‘Can Damage Calculations in Tort Cases be Unconstitutional Because They Discriminate on the Basis of Race? Yes, and Here’s Why’

Ronen Avraham and Kimberly Yuracko, Valuing Black Lives: A Constitutional Challenge to the Use of Race-Based Tables in Calculating Tort Damage, 106 California Law Review 325 (2018). In basic tort damage doctrine, a person injured by a tort can recover lost wages. This means it costs less to harm some people than others. People who earn less, whether because of reduced educational opportunities, racism, geography, family responsibilities, or other factors, will suffer lower damages than people who earn more. Defendants (and insurance companies) will have to pay less to ‘make them whole’. This aspect of tort damages is in tension with, if not in contradiction to, the notion that – formally – everyone counts equally in torts. This tension rarely gets attention or critique, in part because tort damages are determined individually, usually through informal and private settlements … (more)

[Jennifer Wriggins, JOTWELL, 20 February]

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