The Journal of Things We Like (Lots)
Select Page

Refining the Use of Probabilistic Evidence in Loss of a Chance Cases

Elissa Philip Gentry, Damned Causation, 51 Ariz. St. L.J. 419 (2022).

A common but troublesome factual cause problem arises in the following medical malpractice scenario. A doctor negligently treats or fails to diagnose a patient’s medical condition, and the patient dies or suffers serious harm from the condition. The patient (or the patient’s family) can prove that due care might have prevented that harm but cannot prove this causal link by a preponderance of the evidence. In recent years, most courts have responded to this “loss of a chance” of a better medical outcome (LOC) problem not by denying all liability, and not by awarding full damages, but instead by awarding partial damages. Most scholars, and the most recent drafts of two Restatement Third, Torts projects,1 endorse this response.

In her illuminating and provocative article, Damned Causation, Professor Elissa Philip Gentry takes a different tack. She is deeply skeptical of overreliance on general statistics in LOC cases and urges a more nuanced approach, an approach that grants much greater discretion to the jury. In the course of her careful analysis, Gentry clarifies the complex statistical issues that these cases raise and offers a promising alternative to current judicial practice.

Gentry begins by identifying the “attributable risk rate” as the most appropriate initial metric for measuring the chance that a doctor’s negligence made the patient worse off (P. 434). The meaning of that rate is best understood through examples. Suppose that at the time of the doctor’s negligence, the patient had a background (or “inevitable”) 60% risk of dying of cancer, which the doctor’s negligence increased to a 90% risk of death. The patient dies of cancer. Under the traditional preponderance test of factual cause, the doctor would not pay any damages, because it is more likely than not that the patient would have died even if the doctor had used due care. In this example, the “avoidable” ex ante risk—i.e. the risk of death that due care could have prevented—is 30%.

Gentry would compute the attributable risk that the doctor caused the death of this patient as 33%, because there was a 30/90 chance that the negligence caused the death. Thus, if a court rejects the traditional preponderance test and permits the award of proportional damages for the patient’s death, those damages should equal 33% of the full damages that would be awarded if the negligence of the doctor unquestionably was a factual cause of the death.

Gentry also gives the example of a doctor whose negligence decreases the patient’s chance of survival from 85% to 80%, and whose patient dies of the relevant disease (P. 434). If we convert these percentages into the mathematically equivalent risk of death, the doctor has increased that risk from 15% to 20%. Gentry then computes the attributable risk rate as 5/20, or 25%. In both this example and the prior example, Gentry’s computation of the size of the chance of survival that was “lost” deliberately ignores the ex ante risk that the patient would not die, because in both examples, it is known as of trial that the patient did die. Most scholars who have addressed this issue agree that, insofar as these probabilities are intended to provide the best ex post approximation of the chance that the doctor caused the death, this ratio method is the best method of computing the probabilities.2

But, Gentry argues, courts should not be satisfied with initial probability estimates. They should be very careful when employing this type of probabilistic statistical information, recognizing its limits as well as its value. Specifically, they should not automatically permit damages (even partial damages) simply because the attributable risk exceeds some specified threshold, such as 50% or 30% or 10%; nor should they automatically exclude damages (even full damages) simply because the attributable risk falls below some threshold.

Why should courts hesitate? Because, as Gentry points out, the statistical information typically offered by experts in LOC cases is group-based information from empirical studies, such as overall survival rates if cancer is diagnosed at Stage I, II, III or IV; but that information is sometimes a poor approximation of (a) the individual patient’s preexisting risk of suffering harm apart from the doctor’s negligence or (b) that patient’s amenability to cure if the doctor uses due care.

In a series of highly instructive tables and graphics, Gentry presents scenarios in which the group defined by an initial attributable risk rate (such as 30%) actually contains several distinct subgroups, some with a much higher risk rate, and others with a much lower one. These subgroups reflect individualized factors such as the patient’s demographic characteristics, medical history, lifestyle choices, and genetic endowments. And, she claims, if further evidence is available to distinguish which subgroup the patient is a member of, that patient might properly obtain either a full damage recovery, partial recovery (but not necessarily in proportion to the overall initial group risk rate), or no recovery.

Some of Gentry’s examples illustrate the danger that reliance on overly general statistical information will result in overcompensation of plaintiffs, by awarding full or partial damages even though more detailed patient-specific information might reveal a very strong likelihood that the patient was not made worse off by the doctor’s negligence. But using overly general statistical information can also undercompensate plaintiffs, because more specific ex post information sometimes indicates that the general statistical information understates the probability that defendant’s negligence caused the patient’s harm.3

What, then, is Gentry’s solution? She proposes that, instead of giving decisive weight to initial probability estimates based on readily available information, courts should undertake a two-step process. First, they should “personalize” the attributable risk information, adjusting it to make it as accurate as possible, in light of both the patient’s observable and unobservable4 characteristics.

Second, they should “operationalize” the information by determining whether the patient’s harm is “distinguishable.” It is distinguishable if ex-post evidence, acquired after the patient suffers harm, does demonstrate, or potentially can demonstrate, whether the patient’s harm was inevitable or instead avoidable; otherwise, it is indistinguishable. For example, available ex-post evidence might show that the patient’s tumor grew unusually quickly, or unusually slowly, relative to the population in the initial statistical study. The jury should, according to Gentry, adjust the attributable risk rate to reflect such evidence.

This innovative analysis holds the promise of achieving greater accuracy in determining whether the defendant’s negligence was the factual cause of the patient’s harm. The analysis is plausible in the abstract, but it does not resolve some questions. First, an important rationale for awarding partial damages in LOC cases is to avoid a recurring pocket of legal immunity from developing. If the inevitable risk of death is greater than 60%, for example, the traditional preponderance test cannot be satisfied, yet most courts have held that optimal deterrence and fairness support a damage award. Although Gentry’s proposed refinement of the probability analysis might further this rationale in some cases, it is not guaranteed to do so, because it gives no explicit weight to whether awarding partial damages will avoid a pocket of immunity.

Second, “distinguishability” of the harm is a key component of Gentry’s proposal, but distinguishability is a matter of degree.5 Thus, the inquiry into distinguishability will itself be costly to the parties and prone to error. A court that adopts the proposal might therefore need to rely on presumptions and bright-line rules in order to keep the two-stage inquiry manageable. However, if we complicate the current practice of using cruder statistics in LOC cases by adopting numerous refinements, it might be extremely difficult for experts to offer plausible probabilistic estimates of both the preexisting or “inevitable” risk of harm faced by the individual plaintiff and the additional “avoidable” risk that the defendant’s negligence created.

If that is correct, then courts might well be uncomfortable permitting any award of partial damages, because expert evidence for computing the proportion of damages that plaintiff should receive is lacking. The upshot? The jury would be left with the choice of awarding either full or no damages. Yet the desire to avoid that all-or-nothing choice has been a major impetus behind judicial recognition of LOC as a distinct legal doctrine.

A related question is when, under Gentry’s proposal, a partial damage award should be awarded for LOC. She endorses proportional damages in indistinguishable harm cases (P. 459), but she is doubtful that the jury can make reliable proportional damage calculations in distinguishable harm cases (P. 461). But if a large proportion of current LOC partial damage cases are characterized as distinguishable harm cases, then the partial damage remedy will become much less common, a result that might be to the disadvantage of injured patients.

Notwithstanding these lingering questions, Gentry’s article is a major contribution to the literature on LOC, properly emphasizing (as most courts have not) the importance of the question whether it is feasible to distinguish, based on ex post evidence, whether the harm to a patient was inevitable or was due to negligence. And more generally, she offers an illuminating framework for evaluating the ways in which statistical information can and should be used when the factfinder is considering whether the plaintiff has established legal causation. Medical malpractice is the only area of tort law in which most courts have been willing to make wide use of probabilistic statistical information in determining the causation and valuation of harm. As Gentry emphasizes, such information is likely to become easier to collect and aggregate in the future. It will become increasingly important for courts and scholars to develop justifiable and refined methods for using probabilistic information in fields outside of medical malpractice. (P. 422, 462.) The insights of Damned Causation will be invaluable as we explore these new horizons.

  1. Restatement Third, Torts: Medical Malpractice, § 8 (Council Draft No. 1, 2023); Restatement Third, Torts: Remedies, § 11 (Tentative Draft No. 2 (2023).
  2. However, almost all courts that have awarded partial damages in LOC cases have instead adopted a subtraction computation method. In the first example in the text, they would award 30% of the usual damages for death (=90% minus 60%), rather than 33%; and in the second example, they would award at most 5% of the usual damages (=85% minus 80%), rather than 25%. For an extensive discussion of the choice between these computation methods, concluding that the subtraction method frequently undercompensates plaintiffs and that the ratio method is almost always superior, see Kenneth W. Simons, Lost Chance of a Better Medical Outcome: New Tort, New Type of Compensable Injury, or New Causation Rule? __ DePaul L. Rev. __ (forthcoming), available at SSRN (Aug. 25, 2023).
  3. In a telling example, Gentry explains how statistical data can result in an implausible analysis of factual cause in the routine scenario of a speeding driver: “A recent study suggests that a 1% increase in speed results in an increased chance of crash of 2%. [Thus] a 50% increase in speed will lead to a 100% increase in harm rate)… [If] a driver … was going 90-mph in a 70-mph zone (roughly a 28.6% increase in speed), a reasonable jury may well find that the driver breached the standard of care; however, a jury would not be allowed to find that speeding caused an accident unless the driver was going 105-mph … in a 70-mph zone.” As Gentry explains, if the speed of the driver was less than 105 mph, the statistics by themselves suggest that the crash was probably not due to speeding. (At 105 mph, as compared to 70 mph, the driver has increased the risk of a crash by 100%, so it is equally probable that the crash was (a) avoidable, or due to speeding or (b) inevitable, i.e. it would have occurred even if the driver had not been speeding.) She concludes: “Intuitively, this seems over-restrictive, missing many cases in which a reasonable jury could find that the speeding caused the crash.” (P. 423.)Gentry is surely correct that a jury would be permitted to find factual cause and to award full damages in most scenarios in which a driver exceeded the speed limit by 20 mph, even if the defendant introduced the probabilistic evidence that she mentions. One potential explanation, consistent with Gentry’s analysis, is that when that speeding driver’s car harms a plaintiff, it is very likely that the driver was also negligent in some other way, such as failing to pay sufficient attention to his surroundings or failing to keep a safe distance from other drivers. Thus, even if the probabilistic evidence about the general effect of different degrees of speeding on crashes is statistically valid, that evidence is not decisive, because it does not reflect the likelihood that, when a crash occurs, the driver was negligent in some additional respect.
  4. Gentry does not fully clarify how she expects courts and juries to consider unobservable characteristics, such as genetic endowment. Perhaps she believes that the existence of such characteristics should simply cause these legal actors to give less weight to initial probability estimates; or perhaps, after the harm has been caused, it is sometimes feasible to identify such characteristics and thus to refine the relevant probabilities.
  5. Gentry states that the jury should rely on the following type of expert testimony: “First, what sort of individuating evidence, if any, is likely to be available to a member of the avoidable class? Second, does the evidence on the record constitute such evidence?” (P. 455; emphasis added). The italicized language makes this criterion difficult to apply.
Cite as: Kenneth W. Simons, Refining the Use of Probabilistic Evidence in Loss of a Chance Cases, JOTWELL (March 11, 2024) (reviewing Elissa Philip Gentry, Damned Causation, 51 Ariz. St. L.J. 419 (2022)), https://torts.jotwell.com/refining-the-use-of-probabilistic-evidence-in-loss-of-a-chance-cases/.

Colorblind? Constitutional? Tort?

Osagie K. Obasogie & Zachary Newman, Colorblind Constitutional Torts, 95 S. Cal. L. Rev. 1137 (2023).

Private causes of action for constitutional injuries are doctrinal eels. They slither freely among formal legal categories – variously creatures of constitutional law1 and tort;2 of federal jurisdiction3 and even conflict of laws.4 They have no agreed genus name; sometimes they are called Ku Klux Act claims; sometimes Enforcement Act claims; technically claims pursuant to 42 U.S.C. Section 1983 and conversationally constitutional tort.5 Because they swim in and out of jurisprudential silos, they elude critical analysis under any single legal lens, virtually demanding interdisciplinary consideration. In Colorblind Constitutional Torts, Osagie K. Obasogie and Zachary Newman rise to this challenge, using history, doctrine, corpus linguistics, and critical race theory to pin down constitutional tort and identify an as-yet undiscovered reason that this once-powerful tool of racial justice is falling short of its early promise.

Colorblind begins with a compact and opinionated overview of Section 1983 history, beginning in the antebellum period and moving to the twenty-first century. Obasogie and Newman establish that pre-war slave patrols in the Southern states mutated into a loose web of post-war private and public racial vigilantism driven by “militias, the Ku Klux Klan, and eventually (in some areas) what we now call ‘the police.’” (Pp. 1148-50.) The Reconstruction Amendments, they suggest, reflected Congressional recognition that the mere fact of emancipation was insufficient to produce meaningful liberty for formerly enslaved people. The Fourteenth Amendment was therefore a critical companion initiative, designed to “change structural and institutional relations between whites and African-Americans.” (P. 1146.)6

Because Congress did not trust federal courts to partner with them as change agents, lawmakers endowed themselves with vast power to legislate racially just structures and institutions. (P. 1152.) Consequently, when white “mobs” comprising private citizens and public officers loosed “terroristic violence” on Black Southerners, Congress used this authority to legislate a forceful remedy – 42 U.S.C. Section 1983. The authors contend, based on this history, that constitutional tort is inextricable from the Fourteenth Amendment’s “goal of racial equality,” and the production of “new anti-racist equality norms.” (Pp. 1151-52.) When the Supreme Court authorized Section 1983 actions against marauding police officers in Monroe v. Pape nearly a century later, it explicitly reiterated that Section 1983 was tied to the racial equity ambitions of the Fourteenth Amendment. (P. 1155.)

Like many policing scholars, Obasogie and Newman consider the Section 1983 jurisprudence that developed in the post-Monroe decades too police-friendly to do the civilian protection job for which it was designed.7 Unlike most policing scholars, Obasogie and Newman trace the demise of constitutional tort’s racial justice power to the 1989 case Graham v. Connor. Their scrutiny of this oft-slighted case is itself a signal contribution. It deepens a literature trained primarily on the Court’s doctrine of qualified immunity, which shields officer-defendants whose behavior violated no “clearly established” constitutional right. (P. 1143.)

In Graham, a Black North Carolinian sued local police officers who roughed him up for suspicious behavior after ridiculing his pleas for orange juice to offset a diabetic insulin reaction. Graham claimed that when the officers caused him “a broken foot, cuts on his wrists, a bruised forehead, and an injured shoulder” they violated his constitutional rights. (P. 1140.) The Supreme Court used the case to announce that all civil claims of police “excessive force” were thereafter to be pleaded as deprivations of Fourth Amendment rights, and were to be rejected if the officers’ behavior was “objectively reasonable.” (P. 1141.) Graham, the authors lament, effectively prohibited police misconduct claims grounded in Fourteenth Amendment rights to racial equality and substantive due process. It forced those claims into a police-friendly “reasonableness” rubric, thus “de-racializing and de-historicizing a vehicle for civil remediation that was created for the specific purpose of racial justice in light of the grave wrongs suffered by African-Americans for several centuries.” (P. 1186.)

Laudably, the authors do more than blame the Court for this result. They also conduct a corpus linguistics study and support their charge with empirical evidence. Specifically, they select 200 random federal court cases involving Section 1983 claims – half from the period between Monroe and Graham and half from the period between Graham and 2016. (P. 1173.) They code the cases for rhetorical variables associated with different theories of Section 1983, and their findings are instructive.

First, they find that after Graham, the uses of historical titles for Section 1983 (the Ku Klux Act or the Enforcement Act) dropped 29 percent, “highlight[ing] a waning interest in or commitment to acknowledging the original purpose and context of [these] causes of action.” (P. 1176.) Second, they find that after Graham, mentions of the Fourteenth Amendment in police misconduct cases dropped by 22 percent while mentions of the Fourth Amendment increased by 49 percent. This finding is unsurprising in light of the Court’s Graham directive, but the authors think it signifies more than lower court deference to precedent. Judicial rhetoric that distances constitutional tort from the Fourteenth Amendment, they contend, tells the public that constitutional tort litigation has little to do with racial justice at large and much to do with technically incompetent officers who misbehave for a variety of non-racial reasons. (P. 1176.) Finally, the authors find that while courts in the pre-Graham years occasionally identified the races of the civilian and officer litigants, those in the post-Graham years rarely did. Again, the authors infer that this rhetorical trend reflects a judicial assumption that race is irrelevant to police misconduct even when evidence in and out of court might suggest otherwise. (P. 1176.)

In all, the authors conclude that Graham has transformed Section 1983 into a technocratic mechanism that treats police systems as presumptively benign and officer misconduct as presumptively rare – a far cry from its origins as a democratic mechanism to forge just systems from a history of racial hostility. (P. 1201.) Ultimately, Obasogie and Newman make a poignant case that Graham is part of an ascendant colorblind constitutional ethos that obscures the existence of racialized power structures in order to functionally immunize them from legal scrutiny. (P. 1195-99.) If Section 1983 is to fulfill its original purpose, they urge, federal courts must revive a race-conscious approach to police wrongdoing and aspire to systemic reform. (P. 1207.) What that approach might entail on an operational level is not detailed. The authors seem to prefer a regime in which civilians could claim that police behavior considered “reasonable” under the Fourth Amendment was nevertheless a Fourteenth Amendment rupture (P. 1207) because it involved a race-based use of discretion or “shocked the conscience.”8

There is little reason for readers to doubt that the authors’ plea to rehistoricize and reracialize constitutional tort could improve its tenor, and lead to concrete doctrinal changes. But there is reason to doubt that this move alone – or even in conjunction with robust changes to qualified immunity – can produce the wholesale reckoning the authors seek. After all, the relevant body of law is known as constitutional tort for a reason. Tort law is fundamentally concerned with one-on-one wrongdoing and individualized dignitary vindication.9 Indeed, before Section 1983 existed, police wrongdoing was remedied exclusively through garden-variety tort causes of action.10 The authors miss an opportunity when they assume that centering individual officer wrongdoing in police misconduct litigation necessarily undermines the goal of racially just policing.

This public law skepticism about the smallness of private tort litigation is common but regrettable,11 and police accountability law shows why. Section 1983 is an uneasy hybrid of tort form, constitutional substance, and jurisdictional expedience precisely because the kind of racial toxicity it targets arises from a virulent public-private symbiosis. Racial implicit bias takes root in the cradle of private homes, matures in the monoculture of classrooms and playfields shaped by property covenants and discriminatory banking systems, and blooms on public streets surveilled by tax-funded officers who are acting out a hierarchy learned in infancy.12

Constitutional tort defies categorization because the problem it addresses defies categorization. Obasogie, Newman, and the many public law scholars who mourn the decline of Section 1983 regard it as a lost panacea for racialized police misconduct. They treat its revival as a necessary and sufficient response to unjust policing. And they make a forceful case that an ideal version of constitutional tort could push back on discriminatory policing systems. But when they write off suits focusing on individual officer behavior, they reveal a short-sightedness about the power of venerable torts like battery, false imprisonment, and intentional infliction of emotional distress – all capable of stigmatizing real officers who indulge real racial bias while in uniform.13 As Obasogie and Newman continue their excellent descriptive and prescriptive work on American policing, one hopes they will grapple with the role of private bias in unjust policing and the role of private law in eradicating it.

  1. See, e.g. Noah R. Feldman & Kathleen Sullivan, Constitutional Law 884 (2019).
  2. See, e.g., John C.P. Goldberg et al., Tort Law: Responsibilities and Redress 769 (2021).
  3. See, e.g. Richard H. Fallon et al., The Federal Courts and the Federal System 948 (2009).
  4. See, e.g., Herma Hill Kay et al., Conflict of Laws, Cases, Comments, and Questions 605 (2018).
  5. See Marshall Shapo, Monroe v. Pape: Constitutional Tort and the Frontiers Beyond, 60 Nw. U. L. Rev. 277 (1965).
  6. While this review accepts for the sake of argument the authors’ claim that the Reconstruction Amendments are anti-subordinating, that claim is, of course, contested. See, e.g., Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. Miami L. Rev. 9 (2002).
  7. See, e.g., Richard H. Fallon, Bidding Farewell to Constitutional Torts, 107 Calif. L. Rev. 993 (2019).
  8. See, e.g., Johnson v. Glick, 481 F.2d 1029 (2d Cir. 1973) (overruled by Graham v. Connor, 490 U.S. 386, 393 (1989)).
  9. See, e.g., John C.P. Goldberg & Benjamin Zipursky, Torts as Wrongs, 88 Tex. L. Rev. 917 (2010).
  10. See, e.g. Caleb Foote, Tort Remedies for Police Violations of Individual Rights, 39 Minn. L. Rev. 493 (1955).
  11. See, e.g., Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281 (1976).
  12. See, e.g., Steven O. Roberts & Michael T. Rizzo, The Psychology of American Racism, 76 Am. Psych. 475 (2021) (attributing the persistence of American racism to a symbiosis of individual psychology and at-large “sociocultural forces”).
  13. See, e.g., Samuel Beswick, Equality under Ordinary Law, __ Sup. Ct. L. Rev. __ (forthcoming, 2024), available at SSRN (Nov. 9, 2023) (comparing American constitutional tort with the use of “ordinary law” in other countries to curtail police misconduct).
Cite as: Cristina Tilley, Colorblind? Constitutional? Tort?, JOTWELL (February 7, 2024) (reviewing Osagie K. Obasogie & Zachary Newman, Colorblind Constitutional Torts, 95 S. Cal. L. Rev. 1137 (2023)), https://torts.jotwell.com/colorblind-constitutional-tort/.

The Rights That Come With Us to Court: No-Duty Rules for the Victims of Crime and Criminal Threats

Eugene Volokh, The Right to Defy Criminal Demands, 16 N.Y.U.J.L. Liberty 360 (2022).

If one party argues that another is guilty of negligence for breathing air, no court should allow that claim or defense. Why not? A court might say that breathing air is not negligent in the breach sense—it is reasonable to breathe (everyone does it) and, at least for now, its benefits outweigh its costs. Another way that a court could reject the breathing-air contention would be to say that the breathing party has “no duty” not to breathe.1 By saying that the party has no duty, the court would recognize an entitlement in the breather. When courts recognize that actors enjoy some entitlements in their daily lives, they cannot avoid deciding which entitlements come with the parties to court, when parties should have those entitlements, and with respect to whom they should apply.

In Professor Eugene Volokh’s important article, The Right to Defy Criminal Demands, Volokh makes the powerful claim that in both civil and criminal cases, courts implicitly do, and explicitly should, “protect defiance of criminal demands against legal liability even when such defiance can increase the risk that the criminal will harm third parties.” (P. 416.) The issue is one of principle. Volokh calls it a “right,” though in a Hohfeldian sense it may be a privilege/liberty or no-duty rule.

As fashioned by Volokh, the right would permit actors “to refuse to comply with [criminal] demands, without being held civilly or criminally liable for the consequences of this defiance and without losing important rights.” (P. 362.) The argument, with which I agree,2 is for certain liberties and dignitary interests to be protected by courts as a matter of law rather than subject to the vagaries of jury decision and comparative apportionment. (Pp. 368, 409.) In such cases, issues of principle and policy trump the usual tort-law concern of reducing risks of physical injury.

Volokh well illustrates the concern—the way in which courts themselves inadvertently translate criminal demands into legal restraints on crime victims. In one example, Volokh addresses a case in which a legally operating abortion clinic was firebombed by people who wanted to force the clinic to close. The clinic’s neighbors filed a public nuisance suit in which they prevailed against the clinic, because the criminal threats against the structure left neighbors fearful of future attack. In so holding, the court empowered the past and prospective arsonists, by their criminal threats, to force the clinic to pay significant costs, shut down, or relocate. (Pp. 363-64, 387.)

The same reasoning, Volokh notes, can empower people who criminally threaten any controversial business or enterprise, including churches, synagogues, mosques, and bookstores. (P. 364.) An Australian case well illustrates the point. In that case, the court refused a synagogue’s requested building permit because terrorists could target the building. (P. 388 n.85.) In translating terrorist threats against “Jewish communities around the world and in Australia” into legal limits on the threatened synagogue, the court became the terrorists’ actualizer and unwitting accomplice. As Volokh writes, if the law “arms our neighbors or the police with the right to stop our behavior when criminals so demand…, the law is arming criminals with an extra weapon against us.” (P. 369.)

Having clearly articulated the stakes—legal empowerment of criminal actors—Volokh unearths a wide range of civil and criminal contexts in which the right to defy is significant. For instance, in one negligence case, an abusive husband threatened to kill his wife. The wife’s aunt permitted her to stay at the aunt’s home even though the husband might attack. The husband did so, killing a person who was gardening in front of the house. When the decedent’s estate sued the aunt for negligent failure to warn of the danger, the court dismissed on the ground that the attack was “unforeseeable.” (Pp. 378-79.) But Volokh points out that the court could have invoked a more principled rationale for its no-liability holding. If the court had said that the aunt could not shelter her niece, or was required to provide constant warnings to others, the court would have empowered the husband’s threats to control the niece and aunt’s lives. (P. 416.)

Volokh does not deny that criminal threats may create real dangers. But he divides the response to that danger into two categories: the “immediate pragmatism approach” and the “right to defy criminal demands” approach. Under the first approach, courts focus on the ordinary norm of minimizing the foreseeable risks of harm, through which courts sometimes require actors to comply with wrongful commands. Under the second approach, courts focus on actors’ entitlement to defy criminal threats, rather than ask them to bow to unlawful demands. (P. 367.) As one court wrote in a case of domestic violence, “We reject the idea that victims are responsible for the violence they endure in the home, and we will not blame them for their otherwise reasonable actions simply because these actions foreseeably result in violence.” (Pp. 376-77.)

Volokh applies this right-to-defy principle to analogous claims in the criminal sphere with respect to the heckler’s veto, a duty to retreat, provocation as mitigation of defendant’s guilt, and more. The breadth of contexts Volokh identifies reveals the pervasive importance of the entitlement issue he raises.

Finally, Volokh addresses possible limits on the victim’s right to defy. These limits could be based on the independent wrongfulness of the victim’s behavior, the victim’s specific purpose to provoke, and the extent of the intrusion on the victim’s liberty. Volokh also distinguishes the right to defy from the legitimate precautions that parties must take against criminal misconduct. Most precautions don’t violate victims’ dignitary interests “because they don’t enlist the state on the side of the criminal threatener.” Requiring a company to have security features like a door lock would be one example. (P. 411.)

In a country in which crime is prevalent, Volokh’s proposed right to defy is one that courts and legislatures would be well-advised to adopt in some form. Surely the legal system, whether in civil or criminal actions, should not require the lawful to obey the lawless. When determining duties/entitlements courts must also look at principles and policies that inform which precautions ought (or ought not) be required in light of the conducts’ risks. If a reasonable person would fear posting a religiously inflammatory cartoon because of foreseeable risks of terrorist violence, a court might nevertheless recognize an actor’s right to defy terrorist demands by speaking freely, without the poster risking liability, or reducing the poster’s right to security from others. (P. 364 n.5.)

To embrace Volokh’s principle, courts must examine the relative importance of law’s many values, including its expressive value, as well as law’s accountability, deterrence and compensation functions. For example, in the gardener’s estate’s suit against the aunt who took in her threatened niece without warning others, what legal objectives are most important? Should the rule of law express the aunt’s freedom to associate with, and maintain the privacy of, her threatened niece—to say that the aunt has a right not to shape her conduct around the husband’s criminal threats (such that her risk-creating conduct was not wrongful)? Or is it more important to ensure that the innocent shooting-victim could have attempted to avoid physical injury, or once failing to do so, could access the aunt’s homeowners’ insurance to obtain compensation?

In many cases of threatened crime, an evaluation of principles and policies may well warrant recognition of a party’s legal entitlement—to file a police report even though the criminal said not to; to live in a first floor apartment while female regardless of gender-based vulnerability to rape; or to work in a convenience store at night despite the threat of robbery.3 Of course, when courts recognize an entitlement, rights holders will neither suffer from, nor possibly benefit from, partial assignments of fault in the remaining all-or-nothing claim.

Determining the proper scope of a right to defy is both vital and difficult. Criminal “demands” are sometimes not specific demands at all, as in the case of the legally operating abortion clinic, but rather generalized overhanging threats. Also, what constitutes “criminal” misconduct to trigger a full victim entitlement has raised issues in other tort doctrines that mandate all-or-nothing rules with respect to illegal conduct.4 Finally, the idea would be well served by further addressing the fact that even minor precautions, such as door locks, increase company’s costs based on future threats of crime. Explaining how to preserve these general precautions against threatened crime, even while recognizing a right to defy, needs greater elaboration.

The difficulty of defining such an entitlement is not exclusive to the right to defy context. Even in the simple case of an entitlement to breathe, courts have not recognized the entitlement at all times and in all circumstances. In Haydel v. Hercules Transp. Inc., 654 So.2d 418, 431 (La. Ct. App. 1995), for example, the defendant transport facility negligently released a cloud of anhydrous ammonia that approached the plaintiff’s nearby home. When plaintiff saw and smelled the chemicals, she “panicked,” feared for her life, and drove off the property. In her negligence action against the transport facility, a jury allocated 10% of the fault to the plaintiff on the basis that her choice to leave amidst the contamination exposed her to more chemicals, thereby exacerbating the harm. In upholding the jury’s assignment of plaintiff fault, the court, in effect, confined the plaintiff to her home while defendant’s chemicals infringed on her property—a sort of false imprisonment by the legal system.

Volokh’s article reminds us that before courts empower wrongdoers to constrain victim conduct, they should think carefully about whether the victims, instead, have some rights that came with them to court.

  1. The Third Restatement of Torts now recognizes “no-duty” rules for both plaintiffs and defendants. Restatement (Third) of Torts: Liability for Physical and Emotional Harm at §7(b) and §7 cmt. h. (Am. Law. Inst. 2010).
  2. Ellen M. Bublick, Citizen No-Duty Rules: Rape Victims and Comparative Fault, 99 Colum. L. Rev. 1413, 1416-18 (1999) (arguing that “citizens’ liberties should be recognized as an integral part of the freedoms that [tort liability] seeks to protect,” and specifically addressing negligence liability in civil cases of rape and other intentional torts, “particularly those torts involving acts or threats of physical violence which are malum in se.”)
  3. Ellen Bublick, Comparative Fault to the Limits, 56 Vand. L. Rev. 977, 980-81, 1026-29 (2003) (noting contexts in which fundamental values, and other principle and policy factors, limit the use of plaintiff conduct as comparative negligence).
  4. Nora Freeman Engstrom & Robert L. Rabin, Felons, Outlaws, and Tort’s Troubling Treatment of the “Wrongdoer” Plaintiff, 16 J. Tort L. 43 (2023).
Cite as: Ellen Bublick, The Rights That Come With Us to Court: No-Duty Rules for the Victims of Crime and Criminal Threats, JOTWELL (January 8, 2024) (reviewing Eugene Volokh, The Right to Defy Criminal Demands, 16 N.Y.U.J.L. Liberty 360 (2022)), https://torts.jotwell.com/the-rights-that-come-with-us-to-court-no-duty-rules-for-the-victims-of-crime-and-criminal-threats/.

Defamation by Hallucination

Eugene Volokh, Large Libel Models? Liability for AI Output, 3 J. Free Speech L. 489 (2023).

A.I. in the form of Large Language Models (LLMs) is altering the ways in which we work, learn, and live. Along with their many upsides, an already familiar downside of LLMs is their propensity to “hallucinate” – that is, respond to factual queries with predictions or guesses that are false yet proffered as true.1 And some of these hallucinations are not merely false but defamatory. For example, if one were to query an A.I. program: “Of which crimes has Professor X of ABC Law School been convicted?,” it might respond with a fabricated list of offenses. When defamatory hallucinations occur, who faces (or should face) liability, and on what terms? In Large Libel Models? Liability for AI Output Eugene Volokh lays out with great care a detailed roadmap for answering these questions.

Much of Professor Volokh’s article is devoted to considering and rejecting grounds for supposing that creators and operators of A.I. models enjoy blanket protection from defamation liability. First among these is an argument based on the tech industry’s best friend: Section 230 of the federal Communications Decency Act (“CDA 230”). As courts have interpreted it, this statute confers broad immunity on internet platforms for defamatory content created by third parties that they host or provide.2 As such, Volokh persuasively argues, CDA 230 will typically be of no help to A.I. companies, because, even if their models have been trained on third party texts, it is the programs, not a third party, that generates the defamatory content.

Volokh also defuses the suggestion that, because LLMs use predictive algorithms, and are designed for coherence rather than truth, readers will discount the accuracy of their output roughly in the way they would discount the validity of a document they know to have been created by monkeys using typewriters. While early LLM technology perhaps was expected to spit out a lot of nonsense, current versions are taking the world by storm precisely because they are increasingly reliable and have come to be seen as such. As Volokh points out, the mere fact that A.I. users are aware of the possibility of hallucinations does not distinguish them from newspaper readers who are aware that papers sometimes publish false stories. Both are entitled presumptively to treat a given item as factual. Relatedly, under extant law, the presence in an A.I. terms of use of a disclaimer that directs users to verify independently the accuracy of its outputs will not defeat liability if, given the context, a reasonable reader would believe the information being offered is factual.

Others have suggested that the treatment of A.I. under copyright law generates an argument against defamation liability. If one maintains, as some courts have held, that A.I.-generated works are not copyrightable by program creators or users, then it might seem to follow that these same entities cannot be deemed “publishers” of A.I. generated defamatory content. (In defamation law, a “publisher” is, roughly, anyone who communicates a defamatory statement about person P to at least one person other than P.)  But this conclusion doesn’t follow. The question of who can claim to own a creative work is different from the question of who is responsible for the circulation of a statement. As Volokh aptly observes, it has never been the case that the publisher of a libelous statement can avoid liability simply by establishing that the statement is not eligible for copyright protection.

Volokh next considers these issues at a more granular doctrinal level. One bit of good news for companies that create or operate LLMs, he maintains, is that courts are not likely to deem N.Y. Times v. Sullivan’s actual malice requirement met simply because the company deployed a program while aware that it will occasionally generate falsehoods. But, as Volokh also notes, even this protective cloak has limits. For example, if a public figure who claims to have been defamed by an A.I. model notifies the creator or operator of the hallucination and provides compelling evidence of falsity – and if the company can alter the model’s weights to fix the problem yet does nothing in the face of such evidence – a jury probably would be entitled to find actual malice.

Meanwhile, under Gertz v. Robert Welch, Inc., private figures suing for a statement on a matter of public concern and who can prove actual injury need only establish negligence to prevail on their defamation claims. Of course, if public figures can prevail in cases in which an A.I. company has been apprised of false and defamatory program output, then, a fortiori, so can these plaintiffs. Because of Gertz’s relaxation of the actual malice rule, moreover, some private figures might be able to prevail even when the defendant was not provided with specific information apprising it of the falsehood of the statement. Analogizing to cases of manufacturers selling negligently or defectively designed products that physically injure consumers, Volokh suggests, for example, that defamation liability might attach if the victim of an A.I.-generated libel proves negligence in the design or operation of the program (such as an unreasonable failure to include a technologically viable self-correcting function).

Given his conclusion that there are meaningful prospects of defamation liability in the A.I. domain, Volokh is moved to consider whether extant law ought to be changed in light of one or more of several concerns: that this liability will be crushing; that it will cause A.I. creators and operators to change their programs in ways that make them less useful; or that it will disadvantage new entrants relative to established entities that can better absorb the cost. Here the main possibility he entertains is the establishment of a new qualified privilege, expanding out from the privilege that many jurisdictions apply to reports of suspected child abuse, that would protect from liability anyone who makes a good faith effort to provide what is understood by recipients to be preliminary information that requires further verification before being acted upon. Although avowedly “not a cheerleader for the American tort liability system” (P. 539), Volokh rejects this envisioned privilege as overly broad and out of sync with an important reality: recipients of A.I.-generated information often will not treat it with the circumspection with which officials are expected to treat an uncorroborated allegation of child abuse.3

As the foregoing synopsis I hope demonstrates, Large Libel Models provides a very valuable service in charting out, at the dawn of the A.I. era, the terms on which defamation claims for A.I. hallucinations are likely to play out. As such, it is a must-read for practitioners and scholars working in these areas. For the most part, I find its analysis persuasive, particularly its bottom-line assessment that companies that provide A.I. using LLMs are substantially more vulnerable to defamation liability than are traditional internet platforms such as Google. I would suggest, however that the prospects for liability are in some ways less grim than Professor Volokh supposes, and will offer a different perspective on how disturbed we ought to be about the prospect of significant liability.

On the first point, much will depend on the defamation scenarios that actually occur with any frequency in the real world. A private-figure plaintiff who can prove that their job application was turned down because their prospective employer’s A.I. query generated a defamatory hallucination about them would seem to have a strong claim. By contrast, suppose that P (also a private figure) learns from their friend F that a certain query about P will generate a hallucination that is defamatory of P, but also that P does not know who among their friends, neighbors, and co-workers (if any) have seen the hallucination. It seems likely that P will face an uphill battle establishing liability or recovering meaningful compensation. Even assuming P can prove that the program’s creator or operator was at fault (assuming a fault standard applies), P is likely to face significant challenges proving causation and damages, particularly given modern courts’ inclination to cabin juror discretion on these issues.4 I suspect this is especially likely to be the case if the program includes – as many programs now do – a prominent disclaimer that advises users independently to verify program-generated information before relying on it. While, as noted, disclaimers do not defeat liability outright, they might well render judges (and some juries) skeptical in particular cases about causation and damages.

Apart from doctrine, one must also take account of realpolitik, as Volokh recognizes. Back in 1995, it took only a whiff of possible internet service provider liability for the tech industry to get Congress to enact CDA 230. And Volokh tells us that A.I. is already a $30 billion dollar business (P. 540). If, as seems to be the case, the political and economic stars favoring the protection of tech are still aligned, legislation limiting or defeating liability for A.I. defamation could well be on the horizon, particularly in the wake of a few court decisions imposing or even portending significant liability.

The foregoing prediction rests not only on an assessment of the tech industry’s political clout, but also on a read of our legal-political culture. For most of the twentieth century, courts and legislatures displayed marked hostility to immunity from tort liability. (Witness the celebrated abrogation of charitable and intrafamilial immunities.) Today, by contrast, courts and legislatures seem quite comfortable with the idea of immunizing actors from liability in the name of putative greater goods. Nowhere is this trend more evident than in their expansive application of CDA 230. While Professor Volokh worries about the prospect of ‘too much’ A.I. defamation liability, the more reasonable fear may be too little. Indeed, it would seem to be a bit of good news that extant tort law, if applied faithfully by the courts, stands ready to enable at least some victims of defamatory A.I. hallucinations to hold accountable those who have defamed them.

  1. For example, when ChatGPT is asked to describe work being done in an academic field, it sometimes includes fictitious citations based on its prediction that the cited pieces ‘ought to’ exist. Joy Buchanan & Olga Shapoval, GPT-3.5 Hallucinates Nonexistent Citations: Evidence from Economics (June 3, 2023) available at SSRN.
  2. The soundness of this interpretation is questionable. John C.P. Goldberg & Benjamin C. Zipursky, Recognizing Wrongs 319-37 (2020).
  3. The article concludes by briefly considering when the operation of A.I. might generate liability for other torts, such as invasion of privacy or aiding another’s wrongful injuring of a third party. As to the latter, it observes that there is an interesting question as to whether the law should protect A.I. companies with something like the learned intermediary doctrine for any A.I. provided to professionals specifically for their use (e.g., to radiologists to help them interpret MRI results).
  4. Robert D. Sack, Sack on Defamation: Libel, Slander and Related Problems §10:5:2, at 10-44 (4th ed. 2010) (discussing increasing willingness of courts to second-guess jury awards of damages); Restatement (Third) of Torts: Defamation and Privacy § 1, cmt. d (Prelim. Draft No. 3, Mar. 2023) (proposing to replace the traditional rule of presumed damages – according to which certain defamation plaintiffs who do not offer specific evidence of reputational harm can nonetheless receive a compensatory damages award set by a jury – with a new rule that would entitle such plaintiffs only to nominal damages awards).
Cite as: John C.P. Goldberg, Defamation by Hallucination, JOTWELL (November 14, 2023) (reviewing Eugene Volokh, Large Libel Models? Liability for AI Output, 3 J. Free Speech L. 489 (2023)), https://torts.jotwell.com/defamation-by-hallucination/.

Just Unjust Enrichment

Maytal Gilboa, Yotam Kaplan & Roee Sarel, Climate Change as Unjust Enrichment, __ Geo. L.J. __ (forthcoming), available at SSRN (July 6, 2023).

When considering the essence of law, it becomes evident that its fundamental purpose is to safeguard our safety and well-being. However, amidst the many challenges facing humanity, the law has fallen short in shielding us from one of the gravest threats to our lives and way of life – climate change. In a new thought-provoking piece, Climate Change as Unjust Enrichment, Maytal Gilboa, Yotam Kaplan, and Roee Sarel (hereafter referred to as GKS) offer a glimmer of hope. Where international treaties, regulations, and tort law have faltered, GKS propose harnessing the oft-forgotten doctrine of unjust enrichment as a means to rescue us from the dire consequences of climate change.

Climate change, aptly dubbed the “super wicked” problem, presents an overwhelming challenge. Its impacts include severe food crises, water scarcity, rampant infections, increased rainfall and flooding, and escalated violence, among other dire consequences. Moreover, the complex nature of climate change’s harms, distributed across vast populations and with long-term effects, poses formidable barriers to effective intervention.

Why does humanity persist on this perilous course? GKS’s answer to this question lies in a twofold reality. Firstly, powerful commercial actors reap immense benefits from activities contributing to climate change. Secondly, existing legal frameworks have proven inadequate in curbing their actions. GKS propose employing the law of unjust enrichment to ensure that polluting ceases to be a profitable endeavor.

Climate stability, the antithesis of climate change, represents a public good. However, markets tend to under-supply public goods, necessitating public authorities’ intervention to safeguard the collective interest. Measures at the national and international levels may include enforcement through criminal law, subsidizing private litigation, imposing production taxes, or directly regulating polluters’ actions. In their paper, GKS shed light on the failures of international efforts, country-level regulations, and, disappointingly — for me at least as a tort scholar — tort law in combatting climate change.

Let us start at the international level. Despite numerous attempts since the 1972 world conference on the environment, including the 1997 Kyoto Protocols, the 2016 Paris Agreement, and the 2021 Glasgo Climate Pact, the international community has failed to reach consensus and devise an effective legal and policy response to the climate crisis.

Domestic regulations have not fared well either. The Environmental Protection Agency’s efforts to reduce greenhouse gas emissions in the United States have proven insufficient to fulfill the nation’s climate obligations. Public choice theory explains the limitations of national regulatory frameworks, because the pursuit of individual welfare often clashes with optimal policies due to interference from private interest groups. Additionally, future generations lack political representation, leading to a regulatory preference for permitting immediate gains over avoiding future harms.

We are left with tort law, which on the surface may seem a suitable framework for climate litigation, enabling those harmed by climate change to sue the responsible parties. However, tort law also has its complexities. Polluters contributing significantly to global warming may not necessarily breach specific legal duties or regulatory standards. Moreover, tort liability requires proof of harm and causation, a daunting task when climate change’s effects result from the combined actions of multiple actors, spread over large populations, and extended into the distant future.

Sadly, even when scientists generally agree that manufacturing activities contribute to global warming, pinpointing the exact contribution of each emitter to the global processes remains challenging. Proposals for more relaxed theories of causation in climate litigation have faced controversy among tort scholars. One of these proposals, put forward by Ronen Perry and Yehuda Adar, was reviewed here last year.

Given the failures of international treaties, regulations, and tort law, can the law still shield us from climate change? GKS assert that unjust enrichment may hold the key to the solution. The core insight is straightforward: while the harms of global warming are future and abstract, profits from polluting activities exist in the present and are easier to identify and quantify. Therefore, utilizing the doctrine of unjust enrichment, society must develop legal tools to ensure that contributing to global warming ceases to be a profitable venture.

To apply the unjust enrichment doctrine, plaintiffs need to demonstrate (1) a benefit, (2) that this benefit is unjust, and (3) that it was obtained at their expense.

GKS illustrate that in some restitutionary claims, a defendant’s enrichment can be deemed “unjust” when acquired through wrongdoing, such as securities fraud, patent or copyright infringements, breach of contract, or criminal acts. In the context of climate change, GKS outline three categories of cases where polluters’ wrongdoing can give rise to an unjust enrichment claim: violation of environmental regulations, environmentally unreasonable conduct constituting a tort of gross negligence, and malicious circumvention of regulatory efforts or deceptive practices.

But recall that a major deficiency of tort law is its impotence in cases where defendants commit no wrong. Perhaps the biggest contribution by GKS is their attempt to tackle these situations. GKS provide doctrinal and theoretical explanations that justify liability in unjust enrichment even when no duty has been breached, but the defendant gains an undeserved windfall.1

GKS propose that a defendant’s enrichment be considered unjust, even without wrongdoing, under specific conditions that collectively signify disproportional enrichment through polluting activities: (1) the defendant significantly contributes to climate change, (2) the activity is highly profitable, and (3) the defendant benefits disproportionately more than others from this activity, meaning that the overall gains of the activity are disproportionately concentrated with the defendant.

This proposition raises intriguing possibilities, and one hopes that GKS will apply their framework to real-life scenarios, particularly existing case law, in future research. Among other things, I think more work is needed about how to identify which polluters must disgorge profits and how to quantify what they must disgorge. Moreover, GKS use as their prime example oil companies making enormous profits and emphasize the need to deter their conduct, thus treating them as wrongdoers; but this is too easy, at least as compared to GKS’s bolder argument that even if no wrong is committed, unjust gains should be disgorged. Indeed, the implications of the latter argument are quite dramatic. Should all manufacturers of nonelectric cars have to disgorge their profits? All companies that facilitate the consumption of meat? All airlines?

In the concluding segment of their paper, GKS explore potential plaintiffs for these unjust enrichment claims. Private plaintiffs, including neighbors of major polluters, can file individual or even aggregate claims, with a significant portion of awarded damages allocated toward environmental protection goals. This not only ensures justice but also deters defendants from contributing to global warming. Alternatively, public plaintiffs, such as state attorneys (historically using unjust enrichment claims for the public good) and NGOs advocating for the public interest or the environment itself, can also bring such claims. In some countries such as New Zealand, India or Ecuador, legal standing for natural resources as legal entities has emerged, further expanding the avenues for seeking justice.

In sum, GKS are not the first ones to offer the use of unjust enrichment to combat climate change, but they make an important contribution to the literature by rigorously demonstrating the application of the principle to climate litigation. To me at least this seems like a just application of unjust enrichment.

  1. Though some general harm may need to be shown to meet the “injustice” requirement, the core of the unjust enrichment doctrine lies in demonstrating the defendant’s disproportionate benefit from the activity.
Cite as: Ronen Avraham, Just Unjust Enrichment, JOTWELL (October 24, 2023) (reviewing Maytal Gilboa, Yotam Kaplan & Roee Sarel, Climate Change as Unjust Enrichment, __ Geo. L.J. __ (forthcoming), available at SSRN (July 6, 2023)), https://torts.jotwell.com/just-unjust-enrichment/.

Shifting the Paradigm in Private Law Theory

David Blankfein-Tabachnick & Kevin A. Kordana, On Rawlsian Contractualism and the Private Law, 108 Va. L. Rev. 1657 (2022).

In On Rawlsian Contractualism and the Private Law, David Blankfein-Tabachnick and Kevin Kordana, Professors at Michigan State and Virginia Law Schools, respectively, argue that we are witnessing a fundamental shift in the way that legal scholars think about private law. “[N]ot long ago,” they tell us, “the values taken to govern the private law were thought to be distinct from the values governing taxation and transfer. . .. The conventional, indeed, the nearly universal view of Rawlsianism—the overwhelmingly dominant theory of liberalism and distributive justice—was that the private law lies beyond the scope of Rawls’s two principles of justice.” (P. 1657.) Now, private law scholars—in tort, but also in contract—are coming to think that these bodies of law are parts of what Rawls called “the basic structure of society.” Or so Blankfein-Tabachnick and Kordana argue, citing to, and drawing upon, the work of a dozen or so legal scholars, themselves (and myself) included.

Their paper makes an important contribution because the shift that they spot and argue for promises to reorient private law theory in a valuable way. Insisting on the “privateness” of private law threatens to trivialize fundamental legal fields. Blankfein-Tabachnick and Kordana are quite right to insist that contract, property, and tort engage fundamental questions of power and justice and that theories of private law must engage these questions. And turning private law theory in this direction might breed fruitful interaction with very different kinds of tort scholarship, such as the “social justice tort theory,” championed by Martha Chamallas and Sarah Swan. That scholarship, too, insists that tort law articulates basic terms of social interaction and therefore does (or fails to do) “social justice.”1

Blankfein-Tabachnick and Kordana’s article is especially relevant to tort scholarship because tort is the private law field where some (though not all) theoretically inclined legal scholars have been most adamantly committed to the separation of their subject from basic principles of justice. “[P]rivate law,” Ernest Weinrib once remarked, is “just like love.” “Explaining love in terms of extrinsic ends is necessarily a mistake because love does not shine in our lives with the borrowed light of an extrinsic end. Love is its own end . . . in this respect, private law is just like love.”2 Strikingly, this separation of private law (preeminently, tort law) from basic justice has been one of the few points of agreement between corrective justice theorists and economists. In influential articles and an important book, Louis Kaplow and Steve Shavell argued “that the private law should be sanitized of egalitarian or equity-oriented values. The . . . idea was that any desired egalitarian moves could be achieved more efficiently through systems of income taxation and transfer than through any egalitarian alterations in private law rules.” (P. 1658.)

Private law should maximize wealth and leave equity to the tax system. Tort, for example, should pursue optimal accident avoidance and insurance and leave everything else aside. This division of labor between tort and taxation is, they argue, the institutional recipe for promoting human welfare as well as possible.

For the past forty years or so, it has seemed clear to theorists of private law that private law is distinct from the basic structure of society governed by Rawls’s principles of equal basic liberties, equal opportunity, and the difference principle. Directly applying Rawls’ difference principle to tort damages, for instance, would be a poor way of pursuing either distributive or corrective justice. Tort law, surely, must operate by its own special principles of responsibility and repair.

Lately, though, this consensus has been breaking down. Private law scholars have begun to rethink the matter. In part, to put matters in my own words, this rethinking is a reaction to the threat of trivialization implicit in the view that tort law is thoroughly “private.” Tort lawsuits begin to look like something of importance only to the parties. But this seems wrong. Private law plays a fundamental role in our social life. It governs the relations and interactions among persons in civil society as they go about pursuing the aims and aspirations that give their lives meaning. Tort—or some New Zealand style replacement for it—is a fundamental and necessary institution.

People need to have their urgent interests protected from interference and impairment at each other’s hands. Without some such protection, we would not really have left the state of nature. In the view of the authors, tort is, in Rawlsian terms, “one of the . . . institutions that materially affect citizens’ life prospects, such as basic constitutional liberties, security of the person, the system of taxation and transfer, schooling, and fiscal policy.” (Pp.1659-60.) It is part of “the basic structure of society.” (id.) Upon reflection, this contrary truth also seems plainly correct. Property, tort, and contract were, for instance, fundamental building blocks of the laissez-faire economy of the late nineteenth century.

We are, then, in a puzzling situation. On the one hand, Rawls’s principles of justice don’t apply directly to private law. We can’t, say, use the difference principle to determine who should win tort lawsuits, or to calculate damage awards. On the other hand, we can’t just say that it does not matter if standard ways of computing tort damages reproduce and reinforce historic discrimination along race and gender lines. Tort law must work in ways that are congruent with our fundamental commitments of justice. It should not subvert them.

In On Rawlsian Contractualism and the Private Law, the authors tackle this conundrum. They entertain three possibilities: (1) strong distributivism; (2) weak distributivism; and (3) incompleteness. Strong distributivism holds “that the private law ‘should be designed solely to serve the distributive purposes of the difference principle.’” (P. 1663, quoting Scheffler.3) Following the lead of philosopher Samuel Scheffler (from whom they take the three possibilities), Blankfein-Tabachnick and Kordana reject this view. It is incompatible with the priority of equal basic liberties and equality of opportunity. Weak distributivism calls for a conception of private law that avoids “worsening the economic position of the least favoured members of society.” (P. 1664.) Incompleteness holds that there are “aspects of a sufficiently satisfactory private law, and perhaps criminal law, that are just not about distributive justice.” (P. 1667.) For Blankfein-Tabachnick & Kordana, the contest is between these latter two views, and the subordinate questions that they raise—whether, for instance, the difference principle is a principle of reciprocity or a maximizing principle.

On Rawlsian Contractualism and the Private Law’s discussion of these matters is rich and sophisticated, although understandably abstract. Even better, the article opens up important new avenues of thought for thinking concretely about issues in the law of torts. The physical and psychological integrity of the person, for example, is a fundamental concern of both Rawlsian justice and tort. Fundamental questions in tort law directly raise questions of justice that are both basic, and distinctive to the legal field.

Whether product accidents should be controlled by contract law or tort law, and what duties owners of real property owe to entrants on their land, are two cases in point. To choose contract over tort to govern product-related risks of physical harm may jeopardize the safety of those who can only bring to bear relatively limited purchasing and bargaining power. Preferring contract to tort may also undervalue the urgency of our interest in the physical integrity of our persons and overvalue our interest in tailoring our product purchases to our tastes. In the context of landowner liability, to prefer the old regime of the status categories over the new regime with its default duty of reasonable care may overvalue our interest in the free use of our real property and undervalue our interest in the safety of our persons.

In a similar vein, to leave our privacy wholly unprotected may deprive us of one of the conditions essential to our psychological development as beings whose sense of self is not wholly exhausted by our presentations of ourselves to others. To deny any protection to our emotional integrity is to leave an interest as urgent as the physical integrity that tort law has long taken seriously utterly undefended. Because security against various forms of unacceptable interference by others is an essential institutional condition for us to be able to pursue our conceptions of the good as we see fit, tort is both an important institution and one that addresses distinctive questions of basic justice. And, as I noted at the outset of this jot, recognizing that private law engages fundamental questions of justice opens up the possibility of connecting philosophically sophisticated work on the normative content of private law with various forms of “critical” scholarship that emphasize the ways in which private law all too often works injustices.

Most of this work, to be sure, has yet to be done. The “paradigm shift” that Blankfein-Tabachnick & Kordana discern is an incipient one. But, as they rightly assert and argue, the change of mind about the relation of tort law (and contract law) to basic justice is real and important. It holds out the promise of revitalizing private law theory and scholarship by reconnecting them with urgent questions of right and responsibility. Blankfein-Tabachnick & Kordana have spent a number of years crying in the wilderness.4 Now, they have caught the academy’s attention, and for good reason.

  1. See, e.g., Martha Chamallas, Social Justice Tort Theory, 14 J. Tort L. 309, 332 (2021); Sarah L. Swan, Tort Law and Feminism, in Oxford Handbook on Feminism and Law in the U.S. 651 (2022).
  2. Ernest Weinrib, The Idea of Private Law 6 (2012).
  3. Samuel Scheffler, Distributive Justice, the Basic Structure and the Place of Private Law, 35 Oxford J. Legal Stud. 213, 222 (2015).
  4. See, e.g., David Blankfein-Tabachnick & Kevin A. Kordana, Kaplow and Shavell and the Priority of Income Taxation and Transfer, 69 Hastings L.J. 1 (2017); Kevin A. Kordana & David H. Tabachnick, Taxation, the Private Law, and Distributive Justice, 23 Soc. Phil. & Pol’y 142, 163 (2006); Kevin A. Kordana & David H. Tabachnick, On Belling the Cat: Rawls and Tort as Corrective Justice, 92 Va. L. Rev. 1279, 1291–92 (2006).
Cite as: Gregory Keating, Shifting the Paradigm in Private Law Theory, JOTWELL (September 29, 2023) (reviewing David Blankfein-Tabachnick & Kevin A. Kordana, On Rawlsian Contractualism and the Private Law, 108 Va. L. Rev. 1657 (2022)), https://torts.jotwell.com/shifting-the-paradigm-in-private-law-theory/.

What If a Moral Theory of Tort Requires Deterrence?

Gregory Keating, Irreparable Injury and the Limits of the Law of Torts in 2 Oxford Studies in Private Legal Theory 185 (Paul B. Miller & John Oberdiek eds. 2023), available at SSRN (Dec. 8, 2022).

Gregory Keating’s absorbing and insightful new article, “Irreparable Injury and the Limits of the Law of Torts,” surveys familiar territory from a distinctive vantage. As he does in his recent book, Reasonableness and Risk, Keating invites us to reconsider the fundamentals of what tort law is for and what reasonable care looks like. In this paper, he presents these questions through a central motivating problem: reparation is one of the central goals of tort (some would say its only goal), but in many cases, “tort reparation is not fully up to its assigned task.” (P. 1.) In particular, serious physical injury and death are two harms that tortious wrongdoing may inflict but the tort system cannot repair.

Keating argues that this problem finds its clearest expression in cases of premature death. (P. 3.) He observes that common-law tort failed to address the death of plaintiffs at all, and to the extent that tort suits address it today, they do so through statutory survival and wrongful death actions. (Pp. 4-5.) Even then, generally speaking, neither action compensates for the specific harm that occupies Keating: the harm of no longer being alive. Survival and wrongful death actions may account for financial resources lost on account of tortious premature death, and loved ones may receive recompense for their own emotional harms, but hedonic damages—damages for pain and suffering or loss of enjoyment of life—are generally available only for the period in which an injured plaintiff was alive. They are not typically awarded to the dead. (P. 5.)

Keating’s broad point here—that tort law cannot fully repair certain types of harms—is familiar from the literature on incommensurability and corrective justice. But here Keating builds upon his prior work on irreparable injury to pursue the issue in a specific direction. By homing in on tortious killings, Keating suggests that the problem is not just that tort law’s remedies do not succeed in redressing harms that are incommensurable with money, but that for some types of harm, arguably the worst types, tort does not even attempt to offer redress. Seemingly by design, the tort system “is intrinsically incomplete.” (P. 3.)

Some might leverage this acknowledgment as a critique of corrective justice theories. Some might further use it to argue that any plausible tort theory must incorporate deterrence: after all, if tort cannot adequately repair certain types of devastating harm, perhaps it ought to try to prevent them in the first place. Keating takes a different tack. He does note that irreparable injury is a problem for corrective justice accounts. At the same time, however, he views it as a major problem for deterrence, at least as that value manifests in standard economic conceptions of tort. (P. 3.) Citing Richard Posner, Keating observes that deterrence is only achieved if damage awards fully reflect the costs of accidents. (P. 3.) They clearly do not do so, Keating argues, in cases of tortious death or serious physical harm. Tort is thus “a flawed price system,” the deterrent power of which diminishes precisely where potential victims need it most. (P. 4.)

Keating thus maintains that the incompleteness problem poses grave difficulties both for corrective justice theories and efficient deterrence theories. More affirmatively, he argues that the problem of irreparable injury should cause us to turn our attention to one specific element of negligence claims: the standard of care.

The failure of tort to address irreparable injury, Keating argues, indeed signals the need for deterrence—for preventing irreparable injury in the first place. Keating thus maintains that deterrence is an important component of the law’s approach to serious injury: a law of reparation alone is not enough. (P. 6.) Notably, however, he embraces deterrence for deontological rather than economic reasons. He argues that physical safety “is a kind of Rawlsian primary good,” because harm to it “impair[s] our basic powers of agency.” (P. 6.) Because physical safety is a primary good, harms to it are different in kind from other harms, such as financial loss. Given the importance of physical safety, avoidance of physical harm is of higher priority than deterrence of other harms.

Higher priority for avoidance of physical harm leads Keating to argue that the traditional economic conceptualization of deterrence as efficiency is incorrect. Defining the appropriate standard of care in cost-benefit terms does not recognize the priority of physical safety. When the question is whether to spend a bit more or impose risk of severe physical harm on others, Keating argues, the cost-efficient decision is often the wrong one as a moral matter. (Pp. 8-9.)

To provide alternatives to the Posnerian conception of negligence, Keating draws on two standards found in regulatory law: the “safe-level” standard and the “feasibility” standard. Both, he says, are alternative standards of care that better reflect the priority of avoiding physical harm.

The safe-level standard requires risk to be reduced to the point where no “significant risk” of devastating injury exists. (P. 12.) As an example, Keating points to the Food Quality Protection Act of 1996, which requires pesticide residue to be reduced to a “safe” level, i.e., where “there is a reasonable certainty that no harm will result from aggregate exposure” to pesticide residue (P. 12.) The feasibility standard, meanwhile, requires that risk be reduced as much as possible consistent with the long-run continuation of an activity. Keating draws from the Occupational Health and Safety Act and the Clean Air Act to offer examples of standards that essentially require risk reduction to the maximum feasible degree. (P. 13.) Looking outside the law, Keating sees something like a feasibility standard in social attitudes toward rescue: “Money seems no object when miners are trapped in a mine, or when children are trapped in a burning building,” even though “[f]rom an economic perspective this seems foolish and extravagant.” (P. 16.)

Keating argues that both safe-level and feasibility standards stand in stark contrast to the dominant economic approach to deterrence, which equates cost-efficient care with legally adequate care. He believes cost-benefit analysis may provide the correct standard in some cases—for example, those involving exclusively financial and property-based harms, which can appropriately trade off against each other—but should not define care across the board. Avoidance of certain severe and irreparable harms deserves priority and thus requires a higher standard of care.

Irreparable Injury and the Limits of Tort revisits familiar problems from within tort theory with Keating’s own distinctive approach. On a theoretical level, he sets forth a deontological theory that insists upon deterrence as a core value but rejects typical economic conceptions of deterrence as morally inapposite. He offers a deontological approach that encompasses both reparation and deterrence, while acknowledging tort’s inadequacies on both counts. He sees the inadequacy of reparation as inescapable—which makes it all the more important to reconceptualize deterrence to protect better against irreparable injury.

The piece also places Keating’s theoretical argument within the context of existing law, where he finds fewer resonances within tort than within regulation. Keating’s choice to bring regulatory standards into conversation with tort theory has striking implications. One is that tort theory perhaps does not have a monopoly on how to conceptualize its core values—that, as the article’s title suggests, tort has limits.

The piece also suggests an implication for regulatory law: that increasing allegiance to cost-benefit analysis within administrative agencies is moving in exactly the wrong direction. Higher regulatory standards of care should supplant tort’s commitment to deterrence as efficiency, not vice versa. (Pp. 7-8.) Keating contends that “acting efficiently is not rationality incarnate,” and “[e]fficiency is one value among many.” (P. 8.) He argues that philosophical and political liberalism’s commitment to value pluralism makes physical safety a better candidate for priority than efficiency—at the least, it casts grave doubt on assertions that efficiency is a “master value for all law and public policy” and cost-benefit analysis “the only game in town.” (P. 10.)

Keating recognizes work on irreparable injury from different specialties and methodologies, including my colleague Doug Laycock’s writing on the concept within remedies jurisprudence and Mark Geistfeld’s economic analysis of it within tort law. Geistfeld is especially apt, and Keating is in conversation with him in the notes of this piece: working from an economic perspective, Geistfeld argues that the inadequacy of tort remedies compels us to reevaluate the substantive standards imposed by tort duties. (Geistfeld, too, takes issue with dominant economic and corrective accounts on this basis.) It would be enlightening to see more direct conversation with other approaches in the main text. It is striking that consideration of the problem of irreparable injury can generate relatively convergent insights from radically different methodological starting points, and I am interested in what further reflection would yield.

I am also curious about how Keating would approach irreparable injury that does not involve the physical integrity of persons—for example, irrevocable alterations to or losses of real or personal property. Some other accounts of irreparable injury address such harms, but the special priority Keating gives to avoidance of physical injury and death leaves them in an uncertain position within his account. Elaboration would be especially welcome given Keating’s analogies to administrative regulation, where rules might protect not only human physical health and safety but also special features of the natural environment, or the continued existence of other species, or other goods that are difficult to quantify and impossible to restore once they are lost.

In debates about deontological and consequentialist theories of tort, the clash between single-value theories—between repair and deterrence—can sometimes ring the loudest. Keating’s body of work makes an important and cohesive case for both repair and deterrence under one umbrella. In this article, Keating elaborates on his deontological account of why deterrence matters, an account that warrants consideration by theorists of all stripes. And just as his theory offers food for thought for everyone, his approach provides a suggestion for us all: that we should sometimes look up and out, toward the law beyond tort’s limits.

Cite as: Leslie Kendrick, What If a Moral Theory of Tort Requires Deterrence?, JOTWELL (September 1, 2023) (reviewing Gregory Keating, Irreparable Injury and the Limits of the Law of Torts in 2 Oxford Studies in Private Legal Theory 185 (Paul B. Miller & John Oberdiek eds. 2023), available at SSRN (Dec. 8, 2022)), https://torts.jotwell.com/what-if-a-moral-theory-of-tort-requires-deterrence/.

The Citadel as Sandcastle

Alexandra D. Lahav, A Revisionist History of Products Liability (Jan. 9, 2023), available at SSRN.

The story of the rise and fall of privity of contract in products liability is familiar to all torts scholars. William Prosser even labeled privity a “citadel” and wrote two significant law review articles discussing in martial terms the assault upon and fall of the citadel of privity.1 The story is simple. In an 1842 English case, Winterbottom v. Wright, Lord Abinger held that an injured passenger could not sue the manufacturer of the allegedly defective stagecoach that injured him because the coach was provided under contract to the passenger’s employer, not to him.2 Abinger invoked floodgates by reasoning, “There is no privity of contract between these parties…Unless we confine the operation of such contracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue…” Id. The rule migrated to the United States, where courts held that, even though Winterbottom sued in contract, privity prevented plaintiffs from recovering for products injuries in negligence cases. In 1916, however, Judge Cardozo in MacPherson v. Buick Motor Co. ended the reign of privity by holding that a plaintiff injured by an allegedly defective automobile that he purchased from a retailer could sue the manufacturer directly.3

But the story is false. Such is the argument of Professor Alexandra Lahav in her compelling new article. Instead, Lahav insists that the doctrinal rule for producers of injurious products in the United States in the nineteenth century was negligence liability.

We are so familiar with the story that we can name that tune in just a few notes. So, to be told it is not true is surprising. How does Lahav reach that conclusion? She investigates reported state cases between 1850 and 1916. (P. 5.) She finds that 110 state court cases include a reference to Winterbottom v. Wright prior to 1916. (P. 17.) Of the 110, only twenty-five involve products, and Lahav notes that many of those twenty-five cases involve faulty construction and livestock, rather than typical mass market products. (P. 17.) Of the twenty-five, only twelve do not involve injury in the course of employment. (P. 17.) Of the twelve, four uphold privity, but they are all construction cases. (P. 17.) A fifth case, about the sale of a sick sheep, was decided on proximate cause grounds, but the court did endorse privity in dictum, stating that a third-party purchaser could not sue the original seller. (P. 17.) By contrast, seven of the twelve cases reject privity, including cases involving erroneously labeled medicine, defective furniture, a carriage, a boiler, and soap. (P. 17.)

Of the thirteen cases involving injury from products in the course of employment, seven were allowed to proceed even though they would have been barred by privity, while six were rejected on privity grounds. (Pp. 17-18.) The cases invoking Winterbottom in non-products cases—approximately eighty-five cases—involved services, such as title searches, will drafting, and telegram delivery. (P. 18.) These cases usually held that a third party had no cause of action against the service provider. (P. 18.)

Lahav summarizes the conclusions from her study. For a case that supposedly dominated products liability for over half a century, twenty-five relevant citations is minimal. Moreover, “of the mass product cases explicitly considering the Winterbottom precedent prior to MacPherson all rejected privity.” (P. 17.) She continues, “[t]he reasonable conclusion from this analysis is that privity was the rule for services, but not for products. Even in the employment context, privity as a bar to suit was at best a controversial doctrine.” (P. 18.)

Based on her study, Lahav retells the story. (P. 12.) As background, Lahav notes that the period from 1850 until 1910 was beset with social and economic upheaval. Cities became crowded as both immigrants and native-born citizens sought better wages. (P. 13.) Unlike their rural counterparts, urban dwellers were unable to produce their own products. (Pp. 13-14.) At the same time, technological developments made the mass production of goods a possibility. (P. 14.) In this environment, there was a need to protect consumers.

Perhaps no case discussed by Lahav illustrates the social changes and need for protection better than the claim by a boarder against a manufacturer for injuries sustained in the collapse of a murphy bed.4 Lahav notes that the suit would have been unlikely in 1850, not because of privity, but because there were few people living and working in cities who needed to rent a room. (P. 51.) The murphy bed, designed to fit people into smaller places, was itself the result of people’s increased need for housing. (P. 51.) Consumers living in cities using mass-produced items were vulnerable. Contrary to the traditional story, Lahav believes that judges protected them:

The doctrinal growth of products liability law was related to significant changes, wrought by the industrial revolution, in what products were available that could injure people, who was buying them, and social changes in terms of what people were buying. Courts had always recognized that manufacturers had a duty in tort. (P. 51.)

The retelling includes Winterbottom v. Wright, but in a reduced role. For Lahav, “the case that ought to be at the center of any discussion of products liability in the nineteenth century United States” is Thomas v. Winchester.5 That case, cited 194 times during 1850-1916, involved a poison mislabeled as a medicine that seriously injured a woman. (Pp. 19-21.) Despite the fact that the “medicine” was not sold directly to the consumer, the court allowed the suit. The gist of the ruling “was that a manufacturer had an obligation to warn when the medicine was dangerous, and to be careful packing it…” (Pp. 23-24.) But Lahav notes that other cases made it clear that medicine did not have to be poisonous or almost result in death to lead to liability. (P. 24.)

Lahav canvasses numerous products that led to liability absent privity during the last half of the nineteenth and beginning of the twentieth centuries. The list includes clothing (Pp. 25-29), soap (Pp. 29-32), food (Pp. 32-36), and automobiles. (Pp. 36-40.) The last category, of course, brings us back to MacPherson. In the traditional story, Judge Cardozo is given credit for shrewdly, and perhaps disingenuously, moving the law from the era of privity into the era of negligence. In Lahav’s retelling, “Cardozo was more correct than he is usually given credit for being, even if somewhat less magical.”6 (P. 40.)

By itself, this historical analysis is interesting and useful. It will, for example, alter the way I teach these cases in my Products Liability class next fall. But Lahav also connects her argument to a larger issue. She notes that recently judges have been using common law rules in analyzing statutes, and that they treat those rules as set in stone by early case law. (P. 49.) Lahav rightly suggests that getting history wrong can negatively impact future cases.

If anything, Lahav understates the importance of her research. With the Supreme Court’s turn toward what Professor Jack Balkin calls “thick originalism,” in which history is dispositive in interpreting the meaning and expected application of constitutional provisions, historical errors can carry grave consequences.7

Tort law provides a prime example. In Ives v. South Buffalo Ry. Co., the New York Court of Appeals declared the state’s initial attempt to enact a workers’ compensation statute unconstitutional on due process grounds.8 It did so because one of the “fundamental principles of law in existence” at the time of the adoption of the federal and New York Constitutions was “that no man who was without fault or negligence could be held liable in damages for injuries sustained by another.”9 The court’s proposition was historically inaccurate; strict liability governed multiple tort issues at the time the relevant constitutional provisions were adopted.10 Thus, the Supreme Court’s current jurisprudence allows historical errors to become constitutional rules. Lahav’s work warns us that such errors are more prevalent than we knew.

Professor Lahav’s article is remarkable scholarship. It is essential reading for scholars and teachers of Products Liability, those interested in tort history, and those concerned about the future of constitutional law.


Editor’s note: Reviewers choose what to review without input from Section Editors. Jotwell Torts Section Co-Editor Alexandra Lahav had no role in the editing of this article.

  1. William L. Prosser, The Assault upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099 (1960); William L. Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn. L. Rev. 791 (1966).
  2. 10 M. & W. 109, 152 Eng. Rep. 402 (Ex. 1842).
  3. 217 N.Y. 382, 111 N.E. 1050 (1916).
  4. Lewis v. Terry, 111 Cal. 39 (1896).
  5. 6 N.Y. 397 (1852).
  6. Cf. John C.P. Goldberg & Benjamin C. Zipursky, The Myths of MacPherson, 9 J. Tort L. 91, 106 (2016).
  7. Jack M. Balkin, Constitutional Interpretation and the Uses of History 132 (forthcoming, 2023).
  8. 201 N.Y. 271, 94 N.E. 431 (1911).
  9. Ives, 201 N.Y. at 293, 94 N.E. at 439.
  10. These include private nuisance, trespass to land, and wild animals. For more on this issue, see Donald G. Gifford, Richard C. Boldt & Christopher J. Robinette, When Originalism Failed: Lessons from Tort Law, 51 Fla. St. U. L. Rev. __ (forthcoming, 2023).
Cite as: Christopher J. Robinette, The Citadel as Sandcastle, JOTWELL (July 18, 2023) (reviewing Alexandra D. Lahav, A Revisionist History of Products Liability (Jan. 9, 2023), available at SSRN), https://torts.jotwell.com/the-citadel-as-sandcastle/.

Tort Trials and Tribulations

Richard L. Jolly, Valerie P. Hans & Robert S. Peck, The Civil Jury: Reviving an American Institution, available at The Civil Justice Research Initiative (Sept. 2021).

In The Civil Jury: Reviving an American Institution, authors Richard L. Jolly, Valerie P. Hans, and Robert S. Peck sound a dire—and important—warning: the jury trial has almost completely vanished from civil litigation, and its disappearance comes at great cost. While many have noted civil trials’ decline over the past century, the Report goes a step further, not only compiling data to track the jury trial’s demise, but also cataloguing reasons for it, explaining why it matters, and offering concrete ways to reverse this ominous trend.1

In this Jot, I’ll focus on why those of us interested in tort law, and the role of juries in tort law, should read—and heed—the authors’ warnings.

First, a primer on the civil trial landscape writ large. As Jolly, Hans, and Peck explain, between 1962 and 2020, the percent of federal civil cases disposed of via jury trial fell from a respectable 5.5% to an almost non-existent 0.48%. And though state court statistics are spottier, the limited data that are available suggest that, in the states, civil jury trial rates have fallen from 1.8% of civil case dispositions in 1976 to just 0.6% of such dispositions in 2002 to a miniscule .09% in 2019. Further, the few trials that do occur are, on average, shorter and more constricted—with fewer jurors, stricter time limits, more bifurcation, and compressed voir dire.2

Just like civil jury trials generally, tort jury trials are going the way of the dodo bird.

Consider the federal system.3 In 1962, 17.6% of federal tort actions reached trial.4 Fast forward to 2022, where only about 0.42% of federal tort actions made it to trial.5 Of 103,252 federal tort cases terminated between September 2021 and 2022, only 432 saw trials of any kind—and only 327 dispositions out of 103,252 involved juries. Graphed, the decline of trials is so stark that, by 2022, you need a magnifying glass to see that there were any tort trials at all.

Source: Admin. Office of the U.S. Courts, Annual Report of the Director, Table C-4 (1962 and 2022).6

What explains this sharp decline? As Jolly, Hans, and Peck explain, there are plenty of potential culprits. These include: (1) the rise in pretrial adjudication (think, summary judgment and motions to dismiss); (2) the increased use of alternative dispute resolution (frequently, mediation); (3) a feedback loop in which would-be trial lawyers shy away from trial because they fear their advocacy skills are rusty or undeveloped (and, of course, lawyers’ skills remain rusty and undeveloped because they shy away trials); and (4) the proliferation of statutory damage caps, as well as the Supreme Court’s punitive damage jurisprudence, both of which, from the plaintiffs’ perspective, restrict the benefit that would accompany even a resounding trial victory. The authors additionally place some of the blame at the feet of judges who have been known to steer litigants toward settlement with a heavy hand—as well as certain business interests, who, they say, “engaged in a decades-long political campaign to convince the public, practitioners, and the judiciary” that the civil jury is “unqualified to decide complex disputes, and that twelve laypeople routinely bring not wisdom but prejudice against certain litigants.” (P.  4.)

More than simply showing that the civil trial is disappearing and cataloging the reasons behind the decline, the authors, additionally, chronicle four reasons why we should care.

First, in the authors’ telling, the decline of the trial by jury is worrying because juries offer a unique and vital check on concentrated power. Indeed, the American colonists relied on juries to “nullify the excesses of the Crown,” and the Founders viewed civil juries “as a necessary institution within the constitutional structure, responsible for integrating laypeople into the administration of justice and checking abuses of power.” (Pp. 7–9).

Second, juries inject diverse viewpoints into deliberations. After all, judges (still) tend to be mostly white and mostly male.7 By contrast, jurors are demographically diverse and come from all walks of life. They reflect—and bring to their rulings—the lived experience of a true cross section of the community. As such, “juries bring…a strong grounding in community norms to the fact-finding task.” (P. 22.)

Third, juries inject a fresh perspective into deliberations. Unlike trial judges, who may think they have heard the same case before, and for whom the fact-finding process may become routinized, juries come to court with fewer preconceptions.

Fourth and finally, civil juries’ benefits extend beyond the courtroom. Here, the authors compile compelling evidence that jury service boosts other forms of civic engagement. For example, “[j]urors who served on civil juries of 12 persons or juries that were required to reach a unanimous decision—in other words, the traditional form of trial by jury—were significantly more likely to vote following their service, controlling for their pre-service voting history.” Id. at 25. Jury trial alums also hold more favorable views of the legal system. On this score, evidence recently compiled by the National Center for State Courts surfaces a troubling decline in the public’s confidence in both state and federal courts8 —a fact that tees up two fascinating questions: Might these drops in public confidence be linked to the above jury trial trends? And might they be reversed if the jury trial were revitalized?

Then, beyond these general virtues of the civil jury trial that the authors elegantly address, I would suggest that, for two key reasons, the disappearance of the jury trial matters uniquely in the tort law context.

First, unlike many other kinds of cases that make up civil court dockets, tort lawsuits are particularly likely to pit a lone (and injured) individual against a business—and, as such, tort suits are particularly likely to feature a sharp power dynamic between the those on the left and right sides of the “v.”9 There is an argument, I’d suggest, that in that lopsided context, the jury’s diverse perspective is particularly important.10

Second, as compared to judges, juries can be especially clear communicators. Drawn from and speaking for the community, juries are especially able to express moral disapproval and to recognize and rectify harm. This, too, has particular resonance in tort. After all, that expressive function may not matter when it comes to dry contract claims or simple land disputes. But, when a jury orders Alex Jones to cough up nearly $1 billion for calling the Sandy Hook massacre a hoax, decides that Exxon must hand over more than $5.2 billion for sullying the Prince William Sound, or renders a verdict of $4.7 billion against Johnson & Johnson for talc-related injuries, the jury conveys a particular outrage—and offers the plaintiff particular recognition—that would otherwise go unheard.

In sum, though it’s not “about” the tort system, Jolly, Hans, and Peck’s fine report offers a valuable message for those of us who care about this specific corner of the civil justice ecosystem. The civil jury is on life support. Unless and until we resuscitate it, our tort system is in particular peril.

  1. See, e.g., Nora Freeman Engstrom, The Diminished Trial, 86 Fordham L. Rev. 2131 (2018); Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. Empirical Legal Stud. 459 (2004).
  2. See generally Engstrom, supra note 1.
  3. Federal court statistics offer only a partial (and possibly non-representative) window into the tort trial landscape since the lion’s share of tort litigation occurs in state courts. Unfortunately, though, the data on state court goings-on are shamefully scant, leading many scholars—myself included—to use federal statistics as a rough and imperfect proxy. For discussion of the stubborn data challenges that afflict state courts, see, e.g., Anna E. Carpenter et al., Studying the “New” Civil Judges, 2018 Wis. L. Rev. 249, 266 (2018).
  4. Galanter, supra note 1, at 462. Importantly, that figure likely exaggerates the number of trials. That is because the calculation is drawn from Table C-4 of the Administrative Office of the U.S. Courts’ Annual Report of the Director, which counts as a trial any “contested proceeding at which evidence is introduced.” Id. at 461. This capacious definition includes not just trials, but also hearings on such matters as Daubert motions or motions for class certification. The tallies of actual, bona fide trials could be as low as half of the “reported” tally. See Engstrom, supra note 1, at 2140.
  5. The figures come from Table C-4 for the period from September 30, 2021 through 2022. As explained in note 4, these numbers almost certainly exaggerate the number of trials.
  6. In this chart, the blue bars represent the total tally of cases resolved in any way (dismissed, settled, taken to trial, etc.). The orange bar represents the subset involving jury trials. The gray bar represents the subset involving bench trials. Interestingly, in 1962, diversity actions comprised a little more than half of the tort cases in federal court; by 2022, diversity actions comprise almost the entirety of the whole.
  7. For a discussion of state judge demographics, see Tracey E. George & Albert H. Yoon, Measuring Justice in State Courts: The Demographics of the State Judiciary, 70 Vand. L. Rev. 1887, 1903 & 1906 (2017) (reporting that “[p]eople of color make up roughly four in ten people in the country but fewer than two in ten judges” and that “[n]ot a single state has women on the bench in the numbers commensurate with their representation in the general population”). For a discussion of federal judge demographics, see Am. Bar Ass’n, Profile of the Legal Profession 6 (2022) (reporting that, as of July 1, 2022, 70% of federal judges were male and 78.4% were white).
  8. See Nat’l Center for State Courts, State of State Courts 2022 Poll 6 (2022) (reporting substantial drops in the proportion of Americans who report having “a great deal” or “some” confidence in state and federal courts during the period from 2012 through 2022).
  9. See Lynn Langton & Thomas H. Cohen, Civil Bench and Jury Trials in State Courts, 2005, at 3 Tbl. 3 (2008).
  10. This representation matters, in part, because it is apt to promote litigants’ sense of procedural justice. For more on procedural justice, see generally Lawrence B. Solum, Procedural Justice, 78 S. Cal. L. Rev. 181 (2004). For the relationship between procedural justice and jury adjudication, see Brooke D. Coleman, A Legal Fempire?: Women in Complex Civil Litigation, 93 Ind. L.J. 617, 642 (2018) (“An individual litigant who sees herself in the decision maker . . . will have a much stronger sense of participation, and thus legitimacy.”).
Cite as: Nora Freeman Engstrom, Tort Trials and Tribulations, JOTWELL (June 21, 2023) (reviewing Richard L. Jolly, Valerie P. Hans & Robert S. Peck, The Civil Jury: Reviving an American Institution, available at The Civil Justice Research Initiative (Sept. 2021)), https://torts.jotwell.com/tort-trials-and-tribulations/.

The Common Law Inside Social Media

Leslie Y. Garfield Tenzer, Social Media and the Common Law, 88 Brook. L. Rev. 227 (2022).

Leslie Y. Garfield Tenzer and I have crossed paths only once, in an encounter that I found memorable. The venue was a 2014 symposium called Social Media and Social Justice. As one might expect at a law school event with social justice in its title, denunciation and concern abounded. The gloomy context caused a remark by Professor Tenzer to stand out: “I love social media!” When the time came to publish my presentation, I felt moved to quote this splash of good cheer.

Nine years later, Tenzer’s love of this environment seems alive, though with a plangent note running through her insightful Social Media and the Common Law (“Social Media”). Tenzer says she “finds fault with the judiciary’s failure” to impose accountability on the sector (P. 229) and worries about “the prevalence of unaddressed and unpunished social media harms” (id.) that include defamation, invasion of privacy, harassment, emotional distress (which can be severe enough to precipitate suicide, see P. 242) and the cluster of consequences that result from what now gets called cyberbullying. But Social Media seeks to mend rather than end what it observes. Its case for more tort liability is intended to make providers and communications healthier, not just more accountable for the injuries they inflict.

Social Media focuses on judges as political actors: Tenzer says they lag behind lawyers, legislatures, and administrative bodies in adapting to how we live now. Exercising power at an average age of 46, contemporary judges as a cohort became adults before 1997, the year Tenzer uses to mark the emergence of the internet, and their worldview lingers in a bygone day when they were young. Judges too readily write off what occurs online as transitory, lightweight, and of only passing interest.

Tenzer’s dismay about unremedied harms contributes to the important literature that denounces the shelter from responsibility enjoyed by online service providers. Twenty-seven years ago, Congress wrote immunity into Section 230 of the Communications Decency Act. As the internet scholar Danielle Keats Citron observes in a valuable new article, disapproval of this choice, a stance she pioneered in 2008, is now almost conventional wisdom. Observers now agree on the harm of wide-scale immunity and diverge only on how to repair it. Though not alone in urging more from the judiciary, Tenzer has distinct points to make about judges’ missteps.

Social Media lobs a particular helping of blame on federal courts in California for the problem of too much immunity. If I read her correctly (Pp. 238-41), Tenzer believes judges could have distinguished the defendants that dodged responsibility in Ninth Circuit courts—a group that includes Facebook, Roommates.com, and a dating site called Metrosplash.com—from immunity-enjoyers such as AOL and Prodigy, older businesses that look more neutral in the mode of utility plumbing.

Were they paying better attention, says Social Media, judges would recognize the breadth and depth of harm caused by and on social media. They could learn not only from claims of injury that litigants present to them but from their own work experiences. Tenzer cites the federal model instruction (P. 259) that tells them to order jurors to stay silent “on social media websites and apps (like Twitter, Facebook, Instagram, LinkedIn, YouTube, WhatsApp, and Snapchat).” Presumably, state court judges deliver a similar admonition. Content that judges themselves post on social media has provoked complaints of misconduct (Pp. 262-63). Judges also review discipline for lawyer misconduct (P. 261), a record that includes complaints involving social media. In short, judges have the information they need to “change with the times.” (P. 263.)

The judiciary has failed to grasp not only the problem but an important doctrinal solution. Online communication, Tenzer contends, aligns with teachings from the common law. Having found progressive potential in this source myself—“The Common Law Inside Social Media,” the title of this jot, echoes an earlier title of mine—I appreciated the evidence Tenzer has gathered to support applying authority from the eighteenth century to the twenty-first. Judges can apply a jurisprudential tradition whose origins lie in disputes about land and bulky physical objects to adjudicate actions and consequences that take place on a screen.

Because screen imagery looks fleeting and can be moved into apparent oblivion with a click, the harms of social media might also seem fleeting. Actually, however, they’re durable. Durability affects the law of libel and slander, Tenzer observes (P. 248), and also makes invasions of privacy more hurtful and harder to erase. Any injury that the common law can remedy increases when durability makes it linger. Social media as an environment will itself stay durable, no matter how many judges think it just might flit away on the breeze it flew in on.

In what social media-speak might call “hashtag not all judges,” Tenzer stirs instances of praise into her larger criticism of judicial responses to social media harm. Justice Samuel Alito, faulted on page 267 for questioning what Tenzer finds a self-evident truth—that judges are able to “apply pre-social media precedent to large social media companies”—wins what looks like approval on page 253 for taking seriously the threat that Supreme Court litigant Anthony Elonis posted on Facebook. Early in the internet age, Tenzer reminds us (P. 265), a federal district court found a remedy for a barrage of unsolicited emails in the venerable old tort of trespass to chattel. Social Media faults the judicial record with admirable nuance and fairness.

Speaking of praise: My esteem for Social Media goes further than agreeing with its thesis and commending Tenzer for the leadership provisioned in this work. I think Social Media hides its light under a bit of a bushel.

Real injuries, real doctrines, and real legal entitlements populate Social Media, but Tenzer lessens the clarity and tough-mindedness of this message when she hones in on a vaguer source of authority. The heading for Part IV, “Judicial Failure to Set Social Norms,” joins similar phrasing throughout this article. Tenzer wants to encourage judge-generated and -midwived new “social norms” (see P. 226 and elsewhere), along with “societal norms” (Pp. 258, 267), “social media norms” (Pp. 227, 229, 253), and “common law norms” from the same source.

For lawyers, however, making law is more important than playing a role in the generation of norms—or at least it’s a closer fit with their experience and expertise. I intend no disparagement of norms. “Law and norms” deserved to emerge in the legal academy as a focus of study, and norms are of more than academic interest. The influences and inspirations of norms shape a species that can’t stay alive without social groups. But lawyers aren’t only on the receiving end of this influence and pressure. They are instigators too. By doing its job, our profession pushes norms to emerge, evolve, and recede.

Judicial decisions also change norms, but here too as a byproduct rather than a direct goal. Take cyberbullying case law, for example. Tenzer faults courts for having “passed up the chance to signal normative behavior for social media use” (P. 269), a move that could ameliorate the harm of cyberbullying. Judges’ forfeiture of their opportunity to signal has permitted dangerous conduct to flourish and spread.

Not quite, I think. Judges can indeed signal normative behavior. But the work Tenzer wants them to do is not so much signal anything as decide cases correctly. Her analysis in Social Media convinces me that “the chance” that the Supreme Court “passed up” in its relevant-to-cyberbullying Mahanoy Area School District v. B.L. decision of 2021 was to revisit old beliefs about school control that underlay Tinker v. Des Moines Independent Community School District, the student-speech chestnut decided in 1969.

Electronic-technology transformation has made brick-and-mortar geography at the center of Tinker obsolete, Tenzer argues. Agreed. Judicial craft to the rescue. But that craft manages precedent and issues judgments; only incidentally does it signal normative behavior.

Norm creation will emerge if Tenzer gets her way. I hope she does. But better social media norms are secondary to the law that Social Media improves.

Cite as: Anita Bernstein, The Common Law Inside Social Media, JOTWELL (May 22, 2023) (reviewing Leslie Y. Garfield Tenzer, Social Media and the Common Law, 88 Brook. L. Rev. 227 (2022)), https://torts.jotwell.com/the-common-law-inside-social-media/.