The Hidden Victims of Tort Reform: Women, Children, and the Elderly

I have conducted empirical research from several states on how juries in medical malpractice and other tort suits allocate their damage awards between economic loss damages and noneconomic loss damages. I then compared cases in which men are the victims and cases in which women are the victims. This research demonstrates that while overall men tend to recover greater total damages, juries consistently award women more in noneconomic loss damages than men, and that the noneconomic portion of women\u27s total damage awards is significantly greater than the percentage of men\u27s tort recoveries attributable to noneconomic damages. Consequently, any cap on noneconomic loss damages will deprive women of a much greater proportion and amount of a jury award than men. Noneconomic loss damage caps therefore amount to a form of discrimination against women and contribute to unequal access to justice or fair compensation for women

Guarding the Gate to the Courthouse: How Trial Judges Are Using Their Evidentiary Screening Role to Remake Tort Causation Rules

The article looks at what trial judges are actually doing in toxic tort cases in the post-Daubert world; it reviews and critiques cases in which judges have in effect adopted a new rule of causation law that requires plaintiffs to rely on epidemiology, and in particular epidemiology that demonostrates an increase in relative risk of 2.0 or greater; the article considers the substantive as well as the normative implications of this legal treatment of epidemiology

Transcending Equality Theory: A Way Out of the Maternity and the Workplace Debate

There is a persistent, deeply entrenched ideology in our society, and in the legal system reflecting that society, that men and women perform different roles and occupy different spheres. The male role is that of worker and breadwinner, the female role is that of childbearer and rearer. The male sphere is the public world of work, of politics, and of culture–the sphere to which our legal and economic systems have been thought appropriately to be directed. The female sphere is the private world of family, home, and nurturing support for the separate public activities of men. Traditionally in our culture, legal intervention in this private sphere has been viewed as inappropriate or even dangerous. The notion that the world of remunerative work and the world of home–or the realms of production and reproduction–are separate, has fostered the economic and social subordination of women in two interrelated ways. First, the values necessary for success in the home world, such as nurturing, responsiveness to others\u27 needs, and mutual dependence, have been viewed as unnecessary, even incompatible with the work world. Since the work world is assigned economic importance, the traditionally female tasks and qualities of the home world have come to be generally devalued in our society. Second, the separateness of the public and private worlds, and the consignment of women to the home world, is seen as natural, based on unquestioned assumptions stemming from the apparent immutability of roles derived from different reproductive capacity