The focus of today’s annual Constitution Day lecture at the University of Maine School of Law is on the Fourteenth Amendment and specifically how the Equal Protection Clause relates to tort law. First, I will talk about the Equal Protection Clause in general—what it says, and some of what it has been held to mean—particularly where government makes distinctions based on race and gender. Second, I will discuss two historical tort cases that violate equal protection on the basis of race. In doing so, I uncover the racial history of tort law that has been hidden in plain sight. I also touch on some of my broader research on race and valuation in tort damages that is discussed in my new book, The Measure of Injury: Race, Gender, and Tort Law. Third, I turn to one way that equal protection continues to be relevant in tort law. In talking about recent case-law, I make the argument that the use of race-based or gender-based tables to estimate life expectancy or lost earnings, as still happens in tort cases in court, is a violation of the Equal Protection Clause.

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