ABSTRACT
Could you calculate the monetary value you would accept in lieu of your child or the value of their loss after suffering a permanently disabling injury? In tort, this is the precise function of a damage award – to monetarily compensate the child for the value of their loss. Would you consider the child’s race or gender when calculating their worth? Assigning a value to the loss suffered by a child is a fundamentally difficult task that often relies heavily on statistical averages associated with similarly situated children. This data is often stratified by race and gender, and inherent in racial and gender stratification is the perpetuation of discriminatory stereotypes.
Hypothetically, the value associated with one child’s losses – virtually identical to another but for race or gender—may be assessed as less because of these factors. A child has yet to charter their future course and make decisions that may affect their health, longevity, and income-earning capacity. While some arguments may exist for using race and gender-stratified data as applied to adults, they are rendered moot when applied to children. Children are inherently resilient and have the greatest potential to succeed beyond the capacity of a statistical class. A child’s damage award should not be limited by their statistical class but compensate them for this resilient future capacity. Enacting state legislation – that recognizes this capacity in children – is the most expedient and efficient way to reduce the discriminatory effects of race and gender on a child’s damage award.
Seth M Owens, Putting A Price On Your Child: Promoting Resiliency And Equality In Damage Awards For Children (2024) 74(1) Syracuse Law Review 341.
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