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Interspousal tort immunity persists de facto through the mechanism of private insurance, the article explains. Although interspousal tort immunity has been eliminated as a doctrinal matter, it endures as a reality. Liability insurance is inseparable from tort liability and drives the tort litigation system in this as well as other contexts. The insurance family member exclusion and the insurance intentional acts exclusion operate together to ensure that interspousal tort claims such as domestic violence tort claims will not be brought. These are reasonably considered to be gender-specific harms and the exclusion of them from tort compensation is a failing of the existing torts system.

The article, which ties torts and insurance to feminist theory, was written for a conference which asked participants to explore relational feminism as articulated by scholars such as Robin West and Mary Becker. A liberal feminist critique of family member exclusions, which forbid liability coverage of claims between family members, would claim that they are based on stereotyping about relationships and collusion between family members, and that they should be abolished. A relational feminist viewpoint, which posits that individuals value community and relationships above self-interest, might at first glance provide a justification for family member exclusions. But a broader relational feminist viewpoint might support broader loss-sharing across communities with a recognition that all policyholders should, as part of valuing community and relationships, help compensate through insurance premiums those injured by intentional torts of family members. Therefore, a relational feminist viewpoint might also support their abolition.

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Wisconsin Women's Law Journal



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