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Book Chapter

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Gender difference is only infrequently mentioned in recent negligence cases. To contemporary (mostly non-essentialist) eyes, gender difference seems to appear only mildly relevant to tort law's area of concern: care and harm to others and self. But in the early days of modern tort law, when gender differences loomed larger in the consciousness of American jurists, and unabashedly so, judicial opinions more frequently grappled with how negligence doctrine ought to take account of female difference. This chapter explores opinions published between approximately 1860 and 1930 that illuminate this issue in cases involving women drivers and passengers of cars and wagons. The focus on transportation-related injuries reflects early tort law's similar preoccupation. Many feminist scholars have argued that tort law historically subordinated women by simply omitting them from the developing objective standard of care. They point out that even as texts such as Holmes's The Common Law or the famous British case of Vaughn v. Menlove canonized the "reasonable man" standard, and simultaneously settled the way in which tort doctrine would deal with differences relating to intelligence, physical disability, mental disability, age, and other factors, women were simply left out. The claim is that tort law used to measure caretaking by a "reasonable man'' standard which was not just linguistically but truly a masculine one-and that the construction was the once-unnoticed emblem of the legal system's substantive oppression and exclusion of women. Recent feminist scholarship, however, rebuts charges of erasure. Barbara Welke, for example, writes of accident law from i865 to 1920 that "taking the gender out of the law was something like taking the bounce out of a rabbit: unnatural, impossible, undesirable .... Men's and women's accidents were patterned by gender, generating legal rules which in effect were shaped by and directed toward women and men, but not both." This chapter's examination of old accident cases likewise undermines the accusation that pre-feminist tort law consistently excluded both the category of gender and women themselves. Its contribution is to flesh out and complicate the account of just how gender and women were included.