Documentation:Torts/Critical theories

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TORT LAW
CASEBOOK
Introduction
Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Invasion of privacy • Trespass to the person
Property Torts
Interference with goods • Interference with land • Non-natural use of land • Private nuisance • Public nuisance
Negligence Tort
Duty of care • Breach of duty • Damage • Causation • Remoteness
Negligence Categories
Employment • Environmental pollution • Harmful products • Hosting patrons and guests • Infliction of mental injury • Misrepresentation • Occupation of premises • Professional services • Public authorities • Pure economic loss • Relational economic loss • Rescuers • Shoddy goods or structures • Treatment of indigenous children • Unborn children
Dishonesty & Abuse of Position Torts
Abuse of process • Breach of confidence • Conspiracy • Fraud • Inducing breach of contract • Injurious falsehood • Intimidation • Malicious prosecution • Misfeasance in public office • Passing off • Spoliation • Unlawful interference with economic interests
Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
Apportionment of liability • Consent • Defamation defences • Defence of property • Denials • Excuses • Illegality • Legal authority • Limitation • Necessity • Self-defence
Remedies
Apologies • Damages • Injunctions • Insurance • Legal costs • Mitigation • Proprietary
Tort Law & Legal Systems
Charter values • Class actions • Concurrent actions • Constitutional torts • Indigenous dispute resolution • No-fault compensation schemes
Tort Theory
Instrumental theories • Constructive theories • Critical theories • Reflexive theories
Study Resources
1L strategy • Answer exercises • Quizzes • Beswick's course site • Opening Up Tort Law Project
Index
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Critical theories

Critical theories aim to present tort law in terms of what is understood to be actually going on in the real world, rather than in terms of what tort law tries to do or purports to be. Critical theorists are concerned with the social, political and cultural dimensions of civil liability. They critique tort law and the tort system in terms of its impacts on disadvantaged groups.

Tort Law and Social Equality Project
Scholars such as those involved in the Tort Law and Social Equality Project scrutinize tort law's relationship with society and social justice.

The critical legal studies movement emerged in United States law schools the 1960s. From it branched movements in feminist legal studies and critical race theory. While these theory camps fall under the umbrella of critical theories of law, their contemporary manifestations encompass a wide variety of ideas and ambitions.

Critical legal studies

Critical legal studies (CLS) is a movement that arose in response to perceived formalist thinking in law. Rather than studying the common law as a collection of authoritative legal materials, the critical legal studies movement sought to show how doctrines of law are a facade that serve to uphold the interests of the privileged classes. Critical legal studies rebuked the traditional conceptions of legal theory and even the foundations of the common law itself.[1]

Understanding the influence of critical legal studies in the film "The Crits"[2]
A film by Jeannie Suk Gersen highlights the evolution of the critical legal studies movement.

Critical legal studies emerged in the early 1960s alongside a growth of sociological interpretations of jurisprudence.[3] It has been said the movement was born in 1977 at a conference in Wisconsin, which prompted a proliferation of articles speaking to the visions of CLS.[4] CLS became a disruptive force in Western legal academia, tying together marxism, sociology, and postmodernism and in contrast to conventional approaches to Western law. Instead of the law merely being a set of rules with a purported aim, CLS critiqued how the law reproduces political, social and economic power and inequality in society.[5] They sought to expose "fictions or illusions" of black letter law that gave the view that the law is a neutral and objective system.[5]

Leading thinkers in critical legal studies are Harvard academics Duncan Kennedy and Roberto Unger. In his 1983 text, Unger set his aims to "undermine the central ideas of modern legal thought" and replace it with a conception that "informs a practice of politics."[6] For Unger, CLS was a movement in "thought and practice" aimed at social transformation of the legal system.[6] This movement had a variety of social aims, including:

  • questioning dominant norms of power structures of the law;
  • exploring ideological bias of legal theory;
  • supporting marginalized groups;
  • questioning the objectivity of legal truth;
  • promoting social transformation.

However, after the 1980s CLS seemed to reach its end. It has been suggested that the demise of the school came in part from CLS manifesting as a way of thinking rather than as a coherent theory.[7]

Mustapha v. Culligan [8]
Despite the perceived failure to produce an organized theory, critical legal studies remains an influential form of legal analysis today. Ted Decoste notes that in the law, "real persons" are transformed into legal subjects, such as 'plaintiffs', 'defendants' and the 'accused',[9] thus robbing these people of the "realities of social life".[10] In practice, he argues that law both denies and denigrates difference, by "prohibiting discourse on the particularities of social being" (e.g., race, class and gender) and requires those who come before the law to abandon their lived realities.[10] Decoste's application of critical legal studies has some explanatory power for cases where judges must confront cultural or religious practices or norms.

Decoste's argument may be applicable to the decision in Mustapha v. Culligan, in which the Supreme Court of Canada overturned a lower court's decision holding a water bottling company liable for negligently inflicting mental suffering through delivering a tainted product, noting that the judge "applied a subjective standard" that took into account the plaintiff's "cultural factors."[8] Legal doctrine applies an objective standard of a person with "ordinary fortitude" in cases such as this, but CLS provides arguments for questioning the role of objectivity in tort law, and its potential ramifications.

Critiques of critical legal studies

Tort law can be a tool for social good

Although tort law has often been used by more powerful and wealthy entities as a tool of oppression, there are instances in which tort law has empowered a weaker plaintiff to seek recourse against a much stronger defendant, such as the government or a large corporation. For example, in Binsaris v. Northern Territory, the plaintiffs were successfully able to sue the government for an incident of state-sanctioned battery in a correctional facility.[11] This is also illuminated in Boucher v. Wal-Mart: a former Wal-Mart employee was compensated for the persistent harassment she endured from her supervisor while working at the retail store.[12] Ultimately, while critical legal theories aim to shed light on the hierarchical nature of the law of tort, many cases show the diversity of outcomes that may not always support critical theories.

Critical legal studies lacks foundation

Theorists have argued that CLS lacks a unified foundation, barring the possibility of an effective transformation of the legal system.[13] Given that CLS spanned philosophy, politics, economics, and sociology, the breadth of the discourse prohibited the cultivation of and unified theory that could be used in alternative to formalist theories.[7] For Peter Gabel, writing in 2009, "CLS “stopped”, or perhaps “paused,” about fifteen years ago because it lost track of [its] spiritual and moral foundation".[14]

Critical legal studies was espoused primarily by white male academics

Some have criticized how the CLS movement seemed to be dominated by white male academics.[15] This perhaps led to a marginalization of the very underrepresented viewpoints that their theory sought to unearth. It was in part as a response to these concerns that feminist legal theories as well as critical race theories were born.

Feminist legal theory

Feminist legal theory addresses how "traditional jurisprudence" has "conspicuously overlooked the position of women".[16] Feminist legal theorists seek to analyze, critique and transform the legal system to facilitate gender equity. Feminist legal theory arose alongside broader feminist movements in the 1970s, and was solidified with the work of scholars such as Martha Fineman who founded the Feminism and Legal Theory Project at the University of Wisconsin Law. Fineman wrote that feminist legal theory "drifts between the extremes of 'grand theory' which is totalizing in its scope and ambitions, and personal narratives which begin and end with the presentation of one individual's unique experiences". [17] Today, feminist legal theorists approach law through a range of theoretical models that include anti-essentialism, postmodernism, sexual difference, and liberal equality.[16] While feminist legal theory boasts an array of modes of thinking, theorists are broadly united by core values of equity, subjectivity, and anti-oppression.

While feminist legal theory spanned all categories of law, many scholars including Regina Austin, Martha Chamallas and Leslie Bender took a particular interest in tort law, to which they applied a feminist critique. In The Measure of Injury: Race, Gender, and Tort Law, Martha Chamallas and Jennifer Wriggins outline how compensation in tort law is affected by gender and race.[18] After reviewing a range of case law, the authors noted that tort law's reliance on precedent and statistical models to determine the quantity of damages awarded to plaintiffs can serve to severely disadvantage women while "yield[ing] significantly higher awards for white men".[19] For Chamallas and Wriggins, the use of historical data when determining remedies is particularly problematic since it allows for "historical patterns of wage discrimination in the labour market" to be replicated in tort awards, despite the rapidly changing socio-economic situation of historically marginalized groups".[20] Janice Richardson adds that lower damages awarded to women in tort cases demonstrate how courts "make a public statement about the worth of women".[21]

Feminist critiques are particularly prominent in areas of tort law where women tend to experience higher likelihood of being victims to tortious acts, including harassment, invasion of privacy, and battery.[22] Many scholars view tort law to be historically “insensitive to the particular wrongs suffered by women.”[23] This is particularly evident as theorists argue tort law can be interpreted to operate upon a reasonable person standard that is vulnerable to the "male norm." As a result, some argue that bias towards dominant masculine norms may "skew legal analysis" away from women's experiences. [24] Some Courts have acknowledged legal bias, such as Justice Feasby in Alberta Health Services v. Johnston who noted that "harassment is something that can happen to anyone, but it disproportionately affects women and members of other marginalized groups."[25]

McHale v. Watson [26]
Cases such as McHale v. Watson can be analysed through a feminist lens. The Court considered whether a 12 year old boy should be held liable for injury he carelessly caused to a 9 year old girl while out playing. A majority applied a defendant-friendly standard of the reasonable child and on that standard dismissed the girl's claim. Chief Justice Mctiernan averred, "[t]he defendant’s conduct in relation to this object which he threw, a useless piece of scrap metal, is symbolic of the tastes and simplicity of boyhood."[27]

While tort law purports to adopt an objective standard, the emphasis in this case on the defendant's gender (boys will be boys) makes it vulnerable to feminist critiques that in practice the law of tort has a male bias.

Critiques of feminist legal theory

Against essentialism

While feminist legal theory has been a strong force in critical explanations of tort law, detractors have argued much of the theory is overly essentialist. As many early feminist legal scholars emphasized the different experiences of women, grouping them in contrast to the experience of men, some theorists have noted the potential for trivialization of the experiences of women. This is especially relevant given the diversity of experiences women face, particularly those who experience intersecting forms of oppression such as women of colour, queer women, and transgender women.[28] These is also often silence or disagreement within feminist legal theories regarding the experiences of transgender women and non-binary persons, who also may experience marginalization due patriarchal norms in the common law.[29]

Public and private law distinction

In addition, many feminist legal theorist do not acknowledge the divergence in public and private law systems. Unlike public law, where the state may act as agent for women who are advancing claims against a defendant, tort law is "designed to provide damages for harm by individually suing for compensation those responsible for that harm," emboldening victims to have the opportunity for private redress.[30] Hava Dayan notes that tort law can be viewed as a potential tool for counting femicide and addressing gaps created by criminal law.[30] Yet, Dayan still concludes that this type of action comes with a significant price tag worthy of acknowledgement.

Critical race theory

Khiara M. Bridges on Critical Race Theory as a verb
In this episode of the Dissenting Opinions host Will Baude discusses with UC Berkeley Law professor Khiara M. Bridges about the definition of critical race theory and its applications.

See more episodes of the series:

2. We're Actually in a Haunted House (structural racism)

3. Taking The Easy Way Out (implicit bias)

4. Liberation Isn't a Zero-Sum Game (intersectionality)

5. Life of the Mind (education)

6. Life of the Body (health)

7. Finale

Critical race theory (CRT) emerged in the 1970s in the United States on the tails of the 1960s civil rights era.[31] Lawyers, activists, and legal scholars sought to unearth the relationship between race, law, and society. Critical race theorists argue that America's historical foundations of racial subordination through slavery, colonialism, and conquest have "managed to inform, shape, limit and influence" our legal reality. [32] Raymond Wacks states that the core idea of CRT is that the formal constructs of law, while claiming to be neutral, in practice reflect "the reality of a privileged, elite, male, white majority". [33] Racial minorities (and gender, sexuality and socio-economic minorities, in a broader sense) are therefore confined to the "margins of legal existence".[33]

Although the subject of race in the area of torts has not attracted mainstream attention, Martha Chamallas argues that from "the types of claims recognized, to application of basic torts concepts, to judgments about causation, to valuation of injuries" tort law is influenced by constructions of race and ethnicity. [34] Chamallas attributes this to "unconscious cognitive bias that affects legal reasoning, and the tacit measures by which the law places a dollar value on human suffering".[35] Critical race theory therefore rejects legal notions that tort law exists in a vacuum outside of socio-cultural dynamics.[36]

Hill v. Hamilton-Wentworth Regional Police Services Board [37]
Critical Race Theory is a lens through which we can analyze cases like Hill v. Hamilton-Wentworth Regional Police Services Board. Chief Justice McLachlin stated that "[r]ecognizing an action for negligent police investigation may assist in responding to failures of the justice system, such as wrongful convictions or institutional racism."[38] Chief Justice McLachlin's decision to recognize this novel claim of negligence is an acknowledgment of the the way in which institutional racism informs legal realities, and attempts to use tort law to respond to institutional bias. And yet, her judgment holding that on the facts of the case no duty to the indigenous plaintiff was breached by the police may also be critiqued through the lens of CRT.[39]

Lucie Léger, argues that tort law could expand its recognition of injuries to include "harms suffered by members of minority groups on account of their minority status", as a way to "achieve equality in Canadian society".[40] Since the main consequences of discriminatory acts, such as racist remarks, are psychological, traditional torts do not cover this sort of conduct.[41] Léger proposes that nominating more Canadian judges from minority groups can "lead to the incorporation of a greater range of human and cultural values" in the legal system.[40]


Critiques of Critical Race Theory

Critical race theory is "divisive"

Critical race theory has largely been politicized in the United States in recent years, drawing widespread political criticism to the theory.[42] For some, it is divisive, and "offers a false sense of racial difference". [43] In Florida, Governor Ron DeSantis took steps to ban the teaching of critical race theories in high school under the Stop WOKE Act,[44] although it would be surprising if high schoolers had been reading the works of legal scholars such as Chamallas.

Much critical race theory criticism has taken aim at the theory's use of storytelling, deemed ineffectual by theorists like Douglas Litowitz, who states "[w]e are lawyers precisely because we do something more than listen to stories: we filter stories through the framework of legal doctrine".[45] In Beyond all reason: The radical assault on truth in American law, Suzanna Sherry and Daniel Farber also criticize CRT for its lack of positivist reasoning.[46]

References

  1. ↑ Hutchinson, Allan C. and Patrick J. Monahan (1984). "Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought". Stanford Law Review. 36: 199.
  2. ↑ Elaine McArdle "The Influence of Critical Legal Studies" Harvard Law School (11 August 2021)
  3. ↑ Wacks, Raymond (2014). "Critical legal theory". Philosophy of Law: A Very Short Introduction. Oxford Academic. p. 114.
  4. ↑ Salojäri, Juhana (2019). "A Counter-Culture of Law: Jurisprudential Change and the Intellectual Origins of the Critical Legal Studies Movement". American Journal of Legal History. 59: 411. line feed character in |title= at position 42 (help)
  5. ↑ 5.0 5.1 Wacks, Raymond (2014). "Critical legal theory". Philosophy of Law: A Very Short Introduction. Oxford Academic. p. 108.
  6. ↑ 6.0 6.1 Unger, Roberto (1983). "The Critical Legal Studies Movement". Harvard Law Journal. 91-96: 563.
  7. ↑ 7.0 7.1 Salojäri, Juhana (2019). "A Counter-Culture of Law: Jurisprudential Change and the Intellectual Origins of the Critical Legal Studies Movement". American Journal of Legal History. 59: 443.
  8. ↑ 8.0 8.1 Mustapha v. Culligan [2008] SCC 27 (§17.5.3) at para 18.
  9. ↑ Decoste, Ted. "Taking Torts Progressively". In Cooper-Stephenson, Ken; Gibson, Elaine (eds.). Tort Theory. Captus University Publications. p. 254.
  10. ↑ 10.0 10.1 Decoste, Ted. "Taking Torts Progressively". In Cooper-Stephenson, Ken; Gibson, Elaine (eds.). Tort Theory. Captus University Publications. p. 256.
  11. ↑ Binsaris v. Northern Territory [2020] HCA 22 (§2.2.4)
  12. ↑ Boucher v. Wal-Mart [2014] ONCA 419 (§3.2.3)
  13. ↑ Philippe Oliveira, de Almeida (2018). "The Neoliberalism and the Crisis of Critical Legal Studies/ O Neoliberalismo e a Crise Dos Critical Legal Studies". Revista Direito e Práxis. 9.
  14. ↑ Gabel, Peter (2009). "Critical Legal Studies as a spiritual practice". Pepperdine Law Review. 36: 528. horizontal tab character in |title= at position 26 (help)
  15. ↑ Subotnik, Daniel (1998). "What's Wrong with Critical Race Theory: Reopening the Case for Middle Class Values". Cornell Journal of Law and Public Policy. 7: 683.
  16. ↑ 16.0 16.1 Wacks, Raymond (2014). "Critical legal theory". Philosophy of Law: A Very Short Introduction. Oxford Academic. pp. 121.
  17. ↑ Fineman, Martha (1990). "Challenging Law, Establishing Differences: The Future of Feminist Legal Scholarship". Florida Law Review. 42: 25.
  18. ↑ Martha Chamallas, Jennifer B. Wriggins (2010). The Measure of Injury: Race, Gender, and Tort Law. New York: NYU Press.
  19. ↑ Chamallas, Martha; Wriggins, Jennifer B. (2010). "Introduction". The Measure of Injury: Race, Gender, and Tort Law. NYU Press. p. 5.
  20. ↑ Chamallas, Martha; Wriggins, Jennifer (2010). "Damages". The Measure of Injury: Race, Gender, and Tort Law. NYU Press. p. 159.
  21. ↑ Richardson, Janice; Rackley, Erika (2012). "Introduction". Feminist Perspectives on Tort Law. Routledge. p. 2.
  22. ↑ West, Robin and Cynthia Grant Bowman (2019). Research Handbook on Feminist Jurisprudence. Cheltenham: Edward Elgar Publishing. p. 387.
  23. ↑ Conaghan, Joanne (1993). "Harassment and the Law of Torts: Khorasandjian v. Bush". Feminist Legal Studies. 1: 196.
  24. ↑ Bender, Leslie (1988). "A Lawyer's Primer on Feminist Theory and Tort". Journal of Legal Education. 38: 20.
  25. ↑ Alberta Health Services v. Johnston, 2023 ABKB 209 (CanLII) at para 85.
  26. ↑ McHale v. Watson [1966] HCA 13 (§14.1.4.1).
  27. ↑ McHale v. Watson [1966] HCA 13 (§14.1.4.1) at para 16.
  28. ↑ Alder, Libby (2018). Gay Priori: A Queer Critical Legal Studies Approach to Law Reform. Durham: Duke University Press. p. 9.
  29. ↑ Allen, Anita (2010). "Privacy Torts: Unreliable Remedies for LGBT Plaintiffs". California Law Review. 98.
  30. ↑ 30.0 30.1 Dayan, Hava (2022). Femicide, Criminology and the Law. New York: Routledge. pp. 139, 144.
  31. ↑ Delgado, Richard (2001). Critical Race Theory: An Introduction. New York: New York University Press. p. 4.
  32. ↑ Möschel, Mathias (2014). Law, Lawyers and Race. London: Routledge. pp. 8–9.
  33. ↑ 33.0 33.1 Wacks, Raymond (2014). "Critical legal theory". Philosophy of Law: A Very Short Introduction. Oxford Academic. pp. 126–128.
  34. ↑ Carbado (2023). The Oxford Handbook of Race and Law in the United States. Oxford University Press.
  35. ↑ Chamallas, Martha (2010). The measure of injury : race, gender, and tort law. New York: New York University Press. p. 1.
  36. ↑ Chamallas, Martha; Wriggins, Jennifer (2010). "Conclusion". The Measure of Injury. NYU Press. pp. 183–190.
  37. ↑ Hill v. Hamilton-Wentworth Regional Police Services Board [2007] SCC 41 (§14.2.5.1).
  38. ↑ Hill v. Hamilton-Wentworth Regional Police Services Board [2007] SCC 41 (§14.2.5.1) at para 36.
  39. ↑ "Jason Hill: Case Summary". Canadian Registry of Wrongful Convictions. 2023.
  40. ↑ 40.0 40.1 Léger, Lucie (1993). "The Culture of Tort in a Pluralist Society". In Cooper-Stephenson, Ken; Gibson, Elaine (eds.). Tort Theory. Captus University Publications. p. 167.
  41. ↑ Léger, Lucie (1993). "The Culture of Tort in a Pluralist Society". In Cooper-Stephenson, Ken; Gibson, Elaine (eds.). Tort Theory. Captus University Publications. pp. 169–170.
  42. ↑ Oputu, Edirin (2021). "Untangling the controversy around critical race theory".
  43. ↑ Mocombe, Paul C. (2014). "Against Critical Race Theory". Ethnic Studies Review: 83.
  44. ↑ Alfonseca, Kiara (2022). "Florida Gov. Ron DeSantis' anti-critical race theory law to take effect".
  45. ↑ Litowitz, Douglas (1997). "Some Critical Thoughts on Critical Race Theory". Notre Dame Law Review. 72: 521.
  46. ↑ Daniel Farber & Sherry Suzanna (1997). "Beyond All Reason: The Radical Assault on Truth in American Law". Oxford University Press: 9–11.
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