Can Tort Damages Discriminate? – Anthony Sebok

Post by Anthony Sebok

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 in McMillan 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.

Following Judge Weinstein’s arguments – loosely – there are three reasons internal to private law for tying the calculation of a tort victim’s future expenses and earnings to his or her race and gender:  accuracy in measurement, concern for innocent third parties, and accuracy in conceptualizing the victim’s loss.

First, accuracy in measurement.  Judge Weinstein, as well as some other scholars he cites, notes that the actuarial and economic data that makes up the tables used by juries today reflect decades-old discriminatory behavior.  Therefore, it simply may not be true that in the coming decades, when the plaintiff in G.M.M. comes of age, the disparities reflected in the tables will still be valid.  In other words even if in theory, one would use race or gender in calculating damages, our specific moment in history makes that inappropriate.  This is an empirical question, and while important, it is not of theoretical interest.

Second, concern for innocent third parties.  Judge Weinstein quotes a recent law review article for the proposition that “[W]hen damages for injuring members of minority groups are lowered, the legal regimen [has] the perverse result of encouraging torts against them.”  This is a version of an argument made by Ronen Avraham in an unpublished paper called “Is Tort Law Efficient?: A Closer Look at Discriminatory Damage Awards,” where he notes that by valuing one race or gender less than another, negligence law, through the Hand Test, causes rational actors to impose greater risks of future harm onto members of disfavored groups.

This second argument really comes down to a choice of whether to impose the principle of restitutio ad integrum (restoring the victim to her pre-accident status) even if it causes a certain class of persons to suffer more wrongdoing than they otherwise would.  Avraham frames this as a choice between corrective justice and efficient deterrence, and I am inclined to agree with him.  Awarding damages in excess of our best guess as to actual expected losses in order to achieve optimal aggregate deterrence shades into a strong form of instrumentalism that, for various reasons, is unattractive.

Third, conceptualizing the loss.  In McMillan Judge Weinstein held that the Equal Protection Clause barred the courts from using “arbitrary and irrational” reasons when calculating damages.  It seems plausible that most private law theories, especially corrective justice, would also want to reject legal reasoning that is arbitrary and irrational.  The difficulty is to identify what makes using race and gender arbitrary and irrational without retreating back into the first argument.

Avraham suggests that at least one version of corrective justice could embrace an anti-discrimination principle that plays a role in how damages are calculated.  By measuring the interest at stake in a way that flattens out the differences between victims, discrimination in the calculation of the damages would result in the wrong being arbitrarily corrected.

The only way to flatten the real differences between the likely future earnings (and expenses) of a boy and girl in a sexist society (that we expect to remain sexist) is to say that the interest at stake is something like each child’s opportunity to pursue his or her life plan.  This second characterization finds support in Greg Keating’s work.  After all, Keating believes that each person’s interest in pursuing their own life plan should count equally in private law; that is why he is skeptical of the Hand Formula rendition of negligence.  If the interest that counts is, in fact, the interest in pursuing a life plan itself, then it might follow that the measure of the loss of a life plan – whatever it is – should never vary between persons.  (I should note that Avraham distinguishes Keating’s theory from corrective justice, and calls it “distributive justice theory”.  I have taken the liberty of giving Keating’s theory a corrective justice spin for purposes of this analysis.).

While perhaps normatively attractive, there are many problems with the effort to cast damages as compensating each victim for the generic setback of interference with one’s life plan.  I am going to mention just one.

In G.M.M. Judge Weinstein suggested that socio-economic factors are a more accurate predictor of future lifetime earnings than race or gender.  The parents of the plaintiff in the case were both educated (one had a B.A. and the other an M.F.A.), so in this case the defendant would not have been able to argue for any limitation on damages based on socio-economic factors.  But the question remains, on both a practical and theoretical level, whether using socio-economic data to predict future earnings is acceptable under the corrective justice argument above.  After all, the opportunity to pursue a life plan by a poor person, or a person whose family structure makes academic success more unlikely, should have no more or less value than the interest of any other person to pursue a life plan, regardless of the economic result of that plan.  In short, the shift to an interference-with-life plan conception would seem to call for identical compensation for future losses for each tort victim, irrespective not only of race and gender, but also education, current employment, etc.

Nonetheless, Judge Weinstein is pressing a very important question.  It will be interesting to see whether private law theory, especially corrective justice, can meet the challenge raised by G.M.M. v. Kimpson.

2 thoughts on “Can Tort Damages Discriminate? – Anthony Sebok”

  1. Very interesting entry. I actually think both corrective justice theorists and law and economics theorists will have to struggle to justify Weinstein’s ruling (which in my view is correct). Because corrective justice is about justice between the parties themselves, and not in society at large, social problems such as race or gender discrimination are not part of the corrective justice apparatus. When it comes out to law and economics the story is even more complicated, as “targeting” minorities and women seems like the “efficient” thing to do, from the ex-ante perspective, and questions of distributive justice are conventionally seen as a matter outside of tort law. In my paper I try to provide some initial outlets for how both schools of thought could nonetheless support using blended tables.
    see here:


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