'Social Justice Tort Theory' by Martha Chamallas in (2021) 14(2) Journal of Tort Law comments
Alongside the dominant law and economics and corrective justice approaches to tort law, a new genre of tort theory based on principles and perspectives of social justice has come into its own and deserves recognition. Social justice tort theory starts from the premise that tort law reflects and reinforces systemic forms of injustice in the larger society and maintains that the compensatory ideal of tort law cannot be extricated from these larger systems. It is multi-dimensional and intersectional, recognizing that the impact of injury lands intersectionally, sometimes changing the intensity of the injury or distorting the nature of the injury. Social justice tort scholars have examined torts in gendered and racialized contexts, as well as in ordinary cases that seem to have little to do with systemic injury. In addition to feminist and critical race theory, they have borrowed from critical disability studies, queer theory and political economy. Their work demonstrates how tort law unfairly distributes damages, fails to provide adequate relief for victims of sexual assault or for people who suffer racial insult and discrimination, and erases maternal and reproductive harms. In their work, we can see common deconstructive moves (an emphasis on disparate impacts and devaluation; a teasing out of cognitive bias; and a critique of exceptionalism in tort doctrine) as well as guiding principles for reconstruction (incorporating victims’ perspectives; treating boundaries between civil rights law and tort law as permeable; and enhancing dignity and recognition).
Her 'Race and Tort Law' in Khiara Bridges, Devon Carbado and Emily Houh (eds) Oxford Handbook on Race and the Law in the United States comments
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.
'Law and Economics Against Feminism' by Martha T McCluskey in Deborah L Brake, Martha Chamallas and Verna L Williams (eds) Oxford Handbook of Feminism and Law in the United States comments
This chapter analyzes feminism in legal theory in relation to the rise of “law and economics” during the late twentieth century. Building on other accounts, I trace how non-academic organizations invested heavily in developing and institutionalizing law and economics as a seemingly neutral methodology that could build academic credibility for anti-egalitarian ideology and legal change. Further, the chapter explains how the substance of this law and economics fundamentally undermines feminism in law by constructing the economy as a sphere best insulated from contested morality and politics. The central law and economics division between seemingly objective economic maximizing and subjective social distribution puts feminist law in a double bind, naturalizing a gendered baseline that generally makes feminist reforms appear costly, unfair, or ineffective. This core conceptual move closes off feminist legal efforts to question and redefine what counts as productive, legitimate economic gain.
Finally, I explore how this core division of law and economics constructs an idea of liberty that makes feminist efforts to remedy gender-based harms appear illegitimate and oppressive. Law and economics identifies freedom with an economy imagined to remove individual self-interested choices from public support or accountability. That ideal of freedom closes off analysis of how law’s gendered assumptions and unequal protections pervasively limit individual agency and meaningful choice in the economy and in society. Law and economics cuts against legal feminism not because gender justice is a non-economic goal, but because law and economics promotes a misleading economic ideology steeped in gender and tilted toward those most willing and able to disregard and discount others’ well-being.
'Liberal Feminist Jurisprudence: Foundational, Enduring, Adaptive' by Linda C McClain and Brittany Hacker in the same volume comments
Liberal feminism remains a significant strand of feminist jurisprudence in the U.S. Rooted in 19th and 20th century liberal and feminist political theory and women’s rights advocacy, it emphasizes autonomy, dignity, and equality. Liberal feminism’s focus remains to challenge unjust gender-based restrictions based on assumptions about men’s and women’s proper spheres and roles. Second wave liberal legal feminism, evident in Ruth Bader Ginsburg’s constitutional litigation, challenged pervasive sex-based discrimination in law and social institutions and shifted the Supreme Court’s interpretation of the Equal Protection Clause to a more skeptical review of gender-based classifications. Liberal feminists have developed robust conceptions of autonomy, liberty, privacy, and governmental obligations to promote gender equality, including in the family. Addressing internal feminist critiques, liberal feminism shows the capacity to evolve. Maintaining its focus on disrupting traditionally-conceived gender roles and fostering meaningful autonomy, it adopts more complex, nuanced discourse about sex, gender, and the gender binary and embraces new demands for inclusion and equality.
'Sex-Positive Feminism's Values in Search of the Law of Pleasure' by Susan Frelich Appleton in the same volume comments
In challenging traditional stereotypes of female sexualities centered on passivity, subordination, harm, and repronormativity, sex-positive feminism’s proponents criticize legal feminism generally for undervaluing women’s pleasure, which they celebrate. Yet these proponents often struggle with charting a supportive and affirmative course for law and legal institutions, which have long fostered sex negativity.
This essay proceeds in three parts. Part I identifies sex positivity not as a distinct theory but rather as a thread that runs through multiple iterations and eras of feminisms, sometimes expressly and at other times latently, as a potential answer to criticisms and problems. Along the way, this Part demonstrates the importance of power and power disparities in sex-positive feminism and the role of gender. Part II turns to the place of law and legal institutions in sex-positive feminism, juxtaposing prevailing critiques of law’s sex negativity with promising opportunities for change. Part III continues on this note of optimism, consulting popular culture for possibilities to support a more fully developed sex-positive and feminist legal regime.
