Login (DCU Staff Only)
Login (DCU Staff Only)

DORAS | DCU Research Repository

Explore open access research and scholarly works from DCU

Advanced Search

Biased Damages Awards: Gender and Race Discrimination in Tort Trials

Dominioni, Goran orcid logoORCID: 0000-0002-3795-2617 (2020) Biased Damages Awards: Gender and Race Discrimination in Tort Trials. International Competition, Policy & Ethics Law Review, 1 (2). pp. 270-305.

Abstract
Current U.S. tort law incentivizes potential tortfeasors to target members of underprivileged social groups by using gender and race-based statistical tables life expectancy; work-life expectancy and average wage) to award damages. Legal scholars have long criticized this practice from the point of view of distributive justice but supported it on welfarist grounds. Recent research in law and economics has however cast doubts on the efficiency of this practice. On this basis, some propose abandoning it in favor of gender and race neutral tables. In this article, I contribute to this debate by analyzing from a behavioral law and economics perspective the welfare effect of using gender and race-based statistical tables. The analysis reveals that, even from a welfarist perspective, once we relax rationality assumptions, we should use gender and race neutral tables. I also develop a comparative analysis of the use of statistical tables in England, France, Italy and the U.S. With some minor exception, contrary to the U.S., European courts (especially in France and Italy) adopt gender and race neutral tables to award damages in tort trials. Based on the proposed behavioral law and economics analysis I conclude that European legal systems are therefore more in line with welfarist considerations and that U.S. courts should abandon the use of gender and race-based statistical tables in favor of neutral ones. I also argue that the European approaches could provide useful guidance to American courts on alternative methods to award damages.
Metadata
Item Type:Article (Published)
Refereed:Yes
Uncontrolled Keywords:Statistical Tables; Damages; Behavioral Economics; Comparative Law; Race; Gender
Subjects:Social Sciences > Law
Social Sciences > Public administration
DCU Faculties and Centres:DCU Faculties and Schools > Faculty of Humanities and Social Science > School of Law and Government
Publisher:SSRN
Official URL:https://papers.ssrn.com/sol3/papers.cfm?abstract_i...
Copyright Information:Author
ID Code:31663
Deposited On:20 Oct 2025 11:09 by Daniel O Sullivan . Last Modified 20 Oct 2025 11:09
Documents

Full text available as:

[thumbnail of ssrn-3494846.pdf]
Preview
PDF - Requires a PDF viewer such as GSview, Xpdf or Adobe Acrobat Reader
Creative Commons: Attribution 4.0
776kB
Downloads

Downloads

Downloads per month over past year

Archive Staff Only: edit this record