David A. Dana, Public Nuisance Law: When Politics Fail
(May 26, 2021), available at SSRN
Public nuisance is in the news again. Three important opioid cases have been recently decided. In November plaintiffs lost a bench trial in California state court, and eight days later, the Oklahoma Supreme Court reversed a $465 million trial verdict, holding that, as a matter of law, public nuisance does not extend to the manufacturing or marketing of prescription drugs. About a week later, a jury in a bellwether, the Ohio federal MDL, held that pharmacies caused a public nuisance by failing to respond to curb medically unnecessary prescriptions.
David Dana’s article offers a bold prescription to courts about how to approach public nuisance, including the opioid litigation. Dana’s argument should, in theory, make sense of November’s mixed bag of decisions. His argument operates at two levels, first about the relationship between public nuisance and democracy, and second about the specific wrongful conduct which the tort of public nuisance should address.
Dana begins his analysis at a familiar place: that the meaning of public nuisance is “contestable,” (P. 9). This is, perhaps, the only thing on which there is wide-spread agreement among scholars and courts. Not only has caselaw expanded to include conduct that earlier courts would have excluded, but there have also been episodes of genuine conflict over the best account of that caselaw, as when, in 1970, the American Law Institute refused to adopt Prosser’s more restrictive definition of public nuisance as arising from conduct that was criminal.
In light of this familiar challenge, Dana adopts a familiar strategy. He asks, “when have courts actually been willing to find a public nuisance and order relief?” (P. 9.) The three categories he identifies are (1) quasi-crime cases, (2) environmental cases and (3) product-based cases. (P. 9.) From this empirical observation, he draws the following conclusion: the three categories are united in that they “all do the work of what a well-functioning administrative state should do.” (P. 10, emphasis in original.)
Dana’s next analytic move is unexpected and clever. He observes that modern public nuisance – as defined as the universe of the three categories above – is “in tension” with the “ideal of the administrative state” (P. 11), because every public nuisance claim implies that the administrative state has failed. The function of public nuisance is to “make actionable unreasonable interferences” with “public rights”. (P. 11, paraphrasing Restatement (Second) of Torts § 821B.) This being the case, Dana acknowledges that the criticism of public nuisance as lacking democratic legitimacy—made, for example, by Donald Gifford—has some superficial appeal, and his project is to defend public nuisance against it. I say that this move is unexpected because by assuming that modern public nuisance properly understood appears to function like administrative law, Dana seems to be conceding Gifford et. al.’s chief objection. The move is clever because if he can pull off this defense, then the doctrinal scope of modern public nuisance law will be as broad as that of the modern administrative state.
Dana argues that when critics of modern public nuisance law claim that courts cannot hear claims concerning “public rights” because doing so oversteps the power of the democratically elected branches, they treat public and private rights differently without offering an argument other than stipulating that the former cannot be enforced by the courts. (P. 13.) Turning the tables on the critics, Dana argues that it would be odd—in fact, positively undemocratic—for courts to retreat from their traditional role of remedying all rights violations, including “public rights.” (P. 14.)
Dana’s defense is doubly clever, because it will appeal to torts scholars, like myself, who are committed to viewing torts as redress for rights violations. It is undeniable that public nuisance is defined in the Restatement Second? as a common law action in response to a violation of “a right common to the general public,” and, unlike Tom Merrill, I would not want to banish public nuisance from tort law. A right “common to the public” does not on its face identify? the state as the right-holder. The implication is that this “right” has the same basic private law character as other rights in tort: it is a private relational right running between persons. Unlike other tort rights, a right common to the public is “common” in that it runs from every member of society to every other member of society.
To the extent that public nuisance deals with relational rights held by persons (and not the state), it would seem to be consistent with tort law, which has also gradually imposed new obligations on various powerful members of society, especially businesses, without violating democratic principles. And from this perspective, the putative tension with administrative law that Dana places at the center of his defense can be resolved. To say that the law of negligence empowered MacPherson to demand that Buick carefully inspect wheels purchased from a supplier does not entail that New York tort law was “in tension” with the power of the New York legislature to require a seller of automobiles to carefully inspect wheels purchased from a supplier.
MacPherson had a right—personal to him—that Buick engage in specific conduct (carefully assembling a car) only under New York tort law. The fact that public law and tort law may address identical conduct and secure identical ends does not mean that they are in competition; it means that they are complementary (unless there is preemption, of course).
However, I have trouble with Dana’s further arguments that (1) for any harmful conduct which could be lawfully addressed by administrative law, there is a correlative public right to be free of that harmful conduct which could be addressed by public nuisance, and (2) whether that ‘could’ becomes ‘is’ depends on a balancing test that weighs rule of law values against social welfare. (P. 6.) The remainder of this Jot challenges the first half of this argument.
Dana unduly conflates the domain of administrative law with the domain of public nuisance. The former includes a wide range of ends which the state can secure under the police powers, including sanctioning conduct to promote policy goals. A decision by the Treasury Department not to classify cryptocurrency issuers as banks may be, in fact, a mistake, but that does not mean that the issuers have committed a wrong if they do things that would not have been permitted had the Treasury Department done its job. Public nuisance is narrower than administrative law “done right”: its wrongs must be grounded in an (unreasonable) interference with a “public” right.
Legal rights are correlative to legal duties. But not all legal duties generate legal rights. As Goldberg and Zipursky have explained, relational duties—based on directives about how to conduct oneself in relation to another—generate rights. Simple duties—based on directives about how one should act simpliciter—do not generate rights. The law contains simple duties, which are owed to the state, based on simple directives, and relational duties, which are typically owed to other persons but can also be owed to the state when the state’s right is based on its ownership of property, not its police powers.
Public nuisance claims only embrace conduct that breaches a relational duty to private parties, not to the state. If the Park Service cannot drive one of its maintenance vehicles into a portion of a park because of a trespasser, it cannot bring a public nuisance suit to get an injunction to remove the trespasser (although it can, of course, sue in trespass or use public law). But the Park Service can (in theory) claim standing under public nuisance if the trespasser significantly interferes with the public’s ability to enter the park. Every public nuisance claim protects a public right—a right whose correlative is a special kind of relational duty between the defendant and members of the public.
Given that, by definition, a “public” right is a subset of the private rights extant in tort, what test can identify them? A test based on the interest invaded seems to be a non-starter. Even ancient examples of public nuisance, such as classic cases of “fouling a public waterway” can be characterized as conduct that interferes with either (i) an interest that could not ground a public nuisance action (the user of the waterway’s right to control what touches his property) and (ii) an interest that could ground a public nuisance action (the user of the waterway’s right to traverse the waterway). A better test, I think, is Merrill’s: a public right is grounded on the obligation not to cause a “public bad”. He defines a violation of a public right as “conduct that] produces undesirable effects that are nonexcludable and nonrivalrous.” (Is Public Nuisance a Tort, at 8.)
While I don’t agree with Merrill’s ultimate conclusion—that public nuisance is not a tort—I think he is absolutely right about what kind of rights violation grounds public nuisance. It is a private right—held by everyone in society—that the defendant conduct himself in such a way not to interfere with each rightholder’s capacity to x, where x is a “non-rivalrous” interest, such as access to the public roads or clean air. The correlative of the nonrivalrous nature of the right is that the remedy is “nonexcludable”: removing the obstruction in the road is relief to everyone, not just one person or the person who most immediately wants to use the road.
Once the precise character of a public right as a subject of a relational duty is established, it is easy to see how Dana’s conflation between administrative law and public nuisance gets things wrong. Administrative law’s domain is huge, and a moment’s reflection reveals the implausibility of saying that every interest protected by a legitimate exercise of administrative law becomes by definition a “public right”. The legitimate exercise of authority by New York to require employers to distribute an information sheet on sexual harassment, which is required by NYC Administrative Code § 8-107, sub. 29(e), protects the interests of employees. If the employer fails to comply with that regulation, and an employee suffers an injury cognizable in tort as a result, the breach of the relevant relational duty is not between the public and the employer but only between that employee and the employer (although the regulation can be used as evidence of liability).
This suggests that injuries that are only contingently connected to the violation of a public right, such as personal injuries, are distinguishable from injuries to the public. The right of the public in California that justified the injunction against gang members in People ex rel. Gallo v. Acuna, contingently resulted in fewer personal injuries (and property damage) to be sure, but the court specified that the wrong redressed was the gang members’ unreasonable interference with the “right to public order”. Many important interests protected by tort law will not be directly protected by public nuisance. This understanding of public nuisance explains the skepticism of critics like Gifford towards using public nuisance to remedy the many evils done by powerful actors like the tobacco industry and the opioid industry.
Dana, like many who have defended recent public nuisance litigation in connection with tobacco, lead paint, and other commercial activities that caused widespread personal injuries, rejects the argument that because these cases involve defective products, they cannot also be brought under public nuisance. I agree with his general point; there is no reason to categorically deny a plaintiff a right to redress under public nuisance simply because the conduct at issue by the defendant is coextensive with conduct that also could be redressed under products liability law. But expansionists like Dana must still make the positive argument still must be sustained for holding that the conduct related to the manufacturing, and distribution, of a product violates a relational duty that is within the domain of public nuisance.
As Dana notes,
[P]roduct-based public nuisance claims differ from standard product liability claims, to the extent that … the producers of the harmful products were able to inflict harm on the public for profit because they misrepresented what they knew about the risks inherent in their products and thereby undermined the ability of the government – the legislature, agencies – to protect the public, as well as undermining the ability of members of the public to protect themselves. (P. 37.)
This is an interesting insight. Interference with the ability of the state to regulate products is conduct which simultaneously may violate (1) a simple duty to the state (e.g., criminal and civil commands of candor and disclosure); (2) a relational duty to the consumer in products liability (and perhaps fraud); and (3) a relational duty to each member of the public to provide truthful information in anticipation of public regulation of the product. The third duty is grounded on a right of each person to have an “unpolluted” information environment similar to the ancient right of each person to unfettered transit on the public roads and free and unpolluted waterways. Concerning this last duty, each person’s right is non-rivalrous, and the remedy for the invasion of the right would be nonexcludable.
But framed in this way, Dana’s public nuisance covers much less than, for example, has been claimed in the major opioid cases around the country. If the interest invaded is the right of each person in (for example) Oklahoma that both state and federal regulators receive information that is not false and misleading, then the plaintiffs’ case for liability and damages looks different than has been claimed in court.
For example, there may be a major difference between the claims against opioid manufacturers, like Purdue and Endo, and opioid distributors like McKesson, and opioid retailers, like Wal-Mart. The 2020 settlement with the Justice Department includes allegations that Purdue misrepresented to federal and state regulators the true purpose of its Abuse and Diversion Detection program, which was to push back against physicians’ concerns about addiction in their patients and thus encourage unnecessary prescriptions. (See Settlement Agreement, October 21, 2020, Addendum A, Section I.) In Alabama’s public nuisance suit, the claim against distributors is quite different: Since McKesson (a distributor) was “required by law to ensure that . . . opioids would not be diverted for illicit purposes,” Alabama claimed that it breached a public law duty “to report, investigate, and halt suspicious orders.” An Alabaman’s claim that McKesson breached its relational duty to take reasonable care to monitor orders of opioids faces significant causation problems, as well, as in the tobacco litigation, the defense of plaintiff fault. But even if these problems could be overcome, there is no colorable violation of public right. While the failure to assist Alabama in policing illegal prescriptions may have been a violation of public law, it is hard to see why it was an unreasonable interference with a right owed to every person in Alabama, unless we are to retreat to the position that every person in Alabama has a right that every person in Alabama fulfill their obligations to the state of Alabama.
If limited only to a manufacturer, framing the public nuisance in terms of a duty to provide uncorrupted information about opioids reveals the difficulty in proving liability. The trial judge in the California case focused on this hurdle when he found for the defendants. He stressed that the plaintiffs, four counties, ignored their burden at trial of proving causation. Even if it were true, as seems obvious, that the false and misleading marketing described above occurred, liability could only attach if the plaintiffs proved that the breach of the public’s right to uncorrupted information caused members of the public to suffer as a result of the absence of accurate information.
The critical problem for the plaintiffs was that they had the burden of proving that that “medically inappropriate prescriptions” were caused by the violation of the public right. The trial judge held that, unlike lead paint, which had no appropriate consumer use once its defect was known, opioids continued to have appropriate consumer use during the period the plaintiffs claimed the public right was violated. (The federal government and the State of California approved and encouraged the use of opioids.) Unlike tobacco, where, arguably, it might have been the case that but for the violation of the public right to information about cigarettes, tobacco use would have been dramatically limited, the claim about the causal relationship between the manufacturer’s violation of public right and liability is highly attenuated, and that proved quite problematic given that the plaintiffs offered virtually no evidence on causation.
Dana’s article is valuable at two levels. First, it illustrates why some have invested into public nuisance their hopes that tort law can effectively tackle seemingly intractable crises such as climate change and the creation of markets for harmful but popular products like guns and opioids. The hope is that the private law remedy of public nuisance can be as broad as the scope of administrative law. Although I have raised concerns that this strategy broadens public nuisance too greatly, Dana helps us see clearly what is at stake. Second, although not his primary purpose, Dana provides a roadmap for describing a modern public right that the seller of a product must provide “unpolluted” information to the public. For those of us who seek to use tort law to protect rights, this is something to take seriously.
Nicolas Cornell, Looking and Seeing
, in New Conversations in Philosophy, Law & Politics
(Ruth Chang & Amia Srinivasan eds., forthcoming), available at SSRN
1Ls are often taught that the tort of negligence differs from its counterpart in morality by not requiring blameworthy or culpable misconduct. As Holmes famously put it, whereas “the courts of Heaven” will make allowances for the defects of a “hasty and awkward” person, no such generosity is extended to defendants facing a negligence suit in a common law court. But is it correct to suppose that the moral wrong of negligence necessarily involves culpability or blame? In his marvelous essay Looking and Seeing, Professor Nico Cornell engages an array of recent work in the moral philosophy of negligence to argue, in effect, that Heaven’s courts are as demanding as their earthly counterparts.
Cornell begins with a discussion of Moore v. Dashiell, a run-of-the-mill, mid-twentieth century negligence suit. On a clear, dry day, Dashiell, driving his car, stopped to pick up two hitchhikers: Moore and a friend. Shortly thereafter, with Dashiell driving at a lawful speed on a straight and level road, the car struck a large mule. Moore was seriously injured and sued. At trial, Dashiell testified that, just before the collision, he was turning the dial on his car radio to find a station, but was looking at the road as he did. (There was no point in looking at the radio, he explained, because its markings did not accurately identify the wavelengths at which stations’ signals would be picked up.) He further testified that he saw two cars approaching from the other direction, but never saw the mule. Dashiell’s testimony notwithstanding, verdict was entered for Moore and the Maryland Supreme Court affirmed.
On one reading, the high court’s affirmance rests on the straightforward evidentiary ground that the factfinder needn’t have believed Dashiell’s testimony. (One can reasonably infer that a driver who, under good visibility conditions, misses a half-ton creature standing directly in front of his car actually was not paying enough attention to the road.) But Cornell entertains a different interpretation. Even if the factfinder was entitled to believe and did believe Dashiell’s testimony, he says, it still was entitled to find him to have been negligent in the legal sense. On this reading, Dashiell stands for the proposition that perceptual failure in and of itself—the very fact that Dashiell did not see the mule—counts as negligence. So far as tort law is concerned, Dashiell could not avoid liability even if he was as vigilant as he was required to be (i.e., even if he was appropriately scanning for road obstacles but just happened somehow to miss the mule).
Shifting from law to morality, Cornell uses his rendering of Dashiell to consider various philosophical treatments of negligence. He begins with worries raised by “skeptics” including Matt King, Heidi Hurd, and Michael Moore. Their worry is that negligent conduct, at least when inadvertent, cannot be morally wrongful. Moral duties demand action in conformity with norms of conduct. As such, they presuppose that persons subject to them have an opportunity for deliberation and choice about conforming. Yet the duty at the heart of negligence—the duty of care—seems to demand conformity to a norm irrespective of whether any such opportunity was present. Recall that, on Cornell’s interpretation of Dashiell, the defendant did all the things he was required to do, including looking where he was going. Yet Dashiell was deemed (legally) negligent for failing to have seen something that he was required to see. Negligence so understood seems not to be a moral wrong, say the skeptics. (And thus, if Dashiell is a heartland case of the tort of negligence, negligence law can’t be understood as law that holds actors responsible for their moral wrongs.)
Cornell next considers various responses to the skeptics. “Tracers”—a group that includes Holly Smith, Seana Shiffrin, and Gideon Rosen—maintain that nonculpable negligent action can be deemed morally wrongful so long as it is linked to an actor’s prior culpable acts. (Imagine a different driver who causes a crash after inadvertently nodding off but who, before getting into his car, took medication that his doctor had told him would make him drowsy.) While, according to Cornell, tracers can explain how there is some sense in which an actor who inadvertently injures another had an opportunity to do otherwise, they do not explain how an actor such as Dashiell—whose failure to see the mule was not traceable to a prior irresponsible act—can cogently be deemed to have committed a moral wrong. Likewise, Cornell argues that the recognition of negligence qua failure to see defeats the efforts of other moral theorists— “reflectors,” who include Nomy Arpaly and Angela Smith—to salvage negligence’s status as moral wrong by suggesting that inadvertently careless conduct is wrongful in so far as it displays a deficiency of character or will in the negligent actor. (Dashiell’s failure does not seem to seem to offer any such demonstration.)
Finally, Cornell considers “externalists,” a group that includes Ben Zipursky, Arthur Ripstein, Ori Herstein, and me. Externalists argue that, in the context of determining the accountability of one person to another—as opposed, say, to that of determining whether a person has acted culpably and is thus eligible for punishment—negligence is nothing more or less than an actor’s failure, on a given occasion, to act with required care. An externalist thus could conclude that Dashiell was morally negligent as to Moore (and the other passenger and others in the vicinity), because not seeing and not avoiding the mule was a failure to drive as a careful driver would have driven under the circumstances, and that is sufficient for conduct to be deemed negligent.
Cornell worries that the externalists’ relatively thin understanding of what can count as a breach of duty too radically detaches judgments of wrongful conduct from agency. Indeed, he suggests that the externalists unintentionally vindicate the skeptic’s worry that negligence cannot be a breach of duty. In order for the duty of care to be a genuine moral duty, the skeptics argue, it must be one that can figure in an actor’s deliberation. Yet externalists, in his view, are indifferent to whether the duty of care can so figure.
Having completed his survey, Cornell concludes by sketching a distinctive path forward. The key, he says, is to pry apart two questions that lawyers and moral philosophers often lump together: (1) What duties do we owe one another?, and (2) Under what circumstances is one answerable or accountable to another? Interpersonal moral accountability, he argues, arises as soon as one injures another, irrespective of whether the injury was wrongfully inflicted (i.e., regardless of whether it resulted from a breach of a duty of conduct). Just by virtue of injuring, the injurer is already answerable to the victim—she owes the victim a justification. And if no justification is provided, then there is wrongdoing and additional responsibility beyond the obligation to offer a justification.
Thus, in Dashiell, when Moore was injured in the crash, Moore was morally entitled to demand an account from Dashiell of how the accident could have happened. What answer from Dashiell would have been sufficient to answer such a demand? Whatever might suffice, Cornell reasons, the answer “I didn’t see the mule” is not among them. And, crucially, its insufficiency can be explained without treating Dashiell’s failure to see the mule as a breach of duty. Instead, it fails in roughly the manner of a failure by a defendant in civil litigation to plead an affirmative defense. The statement “I didn’t see the mule” simply fails to identify considerations that defeats the prima facie case for liability grounded in Dashiell’s having injured Moore. The same would be true if Dashiell met Moore’s imagined demand for an explanation by asking “What would you have wanted me to do (that I did not do)?” According to Cornell, in so far as Moore was injured by Dashiell, Moore does not have the burden to answer this question.
In casting moral negligence on the foregoing terms, Cornell thus detaches the question of whether there has been wrongdoing, and whether there is liability to the victim for wrongdoing, from the question of whether the person subject to liability failed to heed a duty of conduct owed to the victim. From within this framework, an actor can be deemed “negligent” even though the actor’s conduct did not fall short of any standard of conduct. This is how Cornell proposes to sidestep entirely the skeptics’ puzzle of whether an actor can breach a moral duty without the right sort of opportunity for reasoning or deliberation. It is enough that the actor acted volitionally so as to injure another, and is unable to mount an adequate justification for the injuring. An actor who can offer only Dashiell’s explanation—“I didn’t see”—cannot justify the injury-causing action: she has done nothing more than attest to her lack of “attunement to the world.” Negligence, in other words, is conduct marked by a failure of perception that leaves actors unable to account adequately for what they have done to others.
For lawyers and moral philosophers interested in the nature of negligence, Cornell’s article is a must read. I conclude with some observations and questions prompted by his fascinating use of the legalistic framework of prima facie answerability and affirmative defenses to illuminate the moral concept of negligence.
Cornell depicts moral negligence as injurious (or perhaps merely risky) conduct for which an actor is answerable to another, yet for which the actor can only provide a particular and unsatisfactory answer, namely: “I didn’t perceive or apprehend the danger.” Although he derives this account in part from tort law and civil litigation, it is notable that it does not actually track modern negligence law. In a negligence suit, it is the job of the plaintiff to prove not only injury, but injury proximately caused by careless conduct (or a careless failure to act). Insofar as legal negligence and moral negligence are thought to be at least cousins, it would be interesting to reflect on what might explain this difference, particularly given the extent to which law informs Cornell’s understanding of the moral wrong of negligence.
On this point, Cornell perhaps might strengthen his case by turning to legal history. For the structure he attributes to moral negligence bears some resemblance to a form of legal accountability long central to English law, namely, accountability for injury under the writ of trespass. To make out a claim under that writ required the complainant only to allege that the defendant had forcibly and directly injured the complainant. With that allegation in place (and leaving aside outright denials), the defendant could avoid liability only by providing a satisfactory account of why the injury occurred. English courts eventually deemed proof of “inevitable accident” to be such an account, but the contours of that defense were never very well defined. As a matter of history and normative theory it would be interesting to consider whether, for example, a responsive plea of “I did not see” would have sufficed to establish an inevitable accident defense in a seventeenth-century or eighteenth-century version of Moore v. Dashiell.
Finally, as an externalist, I can’t help but worry that Cornell’s effort to detach moral negligence from misconduct (whether misfeasance or nonfeasance) is too sharply at odds with the grammar and ‘phenomenology’ of moral and legal negligence. As explained, his view hinges on the thought that one person can wrong another without having breached a duty to conform to a standard of conduct. Yet, in ordinary parlance, “negligence” and its cognates seem overwhelmingly to be used to describe just that sort of breach. To assert that someone was negligent is to allege a defective performance—that they didn’t proceed with enough caution, or didn’t do something that prudence required. Of course, my concern about the gap between ordinary notions of negligence and Cornell’s reconstruction may attest to my own blind spots. In any event, it does nothing to undermine my bottom-line assessment, which is that legal scholars and moral philosophers will do well to take a close look at Cornell’s ingenious and illuminating essay.
Cite as: John C.P. Goldberg, Seeing Negligence for What It Is
(November 24, 2021) (reviewing Nicolas Cornell, Looking and Seeing
, in New Conversations in Philosophy, Law & Politics
(Ruth Chang & Amia Srinivasan eds., forthcoming), available at SSRN), https://torts.jotwell.com/seeing-negligence-for-what-it-is/
In Pursuing Public Health Through Litigation: Lessons from Tobacco and Opioids, Nora Engstrom and Robert Rabin set out to isolate the essential similarities and differences between the tobacco and opioids public health crises, and to extract lessons for future crises. In both the extent of the harm that they have done—and in their slow-motion train wreck extension across decades—both crises are vast. Indeed, they have lasted so long that they are part of the background noise of our lives. Yet, there is still shock value in Engsrom and Rabin’s short summaries of just how devastating these two crises have been—and still are. We all seem to have grown accustomed to appalling baseline levels of death and devastation. Engstrom and Rabin drive this point home simply and powerfully at the beginning of their fine article.
“Since 1999, opioids have claimed nearly 450,000 American lives, including nearly 50,000 in 2019 alone, dwarfing the carnage caused by either car crashes or gun violence. . .. Opioids are on track to claim the lives of another half-million Americans within the next decade. That’s like wiping out all of the men, women, and children in Atlanta in one fell swoop.” (P. 287.) Deaths “of course, only tell a sliver of the story. . . the lives of millions more are diminished and upended. Roughly, 2.1 million Americans suffer from an opioid-use disorder, over four million Americans misuse opioids each month, and an opiate dependent American child is born every fifteen minutes.” The economic costs of all this addiction and suffering are equally staggering; they are estimated to exceed “$500 billion annually, which works out to nearly 3% of U.S. gross domestic product.” (Pp. 287-88, emphasis in original.)
The devastation wrought by smoking is even worse, and still continuing. Even today, the “ravages of smoking-related disease remain at a historic level. Over the past half-century, Americans have consumed nearly 25 trillion cigarettes, which have, in turn, killed more than 20 million Americans—that’s more than ten times the number of U.S. citizens who have died in all wars fought by the United States, combined.” Even today, “though smoking rates are down sharply from their mid-twentieth-century peak . . . cigarette smoking in the United States accounts for more than 480,000 premature deaths per year.” Smoking thus accounts for “about one in every five U.S. fatalities—including the deaths of an estimated 41,000 nonsmokers from exposure to secondhand smoke.” (Pp. 288-89.) Only the immense harms that these public health disasters inflicted at their peaks makes the havoc that they are now wreaking seem merely endemic.
These two product-related public health disasters are tied together by the fact that cigarettes and opioids are highly addictive. The products responsible for other prominent public health disasters—asbestos, DES, the Dalkon Shield, Thalidomide, lead paint, Fen-Phen—were not addictive. Both cigarettes and opioids were sold in staggering numbers to a public that was “mostly unwitting,” and both products were spectacularly successful at addicting their mostly unsuspecting users. In both cases, the result was decades of failed individual tort lawsuits—forty years’ worth in the case of tobacco—even though the claims being brought were doctrinally unadventurous. In both cases, the product manufacturers failed to warn about, and even misrepresented, product risks—including the risk of addiction—of which they were or should have been aware. For long stretches of both crises the manufacturers behind the products were well aware of their dangers and determined to conceal them. And, in both cases, juries were consistently disinclined to find for individual plaintiffs—instead blaming the victims for the addictions that eventually precipitated their disabilities, declines, and deaths. Unbeknownst to the victims themselves, the defendants chemically disabled their agency, but juries overwhelmingly found the victims morally responsible for the harms that their addictions brought upon them.
There is more to this complicated tale and there is also more to the failure of the individual tort suits. Defendants waged total legal war against each individual plaintiff, and they directed their concealment and misrepresentation efforts as much at the public at large as at the users of their products. Furthermore, good things arose, Phoenix-like, out of the ashes of the individual suits. Their failure helped to catalyze class actions and led to lawsuits brought by public entities (e.g., by state AGs) which sought to recover the costs that these public health crises inflicted on state governments and taxpayers. States, unlike individual smokers, “had never smoked. As nonsmokers, they were impervious to character assassination and insulated from assumed-risks defenses.” Their clean hands turned the tables on the defendants. As the Mississippi Attorney General who pioneered the tobacco lawsuits observed, “State actions are not about personal responsibility; they are about corporate responsibility.” (Pp. 349-50.) Not only were these suits largely successful, the discovery that they also enabled eventually turned the tide of public opinion against the defendants.
The success of the state actions in the tobacco context was not unqualified, but it was significant and, in some ways, remarkable. (Pp. 342-44.) The litigation spawned by the opioid crisis is at an earlier stage, but it is now following a similar path. In the opioid crisis, litigation has come “to be aggregated, rather than individualized”; it has come to be “quarterbacked by public, rather than private actors”; and “like the tobacco litigation before it, the opioid litigation seems destined to involve the payment of eye-popping sums.” (P. 290.) Indeed, in the case of opioids, the unfolding sequence of legal actions has left opioid manufacturers caught in quicksand of their own making. They are now enmeshed in so many suits with so many state and local government actors that the path to a global settlement is difficult even to envision.
In short, even though private tort litigation has been spectacularly unsuccessful, it has played a catalyzing role in precipitating more successful public litigation. Those public actions have fallen well short of curing their respective public health crises, but they have helped to mitigate them and they have delivered a measure of accountability. This story, told well and persuasively by Engstrom and Rabin, is only one thread in the tapestry of their article. Indeed, at least as much of the article is about how and why these crises (the opioid crisis especially) surpass the governance powers of any form of litigation. Responding to these crises requires deploying the entire array of tools available to government officials— taxes, prices, regulatory regimes, and administrative processes, as well as public and private litigation. The article’s overview of how the pieces fit together and fall apart, as well as its overview of how the two crises resemble and differ from one another, are concise and highly instructive. The article is an immensely valuable road map to these two vast public health crises and, even more, to the legal crises that these public health crises have bred.
For tort purposes, the tale that Engstrom and Rabin tell about the relative powerlessness of the private law of torts is the most salient lesson of the article. On their persuasive account, individual tort suits have indirectly served to stimulate effective lawsuits by public actors and thereby purchased some deterrent effect, but “tort law does not, and logically cannot, serve its compensatory function—and, as a procedural-justice matter, surrogate actions leave direct victims on the outside looking in.” (P. 350.) The point here transcends Engstrom and Rabin’s instrumentalist understanding of tort as an institution pursing the twin objectives of deterrence and compensation. Tort scholars committed to thinking in terms of rights, wrongs, and reparation, can recast the failure here at as a failure to hold wrongdoers accountable to their victims for the harm that they have wrongly done. The point is well-taken. So, too, is the point that aggregation and public actions overcame the obstacles that defeated private tort claims by making the harm to the public at large, not the harm to the victims, the issue. There is an important measure of justice in this success. Responsibility to the public at large is a remedy that fits the wrong of inflicting the harm of a massive public health crisis.
There may, however, also be a fault in tort doctrine. Tort doctrine counts addiction as a harm only for purposes of warning obligations; it does not count becoming addicted as a harm in itself. The distance between harm as tort law normally conceives it and addiction is not so very great. Tort law is preoccupied with physical harm. Physical harm, for its part, is understood in a way that is both straightforward and morally significant. It is “the physical impairment of the human body (‘bodily harm’) or of real property or tangible personal property . . . Bodily harm includes physical injury, illness, disease, impairment of bodily function, and death.” Restatement (Third) of Torts: Liability for Physical & Emotional Harm § 4 (2010). The morally significant point here is that broken fingers, diseased lungs, disabled legs and so on are harms because they impair our normal powers of agency. We cannot do normal things or lead normal lives when our bodies are broken. But addiction, like physical disability, is also an impairment of agency—and a physical one at that. It robs people of their normal power of control over what they consume; it defeats the normal capacity to avoid using products that you know to be dangerous to your health. It is a harm, and a devastating one.
It is one of the many virtues of Pursuing Public Health Through Litigation: Lessons from Tobacco and Opioids that it put squarely on the table the question of whether the time has come for the law of torts to recognize addiction itself, wrongly inflicted, as a form of actionable harm. Until it does so, the law of torts seems to be in the dubious position of expecting jurors to be more morally perceptive than the law that they are bound to apply.
Among legal academics, the intentional infliction of emotional distress tort is having a moment. Long derided as the “redheaded stepchild” of personal injury law, IIED is being rediscovered by scholars seeking new interventions against social ills like workplace oppression and ethnoviolence. Tasnim Motala is the latest writer to explore the promise of the IIED tort, this time as a response to racist speech. In Words Still Wound: IIED & Evolving Attitudes toward Racist Speech, Motala makes three crucial moves: she concretizes the injury of racial insult; she documents the limits of legislative efforts to stigmatize and deter this speech; and she revisits the intellectual history of the tort to suggest its capacity to redress speech-inflicted wounds. Some of these moves work better than others, but in the end, Motala has advanced an important conversation about private law’s power to change social norms.
From its inception in the early twentieth century, lawyers and judges have been suspicious about IIED, often because they have resisted the idea that emotional injuries are sufficiently “real” to merit the law’s protection. This suspicion has been especially intense where the claimed injury arises from a defendant’s use of the legal right and cultural privilege to express personal opinions. Motala meets this objection head-on, showing how racial epithets rupture both the individual and society. She draws on extensive interdisciplinary literature showing that racial insults in person-to-person encounters inflict harms so widely recognized that psychologists have medicalized them as “race-based trauma.” (P. 123.) This trauma has been empirically demonstrated to cause “anxiety, hypervigilance to threat, [and] lack of hopefulness for [the] future,” often leading to depression and substance abuse. (P. 123-24.) Leveraging tort’s simultaneous concern with private rights and social concerns, Motala argues that when these injuries are unredressed, they corrode both individual well-being and the social trust on which economic and democratic structures rely. (P. 120, 123.) Notably, Motala does not try to placate critics who insist that only physiological injury counts for tort liability. She subtly rejects the terms on which these critics want to joust, instead urging readers that tort’s concerns go beyond the tangible alone.
Motala may aspire to a broader application of tort because, in her telling, twentieth century public law efforts to address racism have stalled out. While existing civil rights laws have had some impact on conduct in shared public spaces (public accommodations, government programs, employment, and education), they are powerless to address private racial hostility. (P. 131, 139-49.) State legislatures are equally hamstrung; when they have used their political capital to criminalize and punish hate speech, the Supreme Court has thwarted those efforts as unconstitutional abridgments of expression. (P. 134.)
Against this backdrop, IIED is offered as the “best vehicle” (P. 117) for stigmatizing and deterring racial insults; in fact, Motala makes the historical claim that the tort was “designed” for this purpose. (P. 118.) This claim is as bold as the two that precede it, but not quite as persuasive. Motala provides a capsule history of the academic drive to put a label on the cluster of turn-of-the-century tort cases recognizing emotional injury. (P. 135-39.) But she deemphasizes the history of institutional ambivalence about this effort – both within the American Law Institute and among the judiciary at the time. And she plays down the extent to which IIED advocates declined to specify the goals they thought the tort would serve over time. Yes, the creators of IIED have said behavior is more likely to be “outrageous” where it takes place between those who do not share power equally, (P. 138) and in theory, this does suggest that it is an apt response to racialized insults. But the creators of IIED stopped short of framing the tort as a means to empower victims of those insults. And while Motala points to a few cases where courts have used IIED this way, (P. 155) she points to just as many where they have refused to compensate victims, undercutting her claim that IIED was designed for this space. (P. 156-58.) Of course, law evolves over time. So even if IIED was not expressly created to do racial justice decades ago, it can do justice today and Motala persuasively argues that it should. But as a member of the pro-IIED choir, I am easy to persuade. Whether the speech absolutists and tort consequentialists in the congregation will agree is another question.
Motala’s enthusiasm for IIED arises in part from a presumption that Americans have definitively pronounced racism immoral and racial insults socially taboo. (P. 117.) She backs these assertions by pointing to celebrities, student activists, and others who have leveled racist insults in recent years and been “cancelled” as a result. (P. 126-28, discussing, among others, comedian Roseanne Barr.) Unhappily, it is not clear what inference to draw from these scandals. Popular outrage against Barr, for example, suggests that many Americans consider such insults intolerable. But the very fact that Barr chose to tweet her insults for all to see suggests that many people freely traffic in words that wound.
Of course, the persistence of American racism does not doom Motala’s bid for racial justice through IIED. If anything, it raises the stakes of her project. Here, her proposal might benefit from a deeper theorization of tort’s operation and purposes. Like other instrumentalists who deploy tort in the service of the values they think society demonstrably prefers, she wants judges to impose anti-racist norms in these cases. (P. 159.) But if tort is a body of evolving common law that facilitates the construction of community norms, maybe IIED should be framed less as a tool of top-down judicial morality, and more as a vehicle for bottom-up norm modernization through jury conversations about race, equity, and interpersonal dignity. These conversations might organically produce the racial reckoning that Motala presumes to be largely behind us.
Whatever the future of IIED in the context of racist speech, Motala’s article should spur an essential conversation about the comparative competencies of public and private law as tools of social justice.
Edward Cheng, Ehud Guttel and Yuval Procaccia, Sequencing in Damages
, 74 Stan. L. Rev
. __ (forthcoming, 2022), available at SSRN
My favorite type of paper is the type where you hit your forehead asking yourself: how did I miss this simple point? How did everyone else miss it? Why didn’t I write this paper myself, given that its main insight was under my nose for so many years? In Sequencing in Damages, Edward Cheng, Ehud Guttel and Yuval Procaccia (hereinafter: CGP) made me hit my forehead. The paper is forthcoming in the Stanford Law Review, and deservedly so.
CGP’s paper is about law’s arithmetic. It is a well-known stereotype that students go to law school because they cannot stand math. Perhaps this is why lawyers, judges and law professors seem to fail in applying what looks like really simple math.
Consider the following elementary school exercise:
(1,200,000-400,000)* ½ = 1,200,000 * ½ -400,000
True or False?
Everybody knows it is false: the left-hand side equals 400,000 and the right-hand side equals 200,000. Subtracting and then multiplying is not the same as multiplying and then subtracting. And yet although the order of operations matters courts, lawyers and professors get (intentionally or not) different answers to this (and similar exercises) all the time.
Consider Jill who is a victim of a tort. Jill suffered harm of $1,200,000. At trial, it was discovered that Jill’s health insurance had already paid $400,000 to cover her medical expenses. Because she lives in a state which has modified the “collateral source rule”, this payment should be deducted from her damage award. The arithmetic problem begins because Jill was also found to be 50% negligent. Should the payment by the collateral source (CS) be deducted first, and then comparative fault (CF) applied? In that case Jill will receive $400,000 (like in the left-hand side above). Or perhaps it should be the other way around, and the CF should be applied first and only then the CS deducted? In that case Jill will receive only $200,000 (like in the right-hand-side above).
CGP show that courts do not reach a uniform answer to this simple question even though there are only two options to choose from. And if courts err in this simple example, one should expect courts to err when they try to solve lengthier arithmetic exercises, such as when a $500,000 damages caps is added to the mix. Should caps apply first, second or third in the order of operations? It turns out that this time we do not have just two options, but rather six, none of which is equal to the other. Here are the six options (→ means applying the $500,000 caps):
- Caps first, CS second, CF third: ($1,200,000 → $500,000-$400,000) * ½ =$50,000 recovery
- Caps first, CF second, CS third: $1,200,000 → $500,000 * ½ -$400,000= -$150,000
- CS first, Caps second, CF third: ($1,200,000-$400,000) → $500,000 * ½ = $250,000
- CS first, CF second, Caps third: ($1,200,000-$400,000) * ½ = $400,000
- CF first, CS second, Caps third: $1,200,000 * ½ – $400,000= $200,000
- CF first, Caps second, CS third: $1,200,000 * ½ → $500,000-$400,000= $100,000
Two quick things to note. First, option 2 yields a negative number, meaning the plaintiff perhaps needs to pay the defendant $150,000(!), or at the very least should receive nothing. That might be an easy option to rule out. Second, if we add a fourth component to the exercise such as the plaintiff’s failure to mitigate her harm, we will get 4-factorial or 24 different options. And if we add a fifth component, such as when the plaintiff settled with one of the defendants for an amount different from that which the court later found the other defendant to be responsible for, we get 5-factorial or 120 different options.
But then, with so many options how one can even expect courts to reach the correct answer? Remember, judges were once our students and (as we have agreed above) many of them came to law school to escape math…
Returning to Jill’s problem, CPG find that courts apply different approaches even to this simple two-option problem. They then show that courts commit similar errors when they deal with other two-option arithmetic problems such as when comparative fault and mitigation of damages both exist, and more. Further, CPG go beyond just showing courts land everywhere and also offer a solution. And the solution they offer is conceptual, not formulaic. In my own view, when properly applied, their solution can solve not just Jill’s two-option problems, but also the more complicated 24 or 120-option problems. As CPG correctly explain, the key is to properly conceptualize what is at stake in each stage of the arithmetic exercise. And the good news is that this is exactly the exercise students, lawyers, and courts are trained to master.
Let’s give one quick example for how properly conceptualizing what’s at stake transforms what seems like an arithmetic problem to one of public policy. CPG conceptualize Jill’s two-option problem by observing that the problem is one of allocating a windfall that would accrue if the insurance money the plaintiff received from her insurance company is added to the pot of money she receives from the injurer. And, as the above exercise showed, if one applies the collateral source first, the victim benefits more than if one applies comparative fault first (recall Jill received $400,000 in the former case and only $200,000 in the latter). CPG argue that most cases where the collateral source is applied first involve broad public-interest programs such as Social Security or Medicare. To have individual wrongdoers benefit from these programs at the expense of victims “would seem strange, if not perverse.” (P. 23.) In contrast, in many of the cases where comparative fault was applied first, the wrongdoer was a government entity and therefore protecting the public coffers became an important interest. To be sure, one need not necessarily agree with CPG’s explanation to appreciate the fact they offer one. In their paper, CPG further explain how to solve the other two-option arithmetic problems they discovered.
The truth is that courts face more than just a problem of arithmetic when they decide the order of operations in calculating tort damages. They are facing classic problems of applying form to content, of revealing legal rules’ internal logic, or of implementing policy goals. Therefore, even our math-deterred students should find these problems not just important but also decipherable.
In sum, anyone studying, teaching, practicing, or judging tort cases needs to read CPG’s new paper. It is clear and simple, it is correct to the dot, and it is insightful both as a matter of theory and as a matter of practice. What else can one ask from a paper?
Cite as: Ronen Avraham, Law’s Arithmetic
(August 11, 2021) (reviewing Edward Cheng, Ehud Guttel and Yuval Procaccia, Sequencing in Damages
, 74 Stan. L. Rev
. __ (forthcoming, 2022), available at SSRN), https://torts.jotwell.com/laws-arithmetic/
Erik Encarnacion, Resilience, Retribution, and Punitive Damages
, 100 Texas L. Rev.
__ (forthcoming, 2021), available at SSRN
Most American states permit the award of extra-compensatory punitive damages to tort plaintiffs if the defendant’s conduct was especially culpable. The conventional rationales for this practice are the value of punishing such conduct and the special need to deter it. Yet these rationales are focused entirely on the defendant: they explain why a defendant should pay more than compensatory damages but do not explain why that additional punitive award should be transferred to the plaintiff. And indeed, many states, under “split recovery” schemes, require that a specified proportion of a punitive damage award be paid to the state, not to the plaintiff. But critics of punitive damage awards are not satisfied by this response: they believe that transferring any nontrivial portion of a large punitive damage award to a plaintiff gives that plaintiff an unjust and undeserved “windfall.”
Can the practice of awarding substantial punitive damages to plaintiffs be justified? The literature on the propriety of punitive damages in tort law is enormous, but that literature has paid little attention to the “windfall” objection. The objection is not especially troubling to consequentialist or law and economics scholars: punitive damage awards help incentivize plaintiffs’ lawyers to fully investigate serious wrongdoing and may offer useful additional deterrence of especially culpable conduct. But corrective justice and civil recourse theories cannot so readily overcome the windfall objection, insofar as they emphasize the close bipolar relationship between defendant’s wrong and plaintiff’s injury, and between defendant’s duty to pay damages and plaintiff’s right to receive those damages.
In this sophisticated and insightful article, Professor Erik Encarnacion offers a provocative and novel solution, a solution that he believes is consistent with nonconsequentialist justifications of tort law. He suggests reconceptualizing punitive damages as a particular form of retributive justice: a plaintiff has the right to demand that a highly culpable defendant satisfy the plaintiff’s “resilience interests,” and this requires the wrongdoer to make the plaintiff better off than the plaintiff would have been absent defendant’s wrongful conduct. After briefly reviewing Encarnacion’s criticisms of existing justifications of punitive damages, I will explain in more detail his own original solution.
Encarnacion persuasively argues that many supposed justifications for punitive damages are inconsistent with the usual doctrinal requirements for awarding such damages. He notes that courts require proof of some form of ill will or especially culpable behavior before awarding punitive damages, a requirement for which economic explanations of punitive damages cannot easily account And insofar as retribution is asserted as a justification, he points out that transferring punitive damages to the state to finance the state’s criminal justice system might better serve retributive objectives, at least as “retribution” is ordinarily understood.
Further, Encarnacion identifies difficulties with treating punitive damages as either a form of revenge or as a civil avenue for revenge. To be sure, these approaches have the structural advantage of not exclusively focusing on the wrongdoer to the exclusion of the victim. But, he argues, seeking revenge might be a normatively undesirable interest for the state to pursue. And the alternative of providing a civil remedy as a substitute for revenge (or in order to avoid civil unrest) is still troublesome insofar as it does not explain why tort law awards punitive damages to the plaintiff.
Encarnacion also notes and critiques two other strategies for dissolving the problem. The first approach justifies punitive damages as properly awarding compensation for intangible and dignitary injuries that compensatory damage criteria sometimes undercompensate. The second justifies punitive damages when the defendant has inflicted social harms on the community beyond the harm to the plaintiff. But, Encarnacion persuasively replies, these approaches ignore the genuinely “punitive” feature of punitive damage awards: these awards are available only for especially egregious conduct that deserves punishment.
What is Encarnacion’s solution? In his words:
Punitive damages empower victims to act punitively against their oppressors by requiring them to finance those victims’ resilience interests—i.e., their interests in bouncing back better than before the wrongdoing—if they so demand. (P. 25.)
Encarnacion uses the term resilience, not in the popular sense of a character trait of persistence in the face of adversity, but in the sense of the victim actively responding to a setback by “mak[ing] oneself better off, in some meaningful sense, than before [the] setback.” (P. 29.) Encarnacion builds his approach on philosopher Jean Hampton’s account of retributive justice. Hampton viewed retributive punishment as defeating the wrongdoer and countering the wrongdoer’s message that the victim is subordinate to the wrongdoer. But, Encarnacion argues, “[r]esilience … complements the retributive message by communicating that not only has the wrongdoer been defeated, the victim has emerged victorious, as demonstrated by becoming better off (in some sense) than before.” (P. 34; emphasis in original.) Creating this “counterstory” signals to others how the victim should be treated and demonstrates to victims their agency and dignity. By contrast, merely restoring the victim to the status quo ante is inadequate (P. 36.) Punitive damages enable plaintiffs to make themselves better off by securing justice against their wrongdoers, in effect “transforming their malefactors into benefactors” (page 1). Criminal law theorists have recently offered potent criticisms of retributive justice theories: they justify cruel and destructive punishment practices and legitimize the problematic view that causing wrongdoers to suffer is intrinsically good. By contrast, Encarnacion believes that his account shows how retributive justice can be a constructive rather than destructive practice.
Encarnacion concludes his largely theoretical analysis by identifying two practical implications of his approach. First, he would sharply distinguish “retributive damages” from “deterrence damages”: although the plaintiff is entitled to the former, the latter could be shared with the state in order to avoid unjust windfalls to plaintiffs. Second, he would revise the list of factors that juries are instructed to consider when awarding the retributive type of punitive damages: juries should consider culpability-related factors, but should not consider incentives on plaintiffs to bring claims or deterrence of would-be wrongdoers. The wealth of the defendant (which is typically considered under existing law) could also be relevant, “since a $1,000 punitive damages award may not qualify as genuinely punitive to a multi-billionaire because it will fail to signal the plaintiff’s victory unambiguously” (P. 48), insofar as a larger punitive award against a wealthy defendant is needed in order to express plaintiff’s resilience interests. Provocatively, Encarnacion suggests that the victim’s wealth should also be a relevant consideration when the defendant is relatively impecunious, militating against a punitive damage award, because making a wealthy plaintiff better off in this situation would conflict with the principle that the punishment must be proportionate.
This is a well-reasoned and impressive article, demonstrating theoretical sophistication and containing insightful analysis of tort doctrine, tort theory, and punishment theory. Not surprisingly, Encarnacion’s highly original perspective raises a number of questions, questions that I hope he addresses in future work:
- Why does resilience entail that the victim be made financially better off via punitive damages? Suppose P’s life goes much better after (and because) P suffers harm from D’s tort. (P writes a successful book about the experience, or P meets the love of his life in the hospital while recovering from his injuries.) Should such a P be denied punitive damages?
- How do we resolve the tension between imposing an amount of punitive damages that is proportional to defendant’s wrong and empowering the victim to be better off than if the victim had not been wronged? Put differently, how much better off should the victim be? If punitive damages are ten or one hundred times compensatory damages, is that excessive? If they are only 10% more than compensatory, is that inadequate?
- What if the direct victim of the tort has died? Should family members or the victim’s estate be entitled to punitive damages? Isn’t the expressive value of recognizing the victim’s resilience weaker in this situation? Yet it would be problematic not to permit punitive damage awards in death cases.
- Does criminal punishment itself satisfy Encarnacion’s criteria of retributive justice? How does inflicting punishment on criminal wrongdoers make victims better off than before they were victimized?
The article would also benefit from additional concrete examples, especially of punitive damage awards against corporate wrongdoers.
Despite these questions, Encarnacion’s article is intriguing, creative, and ambitious, thoughtfully addressing fundamental questions in both tort theory and punishment theory. It should be of great interest to academics in both fields.
Cite as: Kenneth W. Simons, A New Retributive Justification for Punitive Damages
(July 13, 2021) (reviewing Erik Encarnacion, Resilience, Retribution, and Punitive Damages
, 100 Texas L. Rev.
__ (forthcoming, 2021), available at SSRN), https://torts.jotwell.com/a-new-retributive-justification-for-punitive-damages/
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Catherine M. Sharkey, Public Nuisance as Modern Business Tort: A New Unified Framework for Liability for Economic Harms
, 70 DePaul L. Rev.
__ (forthcoming, 2021), available at SSRN
More than a hundred years ago, in Mitchell v. Rochester Railway Co., 151 N.Y. 107, 108 (1896), New York’s highest Court denied recovery to a plaintiff who had being negligently charged by a team of horses. Although the plaintiff was rendered unconscious and suffered a miscarriage, the Court held that she could not recover for “mere fright.” The court excluded recovery even though the team of horses “came so close to the plaintiff that she stood between the horses’ heads when they were stopped.” (P. 108.) The court reasoned: cases had not historically allowed recovery for fright or shock; if recovery were established “it would naturally result in a flood of litigation… a wide field would be opened for fictitious or speculative claims”; and “damages were too remote.” Today, notwithstanding these historical worries, most authorities would permit recovery on the Mitchell line of facts.
In her important article, Public Nuisance as a Modern Business Tort: A New Unified Framework for Liability for Economic Harms, Professor Cathy Sharkey invites readers to question whether nonliability for economic loss, and courts’ similar rationales, should also go the way of horse and buggy. Sharkey suggests “the calculus may be shifting in an age of global financial crises, escalation of digital and informational harms, and growing sense that societal harms of the 21st century involve risky conduct leading to purely financial harms.” (P. 3.) In particular, Sharkey focuses her attention on the public nuisance tort. Are authorities right to specifically permit liability in public nuisance cases while generally limiting liability for negligently caused economic loss? Are they right to focus on liability limitation as their exclusive policy concern in both the public nuisance and economic loss space?
Sharkey’s answer to both questions is a resounding no. First, she tackles the interplay between the economic loss rule(s) and the public nuisance tort. The Restatement Third of Torts: Liability for Economic Harms restricts liability for most negligently inflicted economic losses. However, it then permits the public nuisance tort to stand as an exception to the general rule. Doctrinally, the stance is unsurprising. But on reflection, it is theoretically difficult to justify. The Restatement Third says public nuisance recovery is permitted because social and private costs of a public nuisance are large and private rights of action can deter wrongs. True enough. But as Sharkey points out, this rationale does not differ from many contexts of negligently caused economic loss—contexts in which liability is generally excluded. Sharkey skillfully guides the reader through a number of situations—street and bridge closures, oil spills and gas leaks—to show that public nuisance claims are best understood cases in which courts (rightly) grant liability for negligently caused economic harm. As such, public nuisance claims and economic loss claims “should rise or fall together—the business’s ability to recover should not be contingent on whether the case is framed as negligence or public nuisance.” (P. 11.)
Sharkey also takes issue with an exclusive policy focus on restricting unlimited liability in public nuisance and economic loss cases. Instead, she would add a second, and equally compelling policy concern— “a channeling or enforcement rational: namely, deputizing a class of significantly impacted individuals or entities who can sue to force the tortfeasor to internalize the costs of its activities.” (P. 3.) With this dual focus on deterring negligently caused economic loss and restricting unlimited liability, “the aim should be to find a class of victims most immediately and obviously affected by the violation of a public right, … incentivize this class of persons to sue the tortfeasor, who must thereby internalize the costs of its actions, and thus realize tort law’s objective of allocative efficiency in the case of economic or business torts.” (P. 16.) For Sharkey then, courts should concern themselves with underdeterrence as well as overdeterrence. The need for enforcement mechanisms to foster deterrence is particularly salient in the modern era because of “widespread financial harms in which there are not likely to be physical injuries (such as data breaches).” (P. 16.)
After situating private actions for public nuisance within the context of other negligently caused economic losses and articulating dual concern for liability imposition and liability limitation, Sharkey presents three questions courts should ask in negligent economic loss/public nuisance actions, such as the Southern California Gas case in which a gas leak drove people from their homes and shuttered businesses. “Who are the ‘immediate and obvious’ victims of the gas leak”? “Does deputizing the first tier of plaintiffs … suffice for deterrence purposes”? And finally, “are the marginal gains from expanding the circle of plaintiffs to the next tier of impacted victims worth the higher administrative costs that multiple actions for lost profits entail”? Sharkey then brings this critical analysis to an important set of claims of the day—public nuisance actions for opioid addiction. The issues center not on whether plaintiffs should be able to seek recovery, but instead on which plaintiffs should be able to do so.
Sharkey’s article adds a fresh perspective that immediately adds value. Her evaluation of public nuisance alongside negligent economic loss cases is both surprising and obviously helpful. Doctrinally, it is easy to say that liability is to be eschewed in one circumstance (economic loss) and granted in another (public nuisance), but why should we? Her article asks readers to step back and reevaluate why liability should and should not be granted with respect to negligently caused economic loss in general, and in private actions for public nuisance in particular. Her focus is on reasoning and not just historical experience.
Sharkey’s conclusion in the public nuisance context hearkens back to a similarly thoughtful discussion by Professor Willem Van Boom in the economic loss sphere. In Pure Economic Loss: A Comparative Perspective, Van Boom writes: “Some authors have suggested that the ripple effect might be taken quite literally as a demarcation method: if a ripple consists of ever decreasing circles, it might be efficient – be it, admittedly, somewhat arbitrary at times – to discard the exclusionary rule [for economic loss] and instead allow the first two or three circles adjacent to the primary victim to claim compensation (provided that all the other requirements for liability are met).” (P. 50.) Sharkey’s article makes a compelling case that in public nuisance cases, like the negligent economic loss cases, courts should demarcate a few ripples of harm. As such, instead of evaluating public nuisance claimants through a “special injury” analysis that asks if the plaintiff’s injury is “different in kind” from others’ (an analysis already abandoned in a number of areas of tort law), or attempting to define the nature and extent of “public rights,” courts should ask which negligently harmed individuals or entities should be incentivized to sue. That latter question turns out to be a difficult one. Still, Sharkey makes a compelling argument that, even if difficult, the question is an important one to ask. These are new days of financial loss. Perhaps in the modern times, courts are best advised to think about catching (at least some of) a wave.
Yitzhak Benbaji, Welfare and Freedom: Towards a Semi-Kantian Theory of Private Law
, 39 Law & Phil.
473 (2020), available at SpringerLink
Is it permissible to take into account considerations of aggregate welfare, distributive justice, and others which concern the impact of the law on society as a whole in setting the content of private law rules? Certain Kantian theories—notably, Arthur Ripstein’s—seem to answer ‘no’: the only normative business of private law should be the realization of our innate right to freedom as independence. Benbaji’s article, Welfare and Freedom: Towards a Semi-Kantian Theory of Private Law, seeks to show that a superior Kantian theory should answer ‘yes’, but only in so far as a legislator is choosing between private law systems which equally realize our innate right to freedom. In his view, the Kantian state’s duty to realize a private law that secures freedom has strict lexical priority over other non-freedom-related considerations.
Consider a toy example to illustrate Benbaji’s basic idea. Suppose there are two different, inconsistent, schemes of private law rights in relation to unreasonable risk imposition, P1, and P2, which equally realize freedom as independence. According to Benbaji, it would be permissible for the Kantian legislator to choose between P1 and P2 on the ground that P2 maximises aggregate welfare. If, however, P1 realized freedom as independence but P2 fell short of realizing freedom as independence, then the Kantian legislature would be duty-bound to establish P1, even if P2 scored much higher on welfarist grounds. Benbaji calls his view ‘semi-Kantian’, then, because it accords lexical priority to Kantian freedom, but departs from Ripstein’s Kantian ‘minimalism’ in permitting non-freedom-based considerations to determine the content of private law entitlements once that lexical threshold is met.
The bulk of Benbaji’s article is given over to showing that semi-Kantianism (henceforth ‘SK’) is possible. SK is possible only if there are multiple private law arrangements which equally realize freedom as independence. Why believe this? Part of the justification for the state, on Kantian views, is normally the inherent indeterminacy of certain kinds of entitlement. A public determination of the content of rights in positive law is necessary in order for entitlements to be permissibly insisted upon. One major reason for this is that “the juridical concepts of property, authorization, duty, excessive risk, etc. are vague.” (P. 481.) Consequently it might be “indeterminate, indefinite, or unsettled” where a defendant’s conduct on a particular occasion was “unreasonably dangerous.” Similarly, a contractual duty may employ concepts which “run dry” in their application to particular cases: a duty requiring a shipment of grapefruit pulp pellets to arrive in “good condition” does not allow one to determine precisely how many spoiled pellets are consistent with the shipment being in “good condition.” (P. 482.) While this may appear to be a highly localized indeterminacy, Benbaji holds that many central freedom-as-independence-realizing concepts, such as those mentioned above, are indeterminate in their extension until specified. This being so, one could envisage a large-scale legislative choice that could legitimately be said to be a choice between different ‘systems’ of private law.
Not only are the concepts by which freedom as independence is articulated vague, they also “incorporate conceptions that are inconsistent with each other.” (P. 482.) One of Benbaji’s examples is the notion of “excessive risk.” He gives the following scenario to illustrate the point that “excessive risk” could be conceptualised in multiple, inconsistent, ways:
Suppose that the plaintiff had been at a 30% risk of being hit by the right hand side of a very large trolley. The defendant threw a switch and thereby the plaintiff was pushed to the other side of the track. As a result, the plaintiff was under a 30% risk of being hit by the left hand side of the trolley. (You may ask, why the defendant threw the switch. Answer: the defendant was about to be hit by the right hand side of the trolley, was trying to avoid it, and the plaintiff was blocking his way.) On the one hand, the plaintiff was under a 30% risk of being hit by the right hand side of the trolley, and the defendant effectively removed it. On the other hand, the defendant created a 30% risk that the plaintiff will be hit by the left hand side of the trolley. How risky was the defendant’s action?
One analysis is that the defendant does not impose a risk upon the plaintiff at all here since the defendant’s act does not alter the magnitude of the risk which the plaintiff faces. Another analysis is that the fact that the defendant saves the claimant from a pre-existing 30% risk is irrelevant to the assessment of whether the act was excessively dangerous. If the defendant negligently damaged the plaintiff, thereby preventing her boarding a flight which crashed, the defendant saved the claimant from a greater harm, but might still be said to have wronged the claimant; perhaps, analogously, then, one can wrongfully impose a risk upon a person, even when one does not increase the overall magnitude of risk faced by the person.
Having thus argued for the possibility of SK, one might think Benbaji would conclude that, other things being equal, private law adjudication in the Kantian state could also take into account considerations of aggregate welfare etc., whenever there is a genuine indeterminacy by the lights of freedom as independence. Or, more generally, private law judges ought to give lexical priority to freedom as independence, but may permissibly decide on the basis of other considerations once freedom as independence is realised. That is not his position, however. Interestingly, Benbaji holds—in line with the view he attributes to Kantian minimalists like Weinrib and Ripstein—that judges should not act upon these considerations under SK. Only the legislature is permitted to do so. Why? For Benbaji, a person’s right to be free from the state’s domination “implies that a concrete dispute between two individuals ought to be resolved by attending exclusively to facts about how things stand between them.” (P. 490.) Benbaji’s essential point here seems to be that private law litigants would be unjustly singled out as the bearers of a distributive policy, when the burdens ought to be borne across society. By the nature of private law adjudication, the thought goes, judges can only make ad hoc, piecemeal contributions to the advancement of distributive goals; that being so, particular litigants will arbitrarily be singled out for distributive justice treatment, so to speak.
In the final three pages of his article, Benbaji offers a tentative argument for the superiority of semi-Kantianism over minimal Kantianism. The basic idea is that the Kantian normative ideal of securing equal freedom as independence for everyone through public institutions leaves Kantians minimalists with insufficient resources to favour, say, progressive taxation regimes. Progressive or regressive taxation achieved by public institutions will both leave members of society as equally free members of society—in the Kantian sense of freedom as independence. While freedom as independence may rule out some allocations of the burdens of social co-operation, it is implausibly permissive. In determining what constitutes a fair allocation of the burdens of social co-operation, then, further normative resources are required beyond the austere ideal of freedom as independence.
Overall, Benbaji’s thoughtful, rich and careful article describes a very interesting, plausible alternative to minimalist Kantian views, which preserves the appealing importance given in those theories to stringent interpersonal restrictions on the use of, and harm to, other people’s bodies and property. By way of conclusion, here are some reflections on his analysis.
First, while Benbaji is correct that ‘enhancing welfare’ is not itself a permissible end of state action in Kantian theories such as Ripstein’s, these theories may well allow some considerations about the ‘wider impact on society as a whole’ of private law rules to bear upon the content of those rules. Weinrib’s view, for instance, is that the scope of rights may justifiably be narrowed or extended compared to the right that would exist prior to the existence of the state, because of the need “to adjust the effects of rights so that rights fit within the totality of conditions under which the freedom of all can coexist.” Precisely what this permits is not entirely clear, but conceivably it could permit restriction in the private law remedies available to a right-holder if the effect of granting relief would be for the court substantially to contribute towards other right-violations in the future. While a simple ‘consequentialism of rights’ is clearly not permitted, there may be room within ‘minimalist’ Kantianism for certain consequential impacts on rights to be taken into account in the design of remedial rules. Possibly, it would permit rules limiting the scope of liability in situations in which crushing liabilities would overdeter and result in more right-violations in the future.
Second, I was not fully persuaded by Benabji’s argument against judicial consideration of non-freedom-based considerations within semi-Kantianism, i.e. once the lexical demands of freedom are met. It is possible for judges to create rationes decidendi of relatively broad and general scope. It is conceivable that judicial law-making power could be permissibly exercised in certain situations in such a way that any additional burdens of a private law rule due to non-freedom-based considerations could be equitably shared. If so, then the arbitrariness objection that Benbaji makes to judicial reliance upon such considerations will not hold in all cases. In some cases, in other words, judges will be able to construct freedom-respecting rules which equally, or otherwise appropriately, burden all relevant members of the distributive class. For instance, suppose that one method of contractual interpretation in cases of vagueness is freedom-consistent, but more likely to maximise welfare than another. If this method is judicially decreed, then all persons who seek to create contractual rights will be subject to the same rules. It is not clear that other distributive changes would need to be made across society for the creation of such a rule to avoid arbitrarily singling out certain members. At any rate, Benbaji’s objection seems to give rise to a more contingent objection to judicial reliance upon non-freedom-based considerations than his discussion suggests.
Third, while I am sympathetic to the general structure of Benbaji’s argument, one might dispute some of his examples of when Kantian right is supposedly indeterminate. Consider again his example of the defendant’s shifting the risk posed by the trolley again. Kantians such as Weinrib would, I think, insist that the required characterisation of the risk in this example is not simply one which considers whether the defendant had an impact on the overall magnitude of risk faced by the victim. If running someone over due to failure to pay proper attention to their interests is wrongful on the Kantian view even when, relative to the facts, it ends up saving that person’s life (as in the doomed flight example), and if there is a strong analogy between this example and Benbaji’s, then isn’t Kantian right non-neutral on the issue of how the risk is characterised?
Fourth, while semi-Kantianism may be an improvement on minimal Kantianism, perhaps an even weaker form of Kantianism (semi-semi-Kantianism?) would be still more attractive. One further weakening would involve the introduction of requirements to consider and act upon considerations of welfare in certain contexts. While Benbaji argues for the permissibility of taking into account considerations of aggregate welfare, he does not argue for the existence of requirements to do so. Suppose, however, that P1, P2, and P3 all satisfy the demands of freedom, but P3 would be enormously more beneficial in terms of welfare. Other things being equal between P1, P2, and P3, it’s plausible to think that there is a requirement for the legislator to choose P3.
Alex B. Long, Using the IIED Tort to Address Discrimination and Retaliation in the Workplace
, (Mar. 31, 2021) __ U. Ill. L. Rev.
__ (forthcoming), available on SSRN
The intentional infliction of emotional distress (IIED) is, in some ways, an outlier among the intentional torts. Most intentional torts are ancient, dating back centuries. By contrast, the original Restatement of Torts, published in the 1930s, did not recognize IIED; it first appeared in a supplement in 1948. More importantly, the intentional torts tend to focus on delineated forbidden conduct. The gist of battery is contact; of assault, it is apprehension; of false imprisonment, it is confinement. IIED is broader, vaguer than the other intentional torts. Although vagueness has the advantage of flexibility, it creates significant difficulties in application.
Alex Long’s recent article, Using the IIED Tort to Address Discrimination and Retaliation in the Workplace, provides concrete guidance on a specific and important fact pattern.
In spite of Title VII and other antidiscrimination statutes, discrimination and harassment in the workplace remain a problem. Long wants to use tort law to help. Mindful of courts’ reluctance to use the tort of IIED in the employment context, Long singles out a limited set of circumstances for liability. He argues that “courts should recognize retaliatory conduct as an especially weighty factor in deciding whether conduct is extreme and outrageous for purposes of IIED claims, particularly where it is coupled with discriminatory conduct.” (P. 4.) Long’s reasoning is partially instrumental; deterring retaliation would arguably incentivize people to complain about and, thus, reduce harassment. He focuses primarily, however, on the harm to the victim, using social science research to support his argument.
Long begins by covering the basics of IIED and its vague standard of extreme and outrageous conduct. He notes that the lack of a clear standard is one of the defining traits of the tort, creating the danger of unpredictable outcomes. Concerns about limiting the tort are as old as the tort itself. Recognizing the dangers of vagueness, courts have set a demanding threshold for liability and attempted to find concrete circumstances under which liability is imposed. The Restatement (Third) of Torts lists potential indicators of extreme and outrageous conduct, including: “the relationship of the parties, whether the actor abused a position of authority over the other person, whether the other person was especially vulnerable and the actor knew of the vulnerability, the motivation of the actor, and whether the conduct was repeated or prolonged.”
As reluctant as courts are to allow liability in general, some are particularly leery of liability in the employment context. Many courts there take an “especially strict approach” to the extreme and outrageous standard, and Long provides the case examples to prove it. To the extent courts justify this tightening of the standard, they tend to do so on the grounds of preserving the employment at-will rule and employer discretion. Significantly, discrimination and harassment, by themselves, rarely meet the extreme and outrageous standard, and again Long documents this admirably. For example, Long describes a 2012 case in which a supervisor referred to a Black man as a monkey, sent a KKK-themed text depicting a noose to another employee, and used racial epithets on a nearly daily basis. An Illinois federal court held that this behavior did not reach the level of extreme and outrageous conduct.
Title VII and other antidiscrimination statutes also make it illegal to retaliate for exercising certain rights, such as opposing unlawful discrimination. Yet it is a rare case in which retaliation creates a jury issue on the question of extreme and outrageous conduct, even if the retaliation is unlawful. A few jurisdictions, however, recognize that discriminatory or harassing conduct combined with retaliation may be extreme and outrageous. Focusing on Pennsylvania and Illinois, Long cites cases containing both factors that at least survive motions to strike. The key is that these courts do not view the discrimination or harassment and the retaliation as isolated, but as inextricably linked.
Long advocates for the further adoption of this minority approach. He notes that one potential benefit of expanding liability on these facts is that retaliation may decline. If retaliation declines, arguably more victims would feel comfortable reporting harassing and discriminatory conduct, which misconduct itself would decline. Long largely relies on the fact that retaliation stemming from opposition to harassment or discrimination is a “special kind of wrong” that has a “greater detrimental impact upon victims.” (P. 38.) To establish that harassment and discrimination are particularly harmful, Long reviews social science research linking harassment and discrimination victims to feelings of humiliation, which Long ties to powerlessness. Humiliation, and the sense of powerlessness, is aggravated if there is no way to express the grievance. Retaliation often cuts off the avenue for voicing grievances.
You know a paper is enjoyable when you wish the author had expanded it. I am intrigued by the similarities between Long’s article and a recent piece by Cristina Tilley. In that article, Tilley attempts to fortify IIED using neuroscience. She argues the gist of outrageous conduct is based in biology, and is, therefore, objective. The “fight or flight” response in human beings is positive in that it serves to aid survival. When the response is triggered, but external impediments prevent a person from acting, antisocial emotional distress is created. Tilley argues it is the purposeful creation of this antisocial emotional distress that is the crux of outrageous conduct.
Both Long’s and Tilley’s articles use scientific research to reduce the vagueness of the extreme and outrageous requirement by identifying circumstances under which liability is particularly appropriate. Moreover, it seems that Long’s category of liability would qualify as objective under Tilley’s taxonomy. An employee with power over another employee harasses or discriminates against them and then retaliates for protected opposition to that conduct. The employee with power is an external impediment to action, leaving the other employee feeling, and actually being, powerless. Is there a formula here? Can we map liability in IIED beyond the category identified by Long?
Regardless of whether further advances are possible, Long’s article is a good and convincing read. Long has articulated a discrete and concrete set of facts under which liability should flow. He is helping to fill the gaps in the vagueness of IIED.
Cite as: Christopher J. Robinette, Filling the Gaps in IIED
(April 14, 2021) (reviewing Alex B. Long, Using the IIED Tort to Address Discrimination and Retaliation in the Workplace
, (Mar. 31, 2021) __ U. Ill. L. Rev.
__ (forthcoming), available on SSRN), https://torts.jotwell.com/filling-the-gaps-in-iied/