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Home > Law > DePaul Law Review > Vol. 75 > Iss. 2

 

Abstract

The American tort system aspires to provide fair compensation to injured plaintiffs, regardless of socioeconomic status, race, religion, or gender. Recent experimental evidence from psychology suggests, however, that factfinders consistently judge identical harms as less severe when experienced by individuals of lower socioeconomic status (SES). People presume, for instance, that a paper cut hurts a wealthy person more than a less well-off person, that domestic violence inflicts greater suffering on a high-SES woman than a lower-SES woman, and that bullying harms a fiveyear- old from a high-SES family more severely than one from a low- SES family. This Essay examines how this “thick skin bias” threatens to undermine the compensatory function of tort law, particularly for plaintiffs who are already socioeconomically disadvantaged. While scholars have long lamented that pecuniary damages can perpetuate existing economic inequality by compensating highearning and high-asset plaintiffs more generously than their less well-off peers, comparatively little attention has been paid to how nonpecuniary damages might be distorted by psychological biases affecting perceptions of suffering experienced by people of different socioeconomic strata. The psychological phenomena explored here are particularly troubling because they operate in direct opposition to both legal principles and empirical reality. Tort law requires that noneconomic damages be assessed based on the individual circumstances of each plaintiff. Meanwhile, research suggests that, if anything, economic disadvantage exacerbates rather than diminishes the suffering caused by identical injuries, as low-income individuals often lack resources that facilitate recovery. This Essay identifies avenues for future research that might eventually inform legal reforms designed to combat the thick skin bias.

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