Liability of Bias: A Comparative Study of Gender-Related Interests in Negligence Law

This article examines a feminist argument concerning the gendered structure of tort law in which interests that can be identified as gendered are subject to different levels of recognition resulting from gender bias. Using a comparative methodology, the article contends that negligence law regarding pure-economic loss and indirect-emotional harm is constructed along lines of gender bias. The argument is underlined by the notion of gender-related interests, establishing pure-economic loss as male-related and indirect-emotional harm as female-related. On its first comparative analysis, the similarities and differences between these two harms as perceived by tort conventions and principles should have yielded leverage to indirect-emotional harm as fitting more squarely with tort law’s fundamental conceptions than its counterpart, pure-economic loss. However, the course of legal recognition both harms have undergone in Anglo-American negligence law reveals that both losses were relatively similarly alienated from negligence law. 1. Assistant professor, The College of Management Law School, Israel and Peking University School of Transnational Law, China. Ph.D. The Hebrew University (2005); Visiting Researcher, Harvard University Law School (2004-2005); LLM, Yale Law School (2009). I wish to thank Professor Mirjan Damaska for his thoughtful remarks on comparative analysis of Israeli law. I also wish to thank Professor James Whitman for his encouragement to pursue this project. Tsachi KerenPaz’s comments on earlier versions were I opening and Roni Mann has been one of her kind with her organizational thinking. Elad Rom’s editing and research assistance were invaluable to me as well. 40 1 Bitton: Liability of Bias Published by Digital Commons: The Legal Scholarship Repository @ Golden Gate University School of Law, 2010 64 ANNUAL SURVEY OF INT’L & COMP. LAW [Vol. XVI Seeking further resources from which to draw on the significance of the gendered nature of these interests within negligence law, the article then proceeds to its second comparative dimension. Here it reviews Israeli negligence law, where indirect-emotional harm and economic loss function as legal implantations imported from Anglo-American law. Notwithstanding its deepest Anglo-American legal roots, Israeli negligence law, nonetheless, reveals a sharp departure in its adjudication on the matter from the Anglo-American tradition. Probing deeper into Israeli tort law, illuminates a unique phenomenon whereby the rhetoric of the court attributes the same relative-illegitimacy to both economic loss and indirect-emotional harm. However, reality indicates they are subject to significantly different treatment. This biased pattern bears harmful distributive implications as it embodies a two-dimension discrimination practice whereby in addition to disadvantaging femalerelated interests, negligence law unequally prefers male-related interests. Specific attention is given in the article to the comparative phenomenon whereby the Israeli legal system that draws so heavily on dominant Anglo-American law administers negligence law upon more discriminatory standards thereby reflecting the gendered nature of Anglo-American negligence law. “The law of torts values physical security and property more highly than emotional security and human relationships. This apparently gender-neutral hierarchy of values has privileged man, as the traditional owners and managers of property, and has burdened women to whom the emotional work of maintaining human relationships has commonly been assigned.”