A pdf of this article, which appeared in Vol. 13:1 (2005) of the J. of Gender, Social Policy & the Law, is available here. Below is an excerpt:
“… Tort law has dealt, at times, in a more nuanced way than many might expect with issues of gender difference. Torts has a flexible methodology, namely common law adjudication. Torts has a decentralized, egalitarian decision-making system:the jury (for cases that get that far). The torts enforcement mechanism depends only indirectly on the state, since enforcement is through private lawyers bringing contingency fee cases. This system has limitations. For instance, tort litigation generally is not pursued when the defendant lacks attainable assets or liability insurance. This system also has strengths. For example, during the period shortly after the end of slavery and through the end of Jim Crow, black women and men sometimes were able to find lawyers to successfully sue railroads and other defendants for their physical and dignitary injuries. These plaintiffs rarely would have been able to hire a lawyer on an hourly basis. Their successful lawsuits held railroads and other defendants responsible for their actions in ways that the state would not have done during this era.Tort law, if effectively enforced, would provide compensation for harms such as those recognized in the now-defunct civil remedy provision of the Violence Against Women Act; indeed, almost all cases brought under that provision also included intentional tort claims.
“Although tort law does not talk much about equality or discrimination, it does talk about changing behavior, injury, and harms, all central feminist concerns. All of these aspects make tort law an interesting area for study and reform. Individual self-determination and autonomy are important assumptions in torts, and in that sense tort law is inadequate to those who believe that law should not reflect such assumptions. …
“This essay discusses some of what feminist perspectives can provide in connection with torts. Very broadly, feminist legal theory looks at pertinent aspects of torts through a lens that pays attention to gender and race. One of the projects of feminist legal theory is to explore and acknowledge the contexts in which law operates. A second aspect of feminist legal theory’s work is to ask questions about how law affects women in their diversity. Third, feminist legal theory can, through acknowledging context and asking questions about how law affects women and others, develop ideas for legal reform. The last twenty years of feminist legal thinking and theorizing have taught us that law and its workings are very complex. Broad-brush analyses of the tort system as”male,”have turned out to be too simplistic. More nuanced understandings may lead to creative changes.” …
