On November 8th, Professor Martha Chamallas presented at the WLA’s Feminist Perspectives on Tort Law event. The event was the second in the WLA’s Feminist Perspectives Series, which is sponsored by Paul Hastings. Chamallas presented a feminist critique of traditional tort doctrine, but she also discussed two recent instances that may have given students hope about possible change in the future of tort law.
Chamallas discussed critiques of tort law that are analyzed in a book she co-authored with Jennifer Wriggins, The Measure of Injury: Race, Gender and Tort Law. These critiques range from what tort doctrine has traditionally recognized as cognizable claims to the the use of noneconomic damage caps, which fall heavily among those for whom recovery tables forecast will not make very much money. This category includes women, minorities, and the elderly.
Although Chamallas was thorough in her critique of tort doctrine, she concluded her presentation with a discussion of two recent instances, which may show that tort law could be receptive to a social justice critique. First, she discussed the 9/11 compensation fund. She reported that originally Kenneth Feinberg began his analysis on how recovery should be calculated for female victims by looking at female life expectancy. The National Organization for Women (NOW) responded to this, by arguing that this was unfair since it would lead to less compensation for female victims than it would for male victims. When presented with this argument, Feinberg agreed. The second case that Chamallas mentioned that may show a change in the doctrine involved a 2008 Staten Ferry crash. In the accident, an African American man injured his spinal chord, and a party argued that African Americans who had been injured in this way lived fewer years than white victims. Judge Weinstein rejected this argument, stating that the party could not rely on a race-based table because doing so would be unconstitutional.
Although much work still needs to be done in this area, these two events may show that the tides are changing in how individuals are thinking about tort law.
We were lucky enough to have as moderators two esteemed teachers and experts in the field of criminal law: Professor Carol Steiker and Judge Nancy Gertner. To get the discussion started, Professor Steiker noted that, as a student at HLS, she heard Judge Gertner speak at a WLA event. Now, she said, she found herself coming “full circle” — joining Judge Gertner not as a student or audience member, but as a colleague.
women, Professor Steiker mentioned rape law, but then initiated a more in-depth discussion of the law of self-defense. Judge Gertner drew on her experiences as a defense attorney, considering how the law of self-defense has developed to account for the characteristics of a male, but not a female, defendant. Because women are less comfortable with, and less accustomed to, using physical force, Judge Gertner noted, they are more likely to fire multiple gunshots into the body of their aggressor, or stab him numerous times–far more than needed to kill him. Therefore, what some judges might interpret as a sign of murderous intent could instead be understood as a valid, gender-specific response. The moderators also shared reflections on their practices as criminal lawyers, and on the state of women in the legal profession.