Valuing Black Lives: A Constitutional Challenge to the Use of Race-Based Tables in Calculating Tort Damages
76 Pages Posted: 19 Apr 2017 Last revised: 14 Feb 2019
Date Written: April 19, 2017
This paper challenges a practice in tort law that is ubiquitous, yet little noticed—namely the use of race-based wage, life expectancy and work-life expectancy tables when calculating damage awards. The practice results in damage awards that are significantly lower for black victims than for white victims and creates an incentive for potential tortfeasors to allocate risk disproportionately to minority communities. This paper argues that the use of such tables is not only unfair, it is unconstitutional. Specifically, the paper argues that the use of race-based tables to calculate tort damages violates the Equal Protection Clause of the Fourteenth Amendment. The paper goes on to consider the broader implications of this argument and to explain why the move to truly race-neutral damage awards would require even more radical changes to our current tort system.
Keywords: Eased-Based wages, tort damages
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