Category Archives: Torts

What Ever Happened to Dignity?

Oct 12, 2018 Gregory KeatingTorts

Gregory Keating

In The Puzzle of the Dignitary Torts, Ken Abraham and G. Edward White return our attention to a domain of tort law they rightly describe as neglected, namely, the “dignitary torts”. In our time, the term is casebook catchall for an arguably heterogeneous collection of intentional wrongs— “offensive” battery, defamation, false imprisonment, intentional infliction of emotional distress (IIED) and the four privacy torts (intrusion upon seclusion, public disclosure of private facts, false light, and commercial appropriation).¹ The term is a taxonomic category, and little more. It was not always so. For the first two-thirds of the twentieth century, the “dignitary torts” were a subject of sustained scholarly and practical interest. In the 1970’s they vanished from the scholarly radar and have not returned. In the courts, the long staccato expansion of these torts was halted by New York Times v. Sullivan and its progeny. New York Times v. Sullivan breached the wall that had insulated “private law” doctrines from public law criticism. Private law became another instance of state action and the dignitary torts became subject to constitutional scrutiny and curtailment insofar as their commission involved expression. In our time, the category endures almost untouched, but in so enduring it has become a hollowed-out husk of its former self. “Dignitary torts” is now just a hand box, a convenient pigeonhole which enables us to group together a number of distinct wrongs for purposes of classification and exposition. Nothing more is now said about “dignity” as a concept, or as a value, or as an overarching interest, which either captures a latent unity among these wrongs or identifies a common thread which ties the torts together. And the dignitary torts no longer struggle forward. They stand now in a defensive crouch, awaiting further constitutional confinement.

Abraham and White rightly think that there is an important story here, and they tell that story in a rich, illuminating, and provocative way. The history of the dignitary torts is indeed a puzzle. Why did scholarly interest in them disappear? Why are they still dormant even though dignity has built up a head of steam in both international human rights law and domestic legal developments such as same-sex marriage and the more general recognition of the dignity of LGBT persons? The Puzzle of the Dignitary Torts offers answers to these questions, and more. It also explores the concept of “dignity” and advances a jurisprudential argument that the dignitary torts were foreordained to wither on the vine. That argument is intuitive at first sight, but elusive on closer inspection. The basic idea is that because the common law creeps forward case by petty case it cannot build a body of law which is systematically organized around a highly general concept like “dignity”. Continue reading "What Ever Happened to Dignity?"

The Morality of Risking

Sep 14, 2018 Kenneth W. SimonsTorts

Kenneth W. Simons

In this book, legal scholar and philosopher John Oberdiek offers an elegantly written, meticulously argued, and highly original account of when it is morally permissible to impose mortal risks on others. Tort scholars and theorists have long examined the permissibility of risky conduct, but, as Oberdiek observes, their efforts have usually focused more on interpreting legal doctrine than on the more fundamental question of the morality of risking. And insofar as scholars have evaluated this more fundamental question, they have often provided a simplistic and normatively questionable answer: cost-benefit analysis or utilitarian balancing is the only realistic and sensible way to distinguish legally permissible from legally impermissible risky conduct.¹ This answer is also reflected in the most common characterization of the famous (or infamous) Learned Hand test of negligence: an actor is negligent if but only if (i) she failed to take a precaution and (ii) the burdens or costs of taking that precaution outweighed the precaution’s benefits (in reducing the risks of harm.² At the same time, Oberdiek notes, moral philosophers have paid relatively little attention to the moral evaluation of risky conduct.³ in part because they usually assume the existence of idealized conditions under which the outcomes of a person’s actions are certain. Turning the trolley (or shoving a fat person into its path) will cause the death of one; not turning it will permit the death of five. Framing an innocent person will prevent a mob from killing more people. And so on.

In contrast with these unpersuasive or overly stylized approaches, Oberdiek’s book is a very welcome and invigorating breath of fresh air. Oberdiek offers a rigorous, nuanced, and novel account of the morality of risking, an account that seriously engages with the difficult challenge of explicating the concepts of risk, a right against risk, and the permissible level of risk under contractarian principles. Although some aspects of the analysis might be questioned, this philosophically sophisticated work should provoke renewed attention to a terribly important and unduly neglected topic. Continue reading "The Morality of Risking"

When Cars are the Drivers: Tort Law in the Fourth Industrial Revolution

Jul 31, 2018 Ellen BublickTorts

Ellen Bublick

Now that self-driving vehicles roam the roads and have already caused injury and death,¹ many talented torts scholars are reviewing the role of tort law as a regulator of this new technology and as an insurer of its victims.² In their recent article, Automated Vehicles and Manufacturer Responsibility for Accidents: A New Legal Regime for a New Era, the formidable duo of Ken Abraham and Robert Rabin join the inquiry. Abraham and Rabin write, “The new era of automated vehicles will eventually require a new legal regime that properly fits the radical new world of auto accidents.”

Having laid down this challenge—to fit a new legal regime to a new technological era—Abraham and Rabin assess both the anticipated challenges of self-driving vehicles and the appropriate tort law responses to them. The authors expect automobiles to evolve through a number of stages, beginning with vehicles that are driver controlled, progressing to vehicles that are machine-assisted, then transitioning to vehicles that are machine-controlled but driver-assisted, and culminating in vehicles that are fully  machine-controlled. Abraham and Rabin welcome this evolution. They believe that “[a]ccident rates will decline precipitously, by some estimates as much as 80-90 percent.” (P. 2.) Yet they also believe that the transition to automated technology will be “long and uneven.” Abraham and Rabin foresee periods in which varied vehicles will coexist on the roadway—much as the horse and buggy ultimately, but not immediately, gave way to the automobile. Continue reading "When Cars are the Drivers: Tort Law in the Fourth Industrial Revolution"

Privacy for the Privileged Few

Jul 3, 2018 Martha ChamallasTorts

Martha Chamallas

In an age of growing income inequality and daily reminders of the privileged lives led by the rich and famous, it should come as no surprise that tort law might come to mimic the glaring disparities in the larger culture. The thesis of Scott Skinner-Thompson’s new article is that the courts have done just that in adjudicating privacy claims for the tort of public disclosure of private facts. Specifically, Skinner-Thompson argues that in applying the black letter law, courts have systematically favored privileged plaintiffs (often celebrities) without showing a similar regard for ordinary individuals, particularly plaintiffs from marginalized communities.

The article is rich in examples of disparate results linked to the identity of the plaintiff. There is the case of the gay man who loses his public disclosure lawsuit, despite being “outed” by the pastor of his church to other church members and a future in-law. Yet Hulk Hogan, the professional wrestler and reality show star, known for boasting about his sex life, wins a multi-million judgment when Gawker posts a sex tape of one of his sexual encounters. No recovery for a teenage victim of revenge porn when a website publishes a nude photo of the plaintiff she had privately sent to her boyfriend, but a sizable recovery for professional football player resulting from a tweet of his medical records indicating that he had to have a finger amputated. And on and on. Continue reading "Privacy for the Privileged Few"

Justifying Liability without Proof of Causation

May 11, 2018 Sandy SteelTorts

Sandy Steel

In ‘Causation and Opportunity in Tort’, Emmanuel Voyiakis offers a thought-provoking analysis of some of the field’s classic causation problems. His focus is upon situations where the crux of the causal difficulty is epistemic – for some reason or other, we don’t have enough evidence to attribute causality of a particular claimant’s damage to a particular defendant’s conduct according to the civil standard of proof.

To understand Voyiakis’ approach, it’ll be useful to consider his analysis of a case and contrast it with that of some other prominent theoretical frameworks. Consider, then, the decision of the House of Lords in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32. In Fairchild, D1, D2, D3, C’s employers, each successively, but independently, expose C negligently to asbestos dust. C contracts mesothelioma, an asbestos-induced cancer, but cannot prove on the balance of probabilities (more likely than not) which of D1, D2, D3 (or which combination) was a cause of C’s cancer. Scientific understanding of the aetiology of mesothelioma does not allow us to say whose exposure causally contributed to the mesothelioma. Applying the orthodox balance of probabilities approach, C will be unable to establish liability against any defendant, the probability of causation against each being only 1/3.¹ The House of Lords, nonetheless, held each defendant liable in full. Continue reading "Justifying Liability without Proof of Causation"

Measuring Common Claims About Class Actions

Mar 16, 2018 Nora Freeman EngstromTorts

Nora Freeman Engstrom

Joanna C. Schwartz’s 2016 article, The Cost of Suing Business, comes out of the Clifford Symposium on Tort Law and Social Policy at DePaul University College of Law—an annual gathering now in its twenty-fourth year that, under Professor Stephan Landsman’s singular stewardship, has been the site of so much valuable inquiry.

In the article, Schwartz questions a narrative that has succeeded in both Congress and the Court: that “class actions are the most significant scourge on business ever conjured up by man.” (P. 655.) In her words:

In brief after brief to the U.S. Supreme Court, the Chamber of Commerce and other business amici tell the same story: Meritless class actions, filed by rapacious plaintiffs’ attorneys for the ostensible benefit of consumers, employees, and shareholders, are so devastatingly expensive to defend against, and threaten such financial devastation if plaintiffs prevail, that corporate defendants cannot help but accept “blackmail settlements” that harm both businesses’ bottom lines and society at large.

(Id.)

It’s certainly familiar. And it’s undeniably arresting. But is it true? Continue reading "Measuring Common Claims About Class Actions"

Expressivism, Corrective Justice, and Civil Recourse

Feb 20, 2018 Benjamin C. ZipurskyTorts

Benjamin C. Zipursky

With clear examples, incisive and sweeping philosophical argumentation, and an engaging prosaic lilt, Scott Hershovitz writes about tort law the way his mentor Ronald Dworkin wrote about constitutional law. If this sounds like high praise, it is. Hershovitz’s Treating Wrongs as Wrongs: An Expressive Argument for Tort Law, 10 J. Tort L. 1 (2017) is a pleasure to read. Indeed, I regard Treating Wrongs as Wrongs as one of the most important torts articles published in many years. Its excellence of course motivates me to push hard against its central themes to see whether they stand up.

Hershovitz’s principal claim in this article is that “tort law is very much an expressive institution.” He explains what it means to say that an area of law is an expressive institution, why this is correctly said about tort law, what messages tort law expresses – “this person is entitled to be treated with dignity” and “the defendant wronged the plaintiff” – and why it is an important fact about tort law that it sends these messages. Continue reading "Expressivism, Corrective Justice, and Civil Recourse"

Doing Away With Battery Law

Dec 20, 2017 Anthony SebokTorts

Anthony Sebok

Steve Sugarman is one of contemporary tort law’s leading figures, and one feature of his career which stands out is that he is willing to challenge modern orthodoxy. As the title of his classic 1985 article, Doing Away With Tort Law suggests, Sugarman is willing to recommend sweeping changes to private law. In Restating the Tort of Battery, Sugarman offers a proposal almost as radical as his 1985 proposal to get rid of tort law. Although he doesn’t say he wants to get rid of battery, once he is finished “restating” it, it is hard to see what is left of it. In this essay, I will not engage directly with Sugarman’s proposal, but I will try to describe its motivation and determine its limits – which, I believe, are not as easy to find as Sugarman may believe.

Sugarman thinks that the Reporters for the Restatement of the Law, Third, Torts: Intentional Torts to Persons have done the best that could be done given the job they were asked to do. The Reporters were asked by the American Law Institute to restate the law of intentional torts, including battery. Sugarman believes that the project is based on a false assumption, which is that there is a separate branch of tort law called “battery”. This is, Sugarman thinks, no longer true, if it were ever true. The truth is, if we were to restate the case law as it exists in 2017, we would see that all of our battery law that deals with harmful batteries can really be explained as instances of the same legal principles that explain liability for physical harm due to negligence. Continue reading "Doing Away With Battery Law"

The Curious Case of the Disclaimer That Didn’t Bark

Oct 19, 2017 John C.P. GoldbergTorts

John C.P. Goldberg

In The MacPherson-Henningsen Puzzle, Victor Goldberg juxtaposes two landmark product liability cases to identify an interesting historical question about product manufacturers’ ability to contract around their tort obligations. With some nice detective work, he then offers an answer to the question, in the process reminding us of the complex interrelation among legal rules, the legal profession, and social norms.

Claus Henningsen purchased from Bloomfield Motors a car manufactured by Chrysler. While Claus’s wife Helen was driving, the car “took an unscheduled turn into a wall” (to borrow Marc Franklin’s memorable description). In Henningsen v. Bloomfield Motors (1960), the New Jersey Supreme Court upheld a verdict for the plaintiffs. The court deemed automobile manufacturers implicitly to warrant their products’ fitness not only to purchasers but also to certain nonpurchasers. Notably, because warranty liability was understood to sound in contract rather than tort, the decision imposed a form of strict liability on sellers of mass-produced automobiles. Continue reading "The Curious Case of the Disclaimer That Didn’t Bark"

Is Systemic Risk Special?

Oct 5, 2017 Gregory KeatingTorts

Gregory Keating

In one of his more famous aphorisms, Oliver Wendell Holmes remarked that “[o]ur law of torts comes from the old days of isolated, ungeneralized wrongs, assaults, slanders, and the like,” whereas “the torts with which our courts are kept busy to-day are mainly the incidents of certain well known businesses … railroads, factories, and the like.”¹ In the 120 years since Holmes penned his remark, our social world has become ever more organized. Holmes wrote before the mass production of consumer products and before environmental harms on a global scale existed. Indeed, Holmes seems to have had in mind just one kind of systemic risk, namely, the repeat imposition of the same risk by an institution that repeats the same action over and over again. Railroads, for instance, run trains past the same intersections on a regular basis.

We are familiar with more advanced and diverse forms of systemic risk. Some products are characterized by risks that are present every time the product is used but that are responsible for physical harm only relatively rarely. Many product design defects are like this. The Ford Pinto gas tank is a case in point. The defective design was present in every Ford Pinto but its risks remained dormant until a car was involved in a collision. Other products impose unacceptable risks every time someone is exposed to them. Asbestos is the most notorious example. In still other cases, the independent actions of innumerable people coalesce into a critical mass and that critical mass imposes a major risk. Climate change is a case in point. It is surprising, then, that the distinctive issues raised by systemic risk imposition have received so little attention, and heartening to see that sophisticated political philosophers have now begun to pay them heed. In The Distinctive Significance of Systemic Risk, Aaron James, a political philosopher at the University of California at Irvine, zeros in on several of the thorniest moral issues presented by practices of systemic risk imposition. James is preoccupied with two questions. Continue reading "Is Systemic Risk Special?"