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38 Loy. L. A. L. Rev. 1435 (2004-2005)
Civil Rights in Ordinary Tort Cases: Race, Gender, and the Calculation of Economic Loss

handle is hein.journals/lla38 and id is 1475 raw text is: CIVIL RIGHTS IN ORDINARY TORT CASES: RACE, GENDER, AND THE CALCULATION OF ECONOMIC LOSS Martha Chamallas* These days tort reform has become a code word for initiatives that seek to limit liability and reduce the amount or type of damages plaintiffs receive. It is a one way street that promises few benefits for injured parties or consumers. Tort reform has not always had this meaning. Prior to the 1980s, it was more frequently linked to measures, such as comparative negligence, that sought to soften the effect of restrictive doctrines and ease recovery for seriously injured parties. At that time, reform was more reciprocal in structure. For example, the reform of no-fault compensation for automobile accidents,' or the earlier reform of workers' compensation,2 brought something for everyone-under the quid pro quo enacted by these no-fault regimes, plaintiffs were no longer required to prove negligence, while defendants in turn were liable only for economic losses. In my view, the most influential tort reformers were the mid- century legal realists, such as Leon Green3 and my former colleague, Wex S. Malone.4 For this group of legal reformers, legal formalism was the biggest enemy.5 They sought to reshape legal doctrine to Robert J. Lynn Chair in Law, Moritz College of Law, The Ohio State University. 1. See Gary T. Schwartz, Auto No-Fault and First-Party Insurance: Advantages and Problems, 73 S. CAL. L. REV. 611, 622-34 (2000). 2. See JOHN FABIAN Wrrr, THE ACCIDENTAL REPUBLIC 152-86 (2004) (discussing the history of workmen's compensation statutes). 3. See, e.g., LEON GREEN, THE LITIGATION PROCESS IN TORT LAW (1965). 4. See, e.g., Wex S. Malone, Res Ipsa Loquitor and Proof by Inference-A Discussion of the Louisiana Cases, 4 LA. L. REV. 70 (1941); Wex S. Malone, The Formative Era of Contributory Negligence, 41 ILL. L. REV. NW. U. 151 (1946); Wex S. Malone, Ruminations on Cause in Fact, 9 STAN. L. REv. 60 (1956). 5. For an analysis of legal realism and its response to legal formalism, see 1435

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