Blog test #3 when in the course of human events
by Jay Feinman
Chamallas, Architecture
My primary contention is that contemporary tort law devalues or undervalues the lives, activities, and potential of women and people of color. Applying critical theory, I argue that this devaluation is ac complished by subtle means, through the social construction of legal categories that purport to describe types of injuries and types of dam ages. I look for the hidden gender or racial dimension in basic legal categories, such as “physical harm” or “pecuniary loss.” When these “neutral” categories of injuries and damages are ranked in impor tance, there is often a negative impact on nondominant groups. Spe cifically, I assert that injuries of low value are more often associated with women, while injuries of high value are more often linked to men. The devaluation process can also work to contaminate the very neutrality of the categories themselves. My research suggests that the gender of the victim plays an important role. In deciding how to categorize a loss, the law looks not only in some abstract way at the nature of the injury or loss, but also at who is suffering the loss. In this way, the gender of the prototypical plaintiff affects how we con ceptualize the nature of the harm.
tort law values physical injuries and property damage more highly than emotional injuries or relational harms. More re cently, another hierarchy has emerged which complements, but does not duplicate, the hierarchy of types of injuries. This implicit hierar chy of damages values pecuniary losses (e.g., wage loss and medical expenses) over nonpecuniary losses (e.g., pain and suffering, mental distress, and lost companionship and society). These two implicit hi erarchies of value appear neutral because they are not explicitly tied to any gender or racial group. They have power to influence our thought, moreover, precisely because they are taken for granted and not often subjected to scrutiny by the courts or scholars.
, I use critical theory to suggest the existence of a conceptual vi cious cycle as a possible mechanism for reproducing gender bias. This cycle is a process of devaluation. The vicious cycle works to forge a cognitive connection between basic types of injuries and damages on the one hand and gender on the other. The categories that de scribe types of injuries and types of damages are dualistic; the domi nant discourse in torts is cast in terms of physical versus emotional in juries or pecuniary versus nonpecuniary losses. We then map onto these dualisms corresponding gender labels, associating women with emotional injury and nonpecuniary harm. The final step in the proc ess of devaluation is perceptual: We are apt to perceive and catego rize injury sustained by women as emotional or nonpecuniary, even when the injury could logically also be characterized as physical or as having pecuniary value. The vicious cycle is then complete: Emo tional harm and nonpecuniary loss are devalued because of their cognitive association with women, and the harm that women suffer is more likely to fall into one of the disfavored “female” categories. On a material level, operation of the vicious cycle thus perpetuates lower awards for women because their losses are more likely to rank lower on the hierarchy.