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Measuring Common Claims About Class Actions

Joanna C. Schwartz, The Cost of Suing Business, 65 DePaul L. Rev. 655 (2016).

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

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

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


It’s certainly familiar. And it’s undeniably arresting. But is it true?

To find out, Schwartz follows in the tradition of civil justice scholars such as Ted Eisenberg, Marc Galanter, Deborah Hensler, and Bert Kritzer, who have long sought to use empirics to supply an “antidote to the anecdote”—and she works systematically. She breaks the Chamber’s narrative down into its distinct, but related, components—that, for example, class actions force blackmail settlements and impose catastrophic costs on corporate defendants—and, using what Galanter has called a “bricolage strategy,” she gathers what scattered data exist and methodically lays these facts alongside the Chamber’s claims.

For example, what of the notion that class action certification coerces defendants into settling even meritless claims? This idea, first articulated by Milton Handler, has captured judges’ imagination, fueled the Court’s embrace of arbitration, and even driven the Committee on Rules of Practice and Procedure to authorize interlocutory review.1 But does class certification strong-arm defendants into settling dubious claims? Answer: Not so much. The idea that class actions generate more coercive settlements than non-class action cases has been frequently studied—yet never confirmed. Indeed, available evidence undercuts the Chamber’s claims. Schwartz cites research, for example, showing that about thirty percent of class actions are dismissed or otherwise judicially resolved without a settlement or trial, and that “when courts grant class certification and deny motions to dismiss in class actions, defendants do not immediately settle to avoid discovery and trial (as one would expect if fears of blackmail settlements were well founded).” (P. 664.)

Another frequent gripe with class actions is that they impose “catastrophic” costs on business. But again, Schwartz holds that contention up to the light and finds that its truth is hardly self-evident. Class actions surely can trigger substantial cash transfers: Brian Fitzpatrick has found that, during 2006 and 2007, businesses paid a total of $33 billion in federal class action settlements alone. But when viewed from another perspective, that $33 billion seems far less significant: “the federal class action settlement amounts reported by Fitzpatrick amount to less than .2% of the $20.5 trillion in revenues earned by Fortune 500 companies during the same period.” (P. 666.) Further, Schwartz amasses evidence suggesting that “corporations likely spend as much—or more—suing each other than they do on class actions.” (Id.) Indeed, while current data do not allow for a comparison of the total judgments and settlements in class actions versus non-class, intra-business disputes, Schwartz highlights the astoundingly high costs of the latter. She also points out that, while enormous securities settlements draw outsized attention, plenty of class actions—consumer, employee benefits, and labor and employment cases, for example—involve relatively modest sums.

To be sure, in the course of this study, Schwartz faces the same problem that afflicts all scholars of the contemporary civil justice system: a stunning dearth of reliable data. Two decades ago, Michael Saks famously declared: “Much of what we think we know about the behavior of the tort litigation system is untrue, unknown, or unknowable.” Even beyond the four corners of tort law, that dismal conclusion remains more or less true today. Most of the action in the civil justice system (and the vast majority of tort law) occurs in the states, and state court data are remarkably spotty and incomplete.2 And, even when we think we have good statistics—of the annual number of federal civil trials, for example—it turns out that various gaps and holes confound clear conclusions.3

But rather than being a weakness in Schwartz’s argument, this paucity of hard and reliable evidence is kind of her point. Schwartz’s ultimate contention is not that the empirical record proves the value of class actions. Instead, it’s a more nuanced claim that the current record doesn’t support those assertions currently being used to restrict those actions, or to limit access to the civil justice system more generally. She, in fact, returns us to the old adage, familiar to carpenters, home decorators, and school children alike: “Measure twice, cut once.” Unless and until we know what we’ve got, how it works, and how procedural tinkering will alter the status quo, we should be far less eager to nip and tuck—and far more disciplined in taking out the ruler and making clear and precise measurements.

  1. See Fed. R. Civ. P. 23(f) advisory committee’s note (“An order granting certification, on the other hand, may force a defendant to settle rather than incur the costs of defending a class action and run the risk of potentially ruinous liability.”); AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 350 (2011) (“Faced with even a small chance of a devastating loss, defendants will be pressured into settling questionable claims.”). []
  2. As one commentator has succinctly stated: “State-court data is more limited, harder to collect, and difficult to compare.” Nathan L. Hecht, The Vanishing Civil Jury Trial: Trends in Texas Courts and an Uncertain Future, 47 S. Tex. L. Rev. 163, 164 (2005). []
  3. For example, the Administrative Office of U.S. Courts tabulates the number of federal civil trials at Table C-4—which has been the centerpiece of various scholars’ discussion of trial trends. See, e.g., Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 3 J. Empirical Legal Stud. 459, 461 (2004). However, Table C-4 defines a trial as “a contested proceeding at which evidence is introduced,” and it therefore counts as “trials” certain events that we might not believe truly qualify (e.g., contested hearings to determine whether to issue a temporary restraining order or to qualify an expert against a Daubert challenge). Once we clear away those contested hearings that aren’t traditional trials, it seems that we have far fewer federal civil trials than we had thought—and the “disappearing trial” might be further gone than we have previously realized. See Nora Freeman Engstrom, The Diminished Trial, 87 Fordham L. Rev. (forthcoming 2018). Indeed, Professor Jonah Gelbach has recently completed a rigorous study of federal civil cases that had docketed trial activity in calendar year 2014. Sifting through hundreds of thousands of dockets, Gelbach found 1574 federal cases that had either a bench or jury trial in 2014, whereas Table C-4 reports that 2920 “trials” were conducted during that same period. All this underscores that the on-the-ground operation of the civil justice system is maddeningly elusive—even more so, perhaps, than we’ve previously understood. []
Cite as: Nora Freeman Engstrom, Measuring Common Claims About Class Actions, JOTWELL (March 16, 2018) (reviewing Joanna C. Schwartz, The Cost of Suing Business, 65 DePaul L. Rev. 655 (2016)),

Expressivism, Corrective Justice, and Civil Recourse

Scott Hershovitz, Treating Wrongs as Wrongs: An Expressive Argument for Tort Law, 10 J. Tort L. 1 (2017), available at SSRN.

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

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

The article concludes on two overtly normative observations – one practical and one theoretical. On the practical side, he suggests that tort reform measures are undermining the capacity of tort law to serve its important expressive function, and that such measures must therefore be squelched. On the theoretical side, he suggests that his expressivism is actually a form of corrective justice theory, and a better form than those that have been advanced by Ernest Weinrib and others, as descendants of Aristotelian corrective justice.

*  *  *

Criminal punishment is, for Hershovitz, the paradigm of an expressive institution. A central point (although not the only point) of incarcerating someone who has stabbed another person or swindled innocent investors is to send a message of condemnation. The state, on behalf of the public, is proclaiming that such behavior is disrespectful and unacceptable and the actor is to be recognized as deserving of negative judgment.

The imposition of tort liability is similar, but the message is somewhat different. Hershovitz presents the chestnut Alcorn v. Mitchell,1 in which a wealthy person spat on the lower-class plaintiff in order to express his contempt for him. The jury found for the plaintiff in his battery claim – the spit being the battery – and awarded him $2,000 in vindictive damages (reduced by the trial judge to $1,000). The point of the judgment entered against the defendant was to express or announce that the defendant had wronged the plaintiff. A finding of nominal damages or miniscule compensatory damages would not have done so; the significant financial award gives meaning to the court’s recognition of the wrong that was done. As in Anthony Sebok’s important 2007 article on punitive damages in the Iowa Law Review,2 Hershovitz links Jean Hampton and Jeffrie Murphy’s expressivist account of criminal punishment3 to punitive damages in tort law.4 Critically, the plaintiff’s verdict corrected the implicit message of the defendant that he was better than the plaintiff; it asserted the plaintiff’s equality and dignity.

Hershovitz defends his broader view that tort law is an expressive institution by adapting replies to standard objections to wrongs-based theories. One is the objection that, since many torts are not predicated on blameworthy conduct, it makes no sense to call torts “wrongs” and to see tort law as expressing the wrongfulness of the defendant’s conduct.

One particular example – Kresin v. Sears, Roebuck & Co.5 – captures both the power and the vulnerability of Hershovitz’s article. Seventy-three-year-old Rose Kresin was walking through a Sears parking lot when a Sears employee backed up a van and accidentally ran her over. Kresin lived, but suffered devastating injuries: she endured facial, rib, leg, and collarbone fractures, and a skull fracture that left her blind; she became permanently wheelchair bound and incontinent, and suffered numerous serious infections (including meningitis) during a two-month-long hospital stay after the accident. The jury found that the Sears employee, Alfredo Jijon, was negligent in backing up without looking behind him sufficiently, and the court entered a judgment against Sears for $16.5 million in compensatory damages – including compensation for past and future medical care and homecare, disfigurement, and pain and suffering. The appellate court affirmed.

Kresin is clearly not a case involving punitive damages, for the defendant employee’s conduct was neither willful nor wanton; it was simply negligent. Hershovitz agrees that this is a case of compensatory damages, but he plausibly rejects the idea that this is loss-shifting or indemnification or “making whole” in any satisfactorily clear sense. Compensatory damages may be meant to compensate, but that is quite different from saying they are there to reproduce the plaintiff’s prior physical condition. Rather, Jijon’s conduct sent the message, “I do not have to watch out for you.” The verdict, too, is expressive. It expresses that the plaintiff was wronged by the defendant – she was injured by the defendant’s failure to be sufficiently vigilant of her possible whereabouts or the possible presence of someone behind him. In awarding her a $16.5 million verdict, the court was apparently making the point that Kresin is to be treated with dignity too.

The damage award said to Jijon: This is what you did. This is your fault—the disability, the disfigurement, the pain and suffering. The damages did not make Kresin whole, not even close. But they did make clear that her injuries were Jijon’s responsibility. And they ensured that Kresin would be paid for her injuries, so that they would not stand as markers of mistreatment her community did not care to do anything about. If we did not offer that to Kresin—if we left in place injuries that might be repaired or sat silent about those that could not—then she would indeed have reason to doubt her social standing. Maybe she could be treated that way, she might think, because she was, and nobody cared to do anything about it. The compensatory damages stopped that train of thought cold. They made clear that Kresin could not be treated that way.

(P. 33-34; emphasis and footnote omitted.)

Hershovitz’s elegant expansion of the vindicative to beyond punitive damages is of course a crucially important part of his project of making expressivism a theory of tort law more generally. The next step in generalizing the account (in moving past intentional torts to negligence) concerns whether this must be a trial in which a verdict is actually announced. Does his expressivism turn on there being a trial and a verdict, or it is applicable to cases that have settled, perhaps confidentially? The settlement phenomenon would seem to present Hershovitz with a lesser-of-two-evils type of dilemma. If expressivism does extend to such settlements, the metaphor of “expression” seems to be vanishingly thin, because there is no audience (other than the parties) to whom the message of “plaintiff standing” is being expressed. Conversely, if it is only the trial verdict cases that count, then the account touches only a very small percentage of tort cases, and hence seems unable to bear the weight of a theory of tort law. Hershovitz tries to dull each horn of this dilemma: he concedes that in confidential settlements there is an audience of only the parties, but contends that is a significant audience, and he uses the pervasiveness of settlement in the shadow of the law as a ground for seeing the cases actually tried as especially important.

Critics will see tension between expressivism and the objectivity of the standard of care in negligence law, and Hershovitz anticipates this objection. His reply builds on the work of numerous recent tort theory scholars, explaining that a person who has committed a wrong might nevertheless not have been at fault in a manner that warrants blame. The key, however, is that whether or not the defendant was blameworthy, the plaintiff actually was wronged and suffered a rights invasion. On the expressivist account, the need for our system to send a message vindicating the rights of the person who was injured still exists. That is why expressivism is, according to Hershovitz, consistent with the objectivity of the standard of care in negligence law, and even with strict liability.

Finally, the normative payoffs, theoretical and practical. After providing a powerful argument that the material make-whole conception of corrective justice theory fails, he contends that expressivism is itself a form of corrective justice theory:

And corrective justice is not a form of justice because it governs the allocation of goods that shift as the result of wrongdoing. It is a form of justice because the way that we respond to wrongdoing is partly constitutive of the basic structure of our social relations. The distinctive demand of corrective justice is that we treat wrongs as wrongs, so that victims enjoy the social standing that wrongdoers threaten to deny them.

(P. 58.)

At a practical level, Hershovitz argues, expressivism provides reasons to push against recent tort reform measures: “Many recent changes to tort law serve mainly to muck up the messages that tort aims to send. In jurisdictions that have abandoned the collateral source rule, for example, damages no longer reliably convey the seriousness of the injuries inflicted.” (P. 62.) Hershovitz touches critically on other particular measures as well, but also reminds the reader that, since the institution of tort law is fundamentally meaning-conferring and thus in one sense constructive, it is in many respects a flexible and contingent matter how we decide to do it.

* * *

My principal concern arises when we push hard on a crucial ambiguity in Hershovitz’s account. Sometimes, “expressivism” is meant to connote that the body of law in question categorizes the conduct of various actors according to what the primary actor’s conduct expresses (intentionally or unintentionally). At other times “expressivism” stands for a view according to which what the court does when it imposes liability is to send a message. Recall that the discussion of Kresin alluded to both: Jijon’s conduct sent the message, “You [Kresin] do not matter,” and the jury verdict of over $16 million sent the message, “You, Kresin, do matter!”

Expressivism in torts has significant problems on either of these versions – defendant-conduct expressivism and court expressivism. We already know why the defendant-conduct expressivism will not work; Hershovitz told us when he conceded that a rights violation meriting redress in tort need not be accompanied by the sort of conduct that expresses a lack of respect for the dignity of the plaintiff. The objective standard of care and strict liability pertain to conduct that counts as wrongful and tortiously actionable, notwithstanding that it need not express anything about the victim.

Liability imposition in any case that reached a plaintiff’s verdict is arguably expressive, however, and in this respect, court expressivism is more promising. But now we must return to the concerns about settlement I described earlier. Given that the vast majority of cases settle, we must concede that the theory explains only a tiny piece of the area. While decided against a backdrop of possibilities, the whole point of settling cases is to skip the step in which a neutral party (judge or jury) actually decides whether the plaintiff was wronged. And unlike plea agreements in criminal law, the defendant never actually admits or acknowledges having committed a legal wrong at the core of the allegation by the adversary in litigation.

In his eagerness to see the legal system as a morality play, Hershovitz misstates the way that equality grounds tort law. Equality is fundamental to tort law, but not principally because of the shows of equality the state enacts through trials that end in victim vindication. Through tort law, the state respects equality by empowering each person to demand redress from someone who wronged her or him should she or he so choose. Physical power, wealth, connections, gender, and race are supposed to be irrelevant both to whether one will be subjected to wrongs of another, and, concomitantly, whether one will be able to hold another accountable for having done such a wrong (Hershovitz is certainly right that in light of the uncertain and unequal real-world availability of such power, today’s tort law needs reform). It is not so much what the verdict and the state’s entering of a judgment mean or express. More important is the power – one might even say “leverage” – that having a private right of action supplies to those who have been wronged. In this way, the capacity to extract compensation from defendants through confidential settlement is not an anomaly or a puzzle (as it appears to be on an expressivist theory); it is a vivid illustration of the equalizing and empowering force of tort law.

Expressivism, like civil recourse theory, shares much with corrective justice as developed by Weinrib, but in the end rejects it. Hershovitz nonetheless asserts that he adheres to a form of corrective justice theory – a better form than Weinrib’s. He retains the teleological aspect of corrective justice theory – tort involves seeing to it that justice, even rectification, is done through courts after someone has been wrongfully injured by another. What it contests is the nature of the rectification – the true message of the plaintiff’s dignity is being sent when a judge enters a judgment for the plaintiff based on a jury verdict.

Torts is more private than recognized by either Weinrib or Hershovitz. It is rooted in the private power to hold to account those who have violated one’s rights. As a Dworkinian, Hershovitz might argue that his more teleological account better justifies tort law. Leaving aside whether that is so (I am skeptical), I worry that Hershovitz’s expressivism does not qualify at the basic level of fit. Tort law respects dignity by giving power to those who have been wronged by others, not by expressing the moral truth about them.

Notwithstanding what I, as a civil recourse theorist, am able to depict as a fundamental difference between my views and Hershovitz’s – power allocation versus message-giving – Treating Wrongs as Wrongs is an important article for anyone in tort theory or torts to read. In one place, it neatly constructs a promising and previously underdeveloped approach to tort law and takes on the leading pragmatic and philosophical criticisms of morally inflected tort theories. In so doing it captures, in philosophically sophisticated but easily readable form, the strong intuition of law students and lawyers that torts is not just about money and harm, it is also about people and power.

  1. 63 Ill. 553 (1872). []
  2. Anthony J. Sebok, Punitive Damages: From Myth to Theory, 92 Iowa L. Rev. 957 (2007), available at SSRN. []
  3. Jeffrie G. Murphy & Jean Hampton, Forgiveness and Mercy (1988). []
  4. Alas, Hershovitz does not engage Sebok’s article, which (anachronistically put) cuts both ways as to the views Hershovitz advances. On the one hand (supportive), Sebok expertly chronicles the development of a vindicative function for punitive damages in the earlier historical phases of the remedy, and elegantly combines these ideas with Jean Hampton’s work on the equality-expressive function of punishment. On the other hand (challenging), Sebok’s aim is to capture the distinctive role and meaning of punitive as opposed to compensatory damages, and it is central to Hershovitz that the expressivist account applies to both. []
  5. 736 N.E.2d 171 (Ill. App. Ct. 2000). []
Cite as: Benjamin C. Zipursky, Expressivism, Corrective Justice, and Civil Recourse, JOTWELL (February 20, 2018) (reviewing Scott Hershovitz, Treating Wrongs as Wrongs: An Expressive Argument for Tort Law, 10 J. Tort L. 1 (2017), available at SSRN),

Doing Away With Battery Law

Stephen D. Sugarman, Restating the Tort of Battery (Sept. 19, 2017), UC Berkeley Public Law Research Paper, available at SSRN.

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

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

In other words, Sugarman thinks that more than just the Third Restatement sections currently being drafted about battery need to be rewritten; so do the sections concerning negligence that have already been adopted by the ALI. So, for example, within the Restatement of Torts, Third, Liability for Physical and Emotional Harm, § 6 (Liability for Negligence Causing Physical Harm) ought to be combined with § 5 (Liability for Intentional Physical Harm), and, although he does not argue this in the article, it may be the case that future Reporters would have reason to eliminate §§ 1 – 3, which define intent, recklessness, and negligence, unless a continued use for these concepts can still be found in other parts of tort law (for example, where the victim has suffered pure emotional harm) or some other part of the law, such as the awarding of punitive damages.

The reason for combining §5 and §6, according to Sugarman, is that nothing is added to the analysis of whether a defendant is liable in tort by denoting that the defendant acted intentionally when the result is a physical harm to the victim. In these cases, argues Sugarman, the law determines whether a defendant is liable by asking not whether the defendant was negligent or acted with the intent to make a contact, but simply whether the defendant acted wrongfully and caused the victim’s harm. As Sugarman says early in the paper at p. 3:

If we remove the negligence-specific language [of § 6] the more general principle becomes, my wrongful behavior has physically harmed you (the victim) giving you a right to recover money damages from me in tort.

So, for at least some parts of negligence (those involving personal injury and injury to property) and intentional tort (involving harmful battery) there is one master rule to “rule them all”. Let’s call this the Wrongdoing Rule. Under the Wrongdoing Rule, one has a duty to repair all physical injuries actually and proximately caused by one’s wrongful behavior.

Sugarman anticipates a number of objections to the elimination of battery in favor of the Wrongdoing Rule. Some might object that intentional conduct cannot be treated under the same rule as negligence because it is as essential element of battery that the defendant acted intentionally. Sugarman’s response to this is that this argument is circular and incomplete. It is circular because, while it may be the case that an essential feature of battery, as it has been defined in the common law, is that the defendant acted with intent (as defined in §1 of Restatement of Torts, Third, Liability for Physical and Emotional Harm), that does not entail that the category is particularly useful and should be retained. It is incomplete because in many battery cases it is not the intentional quality of the defendant’s act that determine whether the defendant is liable, but the wrongfulness of the defendant’s intentional act, all things considered. Sugarman points out that in cases involving self-defense and consent, what determines liability is whether the defendant is deemed to have acted wrongfully (or not) when causing the victim’s injury. According to Sugarman, in these types of cases, at least, the question of liability is not answered by asking, did the defendant establish that there was no battery, despite proof of an intentional act, but rather, did the defendant show that the “harms were not wrongfully caused” … which, Sugarman points out, “is exactly how negligence is evaluated.” (P. 9.)

Sugarman has responses to further objections to his project of collapsing battery and negligence into the Wrongdoing Rule, some more startling than others. He is surely right that that the objection that the category of battery is necessary so that parties will know when punitive damages should be available is hard to sustain given that punitive damages are available in certain cases of negligence, and nothing, presumably, would prevent courts from importing into the new Wrongdoing Rule principles that allow punitive damages to be awarded in some cases of wrongdoing. (See pp. 16 – 18.)

Sugarman also rejects the argument that the line between harmful battery and negligence leading to injury to persons and property must be maintained in order to determine when to apply two different tests for proximate cause (on the assumption that batterers are liable for a greater range of consequences that merely negligent actors). (See pp. 23 – 26.) Here he is on solid ground, since it must be admitted that one of the more puzzling aspects of proximate cause is why, as it is often said, that courts as a matter of policy will allow liability to be imposed for more remote consequences in the cases of wrongful intent than in negligence. See, e.g., Leon Green, Rationale of Proximate Cause 170 (1927). Sugarman invites us to stop worrying about whether the in fact courts treat intentional tortfeasors differently than negligent tortfeasors by asking us to see both groups as wrongdoers, and the proximate cause judgments of courts in any individual case as reflective of the specific circumstances of the actor’s wrongdoing.

Sugarman’s treatment of various doctrines that are entailed by the invocation of either battery or negligence – and why they are functionally the same, and thus suitable to be reclassified as instances of the Wrongdoing Rule – is fascinating, but they cannot be treated fully in this short essay. Instead, I want to make two observations, one which might be seen as supportive of Sugarman’s project, and the other as a challenge.

First, in support. Although he does not invoke comparative law in support of his project, Sugarman might have wanted to note that European tort system are structured in much the way he proposes. For example, German tort law does not distinguish between intentional and negligent wrongdoing. BGB 823, which is the portion of the German code that forms the foundation of the German tort law’s protection of interests in bodily integrity, covers anyone who “wilfuly or negligently injures” the victim. As Markesinis and Unberath point out in their commentary on BGB 823, the “fault” that grounds a claim under this portion of the code can be categorized under five or six types of culpability, ranging from dolus directus (direct intent) to leichte Fahrlässigkeit (light negligence). See Basil S. Markesinis & Hannes Unberath, The German Law of Torts 83 (4th ed. 2002). The same tort category that grounds a claim for compensation in cases of road accident is also the same category in which consent to surgery is deemed non-tortious. See Markesinis and Unberath at 80. This approach is exactly as Sugarman would have it. Sugarman argues that under his proposed Wrongdoing Rule, there would be no need for a separate concept of consent, since it would be part of the very meaning of “wrongdoing” that the harms to which the victim could not be deemed wrongdoing.

Second, a challenge. Certainly, Sugarman is taking on a big challenge by proposing the merger of battery into negligence, and the rebranding of intentional and negligent injury to the body under the more general Wrongdoing Rule. But battery does have another dimension, offensive contacts, which of course Sugarman recognizes. He promises to give full treatment to his view, which is that offensive battery should be merged with negligence under the Wrongdoing Rule, but that it would be “best to establish a single Restatement section involving intentional dignitary harms to the person” covering offensive battery, false imprisonment and intentional infliction of emotional distress. (P. 43.)

It is not at all obvious why Sugarman’s Wrongdoing Rule does not cover all intentional dignitary harm as well as harmful batteries. His rationale for collapsing the categories between negligence and intentional contacts that harm applies equally to all forms of voluntary conduct that causes foreseeable emotional distress. If anything, the Sugarman’s chief point, that modern tort law focuses primarily on society’s judgment about the wrongfulness of conduct, and not the actor’s intentions or the victim’s voluntary choices, would apply even more, I would think, to conduct which is interpreted through the lens of society’s values, and not the actor’s or defendant’s beliefs or values.

It is worth pausing a moment to think about what we might learn from taking seriously the Wrongdoing Rule’s full scope, as entailed by Sugarman’s argument for the elimination of harmful battery. Offensive battery and assault, false imprisonment and IIED would be placed under the same rule because, according to Sugarman, “in each of the these instances the freedom not have one’s bodily dignity/integrity invaded is protected.” (P. 44.) But there is something odd about this rationale – it reminds the reader that intentional tort protects rights (such as the right to control how one’s body is touched) and it does so sometimes without regard to the reasonableness of the defendant’s conduct. In other words, sometimes intentional tort overlaps with strict liability (it does so even more in the tort of trespass to land, which Sugarman does not discuss). Earlier in his article, Sugarman considered much the same point in the context of harmful battery for self-defense based on reasonable mistake. (P. 7.) In that context, however, he said the “focus has to be” on the defendant’s reasonableness in promoting his ends, and not the victim’s right not to have her bodily integrity invaded. When explaining why harmful battery was merely an expression of the Wrongdoing Rule, the victim has no right that cannot be trumped by the defendant’s reasonableness. If he were to be consistent, Sugarman should treat all losses – whether bodily, property, or hedonic – as subject to the same test of wrongfulness.

If one believed that tort protects autonomy interests separate from the welfare interests embodied in our physical and emotional selves, then the the strict liability aspect of intentional tort provides to tort plaintiffs something that the test of reasonableness does not. The Wrongdoing Rule would, if it were adopted, come to rule almost all of tort because it is grounded on a premise – not too deeply hidden – that the only interests that tort protects are the welfare embodied in the bodies, property and emotional states of all members of society. I think that Sugarman may have undersold the reach of his project. It may be that by promising to restate only a part of battery law, Sugarman has given us a glimpse of how he would restate all of tort law were tort law to reject any ambition to protect rights.

Cite as: Anthony Sebok, Doing Away With Battery Law, JOTWELL (December 20, 2017) (reviewing Stephen D. Sugarman, Restating the Tort of Battery (Sept. 19, 2017), UC Berkeley Public Law Research Paper, available at SSRN),

The Curious Case of the Disclaimer That Didn’t Bark

Victor P. Goldberg, The MacPherson-Henningsen Puzzle (2017), available at SSRN.

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

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

Henningsen’s grounding of liability in contract also raised a complication, for warranties can be disavowed, and liability for their breach limited. And, indeed, the major U.S. automobile manufacturers, including Chrysler, had long incorporated a boilerplate warranty provision into their sales contracts that, on its face, excluded liability for personal injuries. The provision proceeded in three steps. First, it expressly warranted that the manufacturer’s cars would be free from defects. Second, however, it limited liability for breach of this warranty to the cost of repairing or replacing the defective automobile, and even then restricted the ability of consumers to make good on this remedy. Third, it asserted that the obligations and limited liability generated by the express warranty were “in lieu of all other obligations or liabilities.” In sum, standardized automobile sales contracts seemed to eliminate all (civil) legal obligations owed by manufacturers to purchasers other than the obligation generated by the express warranty, with its limited remedy.

The New Jersey court thus could not be content merely to eliminate privity as a limitation on implied warranty liability. It also had to rule that the disclaimer in the contract signed by Claus was ineffective to defeat liability for personal injury. Writing for the court, Justice Francis did exactly that, disparaging the disclaimer as “a studied effort to frustrate” legal protections that traced back nearly fifty years to Henningsen’s most famous forerunner, MacPherson v. Buick (N.Y. 1916). Of course, it was MacPherson that—in a suit against a different automobile manufacturer—dismantled the privity limitation on negligence liability for personal injuries caused by dangerous products.

It’s at this point Goldberg’s puzzle begins to take shape. According to Henningsen, the standard disclaimer contained in automobile sales contracts had to be declared void to prevent manufacturers from using contract law to escape from implied warranty and negligence liability for personal injuries. Yet, Henningsen itself was among the first state high-court decisions to do so. (By contrast, for example, Sections 574 and 575 of the First Restatement of Contracts (1932) had deemed liability disclaimers for simple negligence enforceable outside of certain special contexts.) Given the language of the standard disclaimer, and the absence of a general commitment among courts to void such disclaimers, one might expect that a review of judicial decisions concerning personal injury suits against automobile manufacturers in the period from 1916 to 1960 would reveal plenty of instances in which courts dismissed personal injury suits on the strength of the disclaimer. In other words, the very terms on which Henningsen was decided would seem to support the depressing hypothesis that Cardozo’s celebrated, Herculean effort in MacPherson to ground liability for product-related injuries in tort was doomed to be defeated by a contractual end-run.

But here’s the funny thing. According to Goldberg, a 1960 survey of reported appellate decisions (Cornelius Gillam, Product Liability in the Automobile Industry) found that Justice Francis was wrong insofar as he had supposed that lawyers for automobile manufacturers routinely invoked boilerplate to defeat personal injury claims. And so we arrive at the puzzle of the disclaimer that didn’t bark. Why didn’t defense counsel raise an obviously available argument that, if successful, would have provided a complete victory for their clients?

Goldberg’s surprising but plausible answer is that the lawyers didn’t invoke the disclaimer because they didn’t need to. Prior to Henningsen’s removal of the privity requirement for warranty claims, only immediate purchasers were entitled to pursue a warranty-based claim for personal injuries. Already, then, a large class of potential claimants (non-purchasers) was excluded. Moreover, purchasers who could sue for breach of warranty faced other hurdles, including limitations periods for providing notice of breach. Finally, MacPherson’s ditching of the privity limitation on negligence liability hardly generated (nor did it purport to generate) a frictionless path to recovery. Proving fault on the part of manufacturers often remained a daunting task, and contributory negligence was a complete defense. (In Henningsen itself, the plaintiffs had pressed a negligence claim along with their warranty claims, but it was dismissed by the trial judge for lack of evidence of carelessness.) To be sure, none of these features of warranty or negligence law immunized manufacturers from liability. However, they did serve to contain manufacturers’ liability within financially viable bounds. And that, Goldberg concludes, was more than good enough for the manufacturers and their lawyers.

Goldberg’s story is fascinating, well-told, and largely convincing. It is a powerful reminder that questions of tort are always potentially bound up with questions of contract, and that close attention must be paid to the law in action. It also adds support to the contention that the emergence of strict products liability was, in part, a response to the hurdles imposed even by post-MacPherson negligence law on plaintiffs pursuing claims against product manufacturers.

I wonder, however, if Goldberg’s proffered solution to the puzzle pulls up a bit short. It may well be that defense lawyers did not need to invoke contractual disclaimers to keep liability at tolerable levels. But why is “need” the relevant criterion? Presumably the manufacturers would have faced even less liability had they invoked the disclaimers. So we still need an explanation of why their lawyers didn’t go for the jugular.

Moreover, it is not as if defense counsel ignored the disclaimers entirely. Indeed, as Goldberg notes, these provisions were invoked to defeat negligence liability in cases in which the plaintiff sued for a defect that had caused damage to the car itself—a result that mirrors the outcome that today would be reached under the “economic loss rule.” (Probably in these cases plaintiffs sought to rely on negligence law to avoid a procedural obstacle to their obtaining repair or replacement costs under the manufacturer’s warranty, or perhaps to obtain compensation for certain consequential property damage.) Instead, the lawyers seem to have been concerned that, by invoking the disclaimers in personal injury cases, they would be overplaying their hand.

Even prior to Henningsen, only the most incautious attorney for an automobile manufacturer would have guaranteed victory in a personal injury suit based on the standard disclaimer. As Holmes observed in The Path of the Law, a good lawyer reads cases not just for their rules but to gain a sense of the judicial zeitgeist. MacPherson may not have expressly forbade manufacturer and consumer from contracting around its holding. (Query: was there a disclaimer in the contract that Donald MacPherson signed? So far as I am aware, there’s no mention of one in court opinions or litigation documents.) Nonetheless, MacPherson’s emphasis on the right of the negligently injured to redress, and its refusal to allow manufacturers to use the dealership model of distribution as a means of avoiding tort liability, suggested doubts as to the enforceability of disclaimers. This is why it’s hardly shocking to find, for example, a 1939 New York trial court decision voiding a disclaimer of liability in a case involving the unfortunate deli patron who encountered a tack in his danish. Linn v. Radio Center Delicatessen, Inc., 9 N.Y.S.2d 110 (N.Y. Mun. Ct. 1939).

There was also a problem of fairness as among plaintiffs. Under the traditional rules of warranty law, only purchasers were the beneficiaries of express warranties. By the same logic, it was only purchasers who were subject to disclaimers attached to those warranties. It followed that, while the disclaimers in automobile sales contracts were written so as to block negligence liability for personal injury claims by purchasers, they could not block negligence claims by the very non-purchasers whom MacPherson had rendered eligible to sue for negligence. Chrysler’s brief to the New Jersey Supreme Court in Henningsen—we learn from Goldberg—expressly conceded this point.

The manufacturers’ lawyers presumably had little appetite for arguing that, whereas (thanks to MacPherson) they owed a tort-based duty to take care not to injure non-purchaser drivers such as Helen Henningsen, or for that matter innocent bystanders, they owed no such duty to their actual, paying customers. Technically speaking, that argument was available, but there was a decent chance that it would backfire, causing courts to void the disclaimers and perhaps even prompting remedial legislation. The more prudent course was to include the disclaimer in the sales contract without pressing it in personal injury cases, both because the disclaimer might discourage some personal injury claimants from suing in the first place, and because it could be more safely invoked to protect the manufacturers from other kinds of claims, including claims seeking compensation for damage to the automobile itself.

If these speculations are valid, then an important moral to draw from Goldberg’s story is that MacPherson did pretty much what it set out to do. By signaling judicial solicitude for victims of negligently inflicted personal injuries and excising the privity rule from negligence, Cardozo made it very difficult for defense lawyers to argue that courts should enforce contractual disclaimers in personal injury cases. MacPherson’s power stemmed not merely from its holding and tone. It became an instant landmark because, in the manner of all great common law decisions, it fed off of, and helped to crystallize, an emerging set of social norms. Rightly, as it turns out, Cardozo both divined and pronounced that his era would no longer regard contract as the sole source of the duty to take care against causing harm to life and limb. That duty, he insisted, has its source “in the law.” Perhaps, then, the solution to the MacPherson-Henningsen puzzle is that lawyers understood the implications of MacPherson for disclaimers of liability for product-related personal injuries even before Justice Francis and his colleagues formally embraced them.

Cite as: John C.P. Goldberg, The Curious Case of the Disclaimer That Didn’t Bark, JOTWELL (October 19, 2017) (reviewing Victor P. Goldberg, The MacPherson-Henningsen Puzzle (2017), available at SSRN),

Is Systemic Risk Special?

Aaron James, The Distinctive Significance of Systemic Risk, 30 Ratio Juris 239 (2017), available at SSRN.

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

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

(1) When persons, firms, or systems (e.g., the banking system) impose risk systemically, is risk imposition itself problematic, independent of any resulting harm?
(2) When institutions—not individual actors—systematically impose objectionable risks, who is responsible for the imposition of these risks, when are they responsible, and what are they responsible for not doing differently?

These important and fundamental questions are raised by systemic risk imposition, by virtue of its systematicity.

“Many of the great moral problems of our time—including the scourge of financial crises and the specter of global climate change—are,” James rightly observes, “problems of systemic risk. That is to say, what is problematic is not the risk-taking of any particular agent, but rather risk of harm created by large numbers of people acting together, in perhaps unwittingly coordinated ways.” When each of us drives or flies or boards a train or a bus, for example, we participate in a system of transportation that is contributing to an ever-increasing risk of devastating climate change. But my driving by itself—and your driving by itself, and everyone else’s driving by itself—is not a problem. There is no negative externality imposed by my particular acts of driving. It is the critical mass of human activity that creates more CO2 than the atmosphere can absorb, thereby threatening catastrophic climate change. Do we each nonetheless do wrong whenever we drive or fly, or air condition our houses, or turn on our appliances? And is the risk of climate change itself objectionable? Or is the systemic imposition of such risk objectionable only when it ripens into harm through climate change?

In answering these questions, James attends mostly to practices that impose a different kind of risk from those that preoccupy tort law and tort scholars. Tort law is preoccupied with physical risk leading to physical harm through physical cause. James is concerned primarily with the vast and often ruinous financial risks which increasingly loom over our economic landscape and endanger the livelihoods and financial security of millions. Because systemic risk has fundamental and common characteristics regardless of the type of harm it risks, much of what James says about financial risk has broader relevance to physical risk as well. James’ discussion of whether systemic risk imposition may be objectionable in itself is particularly provocative and relevant. Generally speaking, tort law cares about risk only when it results in harm. There is no tort liability for attempts. Wrongful risk imposition results in liability only when it results in injury, understood as physical impairment of normal bodily functioning. The Third Restatement, for example, defines “physical harm” as “the physical impairment of the human body (‘bodily harm’) or of real property or tangible personal property … [Such impairment] includes physical injury, illness, disease, impairment of bodily function, and death.”2 In exceptional cases, tort law allows recovery for subjective emotional distress, precipitated by the imposition of risk of physical harm. The ancient tort of assault, for example, allows recovery for the fright induced by almost being battered. But in general, harm, rather than risk, is required for tort liability.

Multiple reasons can no doubt be given for the traditional tort position. It seems likely, however, that one prominent justification for the position is rooted in the fact that traditional tort law is preoccupied with one-shot, episodic risk. If I step off the sidewalk at a crosswalk with the light in my favor and you speed by me—just missing my foot as you run the red light, utterly indifferent to my emotional tranquility—I will be furious and frightened but physically unharmed. My fury and fright will probably be transitory and I will go on my way intact if indignant. Episodic risk of this sort may not be objectionable enough to justify the imposition of civil liability. Continuous exposure to ongoing systemic risk, however, seems quite different. If I live in a “cancer alley” created by the regular discharge of some toxin or pollutant—and so go about my daily life under the cloud of higher than average risk of contracting a debilitating and often deadly disease—matters seem different. First, I am subject to a special psychic burden. A special sword of Damocles dangles over me. I know that I have escaped harm at its hands only when I die of something other than the cancer threatened by my daily exposure to risk. In addition, if I live with this threat because I am too poor to live somewhere safer, or because I am a member of a discriminated-against minority group, my fate seems especially objectionable because of the inequity. My life is being treated as less valuable than the life of someone wealthier, or than the life of a member of a dominant social group.

This intuition that systemic risk imposition can make risk imposition itself objectionable in a way that episodic risk imposition is not has, I suspect, struck many a tort scholar contemplating systemic risk imposition. To my knowledge, however, the intuition itself has not been systematically developed. Focusing on structurally similar cases of systemic financial risk concentrated on vulnerable populations, James argues persuasively that such risk imposition can be objectionable in itself, because it devalues those on whom it is imposed, whether or not it ever injures them. James’ argument is worth the attention of anyone interested in systemic risk imposition. Not only is the argument powerful and carefully thought through, it is philosophically sophisticated in a way in which too few analyses of risk imposition are.

In its philosophical posture, The Distinctive Significance of Systemic Risk argues persuasively that we can evaluate the moral significance of systemic risk adequately only if we move beyond the confines of consequentialist moral theory and the aggregative procedure of cost-benefit analysis. It is not the case that the only question to be asked about practices of risk imposition is whether their effects are net beneficial or not. When less privileged populations are asymmetrically exposed to practices of systemic risk imposition whose benefits redound disproportionately to those more advantaged, those exposed have good reason to complain that they are being treated unjustly by their fellow citizens. What we owe to each other as fellow citizens (and persons) is as important a question of political morality as whether the consequences of some practice are net beneficial or not. Professor James’ persuasive development of this point expands the moral resources available to tort scholars when we contemplate the distinctive risks of our time.

The Distinctive Significance of Systemic Risk also illuminates its second question—where and how to lodge responsibility for systemic practices in which many of us have no choice but to participate. Collective practices of risk imposition call for the creation of new forms of governance adequate to the practices of risk imposition at issue. For those of us whose bread and butter is liability, not governance, the thought that we should revive and extend enterprise liability comes to mind. For reasons of space, however, I must encourage readers to explore this part of James’ paper on their own. They will not regret doing so.

  1. Oliver Wendell Holmes, The Path of the Law, in Collected Legal Papers 167, 183 (1920). The paper itself was originally delivered in 1897. []
  2. Restatement (Third) of Torts: Liability for Physical & Emotional Harm § 4 (Am. Law Inst. 2010). The Third Restatement extends the idea of harm as an impaired condition to include the impairment of property. The philosophical conception of harm is concerned only with harm to persons. The question of how to account for the importance of property damage to tort is peripheral to the concerns of this paper. Offhand, the easiest way to make the extension would appear to be to draw upon the fact that we have rights in property. Those rights give rise to claims against others that they not damage our property, and make impairment of our property a harm to us. []
Cite as: Gregory Keating, Is Systemic Risk Special?, JOTWELL (October 5, 2017) (reviewing Aaron James, The Distinctive Significance of Systemic Risk, 30 Ratio Juris 239 (2017), available at SSRN),

How Much is Your Injury Worth? First Tell Me Your Race and Gender

Ronen Avraham and Kimberly Yuracko, Torts and Discrimination, Law and Economic Research Paper No. E570 (2017), available at SSRN.

When plaintiffs suffer actionable injury, courts in the United States attempt to repair the harm by awarding compensatory damages that put victims in the position they would have been in but for the wrongs that they have suffered. Courts calculate an individualized measure of compensatory damages for each plaintiff. The damage measure not only includes plaintiff’s actual past expenses, but also, a plaintiff’s lost earning capacity, future pain and suffering, and future medical costs.  As a starting point for juries’ projections, courts allow forensic economists to introduce three types of government-generated statistical tables—life expectancy tables, work-life expectancy tables and average-wage tables. (P. 17.) All of these tables come in blended and non-blended versions. The non-blended editions disaggregate data by race and gender. For example, a non-blended table might tell you that a “white” girl born in 2014 has a life expectancy of 81.2 years, while a “black or African American” boy has an expectancy of only 72.5 years.1 Similarly, a non-blended table might suggest that a 16-year old white male has a longer work-life expectancy than a black female. (P. 26.)

Courts frequently, perhaps “routinely,” permit the use of non-blended statistical tables as a foundation for damage awards in tort and other claims, including even Title VII discrimination cases. (Pp. 15, 59.) Furthermore, as Avraham and Yuracko document, legislatures have also adopted statutes or pattern jury instructions which permit gender-based, and sometimes race-based calculations. (P. 16.)

The problems with using race and gender in damage calculations are many. Building on the work of Martha Chamallas and Jennifer Wriggins in The Measure of Injury: Race, Gender and Tort Law (2010),  and earlier works, Avraham and Yuracko argue that using gender and race based tables may well result in disparate damage awards, and not only reflect historical inequities, but perpetuate them. (P. 106.) Furthermore, they argue that these race and gender disparities may themselves create discriminatory incentives for care. Moreover, they find the explicit distinctions based on gender and race to be an embarrassment, presumably along the line of expressive harm (that welfare maximization values some lives above others). They suggest that the use of differentiated tables might be inaccurate and inefficient to boot. (Pp. 74-93.) Ultimately, the authors argue that “Courts should immediately stop using non-blended tables.”

The conclusion seems sound and the issue both important and practical. Courts should repair victims within a framework that incorporates other important social values like gender equity. The authors’ engagement with norms of both equality and efficiency—an area in which few U.S. torts scholars dare to tread—is also admirable. Avraham and Yuracko are at their best when they provide real-world examples of systems that seem to function without differentiation. Apparently in projected future earnings of minors and young adults—cases in which individualized earnings histories are unavailable–Israel has decided not to differentiate earnings potential by race, gender, origin or religion. (P. 127.) Moreover, as the authors note, government regulation does not distinguish based on race and gender in regulatory models. (P. 108.) Nor do insurer rating formulas provide for such distinctions. (P. 109.) And of course some legislatures and judges have rejected the use of non-blended tables in civil cases. Other authorities could be added.2

For all of the strength of their thoughtful work, Tort and Discrimination never really goes for the jugular. Although Avraham and Yuracko suggest that using race- and gender-specific statistics raises constitutional concerns, they never fully articulate the constitutional argument that a court should consider. And while they label the use of race- and gender- based tables “discriminatory,” they don’t establish what is wrongful about these group-based distinctions, something they could perhaps do by reference to doctrines like redlining or stereotyping. In addition, while they raise many empirical reasons to suggest courts and legislatures should be concerned about non-blended statistical measures–“the damages black women receive for future losses caused by bodily injury or wrongful death are lower than the damages their white male counterparts would receive,” (P. 4) –they don’t fully develop empirical evidence to support their claims. Before the final ink is dry on their work, this distinguished pair might think more carefully about arguing to the judges and legislators who can enact the changes they seek, not primarily to law and economics scholars who, even if they agree, can do nothing to change the rules.

  1. See U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Health Statistics, Health, United States, 2015: With Special Feature on Racial and Ethnic Health Disparities 95 (2016) at Table 15. []
  2. See Ellen Bublick, China’s New Tort Law: The Promise of Reasonable Care, 13 Asian-Pac. L. & Pol’y J. 36 (2011) (Chinese tort law generally awards the decedent’s beneficiaries twenty times the average earnings in the decedent’s locality). []
Cite as: Ellen Bublick, How Much is Your Injury Worth? First Tell Me Your Race and Gender, JOTWELL (July 6, 2017) (reviewing Ronen Avraham and Kimberly Yuracko, Torts and Discrimination, Law and Economic Research Paper No. E570 (2017), available at SSRN),

How Important is Community to Tort Law?

Christina Carmody Tilley, Tort Law Inside Out, 126 Yale L. J. 1321 (2017).

Christina Tilley’s new article on the purpose of tort law is audacious. It boldly claims that other tort theorists have got it wrong: tort law is not primarily concerned with efficiency or morality but instead (spoiler alert!) is all about constructing community. Aligning herself with a group of scholars called the New Doctrinalists, she purports to find this overarching community-constructing purpose embedded within tort doctrine itself and in the process contends that other theories, including civil recourse theory, are really external theories (hence the title, Tort Law [From the] Inside Out). She canvasses tort cases from the colonial period to the present in an attempt to demonstrate that “community” has always played a central role in tort law, even as communities in the U.S. have undergone dramatic changes.

Christina Tilley’s article is also very creative. To prove the centrality of “community” in tort law, she conducts a “rudimentary linguistic analysis” (p.1340) of the digital version of the Restatement (Second) of Torts and discovers that references to community (47 times) are more plentiful than utility (34), efficiency (3), morality (24), or justice (3). To unpack the meaning of “community” most relevant to tort law, she draws upon classic works in sociology and political theory to make intriguing distinctions between sociological and political communities and closed versus open communities. And she peppers her article with examples of contemporary controversies (parents opposed to vaccination, football concussion injuries, texting while driving) where outcomes in tort cases are likely to differ, depending on which community has its say. The sheer breadth and sophistication of the article gives readers much to admire and much to contest. At the end of 80 pages, I was not entirely persuaded, but I suspect that Tilley’s paean to community will have real staying power.

Paradoxically, Tilley contends that the concept of community in tort law is crucial in large part because it is ill-defined and indeterminate and operates as a “transom though which decision makers can import extralegal norms to determine liability for injuries.” (P.1343.) Elsewhere in the article, Tilley refers to community as a “placeholder,” or, as linguists call it, a “hedge,” i.e., an open-textured element that invites a reader to fill in the blanks. (P. 1332.) In the operation of tort law, it is most often the jury who fills the void and decides a case according to community values and norms.

Tilley reminds us that resort to community norms in tort law occurs repeatedly across each of the three main theories of liability. For example, in intentional torts, community norms are used to determine whether a touching is offensive, whether consent should be presumed or whether conduct is outrageous. In negligence law, community norms may be a reference point for deciding whether a defendant’s conduct poses an unreasonable risk. In strict liability, the appropriateness of the activity to a community and whether the activity is one of common usage helps determine whether it qualifies as abnormally dangerous.

Resort to “community” covers a lot of ground in Tilley’s analysis. It comes into play when a tort doctrine explicitly requires an assessment of the norms of a specified community, such as the “locality rule” in medical malpractice claims that requires proof that a physician breached professional standards in the local community. (P.1381.) But importantly, Tilley also regards “community” as coming into play in a wide range of cases, notably negligence claims, in which juries are asked to evaluate a party’s action by the reasonable person standard, presumably because juries will be guided by the standard “demanded by the community for the protection of others against unreasonable risk.” (P. 1345.) Thus, Tilley’s broad role for “community” in tort law encompasses explicit resort to custom in particular torts as well as discretionary judgments made by decision makers called upon to fill in the content of other abstract concepts such as reasonable care.

Tilley maintains that through these multiple doctrines “community” has become a privileged source of tort liability norms, even though she contends that the concept has been under-theorized in legal scholarship. Thus, when myriad decisions about liability are made by jurors in tort cases on the basis of community norms, over time they have the effect of “constructing” community, signaling what is acceptable and unacceptable behavior, creating mutual bonds and cohesion among community members, and attaching a price to deviant behavior. In this sociological account, tort litigation is valuable precisely because it gives a community what it needs: orderly confrontations over contested behavior. For Tilley, this process of community construction is the whole point of tort law, allowing the community to consider and re-consider its norms, without resort to “the cumbersome machinery of the state” that characterizes criminal and regulatory law. (P. 1355.)

A pivotal part of Tilley’s theory is the distinction she makes between closed and open communities, which roughly maps onto a difference between local and national communities. Going back to the classic distinction between Germeinschaft (traditional community) and Gesellschaft (modern community), Tilley explains that sometimes decision-makers decide cases according to local norms, while at other times, they reach for national norms. She regards this “toggle” between local and national norms as a good thing, primarily because it reflects her vision of the United States as “multiple traditional communities nested within a single modern community.” (P.1364.)

A crucial (if highly contestable) analytical move Tilley makes is to align local norms with “morality” and national norms with “efficiency.” She reasons that closed, traditional communities are most often premised on sameness and “multiplex relationships that typically share religious and moral orientations.” Modern, open communities, by way of contrast, are “premised on specialization of labor and relationships,” characterized by “a plurality of cultural and value orientations” and typically “coordinate through rational or efficient behavioral norms.” (P. 1357.) In Tilley’s dichotomy, there is not much room for national norms premised on morality or local communities marked by a diversity of viewpoints.

As a descriptive matter, Tilley asserts that tort doctrine has “implicitly encouraged” decision makers to shift between local or national norms depending on “where the disputed injury arose.” She finds the same injunction throughout the Restatement (Second) of Torts: “injuries inflicted within closed communities are to be assessed based on that community’s norm (typically moral in nature), while injuries inflicted within the open community are to be assessed based on that community’s norm (typically efficient).” (P.1365.) As a prescriptive matter, Tilley goes on to argue that contemporary courts should make this process explicit and that “tort should embrace its capacity to toggle between morality and efficiency.” (P.1385.) In Tilley’s mind, this account of tort law also reconciles the current standoff between economic theorists and corrective justice/morality theorists by showing that each has a place in tort law.

Applying Tilley’s local/national (morality/efficiency) distinction, however, can be tricky and might not be as intuitive as she suggests. For example, Tilley analyzes one 2013 Oregon case alleging that a teacher had sexually abused the plaintiffs when they were primary school students nearly thirty years ago. The issue in the case was whether the discovery rule ought to be applied to toll the statute of limitations because only recently did the plaintiffs fully appreciate the offensive nature of the defendant’s behavior. One might have thought that under Tilley’s scheme the case would be categorized as local and governed by morality norms, given that all the parties resided in the same local community and that sexual behavior and the care of children are often approached as issues of private morality. Yet Tilley explains that the court in that case identified the teacher’s behavior as “grooming” and noted that grooming is a tactic that has received widespread national recognition in recent years. She regards the ruling for the plaintiffs in that case as an example of a court “[i]ntuitively gravitating towards the expectations and knowledge of the national community with respect to the nature of child sex offenses.” (P.1374.) It is not clear, however, why the availability of expert knowledge on a subject should transform a local controversy into a national one or whether Tilley would be happy with classifying such as case as either local or national.

Added to the problem of boundary-drawing, application of the local/national distinction might yield results that are unjust simply because like injuries are treated so differently. Thus, Tilley discusses a poignant case involving a twenty-six-year old man who committed suicide after suffering from multiple concussions while playing youth and high school football. The legal claim in the case was whether the football league should be subject to strict liability because the activity was abnormally dangerous. As Tilley sees it, because “abnormality” results partly from community values, “the cultural resonance of amateur football within the relevant community must be assessed.” (P.1388.) She hypothesizes that if the case had taken place in West Texas where football “plays a crucial role in the social infrastructure,” denying recovery would be justified because it would reflect the preference of the local community. However, because the actual case took place in Wisconsin and involved a claim against Pop Warner football, a national corporate defendant, Tilley believes that it was appropriate for the court “to toggle to an efficiency approach, asking whether the benefit of Pop Warner and youth football nationally outweighed its capacity to harm.” (P.1389.) It is not clear to me why expert knowledge on concussion injuries, if offered into evidence by the hypothetical Texas plaintiffs, would not or should not push the case into the national category. More fundamentally, should such a case turn on the perceived social benefit of football to the community rather than on the science behind concussion injuries?

On a broader level, Tilley’s fascinating article left me wondering whether her account of community’s role in tort law, particularly her local/national distinction, might have been more accurate in 1975 than it is today. Unfortunately, Tilley decided not to use the Restatement (Third) as a basis for her linguistic analysis of the concept of community. She reasoned that because the project is still incomplete and has been broken up into separate parts (e.g., separate Restatements for Products Liability, Apportionment, etc.), any linguistic analysis would not show the relevance of the concept across multiple types of liability. She also expressed concern that the Restatement process has become politicized and dominated by an economic, instrumental orientation. (Pp.1338-39.) Regardless of the validity of her concerns, by relying on the Restatement (Second), Tilley may have painted a portrait of tort law that overstates the continuing relevance of community. A great number of courts, for example, have followed the course of the new Restatements and may have diminished the role of community in important areas of tort law, for example, rejecting the consumer expectation test in products liability, employing economic cost/benefit analyses to determine reasonable care in negligence cases, and placing less emphasis on locational appropriateness in abnormally dangerous activities cases. Since the 1980s, there has also been a decidedly neoliberal turn in U.S. public policy and discourse that has had the effect of infusing market values and market rationality into all institutions and social action, tort law included. Particularly when this transformation of values is added to the reality of vanishing juries, it’s really hard to say just how important community is to tort law.

Cite as: Martha Chamallas, How Important is Community to Tort Law?, JOTWELL (June 6, 2017) (reviewing Christina Carmody Tilley, Tort Law Inside Out, 126 Yale L. J. 1321 (2017)),

A Benefit Theory of Tort Law

Alex Stein, The Domain of Torts, 117 Colum. L. Rev. 535 (forthcoming 2017), available at SSRN.

Scholars seeking to interpret the common law of torts typically take a position on the merits of fairness or rights-based rationales for liability as contrasted to welfarist or efficiency-based rationales. Rejecting this fairness versus efficiency framework, Alex Stein defends an original thesis in his forthcoming article, The Domain of Torts: fair tort rules do not contradict or stand in tension with efficient tort rules; each type of rule instead “implement[s] different regulatory mechanisms—private and public—and appl[ies] to different kinds of accidents.” (P. 541.) Tort law is comprised of both fair and efficient tort rules that govern different domains, eliminating any conflict between them. Although I’m not persuaded, Stein’s article requires one to consider important issues from a fresh perspective and deserves to be widely read.

After arguing that the domain of tort law is distinctively defined by the problem of accidents caused by unwanted interactions, a position staked out long ago by Oliver Wendell Holmes, Stein then makes the more interesting claim that tort law further distinguishes between two types of accidents—those caused by the risky actor’s pursuit of only private benefits, and the remaining accidents caused by risky behavior that benefits the public. “Private benefits are ones that improve the well-being of a single person: the actor (and her private beneficiaries, such as family and friends). Public benefits, on the other hand, improve the welfare of society in general (while also generating private gains for their producers).” (P. 552.) These definitions are not standard within tort law nor otherwise elaborated upon by Stein, yet he argues that they largely determine the substantive content of liability rules.

For risky behavior that pursues only private benefits, tort law is a “private mechanism of accident regulation [that] interprets negligence, causation, and damage in terms of the victim’s entitlement to protection against disproportionate, or nonreciprocal, risks of harm and the actor’s correlative duty to avoid or mitigate those risks.” (P. 545.) For risky behavior that generates public benefits, tort law is a “public mechanism [that] interprets these pillars of liability through the lens of efficiency analysis that relies on economics and statistical information.” (Id.) Tort law distinguishes between these two types of benefits for reasons of deterrence. When a risky actor seeks only private gains, tort law need not worry about overdeterrence, enabling it to burden such behavior with the relatively more onerous compensatory obligations entailed by principles of equality and fairness. But when the risky behavior benefits society, then overdeterrence supplies a good reason for limiting liability, justifying allocatively efficient or cost-minimizing tort rules.

Regardless of what one might think about this deterrence argument, a benefit theory of tort law is independently plausible for another reason. Although Stein claims that the tort doctrines governing accidental harm are “universally believe[d to be]… driven by harms, not benefits” (P. 535), he oversells the originality of his emphasis on benefits. As Francis Bohlen sought to establish over a century ago, “all affirmative duties rest upon consideration: some benefit to him on whom they are imposed.”1 In addition to the affirmative tort obligations based on benefit, Bohlen recognized the general tort “obligation to refrain from injurious action.”2 Although Bohlen did not discuss the matter, the general duty can also be included within his benefit theory. Risky conduct is presumably motivated by an expected benefit (like transportation in the case of automobile accidents), and so the general tort duty is also based on the fact that the duty-holder is deriving a benefit from behavior that imposes a foreseeable risk of physical harm on another who has an equal right to physical security. This extension of Bohlen’s theory means that all tort duties are based on benefits. If so, the nature of the benefit could plausibly shape the form of the duty—its substantive requirements. Bohlen provided an impressive analysis of the case law to support his conclusion, and Stein in turn relies on further developments in the case law to extend that argument from the basis of duty (Bohlen’s inquiry) into the other elements of negligence liability—breach, causation, and damages.

What, then, to make of the argument?

Based on my prior analysis of the implications of reciprocity norms for tort law, I disagree with Stein’s claims about how the requirements of equality and reciprocity relate to the standard of reasonable care and to concerns about overdeterrence more generally.3 But regardless of one’s position on these matters, Stein’s argument is still intriguing because of its emphasis on benefits. Is negligence liability for harms fundamentally defined by the nature of the benefits generated by the risky behavior? If so, does that influence stem from the distinction between private and public benefits? And if so, what is the relevant conception of public and private benefits? These questions are largely understudied and merit extended analysis.

I do not think that these questions are adequately answered by Stein’s article. His definition of a “public benefit” is not based on externalities and accordingly encompasses all forms of market transactions, because the risky behavior in these contexts affects individuals other than the buyer and seller, their families, and friends. Incidental increases of employment or corporate profits, for example, fall within Stein’s definition of a “public benefit,” although they are not ordinarily externalities within economic analysis. Indeed, this type of “public benefit” can be generated without market transactions, as illustrated by the federal constitutional jurisprudence on the Interstate Commerce Clause. If tort law must minimize costs anytime it has some impact on markets, then Stein’s benefit theory apparently morphs into the subsidy thesis developed by Morton Horwitz: the fairness-based, early forms of accident law were replaced by the cost-minimizing negligence standard at the onset of the industrial revolution to subsidize economic development (or not overly deter economic growth).4 The problems with the subsidy thesis, therefore, also apply to Stein’s theory.5

For example, common carriers such as railroads—the engine of the industrial revolution in the U.S.—were traditionally subject to a demanding negligence standard such as utmost care, even though on Stein’s account, common carriers provide “public benefits” and should be governed by the ordinary, or cost-minimizing, standard of care. As the twentieth century progressed, numerous jurisdictions rejected the more demanding standard in favor of the ordinary standard, providing some support for Stein’s claim. But what explains why this change occurred long after industrialization? The distinction that Stein draws between private and public benefits does not adequately address this question. He does not persuasively answer the interesting questions posed by a benefit theory of tort law, but by provocatively posing them, Stein has made an original and valuable contribution.

  1. Francis H. Bohlen, The Basis of Affirmative Obligations in the Law of Torts (Parts I-III), 5 Am. Law. Reg. 209, 273, 337 (1905), at 273 n.1 (summarizing thesis of Part I). []
  2. Id. at 273. []
  3. Mark A. Geistfeld, Hidden in Plain Sight: The Normative Source of Modern Tort Law, 91 N.Y.U. L. Rev. 1517, 1572-81 (2016) (explaining why the reciprocity norm generates the cost-minimizing standard of reasonable care for risks that are no greater than the ordinary or background level of risk in the community); id. at 1588-92 (showing how a concern for overdeterrence—defined by reference to a substantive liberal egalitarian principle of equal opportunity—limits tort liability for nonreciprocal risks). []
  4. Morton J. Horwitz, The Transformation of American Law, 1780-1860 (1977). []
  5. Cf. Gary T. Schwartz, The Character of Early American Tort Law, 36 UCLA L. Rev. 641 (1989) (rejecting subsidy thesis based on extended study of nineteenth-century case law). []
Cite as: Mark Geistfeld, A Benefit Theory of Tort Law, JOTWELL (May 12, 2017) (reviewing Alex Stein, The Domain of Torts, 117 Colum. L. Rev. 535 (forthcoming 2017), available at SSRN),

ISO the Missing Plaintiff

David Engel’s recent book, The Myth of the Litigious Society, has its roots in a piece published over two decades ago, by UCLA’s Richard Abel. In that piece, Abel challenged conventional wisdom by declaring that the “real tort crisis” is an epidemic, not of overclaiming, but rather, the opposite. The tort system’s greatest defect, Abel asserted, is not its whimsical unpredictability or its excessive generosity. To the contrary, the tort system’s biggest shortcoming is that too few accident victims choose to enter the system at all.

In the years since Abel’s writing, numerous researchers have examined this underclaiming idea, from a variety of perspectives.

Empiricists have gotten into the act. Using a number of methodologies, these researchers have, again and again, confirmed Abel’s basic empirical premise. In most areas of the tort law ecosystem, only a small fraction of Americans seek compensation, even following negligently inflicted injury. So, for example, out of every one hundred Americans genuinely hurt by bona fide medical negligence, only two or three will ever attempt to claim compensation—and, of those, some will inevitably fall short.

Socio-legal scholars, meanwhile, have asked, not whether pervasive underclaiming characterizes our tort landscape—but instead, why popular perception is so at odds with reality. Why, in other words, do we fret about a “litigation explosion” and bemoan Americans’ “Sue-icidal Impulse” if, in fact, Abel is right?

This effort, too, has borne fruit. Most notably, William Haltom and Michael McCann’s excellent Distorting the Law: Politics, Media, and the Litigation Crisis (2004) attributes our warped perspective to the asymmetric visibility of claims that are, and are not, filed. When injury victims suffer in silence, without initiating claims, “compensation or atonement foregone is almost always a very private decision,” Haltom and McCann observe. On the other hand, “[s]ecuring a lawyer or filing suit is a … public action, about which the press and reformers are even more likely to hear.”

Still, despite all this valuable study, few researchers have asked what is, in some ways, a preliminary and more fundamental question: Why is the missing plaintiff AWOL in the first place? Why, that is, is “lumping it” the most common response, following even tortiously inflicted injury? It is this question David Engel tackles, in this readable, engaging, and important work.

Early on, Engel addresses—and partly rejects—two obvious culprits. First, he raises the possibility that victims forebear for economic reasons; victims recognize that the cost of claiming exceeds its benefits. (P. 15.) Engel, however, dismisses this “economic explanation” as doubtful as an empirical matter (given the widespread use of the contingency fee and most lawyers’ willingness to absorb costs when claims are unsuccessful), and he also notes that it assumes that most would-be plaintiffs are rational actors, which is, for several reasons, dubious.1 A second explanation is what Engel dubs the “cultural explanation”: victims don’t assert claims because culture “leads people to forgo claims they might otherwise assert.” (P. 16.) But while culture surely has something to do with it, Engel notes (rightly, I think), that blaming victims’ failure to claim on a cultural hostility to claiming is circular and ultimately unsatisfying.

What else explains victims’ observed behavior? A big problem stunting claim initiation is the problem of attribution—a problem that comes in two steps.2 At step one, many victims don’t realize that they are injured. This is particularly true when victims are exposed to toxic substances (e.g., cigarettes, asbestos, DES, lead, and the like), where, often, years elapse between exposure and the ultimate manifestation of injury. Then, at step two, even if a victim realizes she’s hurt, she may not realize that the injury was tortiously inflicted. Smokers may not realize that their cancer comes from cigarettes, a child dismissed as “slow” may not realize her trouble is traceable to chipped paint, and a DES daughter may not realize that her baby’s preterm delivery comes from her mom’s ingestion of a morning sickness drug, decades before. Indeed, medical malpractice victims are notorious in this regard, as most patients seek care because they are sick and it’s common for sick people’s health to deteriorate further—so those injuries stemming from medical mistakes are hard to identify, and, even if identified, will almost inevitably have competing causes, making it difficult for victims to draw the causal arrow with anything approaching certainty, even in their own minds.

Beyond that, as Engel points out, even when victims have the information they need to make sensible choices, many victims aren’t in a position to think sensibly. Often suffering from depression, disorientation, and anxiety—and sometimes overcome by guilt and self-blame—for some injury victims, “[d]ecisive action and follow-through may seem nearly impossible.” (P. 43.)

Finally, even if an injury victim navigates the various hurdles above and decides to claim, she still has to overcome several structural impediments to make that desire a reality. Most notably, she has to know how to find a decent lawyer—and as I’ve written at length, that is much easier said than done. Then, she has to convince the lawyer to take her case. And, that’s tough—as the majority of lawyers reject the vast majority of would-be claimants who come calling.3 Last but not least, the would-be claimant has to do all the above within a short period, lest the statute of limitations expire.

Stepping back, Engel’s investigation into the AWOL plaintiff makes a significant contribution. In explaining why more victims fail to enter the tort system, Engel illuminates various aspects of the system, and he does so with compassion and clarity. That said, the part of the book titled “Mystery Solved: Why Lumping It Is So Common,” to my mind, comes too soon.

By his own reckoning, Engel strives to understand “not the two-dimensional characters of social and legal theorists but the flesh-and-blood humans who suffer the pain and trauma of physical harm.” (P. 171.) In many respects, he does that, admirably. Yet, as Engel examines victims’ real-world experiences, he neglects to examine the flesh-and-blood experiences of that small cohort of victims who, Indiana Jones-like, dodge the above obstacles. My guess is, a careful examination of these claimants’ experiences would also shed light on the mystery—and would, in fact, enrich and complicate the “economic explanation” dismissed (in my view, somewhat prematurely) above.

In particular, if we looked into it, I bet we’d find that the process of claim initiation and litigation—with its probing, and sometimes humiliating, discovery into the most private facets of one’s life; its prolonged uncertainty; and its insistent demand that a claimant relive, repeatedly, publicly, and under oath, what she saw, thought, heard, and felt, on what may have been the most searing day of her life—is brutal. The act of claiming, for some, may be cathartic and empowering. But for at least some others, it stands to be positively dreadful—effectively inflicting a second serious injury.

If I’m right, this has a pair of provocative consequences. First, it means that, though it’s only partly susceptible to quantification, for many injury victims, the cost of claiming is large—and bigger than we typically think. This in turn means that, in weighing the cost and benefit of claiming and ultimately choosing to lump it, many injury victims may be behaving quite rationally. Second, and more hopefully, it means that claiming patterns aren’t necessarily set in stone. If we want to encourage claim initiation, one lever we could pull is to make the claiming process less onerous. If the cost of claiming (broadly construed) comes down (perhaps by making procedures less antagonistic, intrusive, and adversarial), more injury victims may come forward.

In sum, as we follow the clues in an attempt to solve the mystery of the missing plaintiff, I suggest there’s another place we might profitably look. And though Engel’s study ends, to my mind, before the riddle is solved, his admirable effort might be just what is needed to galvanize another scholar to pick up the torch and continue the inquiry.

  1. As Engel explains: “In hundreds of studies across many disciplines—cognitive science, behavioral economics, and psychology, to name a few—one finds very little support for the view that people engage in conscious deliberation and rational choice in the aftermath of traumatic injury.” (P. 16.) []
  2. William L.F. Felstiner, Richard L. Abel, and Austin Sarat famously discussed the challenge of attribution—albeit while using different terminology and without limiting their analysis to tort claims— in their classic work, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming, 15 Law & Soc’y 631 (1980). []
  3. Importantly, while prospective claimants are often turned down because their cases seem legally dubious, lawyers sometimes reject even those whose claims have legal merit. These meritorious claims may be rejected because of insufficient damages (which would translate into an inadequate fee), client characteristics (particularly if the client seems too demanding or difficult), or a mismatch between the client’s claim type and the lawyer’s particular specialty. []
Cite as: Nora Freeman Engstrom, ISO the Missing Plaintiff, JOTWELL (April 12, 2017) (reviewing David M. Engel, The Myth of the Litigious Society: Why We Don't Sue (2016)),

Tort Theory in Copyright Law: Thinking about Patrick Goold’s Unbundling the “Tort” of Copyright Infringement

Patrick R. Goold, Unbundling the “Tort” of Copyright Infringement 102 Va. L. Rev. 1833 (2016), available at SSRN

Patrick Goold’s Unbundling the “Tort” of Copyright Infringement (“Unbundling”) is an ambitious and remarkably illuminating article. Its central thesis is that “copyright infringement” is best understood as a cover term for five different “copytorts”1 related to the plaintiff’s being a copyright owner. By way of comparison, “trespass” and “nuisance” in tort law are pleaded and articulated with different names even though they both pertain to wrongs related to a plaintiff’s ownership of realty; this is because they are, conceptually and practically, quite different wrongs. Copyright law has never separated out its five different legal wrongs, either through statute or through judicial elaboration, either formally or informally. It has used the one phrase “copyright infringement” indiscriminately for all. It turns out, Goold argues, that much of the confusion and conflict within copyright case law can be traced back to the failure to draw distinctions among the five copytorts. The task of the article is to outline the distinctions, thereby beginning the process of solving a number of doctrinal problems.

The three doctrinal problems Goold presents pertain to audience, harm, and analogy. As to “audience,” the question concerns the observer, or arbiter, or audience that courts should employ to determine whether allegedly infringing material is sufficiently similar to the copyrighted material: must it be such as to cause confusion to a reasonable person, an ordinary consumer, or an expert? As to “harm” (which arises in connection with a fair use defense) the question concerns “‘the effect of the [copyist’s] use upon the potential market for or value of the copyrighted work.’” (P. 1848 (quoting 17 U.S.C § 107 (2012)).) Courts have construed this factor to turn on “whether the copying caused the owner cognizable harm” (Id.); some courts in turn focus upon demand diversion, others on lost fees, and others on reputational, privacy, or other nonfinancial injuries. Finally, as to “analogy,” the question is how copyright infringement ought to be modeled as a legal wrong: is it like trespass, like conversion, like an economic tort or unfair competition, or like unjust enrichment?

The neatest way to depict Goold’s article is perhaps to start at the question of which common law wrong provides the best model for copyright infringement. Goold’s answer is that it depends on what kind of copyright infringement claim it is. He outlines five different kinds of infringement: (1) consumer copyright invasion (e.g., downloading an MP3 file without paying for it); (2) competitor copyright invasion (e.g., selling artistic works that are knock-offs of the copyright owner’s); (3) expressive disclosure claims (e.g., neglecting limitations on disclosure set by the owner in disclosing licensed materials); (4) artistic reputational injury (e.g., changing content or meaning or associations by editing); (5) breach of creative control (e.g., deviating from wishes of owner about how and when material is used). Goold contends that each of these five distinct wrongs has a distinct common-law analogue: for consumer copyright invasion the analogue is trespass; for competitor invasion it is unfair competition; for expressive disclosure it is public disclosure of private fact; for artistic reputational injury it is defamation or false light invasion of privacy; for breach of creative control it is conversion.

Goold’s analysis is more nuanced than my summary suggests, and it is helpfully sprinkled with examples from the case law. But these first-cut answers to the “analogy” problem, he argues, point us toward solutions to the “audience” and “harm” problems. For example, the reasonable person provides the proper standard for determining similarity in a consumer copyright invasion case, whereas in the competitor case, the standard is properly set by reference to the target consumer. On harm/fair use questions, certain dignitary or privacy or reputational interests might be the appropriate kinds of harm to consider for the latter three categories, but demand diversion is likely to be more appropriate for consumer copying claims. The final section of the article reasonably suggests that it would not be worth the candle to try to amend the copyright statute explicitly to incorporate these five subcategories, but that the taxonomy should nonetheless be illuminating to courts as they interpret and apply the statute.

I was drawn to Goold’s article in part because John Goldberg and I have consistently contended that IP law is really full of statutory torts, and Goold seems to pick up on this. Moreover, he is plainly taken by the metaphor “Gallery of Wrongs,” which Goldberg and I developed at some length in our book The Oxford Introductions to U.S. Law: Torts.2 In this sense, Goold is a fellow traveler in at least three respects: our contention that the common law is not essential to the idea of torts; our resistance to the idea that tort law is accident law or is essentially about the allocation of losses; and our belief that the legal system creates wrongs of a variety of different forms, relating to a variety of different kinds of injuries. Unbundling illustrates the fecundity of legal-wrongs-based analysis as a form of scholarship that will be illuminating to courts and scholars.

In particular, whether or not Goold has his taxonomy exactly right, it is hard to believe that he could be wrong in his basic, and very deep, point: there are different kinds of legal wrongs at the base of a variety of different copyright infringement claims, and key doctrinal issues will need to be resolved in a way that is sensitive to these very basic differences.

I rarely blog when I have nothing negative to say, however, and I would not want to shortchange Goold by making him the exception. Three concerns come to mind. The first is more of an observation than a criticism: it strikes me as odd to suppose that most torts that go under a single label – for example, “battery” – reliably denote a single type of wrong. As for battery, there is even in the Restatement (Second) of Torts a distinction between harmful-contact batteries and offensive-contact batteries (largely predicated on type of harm), and a third, quite distinctive form of battery occurs in many medical cases that involve physicians wrongly performing procedures outside of the scope of consent, or with consent not tethered in adequate informational disclosure (“informed consent”). Similarly, acts that qualify as the various crimes called “rape” or “sexual assault” and crimes called “homicides” are all batteries. Much the same can be said about the tort of negligence, which covers car accidents and landowner liability and (in some jurisdictions) forms of professional negligence and products liability and negligence per se and res ipsa loquitur. Some of these mark different kinds of wrongs and some do not. The line is unclear. Indeed, there is sometimes value in not forcing plaintiffs or defendants or courts to distinguish among them.

A second concern is related to the first, and it strikes me as important in the context of Unbundling to explain what one means by “different wrongs.” Do the differences reside in the character of the defendant’s conduct, the type of interest being protected and invaded, the type of loss suffered by the plaintiff, some combination of these (or further considerations)? It is difficult to evaluate the central claim of the paper unless one is clear on the criteria for individuating wrongs.

The third concern, which is linked to the second, is more substantive. The right of redress in tort cases typically includes a right to a judgment in damages, but the financial loss – even when ultimately a component of a compensatory damages award – is not always (or even typically) the injury claimed. For example, a judgment for a private plaintiff on a claim of misappropriation may well include disgorgement of profits or emotional harm damages for emotional distress as components of a judgment. But the wrongful injury aspect of this particular wrong is the deprivation of privacy or anonymity or reputation precipitated by an unconsented-to photograph, not the economic loss or emotional distress. Emotional harm or disgorgement would be appropriate remedies, perhaps.

With this in mind, I wonder whether Goold’s latter three categories are really one category. All pertain to an exercise of control over the copyrighted material that exceeds the scope of the owner’s actual or implied consent. There is a moral-right or abuse-of-right aspect to all three. The wrong, like that of trespass, is the interference with the right of exclusive control, even where (as with a hotel guest traipsing around the hotel’s “Restricted Area” kitchens and laundries) the plaintiff may have had partial access or a license of some form. No doubt there are different kinds of damage or harm done by different kinds of abuse or misuses of the right and different levels of interference with control. But all are abuses of a right or a license (or a privilege of fair use).

More generally, it is important to recognize that, while it is tempting to conceive of a tort as a wrongful interference with a particular kind of interest, classic common law torts simultaneously protect several different interests, at least in a functional sense of the term “protect.” The tort of libel, for example, plainly aims to protect reputation, but at the same time, it de facto deters conduct that damages emotional well-being and financial interests, and it certainly allows for recovery of damages in association with harm of those forms. The predicate injury, however – the one that is a component of the legal wrong of libel – is reputational injury.

The foregoing critical comments are meant to be constructive. No doubt, my ignorance of copyright law is providing me with blissful optimism about the soundness of my reconstruction of Goold’s account. Nonetheless, here it is: Straight-up (A) consumer copyright infringement is analogous to straight-up trespass to land or trespass to chattels. (B) Competitor copyright infringement is analogous to unfair competition (both types of infringement, when done in a form sufficiently extreme to destroy all the value of the copyright, would merge toward conversion). The remaining three categories (interference with control of expressive disclosure, artistic reputational injury, interference with creative control) are part of one family – (C) abuse of license or privilege (which in some ways is analogous to the privacy tort of public disclosure of a private fact, in some ways like defamation, and in some ways like the civil law wrongs of invasion of moral right and abuse of right). This effort to distinguish among the last three versions (disclosure, reputational injury, control) tends to distract one from a much more salient and striking set of distinctions that Goold has made; the distinction between (A) consumer copying outright and (C) abuse of license or privilege is extremely powerful; so too is the distinction between (B) competitor copying (unfair competition, passing off) and both (A) consumer copying and (C) abuse of license or privilege.

In the end, these categories probably generate strong prima facie answers to the questions about audience and harm raised by Goold, and, I believe, many will be exactly the answers that Goold offers and explains. Meanwhile, those who believe that law professors ought to be using their time and resources to study practical problems (rather than conceptualistic taxonomies) need not worry that analytic work like Goold’s is too academic. To the contrary – despite its great lure for taxonomists of wrongs, like myself – Goold’s creative and analytically sharp article is poised to provide great value to judges and lawyers with copyright cases. And to those of us who love torts, well, it makes for a refreshing visit to a newly curated wing of the gallery of wrongs.

Editor’s note: See also David Fagundes, The Plural Tort Structure of Copyright Law, JOTWELL (August 4, 2016) (reviewing Patrick Goold, Unbundling the ‘Tort’ of Copyright Infringement, 102 Va. L. Rev. (forthcoming 2016), available at SSRN).

  1. Steven Hetcher, The Immorality of Strict Liability in Copyright, 17 Marq. Intell. Prop. L. Rev. 1, 4–5 (2013) (coining word “copytorts”). []
  2. John C.P. Goldberg & Benjamin C. Zipursky, The Oxford Introductions to U.S. Law: Torts (2010). []
Cite as: Benjamin C. Zipursky, Tort Theory in Copyright Law: Thinking about Patrick Goold’s Unbundling the “Tort” of Copyright Infringement, JOTWELL (March 15, 2017) (reviewing Patrick R. Goold, Unbundling the “Tort” of Copyright Infringement 102 Va. L. Rev. 1833 (2016), available at SSRN),