Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law

96 Pages Posted: 10 Sep 2015 Last revised: 5 May 2016

See all articles by Donald G. Gifford

Donald G. Gifford

University of Maryland Francis King Carey School of Law

Brian Jones

Villanova University, Sociology

Date Written: September 9, 2015

Abstract

This Article presents an empirical analysis of how race, income inequality, the regional history of the South, and state politics affect the development of tort law. Beginning in the mid-1960s, most state appellate courts rejected doctrines such as contributory negligence that traditionally prevented plaintiffs’ cases from reaching the jury. We examine why some, mostly Southern states did not join this trend.

To enable cross-state comparisons, we design an innovative Jury Access Denial Index (JADI) that quantifies the extent to which each state’s tort doctrines enable judges to dismiss cases before they reach the jury. We then conduct a multivariate analysis that finds strong correlations between a state’s JADI and two factors: (1) the percentage of African Americans in its largest cities, and (2) its history as a former slave-holding state.

These findings suggest that some appellate courts, particularly those in the South, afraid that juries with substantial African-American representation would redistribute wealth or retaliate for grievances, struck preemptively to prevent cases from reaching them. Surprisingly, we do not find a consistent association between a state’s JADI and either income inequality or its political leanings. In other words, race and region, rather than economic class or politics, explain the failure to embrace pro-plaintiff changes that occurred elsewhere.

We suggest, therefore, that states that declined to discard antiquated anti-jury substantive doctrines between the mid-1960s and the mid-1980s should acknowledge that these precedents were tainted by their predecessors’ efforts to keep tort cases from African-American jurors and refuse to accord them deference.

Keywords: torts, jury, race, African American, empirical, Southern history, income inequality, politics

Suggested Citation

Gifford, Donald G. and Jones, Brian, Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law (September 9, 2015). 73 Washington and Lee Law Review 557 (2016); U of Maryland Legal Studies Research Paper No. 2015-32. Available at SSRN: https://ssrn.com/abstract=2658386

Donald G. Gifford (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

Brian Jones

Villanova University, Sociology ( email )

Villanova, PA 19085
United States
(610) 519-4784 (Phone)

HOME PAGE: http://www.homepage.villanova.edu/brian.jones

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