ABSTRACT
This paper draws on ideas from discrimination theory in order to develop a general characterization of the ways in which tort law perpetuates inequalities of social status. Section I explains why tort law is a particularly fruitful place to look when seeking to develop a general characterization of the ways in which legal rules and practices subordinate certain social groups; and it explains why we should not equate inequalities in social status with purely economic inequalities. Section II present examples of the kinds of rules and practices in tort law that can subordinate. Section III uses these examples, together with the work of discrimination theorists, to develop a general classification of the different ways in which legal rules and practices can contribute to pervasive social hierarchies on the basis of such traits as gender, race, sexual orientation, and disability. Sections IV and V discuss the theoretical and pragmatic benefits of the classification that the paper has developed.
Moreau, Sophia, Beyond Anti-Discrimination Law: Realizing Equality Through Other laws, Such as Tort Law, New York University School of Law, Public Law Research Paper Forthcoming; 4 American Journal of Law and Equality 27 (2024).
Sophia Moreau’s paper offers a compelling and much-needed expansion of the discourse on equality by highlighting the role of tort law in perpetuating social hierarchies beyond economic disparities. Her analysis thoughtfully uncovers how certain legal rules and practices, often assumed to be neutral, can reinforce systemic inequalities based on race, gender, disability, and other identity markers. By integrating insights from discrimination theory, Moreau provides a nuanced classification that challenges us to reconsider tort law not merely as a tool for individual redress, but as a site of structural subordination. This work is a valuable contribution to the broader project of legal reform aimed at substantive equality.