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Blindsight: How We See Disabilities in Tort Litigation

Washington Law Review, Forthcoming

Pacific McGeorge School of Law Research Paper

45 Pages Posted: 13 Dec 2011 Last revised: 22 Jun 2017

Anne Bloom

University of the Pacific - McGeorge School of Law

Paul Steven Miller

University of Washington School of Law

Date Written: 2011

Abstract

Tort litigation operates with a distorted perspective of disability. It suffers from blindsight; it does not see people with disabilities the way they see themselves. Disability advocates emphasize that most people with disabilities lead happy lives. Deeply rooted biases, however, make it difficult for this perspective to be recognized. Tort litigation’s heavy emphasis on medical testimony and its repeated portrayal of plaintiffs as “less than whole” over-emphasize the physical aspects of disability and unfairly depict people with disabilities as tragic. When legal actors embrace these views, they reinforce harmful stereotypes outside the courthouse doors. Newly disabled plaintiffs are also likely to internalize this distorted perspective, as they are repeatedly exposed to it in the course of the litigation. This Article recommends several ways that tort litigation can present plaintiffs with disabilities in more empowering ways, while still recognizing the severity of the injuries involved, and without sacrificing the recovery of hedonic damages or otherwise reducing the plaintiffs’ awards.

Keywords: Disability, disabilities, body, torts, tort law, personal injury litigation, medical model, social model, hedonic damages

Suggested Citation

Bloom, Anne and Miller, Paul Steven, Blindsight: How We See Disabilities in Tort Litigation (2011). Washington Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1971406

Anne Bloom (Contact Author)

University of the Pacific - McGeorge School of Law ( email )

3200 Fifth Avenue
Sacramento, CA 95817
United States

Paul Steven Miller

University of Washington School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States
206-616-3137 (Phone)
206-543-2164 (Fax)

HOME PAGE: http://www.law.washington.edu/Directory/Profile.aspx?ID=148

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