Comment on Avraham and Yuracko: Torts and the Paradox of Conservative Justice
11 Pages Posted: 7 Dec 2016
Date Written: December 5, 2016
This paper comments on Ronen Avraham & Kim Yuracko, Torts and Discrimination forthcoming in the Ohio State Law Journal. Professors Avraham and Yuracko’s fine article, Torts and Discrimination, calls our attention to the fact that the entrenched fact of race and gender discrimination exerts a powerful, structural influence on tort damages, especially in bodily injury and wrongful death cases. Damages in tort — and in private law more generally — are reparative. Their role is to put the plaintiff in the position he would have been in but for the defendant’s wrong. Making the plaintiff whole requires that courts determine how the plaintiff’s life would have gone had she not been wrongly harmed. State of the art methods for doing incorporate the effects of objectionable racial and gender discrimination and carry those effects forward. The life expectancy, work-life expectancy, and average wage tables are tailored to the circumstances of men and Caucasians, the more they reflect the legacy of long-term race and gender discrimination and the more they project past discrimination forward.
Like a Gordian knot, this problem is difficult to untangle, but easy to cut through. We might end this practice of projecting past discrimination forward by using blended life expectancy, work-life expectancy, and average wage expectancy tables, instead of tailored ones. Administratively, this is a simple change. Judges haves the authority to require the use of blended tables and the tables are there for the using. The hard questions that this remedy raises are not practical or administrative, but theoretical and normative. Why is tort law drawn to project past discrimination forward? And how deeply embedded, normatively, is its commitment to doing so? This Comment argues that the feature of tort law at work here is basic, but not backed by immense normative weight. The feature at issue is central to the law of torts because reparation is central to tort and the use of tailored tables furthers reparation. However, reparation mechanisms which undermine equal right themselves offend important tort values, and cannot claim strong support from justified reliance.
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