Valuing Black Lives: A Constitutional Challenge to the Use of Race-Based Tables in Calculating Tort Damages

Valuing Black Lives: A Constitutional Challenge to the Use of Race-Based Tables in Calculating Tort Damages

This Article challenges a practice in tort law that is ubiquitous, yet little noticed—namely the use of race-based wage, life expectancy, and work-life expectancy tables when calculating damage awards. The practice results in damage awards that are significantly lower for black victims than for white victims and creates an incentive for potential tortfeasors to allocate risk disproportionately to minority communities. This Article argues that the use of such tables is not only unfair; it is unconstitutional. Specifically, the Article argues that the use of race-based tables to calculate tort damages violates the Equal Protection Clause of the Fourteenth Amendment. The Article goes on to consider the broader implications of this argument and to explain why the move to truly race-neutral damage awards would require even more radical changes to our current tort system.


More in this Issue

The Housing Clinic

Even before Javier Mabrey first set foot in the East Bay Community Law Center’s Housing Clinic (the “Clinic”), he was no stranger to housing law. Javier was raised by a single mother who, due to her mental disabilities and low income, struggled to keep Javier and his brother housed. By the time Javier was sixteen, […]

A Voice of Their Own: Youth-Centered Representation at EBCLC

At the East Bay Community Law Center (EBCLC), the young clients we represent teach us every day about resilience and resistance. Even when the stakes are high, and the meetings and hearings are anxiety producing, our clients never hide who they are—they bring their authentic selves. In the Education, Defense and Justice for Youth program […]

A Clean Slate Case Study of Community Lawyering

The United States has a long history of appropriation, forced movement, and penalization of indigenous people, minorities, and anyone perceived as “other.” From the colonization of the Americas, slavery, and forced movement of Africans to the “post-slavery” era that deprives civil rights and incarcerates people of color and indigent communities, this repression continues. Indeed, the […]

The Duty to Appropriate: Why Congress Has a Constitutional Obligation to Fund Criminal Law Enforcement

In the Federalist Papers, James Madison famously called the power of the purse “the most complete and effectual weapon” of the representatives of the people, as part of his defense of the fledgling Constitution. In practical terms, Madison’s claim has proven true time and time again—with Congress using appropriations bills to assert extensive control over […]

The Case of the Armenian Catholicosate in Sis: Places of Worship and Religious Freedom Claims Before the European Court of Human Rights

On April 27, 2015, the Armenian Catholicosate (“Armenian Church” or “Church”) filed a lawsuit with the highest court in Turkey to recover the Sis Catholicosate (“Sis”), its ancient headquarters that was seized during the Armenian Genocide. The Church’s legal team has been careful to frame the suit primarily as a property claim, distinct from a […]

Procedural Retrenchment and the States

Although not always headline grabbing, the Roberts Court has been highly interested in civil procedure. According to critics, the Court has undercut access to justice and private enforcement through its decisions on pleading, class actions, summary judgment, arbitration, standing, personal jurisdiction, and international law. While I have much sympathy for the Court’s critics, the current […]

Governance by Contract: The Implications for Corporate Bylaws

Boards and shareholders are increasingly using charter and bylaw provisions to customize their corporate governance. Recent examples include forum selection bylaws, majority voting bylaws, and advance notice bylaws. Relying on the contractual conception of the corporation, Delaware courts have accorded substantial deference to board-adopted bylaw provisions, even those that limit shareholder rights. This Article challenges […]

Why Courts Fail to Protect Privacy: Race, Age, Bias, and Technology

The Fourth Amendment protects against unreasonable “searches and seizures,” but in the digital age of stingray devices and IP tracking, what constitutes a search or seizure? The Supreme Court has held that the threshold question depends on and reflects the “reasonable expectations” of ordinary members of the public concerning their own privacy. For example, the […]