Race and Tort Law

Oxford Handbook on Race and the Law (Khiara Bridges, Devon Carbado, & Emily Houh, eds.)

Ohio State Legal Studies Research Paper No. 557

15 Pages Posted: 29 Jul 2020 Last revised: 1 Aug 2020

See all articles by Martha Chamallas

Martha Chamallas

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

Date Written: July 27, 2020

Abstract

Although Richard Delgado published the first critique of tort law from a critical race perspective in 1982, the role of race remains undertheorized in torts scholarship and torts theory, taking a back seat to the dominant approaches that rarely mention race or other social identities. This leave the misimpression that tort law is race-neutral and bears little connection to constitutional or civil rights law, where issues of racial justice are more frequently analyzed and debated.

This chapter contests that conventional wisdom and demonstrates that the shape of contemporary tort law has been affected by the social identities of the parties and cultural views on race and ethnicity. The significance of race is not confined to a particular doctrinal area but crops up in intentional tort, negligence and strict liability cases and spills over into debates about the proper measure of damages. It enters tort law through a variety of pathways, sometimes explicitly, but more often the influence of race is beneath the surface and can be gleaned only by looking closely at judicial rhetoric or at implicitly biased assumptions relied on by judges and juries.

This overview of the contemporary “race and torts” legal landscape borrows frames from critical race and interdisciplinary scholarship to organize the key cases, issues and debates into four, somewhat overlapping categories: (1) racial discrimination, harassment and insult; (2) stereotyping and racialized contexts; (3) racial devaluation; and (4) racially disparate effects. The portrait that emerges is of a flawed system that tends to reproduce rather than ameliorate racialized harms, while never quite losing its potential to change course and advance racial justice.

Suggested Citation

Chamallas, Martha, Race and Tort Law (July 27, 2020). Oxford Handbook on Race and the Law (Khiara Bridges, Devon Carbado, & Emily Houh, eds.), Ohio State Legal Studies Research Paper No. 557, Available at SSRN: https://ssrn.com/abstract=3661537 or http://dx.doi.org/10.2139/ssrn.3661537

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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