Wednesday, August 19, 2015

Can Tort Damages Discriminate? – Anthony Sebok New Private Law

» Can Tort Damages Discriminate? – Anthony Sebok New Private Law

On July 30, 2015, federal district court Judge Jack Weinstein refused to allow a jury to take the race of a plaintiff into account when calculating future earnings loss.  The case,G.M.M. v. Kimpson (discussed here:, was a lead paint poisoning case and the plaintiff was a four year-old boy.  The defense put on the stand a forensic economist intended to base his testimony, on part, statistical assumptions about the academic achievement and earnings potential of Hispanics, as a group.  Judge Weinstein flatly refused to allow any testimony based on ethnic group characteristics.
Judge Weinstein’s followed precedent that he established inMcMillan v. City of New York (2008), where he refused to allow “‘racially’ based statistics and other compilations . . . to find a shorter life expectancy for a person characterized as an ‘African-American,’ than for one in the general American population.   Then, as in the most recent case, Judge Weinstein based his argument in a mixture of private law and constitutional law arguments.
I want to consider only the private law arguments.  Recent scholarship, especially by Martha Chamallas and Jennifer Wriggins, has exposed the patterns of race and gender inequality in tort damages in American law over the past two centuries. Some states, through legislation, have mandated that damages be calculated with blended race or gender tables, and while the grounds for these tort reforms may overlap with the arguments a common law judge applying tort principles might adopt, they might not.  By the same token, norms expressed by the Due Process Clause and/or the Equal Protection Clause may overlap with the sorts of reasons that common law judges might find in tort law, but again they may not.  Where public law or constitutional reasons diverge from private law reasons, a question arises as to whether public law or constitutional reasons should trump private law reasons.  I want to focus instead exclusively on private law reasons, leaving aside as much as possible constitutional considerations.

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