Current US tort law incentivizes potential tortfeasors to target members of underprivileged social groups by using gender and race-based statistical tables life expectancy; work-life expectancy and average wage) to award damages. Legal scholars have long criticized this practice from the point of view of distributive justice but supported it on welfarist grounds. Recent research in law and economics has however cast doubts on the efficiency of this practice. On this basis, some propose abandoning it in favor of gender and race neutral tables. In this article, I contribute to this debate by analyzing from a behavioral law and economics perspective the welfare effect of using gender and race-based statistical tables. The analysis reveals that, even from a welfarist perspective, once we relax rationality assumptions, we should use gender and race neutral tables. I also develop a comparative analysis of the use of statistical tables in England, France, Italy and the US. With some minor exception, contrary to the US, European courts (especially in France and Italy) adopt gender and race neutral tables to award damages in tort trials. Based on the proposed behavioral law and economics analysis I conclude that European legal systems are therefore more in line with welfarist considerations and that US courts should abandon the use of gender and race-based statistical tables in favor of neutral ones. I also argue that the European approaches could provide useful guidance to American courts on alternative methods to award damages.
Dominioni, Goran, Biased Damages Awards: Gender and Race Discrimination in Tort Trials International Comparative, Policy and Ethics Law Review 1 (2017): 269.