Is Race- and Sex-Based Targeting Efficient? A Closer Look at Tort Law's Discriminatory Damage Awards

Abstract

Inherent within current tort law are incentives to target individuals and communities based on race and gender. Surprisingly, the basis for this targeting is the seemingly neutral use of three different race- and gender-based statistical tables (for wages, life expectancy and worklife expectancy) which, when used in tort damage calculations, result in a large disparity between damages awarded to whites versus blacks, and men versus women. Thus, tort law’s remedial damage scheme perpetuates existing racial and gender inequalities by compensating individuals, especially children, based on their race and gender. Even worse, tort law creates ex-ante incentives for potential tortfeasors to engage in future discriminatory targeting of women and minorities. This paper provides the first full account of courts' existing discriminatory practices. The paper then addresses the deficiencies in the non-blended tables that courts use (tables that use race and gender as discriminating factors) and the reasons behind their continued use. The paper shows how the various theories of tort law (corrective justice, distributive justice, and economic efficiency) have contributed to a misunderstanding of the proper damages calculation, and illustrates how the very same theories can be used to engender a change in the current praxis. It then challenges the conventional wisdom that the use of race- and gender-based tables is justified on efficiency grounds, pointing out fatal flaws inherent in the tables, in how they are used in courts to calculate damages for individuals, and in the incentives they create. The paper then reveals that similar discriminatory practices ironically exist in federal law such as the Americans with Disabilities Act and even Title VII whose main goal is to combat gender and race discrimination. Finally, this paper proposes a feasible, low cost, and logical solution that pushes toward a more efficient and less discriminatory tort law remedial system: courts should immediately stop using non-blended tables.