The Tort of Discrimination
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Hanoch Dagan
Abstract
This Essay integrates two ambitions: to lay out new theoretical foundations for antidiscrimination law and to demonstrate the practical significance of these foundations to tackle instances of wrongful discrimination beyond the reach of the current legal regime. Concerning theory, we articulate an account of wrongful discrimination grounded in private law’s basic commitment to reciprocal respect for the self-determination and substantive equality of private persons. Concerning practice, we argue that antidiscrimination law is currently at its pre-MacPherson v. Buick stage, meaning it is made up of isolated pockets of liability for discriminatory behavior. The gaps between them are indefensible since they necessarily undermine people’s fundamental right to be treated as equals by holders of normative powers such as proprietors, employers, and lessors. Nothing short of a full-blown tort of discrimination will enable antidiscrimination law to reach its own MacPherson moment. The theoretical account we develop provides the necessary framework for embarking on this crucial endeavor: a clear articulation of the normative foundations of this tort as an integral and indispensable part of private law in a liberal society. Drawing on existing tort doctrines, we identify important legal tools that can be utilized for prescribing the proper elements—duty, breach, injury, causation, and remedy—of a novel, generic tort of discrimination.
© 2023 Walter de Gruyter GmbH, Berlin/Boston
Articles in the same Issue
- Frontmatter
- Symposium Articles
- Private Nuisance: The UK Supreme Court Take a View
- Liking the Intrusion Analysis in In Re Facebook
- Analog Analogies: Intel v. Hamidi and the Future of Trespass to Chattels
- What We Talk About When We Talk About the Duty of Care in Negligence Law: The Utah Supreme Court Sets an Example in Boynton v. Kennecott Utah Copper
- Disentangling Immigration Policy From Tort Claims for Future Lost Wages
- Sherman v. Department of Public Safety: Institutional Responsibility for Sexual Assault
- Putting “Duty” Back on Track
- Public Authority Liability for Careless Failure to Protect from Harm
- Unnecessary and Insufficient Factual Causes
- Beltran-Serrano v. City of Tacoma
- Main Article
- The Tort of Discrimination
Articles in the same Issue
- Frontmatter
- Symposium Articles
- Private Nuisance: The UK Supreme Court Take a View
- Liking the Intrusion Analysis in In Re Facebook
- Analog Analogies: Intel v. Hamidi and the Future of Trespass to Chattels
- What We Talk About When We Talk About the Duty of Care in Negligence Law: The Utah Supreme Court Sets an Example in Boynton v. Kennecott Utah Copper
- Disentangling Immigration Policy From Tort Claims for Future Lost Wages
- Sherman v. Department of Public Safety: Institutional Responsibility for Sexual Assault
- Putting “Duty” Back on Track
- Public Authority Liability for Careless Failure to Protect from Harm
- Unnecessary and Insufficient Factual Causes
- Beltran-Serrano v. City of Tacoma
- Main Article
- The Tort of Discrimination
