Will Tort Law Have its #MeToo Moment?

Journal of Tort Law, forthcoming 2018

Ohio State Public Law Working Paper No. 456

33 Pages Posted: 4 Sep 2018

See all articles by Martha Chamallas

Martha Chamallas

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: September 4, 2018

Abstract

Using tort law’s treatment of claims for domestic violence and sexual assault as examples, this essay identifies prominent features of a feminist historical approach to law to demonstrate how gender inequality is reproduced over time, despite changes in legal doctrine. When informed by feminist theory, history can function as a critique of past and present regimes of inequality, highlighting the various techniques of exclusion and marginalization that emerge to prevent law from redressing serious, recurring injuries suffered disproportionately by women. The essay explores two such techniques: sexual exceptionalism that treats gender-related torts differently than other harms and the adoption of ostensibly neutral rules that have a disparate impact on women and marginalized groups. The essay speculates as to whether the #MeToo movement can provide the momentum to produce a break from the past, particularly with respect to third-party claims holding employers and other institutional defendants responsible for sexualized harms.

Keywords: torts, domestic violence, sexual assault, me-too, feminism, legal history

Suggested Citation

Chamallas, Martha, Will Tort Law Have its #MeToo Moment? (September 4, 2018). Journal of Tort Law, forthcoming 2018; Ohio State Public Law Working Paper No. 456. Available at SSRN: https://ssrn.com/abstract=3243841 or http://dx.doi.org/10.2139/ssrn.3243841

Martha Chamallas (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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