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The Measure of InjuryRace, Gender, and Tort Law$
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Martha Chamallas and Jennifer B. Wriggins

Print publication date: 2010

Print ISBN-13: 9780814716762

Published to NYU Press Scholarship Online: March 2016

DOI: 10.18574/nyu/9780814716762.001.0001

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Historical Frames

Historical Frames

(p.35) 2 Historical Frames
The Measure of Injury

Martha Chamallas

Jennifer B. Wriggins

NYU Press

This chapter examines two groups of early court cases that illustrate the impact of gender and race on the outcome of tort litigation. It begins with an overview of the importance of the institutions of slavery and coverture on the rights of tort plaintiffs before considering a line of “nervous-shock” cases brought by female plaintiffs at the turn of the twentieth century. It then traces the development of the “impact” rule that served in many states to defeat recovery for women who suffered miscarriages and stillbirths as a result of shock and fright caused by defendants' negligence. It also explores how courts dealing with these nervous-shock cases struggle with the proper classification of injuries cognitively associated with women and the emergence of a dichotomy between physical and emotional harm that persists in tort law. Finally, it discusses the concepts of racial devaluation and white racial privilege; how race influenced court judgments about liability and damages; and lawsuits filed by African Americans in which their injuries were minimized or devalued by judges who treated their claims less favorably compared with whites.

Keywords:   court cases, gender, race, tort litigation, tort, negligence, harm, tort law, liability, damages

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