The architecture of bias: deep structures in tort law.

• Author: Chamallas, Martha

Gender and race have disappeared from the face of tort law. The old doctrines that explicitly limited recovery exclusively to one gender have been either abolished or extended on a gender-neutral basis. Women as well as men may now recover for such claims as loss of spousal consortium(1) and loss of a child's services.(2) The disabilities that prevented slaves, free persons of color,(3) and married women(4) from filing suit on their own behalf and giving testimony in court have been lifted by legislation guaranteeing access to the courts. Juries are now integrated, and even peremptory challenges may no longer be exercised on the basis of race(5) or gender.(6)

But as in so many other areas of the law, formal equality on the face of the law of torts bears little connection to gender and race equity as measured by real-world standards. Most empirical studies indicate that women of all races and minority men continue to receive significantly lower damage awards than white men in personal injury and wrongful death suits.(7) Some of these data have been generated by the movement to study gender and race bias in the courts,(8) with the predominant focus being on disparities between men and women.(9) These data confirm that in the realm of torts a higher value is placed upon the lives of white men and that injuries suffered by this group are worth more than injuries suffered by other less privileged groups in society.

For example, my calculations from tort judgments and settlements reported in a 1996 guide for personal injury lawyers indicate that, in the aggregate, male plaintiffs received awards that were twenty-seven percent higher than those of female plaintiffs.(10) Similarly, a study of wrongful death cases between 1984 and 1988 conducted by the Washington State Task Force on Gender and justice in the Courts found that the mean damage award for a male decedent was $332,166, compared to a mean award of $214,923 for a female decedent.(11) A nationwide study of jury awards in personal injury cases, conducted by jury Verdict Research, Inc., showed that in virtually all age groups, women received significantly lower mean and median compensatory damage awards than did men.(12) Although there are fewer data analyzing tort awards along racial lines, a Washington study of asbestos cases in the 1980s found substantial disparities between settlement amounts of minority and nonminority plaintiffs.(13)

Recently, scholars have focused on specific elements of damage awards, including punitive damages(14) and damages for loss of future earning capacity,(15) in an attempt to pinpoint the source of the gender and race disparities. This Article has a more theoretical focus. It represents my search to uncover the dominant value structures, or hierarchies, in tort law that have worked to the disadvantage of women of all races and minority men. These deep structures are cognitive in nature and operate within a system that is facially neutral with respect to gender and race. I contend that, most often, bias finds its way into the law, not through explicit differential treatment of men and women or racial minorities and whites, but through reliance on implicit hierarchies of values and dichotomous thinking.

Throughout this Article, I employ a broad definition of bias, by which I hope to capture those habits of mind and practices that are most effective in reproducing the inequities of the status quo. In this Article, bias includes both deliberate and unconscious disparities in the treatment of persons who are similarly situated, whether stemming from animus, hostility, insensitivity, lack of empathy, or the use of stereotypes or unfair generalizations about a group. In addition to disparate treatment, I use the term bias to include practices, doctrines, or policies that have a disproportionately harmful effect on a group and cannot be justified by reference to other competing interests or concerns. My definition of bias thus includes both intentional (i.e., disparate treatment) and unintentional (i.e., disparate impact) bias and focuses on both the state of mind of the actor and the effect on the victim. Most importantly, bias herein encompasses what might be termed cognitive bias, by which I mean the use of categories that are themselves shaped or contaminated by confining stereotypes and habitual ways of thinking about nondominant groups in our society.

For the most part, this definition of bias tracks legal concepts of discrimination, especially those employed in employment discrimination litigation. However, because I focus so prominently on unconscious and nondeliberate kinds of bias, I sometimes go beyond traditional meanings of discrimination to highlight inequities that would not be actionable under prevailing constitutional and antidiscrimination doctrine. This broad definition of bias seems particularly appropriate in evaluating tort law. In constructing the common law, judges and juries are not confined to avoiding illegalities, but are expected to reach for fairness and an equitable accommodation of interests. The "public policy" dimension of tort law is broad enough to include the goal of advancement of gender and race justice, in addition to promoting such values as economic efficiency, ease of judicial administration, or common standards of morality.

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 accomplished by subtle means, through the social construction of legal categories that purport to describe types of injuries and types of damages. 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 importance, there is often a negative impact on nondominant groups. Specifically, 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 conceptualize the nature of the harm.

This Article is informed by concepts in antidiscrimination law, principally the theory of discrimination known as "disparate impact" liability.(16) My approach also draws heavily upon both feminist theory and critical race theory. From these areas, I import the notion of gender-linked and race-linked devaluation of harm. This type of bias is central to my contention that the deep cognitive structures in tort law are not neutral and that basic tort categories carry hidden gender and racial associations.

Part I of this Article explains what I mean by devaluation. I look at the concept of devaluation generally, drawing from criminal law and employment law, as well as from the torts context. I offer examples of devaluation of the lives, activities, and potential of women and people of color in cases where there may be no disparate treatment of individuals. I focus on these three contexts because they bear an obvious relevance to cognizable injuries in tort law.

The rest of the Article is devoted to speculation as to how this devaluation is accomplished in the law of torts. I focus predominately on gender devaluation and its possible effects on diverse groups of women. My starting point is an assertion about the architecture of contemporary tort law. In Part II, I claim that there is a widespread, if tacit, acceptance of a hierarchy of types of injuries and types of damages. Although we do not always tell our students about this on the first day of class, tort law values physical injuries and property damage more highly than emotional injuries or relational harms. More recently, another hierarchy has emerged which complements, but does not duplicate, the hierarchy of types of injuries. This implicit hierarchy 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 hierarchies 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.

The apparent neutrality of the tort hierarchies of value, however, does not produce a system that is equal or symmetric in results. To borrow a Title VII concept, the hierarchies have a disproportionate negative impact on women. In Part III of this Article, I offer three examples of such disparate impact on women. The first two result from privileging physical harm over relational and emotional harm. The third exemplifies how the preference for pecuniary over nonpecuniary losses harms women. I argue that it is appropriate to regard the tort law hierarchies of values as "gendered" because over time they tend to produce and reproduce gender disparities both in the types of legally recognized injuries and in the value placed on certain losses.

The fourth and final Part focuses on the origin of gendered hierarchies and asks how the gender correlation is maintained under a legal regime ostensibly committed to gender equality. At this juncture, I use critical theory to suggest the existence of a conceptual vicious 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...