How did early American tort law treat women? How were they expected to behave, and how were others expected to behave towards them? What gender differences mattered, and how did courts deal with those differences? These are the issues this Article explores. My aim is to illuminate the common law of torts and its relation to and with ideas about gender difference, by focusing on three sets of cases involving injured women, spanning the time between approximately 1860 and 1930. My conclusions run counter to two approaches scholars have frequently taken in analyzing gender and the common law of torts. Some tort schola rs neglect gender completely, omitting it as an important axis of analysis. For example, in 1972, in his influential article A Theory of Negligence, Judge Richard Posner wrote of cases involving injuries to train passengers boarding and disembarking, the type of case discussed in Part III of this Article. Posner summarized the doctrinal rules as follows: The parties’ reciprocal duties in the boarding and alighting situations were rather particularized. The railroad had to provide the passenger a safe method of ingress and egress and the train had to remain stopped long enough for the passenger to get to (or from) his seat. The passenger, in turn, had to wait for the train to stop, or at least slow considerably, before getting on or off; he had to watch where he was stepping; and he had to use the route to and from the train provided by the company. The cases discussed in Part III make clear that when this passage omits gender, and when it hides women plaintiffs, by using masculine language, it erases something that contemporary courts considered crucial. Posner, of course, is not alone. As feminist legal scholars surveying pre-feminist tort scholarship and teaching have found, both gender and women have often been notable in those arenas by their absence in analysis and their invisibility in reporting. The erasure of gender is especia lly marked in the tort theory scholarship of the 1950s. For example, Fleming James wrote an entire article about “The Qualities of the Reasonable Man in Negligence Cases,” treating such attributes as “judgment,” “knowledge,” “experience,” “skill,” “physical, mental, and emotional characteristics,” “age,” and “sanity” without even once discussing gender, or mentioning that women play a role in the tort system.
Schlanger, Margo. "Injured Women Before Common Law Courts, 1860-1930." Harv. Women's L. J. 21 (1998): 79-140.