Balkinization: Looking for Race in a New Place

Looking for Race in a New Place

Mark Graber

My colleague Donald Gifford and Brian Jones from Villanova have just published a fascinating article on the influence of race on tort law. Gifford, the author of a leading casebook on tort law, and Jones perform an empirical study of tort doctrine in American states which concludes that states that signed up for the Confederacy and states whose juries have substantial African-American representation are presently making best efforts to prevent as many torts cases as possible from being resolved by juries. We know from numerous comparative politics studies that increases in access to the ballot in many regimes typically corresponds to decreases in the issues actually resolved by democratically elected officials. Gifford and Jones in "Keeping Cases From Black Juries: An Empircal Analysis of How Race, Income Inequality, and Regional History Affect Tort Law" suggest the related concern that increases in African-American representation on juries corresponds with decreases in the cases judges are willing to have resolved by juries. The abstract for this highly recommended paper is as follows:

This Article presents an empirical analysis of how race, income inequality, the regional history of the South, and state politics affect the development of tort law. Beginning in the mid-1960s, most state appellate courts rejected doctrines such as contributory negligence that traditionally prevented plaintiffs’ cases from reaching the jury. We examine why some, mostly Southern states did not join this trend.

To enable cross-state comparisons, we design an innovative Jury Access Denial Index (JADI) that quantifies the extent to which each state’s tort doctrines enable judges to dismiss cases before they reach the jury. We then conduct a multivariate analysis that finds strong correlations between a state’s JADI and two factors: (1) the percentage of African Americans in its largest cities, and (2) its history as a former slave-holding state.

These findings suggest that some appellate courts, particularly those in the South, afraid that juries with substantial African-American representation would redistribute wealth or retaliate for grievances, struck preemptively to prevent cases from reaching them. Surprisingly, we do not find a consistent association between a state’s JADI and either income inequality or its political leanings. In other words, race and region, rather than economic class or politics, explain the failure to embrace pro-plaintiff changes that occurred elsewhere.

We suggest, therefore, that states that declined to discard antiquated anti-jury substantive doctrines between the mid-1960s and the mid-1980s should acknowledge that these precedents were tainted by their predecessors’ efforts to keep tort cases from African-American jurors and refuse to accord them deference.

Posted 2:28 PM by Mark Graber [link]