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.As we discuss in chapter 6, contemporary law recognizes and gen-erally accepts that tort damages for lost earnings or other economic harmwill often vary based on a person s income, a factor indirectly connected torace.However, it is equally widely accepted that nonpecuniary awards forpain and suffering, mental anguish, and dignitary harm are supposed to bepurely individual and free of racial considerations.Certainly no contempo-rary court would follow Justice Dugro s lead and state that, simply becauseof his race, a black person could not have the same amount of injury as awhite person when it comes to noneconomic harm.In 1909, however, such a link between race and mental distress damageswas not so unthinkable.As explained by interdisciplinary legal scholar Mar-tha Minow, pain was often tied to race and ethnicity in 19th-century medi-cal practice and medical literature.59 Even the use of anesthesia was selectivebecause it was thought that the need for painkillers varied, depending onthe race, gender, ethnicity, and other personal characteristics of the patient.60Thus, when Justice Dugro assumed that George Griffin s suffering was lessthan that of a white man, he reflected a racist view with a long pedigree thatbuilt racial devaluation into purportedly individualized judgments about aperson s case.In tort law, this kind of devaluation likely had its first appear-ance in early cases that assumed that the amount of injury depended on aperson s class status or station in society.For example, a case report from1302 quotes an English judge as expressing the view that [A] buffet givento a knight or noble was as bad as a wound given to one of the rabble. 61Translated into more modern terms, this statement is tantamount to sayingthat punching an upper-class gentleman causes as much harm as stabbing anordinary man.Historical Frames | 55We conclude that Justice Dugro s ruling sparked a controversy not becauseit was based on a novel understanding of the connection between race andharm but because the racial devaluation in the ruling was so explicit.By the20th century, it was exceedingly rare to find a reported decision that reliedexplicitly on race to justify lowering an award to a black litigant.62 Griffin scase thus presented the issue of devaluation in a highly visible way and show-cased its significant consequences.In that case, when the court reduced theaward from $2,500 to $300, one might reasonably have concluded that thereduction represented the difference between a white and a black measureof harm.Put another way, race transformed a serious injury into a relativelyminor one.As is apparent by the jury s significantly higher verdict and the commen-tators criticism of Justice Dugro s ruling, the proper role of race in tort lawwas contested even in 1909, rather like the contested nature of gender in thenervous-shock cases.Some writers of the day, like the caustic critic from theVirginia Law Register, recognized the circular and unpersuasive quality of thereasoning used to justify resort to race to discern the amount and quality ofa plaintiff s suffering.In effect, Justice Dugro had relied on the inferior castestatus of blacks to justify a lower, inferior award to Griffin, under the logicthat because Griffin had low social standing to begin with, he did not haveas far to fall as a white man who was falsely imprisoned.The author of theVirginia Law Register article shrewdly pointed out the problem with such anargument, noting that [t]he injury to a man for false imprisonment mightbe far greater in the case of a humble man working for a daily wage than inthe case of a millionaire.The fact that the former had once been in prison,although innocent, might cause him great trouble in securing a position suchas a porter upon a Pullman car. He went on to conclude that the injury,therefore, for false imprisonment to a porter on Pullman car, even though hewas colored, might be greater than to a Vanderbilt or a Rockefeller
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