerns of feminists. Race and gender have affected the application of legal concepts such as duty, harm, and injury. Race and gender have also affected the recognition of injury.
The essay first explores two previously little-known appellate tort cases, Gulf, Colorado & Santa Fe Railway v. Luther, 90 S.W. 44 (Tex. Civ. App. 1905) and Bullock v. Tamiami Trail Tours, Inc., 266 F.2d 326 (5th Cir. 1959), that highlight issues of gender and race in ways bearing on classic torts issues of damages and liability. In Gulf, race and gender play critical roles in formulating the injury, a status injury to a white woman. Bullock is a civil rights case as well as a torts case, and played a significant role in the desegregation of interstate transportation. Its imposition of duty and liability also challenged sexualized racism. Acknowledging the context of gender and race shows that tort cases, by their determinations of liability and damages, both reinforce and challenge racial and gender hierarchies.
The essay also examines and critiques the almost total absence of domestic violence from the torts lexicon, despite its obviously tortuous nature. Focusing on domestic violence as a torts issue, the article examines the significance of the lack of insurance in the context of domestic violence, and proposes an approach of mandatory insurance covering injuries from domestic violence.
Keywords: torts, race, gender, domestic violence, feminist theory, critical race theory, racism, sexism, whiteness, civil rights, insurance
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