ABSTRACT
The American common law has for centuries recognized relational consequences of a legal injury through the same singular approach. This approach relies on the law of loss-of-consortium. Its historical origins lie in the tort law remedy for the injury to a husband’s nonreciprocal personal and property rights in the ‘consortium’ of his wife. The present-day formulation of the law is favored, and even celebrated, by courts and by legal scholarship, including by the recently adopted Restatement (Third) of Torts. The supporters of this law posit that its historical revisions extending standing to wives constituted modernizing reforms and that the law now functions to recognize emotional interests in certain relationships.
This Article upends the conventional historical account of this law’s reforms and the received wisdom about its purpose. It shows why feminist and disability legal scholars as well as private law theorists should join this Article’s call to jettison the law of loss-of-consortium. Specifically, it shows that the present-day law of loss-of-consortium reproduces its historical logic of subordination and creates disability and its norms. Moreover, it reveals that the law fails to serve just ends or satisfy tort law aims. Importantly, this law can minimize redress and can undermine the autonomy of the injured plaintiff.
This Article is more than a sustained critique of a centuries-old status regime. It offers a new way of thinking about relational loss in private law through a theoretical approach called the First-Person Account of Relationality. This approach articulates relational loss as the change in injured plaintiff’s self-narrated relational well-being. This new approach – representing a unique convergence of private law concepts and autonomy-based precepts of feminist and disability justice – furthers autonomy and prioritizes economic security and independence of the injured plaintiff through reformulated categories of damages. This Article suggests that, rather than continuing to entrench a law that is in and of itself a source of harm, legal scholars and courts might consider viewing relational loss, that is a consequence of an injury, through the perspective and voice of the injured individual.
Anwar, Sania, Rethinking Relational Loss (June 26, 2025), Columbia Public Law Research Paper No 5487186.
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