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

Abstract

This Article examines a feminist argument concerning the gendered structure of tort law, according to which the limited recognition of indirect emotional harm reflects a bias against women and “femininity.” This examination is carried out through a comparative analysis of two sorts. First, it considers the judicial treatment of emotional harm as compared with the treatment of pure economic loss – a harm which, for the purposes of this research, will be considered more “male” and men-oriented. The central thesis of the article is that, while it appears that both types of harm have ultimately gained very limited recognition, implying lack of gender-based adherence to one interest over the other, indirect-emotional harm could have had the upper hand in being more easily embraced into tort law. This is shown by exploring the relevant differences between these two types of harm from various perspectives, including the internal-doctrinal question within “tort law,” its interrelations with contract law, and from the points of view of both economic analysis and corrective justice. Second, the article compares both Anglo-American law and Israeli law with respect to indirect emotional harm and economic loss, to reveal a significant departure in Israeli tort law–generally firmly founded on common law–from Anglo-American case-law which presents a relatively balanced no-liability rule for both losses. While Israeli courts generally maintain a similar rhetoric of limited liability to both types of harm, in the details of legal analysis and practical decisions, economic interests are recognized and protected extensively. By contrast, indirect emotional harm is only rarely the ground for imposition of liability. The article finally reflects on the phenomenon whereby the Israeli legal system that draws so heavily on dominant Anglo-American law and preserves its rhetoric, still administers very different legal and ideological standards. It is suggested that these differences be read as extremist application by Israeli courts of Anglo-American gender-based tendencies. Though absorbed through seemingly neutral doctrines, these tendencies were now practiced and developed within a more gendered stratified society, which holds, at the same time, a legal rhetoric of advanced gender equality. This characteristic of Israeli legal system vis-à-vis women’s rights sheds an interesting light on the differences the three systems share.