By Jennifer Wriggins
In the wake of George Floyd’s murder and huge Black Lives Matter demonstrations in the summer of 2020 there was heightened interest in including race and racism in first-year torts courses (and other courses). Many law schools hosted special sessions and guest speakers on this topic and other race-related topics. The central question now is whether or not this interest will be sustained. Will torts be a course that incorporates discussion of race and racism as a matter of routine? Will torts courses acknowledge the complicated history of racist exclusion, devaluation, and failure to compensate for egregious forms of racist violence (i.e. lynching), alongside important individual successes of African American plaintiffs? Or will most torts courses continue to exclude discussions of race and racism even though they refer to other important historical contexts? Will most casebooks continue to have either no mention of race and racism or include one token case with an African American plaintiff, as they do right now?
My view is that torts courses should include significant discussion of race and racism. The torts field has not been – and should not be – sectioned off from other fields of law. We teach students that law is a “seamless web,” and torts – which is part of the “civil justice” system – is connected to other areas where the role of race and racism is more commonly talked about, such as constitutional law and criminal law.
Race and racism have always played a significant role in the U.S. tort system as research has long shown and as hundreds of published decisions demonstrate. Although African Americans filed and won hundreds of tort cases from the end of slavery to the present day, presenting their claims in segregated courtrooms with white (and male) lawyers to white (and male) juries. Exclusion and devaluation were two important mechanisms of racial discrimination in this context[1]. Exclusion from decision-making roles was blatant. African Americans were forbidden from serving on juries, from being judges, and from being lawyers from 1865 to the mid-twentieth century[2] . A hundred years ago, North Carolina. The Supreme Court applauded this exclusion of African Americans from civil juries and approved a jury instruction that specifically endorsed “white man’s government[3] .” Devaluation of claims brought by African Americans was another mechanism of racism. African Americans” successful injury claims were often valued for less than similar claims by whites; this devaluation was often less blatant than the exclusions, but careful analysis of more than a hundred and fifty cases as well as other materials clearly indicates its occurrence[4] . Some current practices continue this devaluation[5].
First-year torts courses always include cases from earlier decades and some legal history. The relationship between tort law and technological change is a common theme. Since law schools generally aim to have a focus on justice, and torts courses always include cases from times of blatant racist exclusions, one might expect torts casebooks to expend some space on race and racism in the torts litigation system.
Do torts casebooks reflect or even reference the importance of race and racism in torts? This past summer I explored that question with my research assistant Camrin Rivera for an article that came out of a conference at Rutgers Law School and will be coming out in the Rutgers Race & the Law Review. We surveyed 23 torts casebooks published from 2016 to 2021 to determine whether and to what extent they discuss race and racism. Most avoid discussions of race and racism in torts, and although they always discuss tort history, most don’t mention the racial history of torts. If they have any cases with African American plaintiffs, it is likely to be only one case and the same case, Fisher v. Carrousel Motor Hotel[6]. Although publishers frequently issue new editions of torts casebooks, newer editions generally have not expanded their focus to include race and racism. Two notable exceptions are the new open-source casebook, TORTS: A 21ST CENTURY APPROACH, by Prof. Zahr Said[7], and TORT LAW AND PRACTICE by Prof. Dominick Vetri and co-authors[8].
After the casebook survey, I turned to this question: How can professors begin to incorporate issues of race and racism in their torts courses (there are doubtless many ways; my hope is that over the years more research will be done and incorporated into torts courses)
First of all, exclusion and devaluation need to be highlighted to offer important context that will form a necessary facet of law students’ education and awareness. Are there cases that are interesting and useful from a pedagogical perspective that also shed light on issues of race and racism? Certainly. I recommend that law teachers incorporate issues of race and racism in first-year torts courses in two major ways. First, law professors should teach a variety of pedagogically interesting cases that deal with race and racism and that also illuminate significant doctrinal issues. I suggest specific cases keyed to most of the important doctrinal areas in torts. One example is Bullock v. Tamiami Trails Tours[9]. These cases are less known than cases that are commonly taught, but they are also important and can convey the relevant doctrinal points equally well. Second, law professors teaching damages should include material on the historical exclusion and devaluation of injuries to African Americans in torts as well as current practices that continue devaluation in some circumstances. Important background also includes information about the unequal distribution of liability insurance – a key part of the torts system – by race. Since torts is a required first-year course, and race and racism have had a significant role in the U.S. torts system, law students should gain at least a general understanding of race and racism’s role in torts. Including race and racism in torts courses strengthens the first-year curriculum. While this may seem daunting for some instructors, ample materials now on offer make it very feasible. The time is ripe for this essential change.
Footnotes
[1]See generally Jennifer Wriggins, How to Include Issues of Race and Racism in the 1L Torts Course: A Call for Reform, forthcoming Rutgers Race & the Law Review 2022, SSRN https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3983546. We know African Americans filed hundreds of tort cases because judges routinely identified the race of the plaintiff (or witnesses) in published decisions when the person was perceived as not white until at least the 1950s. Jennifer Wriggins, Torts, Race, and the Value of Injury, 1900-1949, 49 How. L. J. 99 (2005), BARBARA YOUNG WELKE, RECASTING AMERICAN LIBERTY: GENDER, RACE, LAW, AND THE RAILROAD REVOLUTION, 1865-1920 (2001).
[2] Jennifer Wriggins, Torts, Race, and the Value of Injury, 1900-1949, 49 How. L. J. 99,104 (2005).
[3] Wilson v Singer Sewing Machine, 184 N.C. 40, 113 S.E. 508 (1922).
[4]Jennifer Wriggins, Torts, Race, and the Value of Injury, 1900-1949, 49 How. L. J. 99, 108-129 (2005). MARTHA CHAMALLAS & JENNIFER WRIGGINS, MEASURE OF INJURY: RACE, GENDER, AND TORT LAW (2010).
[5]Jennifer Wriggins, How to How to Include Issues of Race and Racism in the 1L Torts Course: A Call for Reform, forthcoming Rutgers Race & the Law Review 2022, SSRN https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3983546, pp. 23-27.
[6]424 S.W. 2d 627 (Tex. 1967).
[7] ZAHR SAID, TWENTY-FIRST CENTURY TORT LAW, https://saidtorts.lawbooks.cali.org/ (2021)
[8]DOMINICK VETRI ET AL, TORT LAW & PRACTICE (6TH ED.) https://cap-press.com/books/isbn/9781531018474/Tort-Law-and-Practice-Sixth-Edition (2020)
[9]266 F.2d 326 (5th Cir. 1959), reversing 162 F. Supp. 203 (N.D. Fla. 1958).