Tort Law and Feminism, forthcoming in Oxford Handbook on Feminism and the Law in the U.S. (Deborah L. Brake, Martha Chamallas & Verna Williams, eds) (forthcoming 2021)

Abstract

Tort law has not been a sympathetic audience for feminist legal scholars. Despite decades of compelling feminist advocacy and scholarship, tort law has largely resisted attempts to orient it towards pursuing goals of social justice or equality. Nevertheless, some feminist redirection has been achieved, mostly through statutory intervention, thus laying the groundwork for further development. This chapter imagines what tort law might look like if it more fully embraced feminist reforms. Focusing on four foundational concepts in tort law – duty, third-party liability, harm, and damages – this chapter uses the tools, insights, and arguments of modern feminist tort scholarship to envision the doctrinal landscape of a tort law rooted in gender justice and social equality. Noting the places where feminist paths have already been forged, this chapter explores how reconceptualizing the duty of care, expanding third-party liability, recognizing a broader range of intimate and harassment-based harms, and eliminating gender and racial bias from damage awards could transform tort from an instrument that perpetuates existing social inequalities into a mechanism of social justice offering recompense and remedy to all who are wrongfully injured.