Damages in Tort Litigation: Thoughts on Race and Remedies, 1865-2007

I. INTRODUCTION This essay addresses a void in torts scholarship and pedagogy-the relationship between remedies and race in U.S. tort law. In virtually all torts scholarship and teaching, the unspoken assumptions are that race and racism are extrinsic to the torts system and that all parties are white unless otherwise specified. Torts scholars and casebooks discuss important cases from the early part of the twentieth century, and invariably mention the historical context of technology and industrialization. Yet, historical and contemporary context about torts and race generally is absent in scholarship and teaching. This essay, part of a larger effort to explore issues of race and gender in torts, proceeds in two parts.1 First, I challenge the boundary between rights and remedies by highlighting a stunning but previously overlooked 1959 instance of an individual tort remedy serving as a significant civil rights remedy in the integration of public transportation throughout the South. second, I outline the whiteness of the civil justice system and focus on neglected material concerning the relationship between race and damages from 1865 to the present.3 The torts system provided access to indigent plaintiffs, black and white, during periods when poor people were otherwise denied legal representation in every other context. Yet, the system worked by means that resulted in the classic torts remedy, money, being less readily dispensed to black plaintiffs than to other tort plaintiffs. Recent evidence suggests that tort remedies are still affected by race in ways that merit more exploration. The methodological barriers to making definitive statements about the torts system are familiar and significant. Tort litigation involves individualized adjudication of liability and damages. Comparing liability decisions and damage awards in different decisions to see if injuries are treated consistently is rarely done. Enforcement is decentralized and occurs almost exclusively through private attorneys. Settlements and verdicts are often unreported. There is no comprehensive databank, and in the late nineteenth century and the first half of the twentieth century there was even less information available than there is now. Moreover, comprehensive information about the incidence of injury, as well as wage data, is not readily available for the late nineteenth century and the first half of the twentieth century. In addition, determining the race of tort litigants is not necessarily easy. Although appellate judges in torts cases during the late nineteenth and early twentieth centuries routinely referred to the race of plaintiffs and witnesses when other than white, they did this less frequently after 1950.4 Bearing in mind that comprehensive conclusions would be premature, tort law and race are intertwined in crucial ways. Tort law played an unheralded but significant role in desegregating interstate public transportation, as described in Part II. Further, race and racism have affected the calculation of damages, largely to the detriment of African-American claimants, as shown in Parts III and IV.5 The essay concludes with reflections on the implications of the racial history of tort damages for contemporary efforts to make tort remedies more consistent. II. RACE, REMEDIES, AND RECOGNITION The recognition of an individual, private wrong can be a broad remedy in itself with significant ramifications for racial equality. The Fifth Circuit decision in Bullock v. Tamiami Trail Tours, Inc. reflects this.6 This case deserves to be widely taught and included in citations to duties of common carriers. It is a tort remedy for an individual case, but its wide implications demonstrate its importance as a civil rights remedy. The events at issue in the case took place on an interstate bus in Florida at the same time that the Montgomery bus boycott was taking place.7 A married couple from Jamaica came to Florida as tourists in late summer 1956, intending to travel by bus to New York in order to "see more of the country-side. …