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Is Less Really More? Abraham and Kendrick on Getting Rid of Affirmative Duties

Kenneth S. Abraham & Leslie Kendrick, There’s No Such Thing as Affirmative Duty, Virginia Public Law and Legal Theory Research Paper No. 2018-59, available at SSRN.

When it comes to inherited scholarly categories and taxonomies, a prominent strand of modern American tort scholarship pursues a particular kind of deflationary agenda. The First and Second Restatements divided the law of negligence into sub-rules distinguished by spurious differences (for example, the section on “type of negligent acts” distinguished between “Use of Incompetent or Defective Instrumentalities” and “Want of Preparation”). The Third Restatement combined many rules that could be brought under a more general description – the laundry list of types of negligent acts has been radically pruned, leaving just a handful, such as “negligent failure to warn”.

Because the mission of the Restatement is to organize concepts latent in the common law, it is understandable that subsequent generations of reporters will see common themes between categories that were overlooked by their predecessors (and it is also possible that the law itself might evolve over time towards fewer principles as courts eliminate ad hoc categories). But reducing the number of rules, or principles, in the common law is not an unalloyed good. Debates still rage over whether the Restatement has, for all intents and purposes, removed duty as an element of the prima facie case in negligence in most cases of personal injury or property damage, and if it has, whether that move was salutary. Last year I reviewed for Jotwell an article by Prof. Stephen Sugarman calling for the merger of battery – an intentional tort – into negligence.

And now comes a proposal from Professors Ken Abraham and Leslie Kendrick to merge Chapters 3 and 7 of the Third Restatement, so that, instead of two general categories of duty in connection to physical harm, there will be just one rule of negligence for risk creation and there would be no need for a rule concerning affirmative duties. I will review Abraham and Kendrick’s arguments for the merger, suggest a few criticisms of their arguments, and conclude by evaluating the costs and benefits of pursuing yet another round of doctrinal deflation.

Abraham and Kendrick’s argument – which they recognize as somewhat radical – is that the category of “affirmative duties” ought to be abandoned. Their recommendation, in terms of the Restatement, is that §§ 37 – 43) be eliminated, and any claim by injured victims for physical harm that would have arisen under these sections come under the relevant sections elsewhere in the Restatement. Since the article is mostly a critical project, Abraham and Kendrick do not address where the orphaned causes of action would go, and this should not be held against them. Presumably, they would find a home in Chapter 3 (“The Negligence Doctrine and Negligence Liability” or Chapter 9 (“Duty of Land Possessors”).1

Abraham and Kendrick’s argument is simple and familiar to anyone who has tried to teach torts: The line drawn between act and inaction is vague, and because it is vague, the doctrinal rules that purport to rely on that line are either over-inclusive or under-inclusive. As a descriptive matter, I agree with Abraham and Kendrick, and a brief tour of their argument will induce, I suspect, in many torts professors a familiar sense of frustration with the common law rules in this area.

The Third Restatement preserves a categorical distinction between duties grounded on risks of physical harm “created” by the defendant (§ 7) and those risks of physical harm not created by the defendant (§ 37). I will note in passing that Abraham and Kendrick organize their argument by comparing § 7 and § 37, but that § 37 deals with risks of emotional harm not created by the defendant as well as with risk of physical harms. Their focus only on the treatment of affirmative duties in relation to risk of physical harms leaves open the question of how their analysis would apply to “pure” negligent infliction of emotional distress unconnected to physical imperilment (e.g. Section 47(b)). As an initial matter, I will only address the topic they have chosen for themselves – affirmative duties in relation to physical harm.

In tort law, it is commonplace for terms used frequently by laypeople to turn out be vague when those terms are put to work in tort. The “reasonable” person is a prime case in point. Modern doctrine, it could be argued, usually handles the problem of vagueness is ways that do not produce unnecessary complexity. One way tort law deals with vagueness is to delegate the final act of line drawing to the factfinder.  Not so with the line between risk creation and risk non-creation. The line is drawn as a matter of law, note Abraham and Kendrick (P. 53), and the conclusion that a risk was created by the defendant – or not – has significant consequences for the parties. If the court holds that the risk was created by the defendant then it falls under the “standard” rules of negligence for physical injury, which impose a very broad duty on the defendant. As the Third Restatement says in § 6, comment f, “[i]n cases involving physical harm, courts ordinarily need not concern themselves with the existence or content of this ordinary duty. They may proceed directly to the elements of liability.” However, the reverse is true if the court determines that the defendant did not create the risk. Unless the plaintiff can demonstrate that the risk falls into one of three limited categories, the defendant will be held to have had no duty to reduce the risk at issue, or mitigate any harm it may cause.

Abraham and Kendrick claim that there are descriptive and normative dimensions to the vagueness problem described above. (P. 10.) Yet, according to Abraham and Kendrick, the point of their article is not to criticize the ultimate holdings of any of the many courts that have applied the distinction between risk creation and risk non-creation. They are careful to emphasize that their project does not entail a normative argument that any particular case (including such chestnuts as Tarasoff orMoch) ought to have been decided differently. Their critique is conceptual. Abraham and Kendrick believe that there is no bright line separating affirmative duty cases from negative duty ones. Dispensing with the distinction might bring valuable clarity to our legal categories but it would not necessarily change the outcome of any of the cases they discuss.

The conceptual critique can be seen best in their treatment of cases involving the duties owed by landlords to tenants and other entrants in regard to criminal assault. (Pp. 12 – 14.) These cases, such as Kline v. 1500 Mass Ave. Apartment Corp., are treated as affirmative duties by the Third Restatement in § 40. Abraham and Kendrick’s problem with Kline is not with the outcome – a finding that there was a duty – but with the rationale for the duty provided under § 40. § 40 describes a situation where (1) the defendant did not create the risk that harmed the plaintiff but (2) there was a special relationship between the plaintiff and the defendant. Abraham and Kendrick’s conceptual critique is twofold: first, the Restatement’s reasons for holding that a special relationship exists between landlords and tenants and other entrants are conclusory and, second, that the conclusion that a landlord doesn’t create risk in cases like Kline is question-begging. Abraham and Kendrick think that the landlord, by maintaining the property, creates the opportunity for criminal assault on that property (“landlords . . . create the very conditions under which risk to the individuals with whom they deal may arise” P. 52.) and hence participates in creating the risk of criminal assault.

If the landlord in Kline created the risk, then the case should have been analyzed under § 7 or § 39. Under § 7, the landlord would owe a duty if his or her unreasonable conduct created the risk of criminal assault. Under § 39, the landlord would owe a duty because, despite the exercise of reasonable care, the relevant conduct created a continuing risk of physical harm that the landlord could prevent or minimize. In neither case would the court in Kline have to resort to finding a special relationship between the landlord and the victim. According to Abraham and Kendrick, given the breadth of § 7 and § 39 (negligent risk creation and non-negligent prior risk creation), duties based on special relationships (§ 40) end up being a fifth wheel.

Abraham and Kendrick’s treatment of the third category of affirmative duties, the duty to perform a gratuitous rescue reasonably (§§ 42 – 44) is extremely brief. This is probably because they see these duties as clear cases of risk creation, and therefore not true cases of affirmative duty. The bulk of their argument is devoted to showing that despite its many subsections, only one special rule for affirmative duties is needed to explain the doctrine – the rule concerning duties arising from prior risk creation (§ 39).

It must be observed that Abraham and Kendrick choose a rule for affirmative duty that is often viewed as having the most limited scope of application, as compared to the other two rules (affirmative duties based on special relationships and the duty to perform a gratuitous rescue reasonably). And although they concede that courts don’t actually hold that landlords in the sort of cases discussed above are found to have affirmative duties under § 39, they insist that this is a mistake. Abraham and Kendrick point to Illustration 1 of § 39 to prove their point. This illustration describes a golfer who, after carefully scanning the course and carefully hitting a long drive, sees a stranger walking towards the point where her ball is likely to land. (P. 17.) There is a duty to warn says the Restatement, even though the golfer was careful in every respect.  If the golfer has a duty to warn because she non-negligently created a risk which imperils a foreseeable victim, then the landlord in Kline also owes a duty, and for the same reason.

The overall conclusion of Abraham and Kendrick’s article is that almost all of the cases that the Restatement breaks off from §7 are really instances of what they call “prior risk creation” described in § 39. For Abraham and Kendrick, Chapter 8 contains two mistakes. The first is its failure to see that if it needed to exist at all, it would only need one rule – the duty to take reasonable precautions to protect others from the consequences of prior risks one has created non-negligently. The second mistake is to fail to see that there is no need to have a special rule for affirmative duties based on prior risk creation at all. In other words, § 39 can be collapsed into § 7 (and vice versa). They say this quite clearly on P. 18.

“Prior risk creation” threatens to transform most negligence cases into affirmative duty cases. Many standard negligence cases assume that the defendant had a duty to anticipate that his conduct might impose risks on others and to take reasonable precautions to prevent this. If this constitutes an “affirmative” duty of anticipatory risk reduction – if it essentially turns every case into a rescue case –then there is no distinction left between negative and affirmative duties.

This second mistake is based on the naïve belief that tort law should (and can) distinguish between conduct and non-conduct. While some might think that the line exists but is vague, Abraham and Kendrick don’t think there is a line at all. They assert: “All conduct creates some risk of harm” (P. 48, emphasis added.) The real meaning of this statement is that by choosing any course of action (including inaction), one is engaging in risk producing conduct, since at every moment one is potentially, no matter how remotely, in a position to affect the risk of harm faced by another. The “conventional duty of care [§ 7] often involves minimizing or protecting another against a risk of harm whose source is not the defendant’s negligence” (P. 45.) Of course, in much of a person’s daily life the practical opportunity to reduce the risks faced by others is so minimal as to be almost invisible, but that does not undermine the point that, in theory, there is always a potential opportunity to mitigate another’s experience of risk. The choice to do nothing is “conduct”. The choice to do something is “conduct”. All choosing is conduct, and since “all conduct creates some risk of harm,” every choice may, in theory, may create a risk to which another is exposed.

The viewpoint that “all of life is conduct and all conduct produces risk to others” is illustrated by Abraham and Kendrick with the following example. Driver, through no fault of her own, is confronted with a pedestrian entering into the street. Sidewalk User sees the pedestrian at the same time.  Abraham and Kendrick insist that there is no reason to evaluate Driver’s response to the pedestrian under § 7 (with all the attendant issues of comparative fault) and Sidewalk User’s response under § 39. They have no objection to the likely outcome that today’s doctrine would produce (Driver likely liable; Sidewalk User likely not liable) but they insist that, since Sidewalk User’s “conduct” potentially created risk (since Sidewalk User could reduce the pedestrian’s risk of injury) the question of duty should be analyzed under the part of the Restatement at the question of duty for Driver.

The elegance of Abraham and Kendrick’s approach is that it deflates so many categories with a single blow. Of course, there is no reason to have three exceptions to the no affirmative duty rule covered in Chapter 8:  Once a defendant’s ex ante opportunity to reduce another’s risk of injury is deemed to be an act of potential risk creation, the obligations imposed by special relations, gratuitous undertakings and the non-negligent creation of a continuing risk can be fused into a single class of conduct. Further, since the test of conduct is purely based on circumstance – whether one is in a position to reduce the risk of injury to another – any focus on conduct prior to the decision to reduce risk to another is irrelevant, and so the distinction between conduct and non-conduct at the point of that decision is erased.

Obviously, it is a serious question whether the concept of “conduct” adopted by Abraham and Kendrick has much currency in everyday language or the moral conventions of the societies to which the Restatement is addressed. In moral philosophy, their position is most closely associated with act-utilitarianism. In tort theory, there is a superficial connection between their account and a simplistic version of Calabresi’s cheapest cost-avoider. After all, Calabresi did, for rhetorical purposes, hypothesize that anyone who could most cheaply reduce the cost of car accidents ought to be held liable in tort for those accidents. But Calabresi was making a point about the relationship between strict liability and negligence, and Abraham and Kendrick claim to be offering an interpretation of negligence law. Therefore, it makes sense to evaluate their proposal from the perspective of their target, which is a reconstruction of negligence in the common law. I want to conclude with a much more limited critical observation.

As mentioned above, Abraham and Kendrick do not explicitly call for significant changes in liability judgments. They are calling for a significant change in legal process. They note that, once the ad hoc segregation of a case like Pedestrian v. Sidewalk User is abandoned, the case against Sidewalk User will be handled by the same process as the case of Pedestrian v. Driver. In the modern era of the Third Restatement, that means that, unless § 7(b) is invoked, the liability decision will depend on a factual judgment about breach, causation, and proximate causation. This is the clear implication of the statement that “prior-risk-creation cases can be more simply and more accurately be seen as asking whether the defendant exercised reasonable care under all the circumstances” (P. 54, emphasis added.) Abraham and Kendrick mention that in some cases, like Pedestrian v. Sidewalk User, the court will exercise its “tools for policing the outer-boundaries of fact-finding” to routinely find for Sidewalk User. (P. 53.)

My point is not that there is any reason to distrust the capacity of courts to use their supervisory power over fact-finding to preserve the status quo’s consensus that the defendants who today are found not liable under Chapter 8 will continue to be found not liable. It is rather, to observe that it is just as likely that many of the defendants who today are found not liable under Chapter 8 will be diverted into § 7(b). § 7(b) states “[i]n exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification.” It was added, of course, in response to the concern that, by adopting the view that there was a “ordinarily” a duty to all with regard to the creation of unreasonable risk (§ 7(a)), judges needed some way to block plaintiffs from asking whether the defendant “exercised reasonable care under all the circumstances” as a matter of law in some familiar classes of cases.

Even if one were persuaded that the conceptual deflation of the word “conduct” is defensible, I suspect that it will not achieve Abraham and Kendrick’s aim of removing complexity from the Third Restatement. It is just as likely that they have done nothing more than moved a difficult problem from one chapter to another.

  1. Presumably the deflationary project will come for Chapter 9, but that project awaits other critics.
Cite as: Anthony Sebok, Is Less Really More? Abraham and Kendrick on Getting Rid of Affirmative Duties, JOTWELL (January 23, 2019) (reviewing Kenneth S. Abraham & Leslie Kendrick, There’s No Such Thing as Affirmative Duty, Virginia Public Law and Legal Theory Research Paper No. 2018-59, available at SSRN), https://torts.jotwell.com/is-less-really-more-abraham-and-kendrick-on-getting-rid-of-affirmative-duties/.

You Can’t Spell “America” Without C A R

Nora Freeman Engstrom, When Cars Crash: The Automobile’s Tort Legacy, 53 Wake Forest L. Rev. 293 (2018).

For the past century, the car accident has served as the paradigmatic (über-?) tort. What does this tell us about tort law’s past, present, and future? Nora Freeman Engstrom’s elegant and informative When Cars Crash offers some highly illuminating reflections on this question.

Engstrom starts with the facts. In the U.S., millions of car crashes each year generate upward of 30,000 fatalities and countless injuries. Only heart disease and cancer account for more life-years lost, and the toll is particularly severe for teens and young adults. On the litigation side, many more lawsuits are filed, and more dollars paid out, for car accidents than for any other type of accident. Car wrecks also appear to generate a higher percentage of frivolous or at least overstated claims—think here of the stereotypical “whiplash” plaintiff. Thanks to the presence of settlement formulae established by repeat players, including plaintiffs’ lawyers and insurance adjusters, these suits tend to be resolved quickly and cheaply. When trials happen, they are brief and straightforward. Car accident plaintiffs who go to trial win more than half the time but generally recover modest amounts—$16,000 on average.

So the first lesson is that, even within the domain of accident law, suits for car crashes operate in distinctive ways. The second moral of the story, for Engstrom, has to do with tort reform. Roughly half a century after workers’ compensation statutes displaced a great deal of negligence litigation over workplace accidents, the next great step was supposed to come in the form of auto no-fault. However, after some enthusiasm and successes in the early 1970s, the movement stalled. With due credit to Gary Schwartz, Engstrom first notes that no-fault’s failure to sweep the nation was nonetheless important to the development of negligence doctrine: in an effort to weaken the campaign for no-fault, auto insurers dropped their resistance to the shift from contributory negligence to comparative fault. She then entertains an intriguing counterfactual. Suppose auto no-fault had taken root nationally. Along with workers’ compensation, would this have spelled the death knell for tort law as we know it? What would have counseled against the adoption of similar plans for medical errors, slips and falls, and product-related injuries?

Engstrom next considers the importance of automobile accident litigation to doctrinal development. She observes that the modern torts canon is filled with opinions rendered in car accident cases: MacPherson v. Buick, Baltimore & Ohio Railroad v. Goodman, Pokora v. Wabash RailwayHenningsen v. Bloomfield Motors, and Dillon v. Legg, to name a few.1 She also suggests that negligent entrustment claims (involving defendants who allow incompetent drivers to use their cars), as well as decisions holding owners who leave their keys in the car liable for accidents caused by thieves, made an important contribution to the emergence of the category of claims that Robert Rabin has dubbed “enabling torts.”

Finally, Engstrom observes that close attention to negligence litigation over car accidents confirms the suggestion made by some scholars that the tort system has distinctive contributions to make even in a heavily regulated area such as auto safety. Here, she focuses on litigation brought against GM by the parents of Brook Melton, who was killed in 2010 in the crash of her Chevrolet Cobalt. Thanks to the diligence of Melton’s parents and attorney, it was discovered that, for several model years, Chevrolet—with the knowledge of at least some of its engineers—had installed a defectively designed ignition switch. The defect allowed car keys attached to heavy key chains to slip out of the ignition while the car was operating, thereby disabling its power steering, brakes, and airbags. Although the relevant regulatory body (NHTSA) was aware of data suggesting a suspicious pattern of air bags failing to deploy in Cobalt accidents, it dithered. As a result of the Meltons’ suit, GM incurred a substantial fine, fired numerous employees and reorganized its engineering division, and implemented a privately run scheme to compensate victims. Here, and presumably elsewhere, Engstrom suggests, it is old-fashioned negligence litigation that is needed to bring to light information crucial to deterring wrongdoing, compensating victims, and enhancing safety regulation.

The topic of When Cars Crash is an important and timely one, given (as Engstrom notes) what may prove to be the impending transformation of motorized transportation through the use of autonomous vehicles. Moreover, in its fair-minded and illuminating comparison between tort and non-tort alternatives in the car accident context, it reminds us of the continuing value of the law-and-society approach to tort scholarship. Like her colleague Rabin, Engstrom in her work combines historical erudition, institutional sensitivity, and superb judgment, while providing a remarkably clear view of a complex yet fundamental topic.

While I find Engstrom’s observations and conclusions largely convincing, I would push back on some. For example, I don’t agree that the “enabling torts” category was forged in the furnace of car accident litigation. But that’s mainly because I would deny that there is any such category. Indeed, as Ben Zipursky and I have detailed elsewhere, several types of car-accident cases— including cases in which cell-phone manufacturers and banks that lend money for the purchase of automobiles are categorically spared from liability for ‘enabling’ negligent driving—indicate that use of the label “enabling torts” involves a vast and distorting overgeneralization.

Predominantly, however, Engstrom’s insightful inquiry leaves me inclined not to quibble but to join in by considering other ways in which the primacy of the auto accident has mattered to the development of tort law. At the risk of being myopically academic, I would suggest that car crashes have cast an equally long shadow over tort theory. Although the seed of the idea was planted before the heyday of the motorcar, the notion that modern tort law just is accident law surely owes a lot to the prevalence of litigation over car accidents.

Here’s one way to make my point: Judge Guido Calabresi’s landmark book could easily have been titled “The Costs of Car Accidents.” Recall the opening passage of its first chapter: “The last few years have seen a rebirth of interest in accident law. Popular reaction to the increasing number of automobile accidents and rising automobile insurance rates, as well as attempts by some insurance companies to deal only with preferred risks, has made automobile accidents and insurance controversial political issues.”2 Clearly, Calabresi was writing in reaction to car accidents and to the emergence of auto no-fault plans. Equally clearly, his thinking partook of the regulatory mentality of the “Great Society” era. On this approach, one starts with a social problem—here, the problem of car accidents—then figures out what technologies, legal or otherwise, can best solve it. Liability, Calabresi argued, is such a technology.

Like rubbernecking motorists, many contemporary tort theorists have been badly distracted by car accidents. Fundamentally, tort law is about wrongs, not accidents or losses, and tort theory is about something more than the choice between negligence and strict liability, or between negligence and compensation systems. It is one thing to recognize that, empirically, the car accident has for decades been the “it” tort, and that such accidents often involve the commission of the particular wrong of negligence. It is quite another to suppose that negligence law – not to mention tort law as a whole, which covers everything from battery and defamation to conversion and fraud – is best understood as law for the deterrence of accidents and the compensation of accident victims.

Of course, the tort of negligence is frequently committed by means of conduct—including momentarily inattentive or aggressive driving, or the production of vehicles that turn out to be unreasonably unsafe—that is not highly culpable or blameworthy. (Often, however, it does involve grave misconduct, such as driving while seriously intoxicated.) The lesser culpability of standard instances of car-related negligence, combined with the use of routinized claims-resolution processes, renders superficially plausible the thought that a body of tort law dominated statistically by car accidents cannot be a law of wrongs. Still, the thought is mistaken. Even when not punishable or highly blameworthy, careless driving that injures another is the violation of a substantive standard of safe conduct set by courts out of concern to protect basic human interests, and to reinforce and clarify equally basic correlative responsibilities.

It is no “accident” that parents and teachers emphasize even to very young children the importance of being careful not to injure one another. Taking care not to injure is a fundamental form of moral responsibility; one that reflects the fact that, as we go about our lives focusing largely on our own interests, we must nonetheless give due regard to aspects of others’ well-being. And, of course, when children reach driving age, these lessons about taking care are only amplified, for driving is among the most dangerous activities of which the vast bulk of ordinary citizens partake. It is thus not the least bit surprising to find that a duty to avoid injuring others through imprudent conduct, including a duty to avoid injuring through imprudent driving, is a wrong not only in our positive morality but a wrong recognized in our law. When a car-accident victim sues for negligence, just as when a plaintiff sues for battery or fraud, she is not acting as a private attorney general, nor is she applying for benefits from an accident-victim relief fund. She is exercising the legal power that tort law confers on victims of the legal wrongs that it recognizes to obtain redress from those who wrong them.

  1. Others could of course be added: for example, Martin v. Herzog and Tedla v. Ellman on negligence per se.
  2. Guido Calabresi, The Costs of Accidents: A Legal and Economic Approach (1970).
Cite as: John C.P. Goldberg, You Can’t Spell “America” Without C A R, JOTWELL (December 11, 2018) (reviewing Nora Freeman Engstrom, When Cars Crash: The Automobile’s Tort Legacy, 53 Wake Forest L. Rev. 293 (2018)), https://torts.jotwell.com/you-cant-spell-america-without-c-a-r/.

Personal Data as an Environmental Hazard

Omri Ben-Shahar, "Data Pollution," University of Chicago Public Law & Legal Theory Paper Series, No. 679 (forthcoming 2018), available at SSRN.

What was the nature of the harm when data on 143 million Equifax consumers was stolen? More generally, what is the problem with personal data use and misuse by commercial players? The most immediate answer: privacy, individuals’ privacy interests are infringed. But then the question becomes what is the problem with infringing one’s privacy? Here, the answer usually is that infringing one’s privacy infringes upon her autonomy, dignity, emotional wellbeing, and such. To these non-monetary harms, one can add various monetary harms such as monetary losses associated with identity theft and other economic losses. These personal harms have led privacy scholars to focus on the private and personal aspects of data breaches. This, in turn, has naturally also led them to focus on private law solutions, such as tort and contract law-type protections for individual’s privacy interests.

However, despite years of attempting to combat irresponsible data sharing and handling, the problem persists. People treat their private personal information as if they do not much care about it. They may trade it quid pro quo for access to various services from navigation and communication services on their cell phones to participation in social networks, or even just to play Fortnite. And yet, when asked about how important privacy is to them, people overwhelmingly claim it matters a lot. Similarly, when people sue for damages for data breaches, they claim they suffered significant losses. The gap between what people claim (privacy matters) and what they do (sell it cheaply) is the so called “privacy paradox.” How can this paradox be resolved?

Some scholars have suggested that the gap stems from the fact that people are misinformed, irrational, or rationally misinformed or even rationally irrational. In a brand-new paper titled “Data Pollution,” Omri Ben Shahar offers a different solution.

In “Data Pollution,” Ben Shahar shifts the focus of data breaches from the private harm suffered by individuals whose information was used to the societal harm writ large. And the harm to society Ben Shahar has in mind is not at all the aggregate harm of the class of individuals harmed, nor is it an abstract, derivative harm stemming from the emerging distrust of individuals in private or public institutions. Rather, it is a direct and concrete harm to the public ecosystem. Indeed, the social harm might occur even when individuals suffer no private harm,or even benefit from willingly sharing their private data.

How can it be? Think about the potential harm to the integrity of the American election system as a result of Facebook data-share with Cambridge Analytica. The individuals whose data was shared might be personally happy about the data share, yet the truly troubling problem was to the American democratic ecosystem. Or think about users of the Strava fitness app who share their running trails with the world, not realizing they were revealing locations of secret military bases, and therefore harming national security interests. This type of harm, Ben Shahar argues, stems from the fact that data is hazardous and if not handled well, might create dangerous “data pollution.”

When data misuse is viewed less as a personal harm to the privacy interest of individuals and more as a social harm to the public sphere, the paradigm shifts. Thus, according to Ben-Shahar, policy makers’ focus should not only be on the best ways to protect individuals from commercial players in the public sphere, but also on the best ways to protect the public sphere from individuals sharing their personal data with commercial players. The problem, in other words, is not just that commercial players trade individuals’ private data without adequately compensating them in an ex-ante user agreement, a fact that can be explained by individuals being misinformed or irrational. Nor is the problem just that commercial players mishandle individuals’ private data without adequately compensating them in an ex-post tort suit, a fact that can be explained by the difficulty in proving causation, estimating the harm, etc. Rather, according to Ben Shahar, the problem also is that private individuals trade their own private data at a price which does not reflect the negative externalities they create. It is this last feature – the negative externality – which is Ben Shahar’s main contribution to the literature and which will be my focus here.

“Data are to this century what oil was to the last one.” This quote opens Omri Ben-Shahar’s new thought-provoking paper. Data is the fuel of the information economy and like fuel in the oil economy, data pollutes, and it pollutes the digital ecosystem in ways which directly disrupt the public interest. For years, privacy advocates have spent much energy unsuccessfully trying to raise people’s awareness to the privacy interest in their own data, while not spending any energy raising people’s awareness to the social problem of data pollution. And yet, the external social costs associated with shared data might be,sometimes at least,much larger than the private costs.

It is as if policy makers had warned people about the fire hazards from using household kerosene lamps and had not warned them about the contribution to global heat from black carbon emissions. Only that in the data pollution case, unlike in the kerosene case, the social harm from the emission might be much more significant and more dangerous than the private harm to any individual.

The external costs of data emission are neglected any time individuals agree to various user agreements; thus, causing the sale of the private data to be at a price which is lower than the socially-optimal price. The external costs of data emission are also neglected when individuals demand compensation after a privacy breach, thus causing the wrongdoer to pay compensation which is lower than the socially-optimal level of compensation. As a result of these two problems, the level of information which is shared by individuals is excessive, just like pollution. The analogy to pollution and externality is what helps us better see the problem as it really is.

The analogy to pollution is of course not one-to-one; there are several differences between data pollution and industrial pollution. For example, there are two major types of externalities in data pollution, only one of which also clearly exists in industrial pollution. The first type is similar to the harm in industrial pollution: shared data can be aggregated and used or misused in ways which affect the public interest at large. The second type of externality is on other users. This type is unique to data pollution—individuals often share information not just about themselves, but also about others who do not want their information to be shared. An example would be when individuals agree to share their contacts. Perhaps the closest analogy from “real” pollution here is second-hand smoking, where people ignore the costs they incur to friends and family members near them.

Another difference is that data pollution does not only create negative externalities, it also creates positive externalities (think about predicting flu epidemics by looking at google pharmacy searches). Indeed, data collection is among the most productive activities of the 21st century.

Still, the analogy is helpful, and not just in providing a fresh and helpful re-conceptualization of data misuse problems. The analogy assists in analysing potential policy solutions. Data misuse can be regulated by policies long used to control industrial pollution, such as emission quotas, Pigouvian taxes, and legal liability. Indeed, one should not be surprised that private law tools, such as contract and torts, were unable to control the social problem of data pollution. After all, they failed to control industrial pollution as well. And they failed, Ben Shahar argues, primarily because they cannot handle externalities well.

The analogy to industrial hazards pertains not just at an abstract level, but also in specific details. What is the equivalent of quotas imposed on polluters? Restrict what data can be collected, from whom, by whom, for what purposes and for how long. Sounds crazy, right? But this is exactly what European regulators do. What about a Pigovian tax? Ben Shahar proposes, contra to current practice and scholarship, to tax individuals who share personal information quid pro quo for various services. No more free access to cable TV in return for allowing cable companies to collect data on subscribers. A tax would make subscribers (and cable companies) internalize the social external cost associated with the emission to the digital sphere of subscribers’ personal data. And, what about liability for data breaches? Because, unlike physical spills, data spills cannot be cleaned up ex-post. Ben-Shahar proposes imposing liability which equals the expected social costs of the spill, hopefully generating enough deterrence to prevent these spills from occurring in the first place.

Occasionally, the analogy can only be pushed so far. For example, there is no equivalent, yet, in data pollution to cap-and-trade in industrial pollution. Since the objective is to prevent massive data from being accumulated in the hands of a few players, policy makers should forbid players from trading data with each other. Rather than cap-and-trade, policy makers should enforce a strict cap-and-don’t-trade policy. Or, alternatively, since accumulation of data in the hands of the few is analogous to the problem of “hot-spots” in industrial pollution, there is even more that can be borrowed from the regulation of industrial pollution to the regulation of data pollution.

What is Ben Shahar’s preferred tool for combating data pollution? Readers who want to know that are left to find the answer themselves. Instead, in the space left for me here, I will make two comments.

The first comment has to do with the insight that private individuals are themselves not just victims, but also wrongdoers—they are polluters. True, the magnitude of the harm they can create is much smaller than the potential harm of data aggregators, but still… they are polluters. Recognizing that, recall that Ben Shahar proposes a tax on individuals who data-share. But taking the idea of end-user pollution seriously brings to mind another solution: end-user liability.

Consider a case of an individual who clicks on a malicious link, which enables hackers to install ransomware on his contacts’ computers. As a result, some of his contacts need to pay thousands of dollars to free their computers. The law usually will not find the individual liable. But why not? One potential answer is that end-users lack the expertise to protect their computers effectively as well as lack the resources to pay damages. What is missing from this answer is the availability of insurance, perhaps even mandatory insurance, for all online users. Insurance might help individuals protect themselves and others not just by providing coverage, but also by offering technical means to prevent the losses before they occur as well as the technical help to mitigate them after they have occurred. With insurance, it is no longer clear why end-user liability is not currently an option.1

My second comment tries to push the pollution metaphor even further from the context of data into other contexts. In a recent working paper, my co-authors and I used the pollution metaphor in the context of civil procedure.2 Yet here, I would like to use it in the context of discrimination.3

Consider a minority religious student group, which organizes an event on university grounds. The group announces that seating will be separated by gender. Should the university approve the event under these terms? This is not a hypothetical example, but it is based on real events that happened recently in the U.K. On the one hand, gender-separated events infringe upon notions of equality as by now we are accustomed to thinking that separate but equal is usually not equal.4 On the other hand, what if most members of the student group (both men and women) prefer gender-separated seating? Should we not respect their preferences?

Policy makers who want to forbid gender-separated seating can do it in one of two ways. First, a paternalist approach, where they basically ignore the preferences of the group members under the assumption that their consent to separated seating is not free, well informed or rational. Second, policy makers may choose to protect a minority-within-the-minority, which prefers gender-mix seating but is subject to social pressures to comply with the more extremist gender-separated agenda. In the U.K., the Equality and Human Rights Commission has forbidden such events (with some exemptions for religious prayers) exactly on these grounds.5

Both ways are problematic. Being paternalistic towards group members by arguing they are misinformed, irrational or not free is problematic exactly because it is…paternalistic. And, defending the minority-within-the-minority is problematic because it is not always clear that there is such a group at all. And yet, our intuition many times is to forbid such events.

Adopting the pollution approach to discrimination exposes the problem with having segregated events on university grounds even when the group members want it. It reveals that “the toxicity from discriminatory treatment degrades the environment also for those not discriminated.”(P. 8.) Segregation (on racial, gender or other forbidden grounds) pollutes the university grounds for the rest of the community. It is akin to a public “moral nuisance.”

Ben Shahar’s “Data Pollution” is an insightful paper. Every time I thought Ben Shahar could not possibly push the analogy to environmental hazards further, I discovered I was wrong. It remains to be seen if others will find it a useful conceptualization of the problems associated with the use and misuse of personal data by commercial players as much as I did.

  1. Ronen Avraham & Joachim Mayer, End User Liability (On file with author).
  2. Ronen Avraham, William H.J. Hubbard, & Itay E. Lipschitz, Procedural Flexibility in Three Dimensions (Apr. 27, 2018).
  3. Ben Shahar shortly discusses discrimination in his paper, but it is in a different context than the one I will be using here.
  4. Since we are not talking about a religious practice such as a prayer there are no issues of freedom of religion involved.
  5. See UK Equality and Human Rights Commission, Gender Segregation at Events and Meetings.
Cite as: Ronen Avraham, Personal Data as an Environmental Hazard, JOTWELL (November 14, 2018) (reviewing Omri Ben-Shahar, "Data Pollution," University of Chicago Public Law & Legal Theory Paper Series, No. 679 (forthcoming 2018), available at SSRN), https://torts.jotwell.com/personal-data-as-an-environmental-hazard/.

What Ever Happened to Dignity?

Kenneth S. Abraham & G. Edward White, The Puzzle of the Dignitary Torts, 104 Cornell L. Rev.__ (forthcoming 2018), available at SSRN.

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

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

The article begins with an examination of the “concept of dignity,” distinguishing two competing conceptions—one conceives of dignity as a “status conception”; the other “involved the worth of the individual”. Examples of both conceptions come readily to mind. Stevens, the butler in Kazuo Ishiguro’s celebrated novel, The Remains of the Day, identifies “dignity” as the mark and aspiration of a great butler.2 Dignity is a kind of self-possession and what a self-possessed butler does is to sublimate their personal concerns into their professional role. Erasing all personal thought and feeling and replacing them with professional appropriate deference to the thoughts and feelings of the great man a great butler serves is a mark of greatness in a butler. Great butlers inhabit their roles fully, and are wholly consumed by them. Status is central here. The “dignity” of a butler consists in conduct and bearing appropriate to the position, and the position itself is constituted by its place in the social hierarchy. Great butlers serve great men and their greatness is parasitic on the greatness of those they serve. Consequently, the role and responsibility of a Butler is to pursue the ends and projects of the great man that he serves. Perfection in the role all but extinguishes the butler as his own, independent person. At the other end of the spectrum, we are accustomed to Declarations of Human Rights which proclaim universal, and equal human dignity. Claiming the mantle of “dignity” these documents celebrate the intrinsic and equal worth of every human being. And we are familiar, too, with a way of combining these apparently opposed conceptions. In the modern world, and under the influence of democratic ideas, there has been a kind of “leveling up” whose aspiration is to assign to every person the highest rank—the status of being an “end in themselves” as a member of the “kingdom of ends”—in one famous formulation.3

Abraham and White are hesitant to settle on a single account, a Dworkinian “best interpretation” of “dignity”. Indeed, they suggest that the richness of dignity as an idea is an important reason why the “dignitary torts” lack the unity we might wish they had. The wrongs give voice to different, and often conflicting, dimensions of the concept and those dimensions don’t always hang together gracefully. No one, for instance, would think that defamation as traditionally articulated expressed a democratic ideal of equal high status. But someone might well think that what makes a battery offensive in our law is that the touching disrespects and demeans its victims, treating them as inferior in status and rank to the person doing the touching. Fisher v. Carrousel Motor Hotel is a case in point. In Fisher, a white maitre’d snatched a plate from a black patron’s hand in the course of ejecting the patron from the restaurant because of his race. The touching was itself offensive to a reasonable sense of personal dignity because it expressed contempt and asserted superior racial status.

Although they disown any single account of dignity, Abraham and White’s emphasis on the richness of the concept also leads them, sometimes, to tell a story in which the slow march of the dignitary torts in the first two thirds of the twentieth century is the story of a kind of moral progress. In this story, case by case, and wrong by wrong, courts and commentators are working out what it is that the law of civil wrongs forbids in the way of conduct which embarrasses, humiliates, exploits, intimidates, restrains and ridicules because those particular ways of demeaning, embarrassing, exploiting, humiliating, and so on, are incompatible with the intrinsic worth and equal high status of democratic citizens. Put differently, one of the stories which can be told about the slow, halting march of the dignitary torts is a story about the articulation of a law of civil wrongs suited to a nation “conceived in Liberty, and dedicated to the proposition that all men are created equal.”

So why did it all end, slowly at first but quite completely? The “puzzle” is that claims for legal recognition of dignity have grown more intense even as the dignitary torts have waned. Demands for the recognition of same-sex marriage, and for the recognition of equal rights for LGBT people more generally, are claims to have equal dignity recognized. Abraham and White offer two answers. One sounds more in logical inevitability; the other in historical accident and contingency. The “logically inevitable” answer is that the common law as an institution and method just is hostile to the systematic articulation of general legal conceptions. Even after the writs system is abolished, the forms of action rule us from the grave because they survive in the elements of causes of action. Courts must proceed by reworking those elements, tort by tort; the common law does not permit courts to start with a clean slate and extract (or, if you prefer, “deduce”) particular causes of action from general principles.

There is surely something to this description of the common law (and its implicit contrast with European Civil Code systems), but as an explanation for historical change within the common law it is suspect. For one thing, the explanation points to a property of the common law that it presents—correctly—as a constant. Consequently, the common law had the very same characteristics when the dignitary torts were on their slow march towards revision and expansion. Insofar as the case method of the common law does have implications for the path and the character of legal change, it seems to imply that the pace of common law change must be slow, and even piecemeal, but it doesn’t seem to require that change ever end. If anything, continuous change seems inevitable. The common law cannot help but be an object in motion, reworking itself constantly under the pressure of new cases. Moreover, the common law of torts has been the scene of astonishing reconstructions over the course of the past hundred and fifty years. In the latter half of the nineteenth century, negligence was transformed from the state of mind with which certain nominate torts could be performed, into a general principle of responsibility for accidental harm, around which the modern law of torts was organized.4 In the middle of the twentieth century, the law of torts gave birth to products liability, reconstructing a domain of social interaction which had been previously dominated by the law of contract and rules of “no duty”. The dignitary torts may well be more hostile terrain for the development of general principles but, if so, the difference must lie their particular subject matter(s); or in the complexity of the interests they implicate; or in the elusiveness of dignity as a concept. Common law method does not distinguish the domain of the dignitary torts from areas of tort law that have seen far greater generalization and reconstruction.

The second explanation that The Puzzle of the Dignitary Torts offers for the silencing of the dignitary torts is historical and particular. New York Times v. Sullivan changed everything. It opened the floodgates to the constitutionalization of these torts and that constitutionalization caused the dignitary torts to wither. American constitutional law gives wide latitude to speech which is vicious, and calculated to make its targets objects of public contempt. Freedom of speech has important roots in ideas of dignity and self-governance, but American free speech doctrine extends broad protection to speech which simply is an assault on the equal dignity of some people.5 Once the line between constitutional law and private wrongs was breached, constitutional law choked off evolving efforts to delineate the bounds of permissible attacks on the equality, worth, and high standing of one’s fellow citizens. This is a truly contingent development: pathologies of law and politics in the American South prompted a legal intervention which set the dignitary torts on an entirely different course, diminishing both their possibilities and their significance. And there is a larger lesson here, too, the diminution of the dignitary torts and the protections they provide to persons in civil society against humiliation, degradation, embarrassment and exploitation is yet another cost of the American legal system’s distinctively broad protection of speech. If free speech continues to emerge as the new Lochner, these costs will only rise. That is a sobering thought.

The Puzzle of the Dignitary Torts is, as its authors rightly say, the first article to reckon with this corner of the law in a comprehensive way in more than a generation. It does so with depth, sophistication, and moral seriousness. Dismayingly, The Puzzle of the Dignitary Torts is also a swan song to a dying field. Looking back on fifty plus years of retreat, it’s hard not to be moved by that sad song. But the tale that Abraham and White tell does not have a single moral. There is at least an echo of a jeremiad in their story and the warning they give is one that has been gathering force. Free speech is surely an important value, but the evidence is steadily building that American law protects speech to the point where it can be wielded as weapon and used to destroy other values of equal importance. The time may have come to correct our course.

  1. The list in the text is Abraham and White’s. As they note, the inclusion of “false imprisonment” in the list is heterodox. Conversely, assault might be included in the list, though Abraham and White do not mention it. Assault protects “emotional tranquility” albeit only insofar as it is disrupted by intentional infliction of apprehension of imminent bodily contact. In protecting “emotional tranquility” as a distinct interest which may be violated independent of any violation of the physical integrity of the person, assault is something of precursor to IIED.
  2. “It is sometimes said that butlers only truly exist in England. Other countries, whatever title is actually used, have only manservants. I tend to believe this is true. Continentals are unable to be butlers because they are . . . as a rule unable to control themselves in moments of strong emotion, and are thus unable to maintain a professional demeanor other than in the least challenging of situations. If I may return to my earlier metaphor—you will excuse my putting it so coarsely—they are like a man who will, at the slightest provocation, tear off his suit and shirt and run about screaming. In a word, ‘dignity’ is beyond such persons.”
  3. “In the kingdom of ends everything has either a price or a dignity. What has a price can be replaced by something else as its equivalent; what on the other hand is raised above all price and therefore admits of no equivalent has a dignity.” Immanuel Kant, Groundwork for the Metaphysic of Morals 33 (1785). All human beings are “ends in themselves” by virtue of their own rational natures. In his Tanner Lectures, “Dignity, Rank and Rights,” delivered at Berkeley in April 2009, Jeremy Waldron perceptively discusses the democratization of dignity as a “leveling up”. See the text accompanying n. 184, and the sources cited therein.
  4. For a compelling and sophisticated telling of this story see Thomas C. Grey, Accidental Torts, 54 Vand. L. Rev. 1225 (2001).
  5. See e.g., Snyder v. Phelps, 562 U.S. 443 (2011) (ruling that picketing condemning the sexual orientation of a military servicemen at the serviceman’s was “speech on a matter of public concern” in a “public form” so that the First Amendment barred any claim for Intentional Infliction of Emotional Distress). Abraham & White discuss the case at n. 149 of their article.
Cite as: Gregory Keating, What Ever Happened to Dignity?, JOTWELL (October 12, 2018) (reviewing Kenneth S. Abraham & G. Edward White, The Puzzle of the Dignitary Torts, 104 Cornell L. Rev.__ (forthcoming 2018), available at SSRN), https://torts.jotwell.com/what-ever-happened-to-dignity/.

The Morality of Risking

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

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

Oberdiek begins with a lucid explanation of the two major accounts of probability—subjective and objective. The risk literature employs these terms in a specialized sense: subjective probability refers to the individual actor’s belief about a risk, while objective probability typically refers to the relative frequency of an event (such as D dying in a car accident next year). Oberdiek concludes that purely subjective accounts are “suitably practical but insufficiently normative,” because they cannot explain why we might fault an actor for engaging in what the actor believes to be low-risk conduct even though the actor failed to respond to evidence that the risk was high. By contrast, purely objective accounts are “suitably normative but insufficiently practical” (P. 4), largely because of the reference class problem.

The problem is this: One can specify the class that includes the relevant event in innumerable ways. If D is characterized as an American male, we get one probability of his dying in a car crash. If D is instead characterized as an Indiana-born actor, or a regular cigarette smoker, the probability of death could be significantly lower or higher. Many tort teachers and scholars will not be familiar with “the reference class problem” under that description, but they will be well acquainted with the problem itself, a problem that has long bedeviled reasonable foresight criteria in duty and proximate cause analysis. “On a clear day, you can foresee forever.”4 It might seem unforeseeable (i.e. extremely improbable) that a person on a subway platform will be injured as a result of a subway employee pushing a passenger onto a subway car a significant distance away, but it is surely foreseeable that pushing a person carrying dynamite onto a subway car will injure any person within the normal detonation range of such an explosive. How one characterizes the relevant risk makes an enormous difference both to the “objective probability” of an event and to the foreseeability of a risk. Thus, the objective risk approach suffers from the fatal defect of practical indeterminacy.

The solution? In a phrase, “epistemic contractualism.” (P. 40.) “[W]e have an epistemically-inflected moral duty to characterize the risks that we impose in a manner that is interpersonally justifiable. Morality itself…places normative pressure on our factual beliefs.” (P. 42.) Oberdiek endorses an “evidence-relative perspective” that characterizes risks in a way that is neither too demanding of agents imposing risk nor (as the subjective belief perspective would be) insufficiently demanding of agents and insufficiently protective of “patients” (or victims). To give content to this idea, Oberdiek brings to the stage that hoary legal construct, the reasonable person. One has a moral duty to exercise reasonable care in investigating causally relevant facts before acting; but because moral norms are action-guiding, this duty must be sensitive to our limited epistemic capacities. In the course of this discussion, Oberdiek powerfully and persuasively criticizes the view of philosopher Judith Jarvis Thompson that the actual facts (determined ex post) must be the decisive criterion of one’s moral duty.

I share Oberdiek’s view that a reasonable person perspective is a persuasive middle-ground between a fact-based and a belief-based account of permissible risk-imposition. Nevertheless, his account raises several questions. First, in articulating the content of the perspective, Oberdiek asserts that “risks must be given their gravest characterization” (P. 7), in order to be justifiable to potential victims. Yet it is not clear what this amounts to.5 Oberdiek’s illustrations here could be more illuminating. For example, he says that proper respect for the interests of coal miners in West Virginia requires consideration of the risks that such coal miners face in the mines, not the (lower) risks faced by anyone living in coal country. (P. 62.) Fair enough. But should we consider the (higher) risks faced by inattentive coal miners? Coal miners with preexisting health conditions? Coal miners who choose not to use safety equipment? His injunction to employ the “gravest” characterization of the relevant risk does not resolve these questions.

Second, that injunction also begs the more fundamental question whether one can reliably and legitimately draw a distinction between “patients” (or victims) who suffer risks and agents who impose them. In many of our activities, such as driving a car or even walking down the street, we occupy both roles. To be sure, some people are pedestrians but never drivers. In such a case, perhaps there is more force to Oberdiek’s claim that we must employ the “gravest” characterization of the risk, in order to make up for the fact that the nondriving pedestrian is the more vulnerable party. (P. 64.) In the end, however, these issues point to the importance of distributive justice constraints on risk, constraints that Oberdiek largely neglects in this book. If risks are reciprocal and benefits are widely shared, arguably it is unduly restrictive to condemn risk imposition as frequently as the patient-sensitive “grave” characterization would require.

Third, in emphasizing that norms about permissible risk are action-guiding, Oberdiek seems to presuppose a fault-based account. Yet he does not provide an argument for privileging fault-based responsibility over strict responsibility. In tort law, of course, many strict liability doctrines exist—e.g., abnormally dangerous activities, animals, vicarious liability, and manufacturing defects in products. In morality, too, some scholars have argued that responsibility is sometimes strict.6 Put differently, a strict liability norm can provide that an actor has a duty to compensate even if the norm does not entail that the actor’s primary conduct should have been different.

In Chapters 3 and 4, Oberdiek explores the moral significance of risking and what a right against risking would entail. The most common answer is straightforward: imposing risk is wrong because one could thereby cause physical harm (such as property damage or personal injury) or other material harms (such as fear of injury, a type of emotional harm; or disrupting the lives of those who choose to avoid the risk). And no one denies that people have a right not to suffer a material harm. Oberdiek abjures the obvious answer, however. He argues that even in cases of pure risk—cases in which none of these material harms comes to pass—a person has a right not to be subjected to an impermissible risk. Oberdiek also worries that the obvious answer conflates the distinct questions whether the agent is culpable and whether the act is impermissible or wrongful.

And why is pure risk imposition potentially wrongful? Not because the conduct might cause material harm, but because it can diminish the autonomy of those subject to the risk. For example, a drunk driver diminishes the autonomy of those he endangers, even if they are unaware that they are put at risk, because that dangerous conduct forecloses certain options that would otherwise be available to those who were endangered, thus narrowing their set of worthwhile opportunities. Imposing risk is like laying a trap: “the trap takes away the option, or more accurately renders unacceptable the exercise of the option, of stepping where the trap has been set.” (P. 86.)

This is a highly original and bracingly provocative claim. And in some circumstances, it is intuitively very attractive. Consider the following example from philosopher John Locke. A person wakes up in a room, has a conversation with another, and makes no effort to leave because he enjoys the conversation. As it turns out, he was locked in the room. Locke characterizes the actor’s decision to remain in the room as voluntary but also concludes that the actor was “not at liberty not to stay.”7 There is indeed an important sense in which an actor unaware of his lack of choice and content with his current circumstances may nevertheless lack a genuine choice.

However, the autonomy explanation of why pure risking can be wrongful also raises significant questions. First, Oberdiek’s analogy to the laying of traps seems problematic. Much of the force of the analogy flows from the high level of culpability of the “trapper.” One who lays a trap has the intention or purpose to limit the freedom of another, precluding their physical mobility by ensnaring them within the trap. But risky conduct can be impermissible even if it is not intended to limit the autonomy of others. A speeding driver might simply intend to arrive at her destination more quickly or to enjoy the feeling of wind flowing through her hair, but it hardly follows that the risk she imposes is therefore permissible. Oberdiek’s real concern is the effect of risky conduct on others’ options, not the intention of the actor. ((Consider two examples, in both of which P is unaware of the risk.

  1. X lays a trap in a particular location by which he intends to confine P, and there is a 10% chance that P will fall into the trap.
  2. Y builds a ditch that completely encircles P and that will cause the same degree and duration of confinement if P falls into it, and there is an 80% chance that P will fall into the ditch. Unlike X, Y is entirely unaware of P’s presence. (If Y had reasonably used his epistemic faculties, he would have investigated first and would have discovered P’s presence.)

On Oberdiek’s account of autonomy as a range of options, X has restricted P’s autonomy to a much lesser extent than Y, yet X is the one who has intentionally “laid a trap,” while Y has (merely) negligently built a ditch. Laying a trap is thus a somewhat misleading illustration of his theory.))

The trap example displays another potential problem with Oberdiek’s autonomy approach: the example illustrates a restriction of locational autonomy, yet Oberdiek is also properly concerned with restrictions of many other types of autonomy. The trap, once triggered, prevents a person from moving or relocating elsewhere, but Oberdiek is concerned with the permissibility of a broad array of risks, including those posed by drunk drivers and negligent manufacturers of products. How exactly do these risks constraint autonomy? By making it unsafe for the actor to pursue certain options, Oberdiek explains. If speeding driver A is weaving in and out of traffic, a nearby driver B’s freedom of safe movement has been significantly restricted, even if B is unaware of A, since a small turn of the wheel by B could have resulted in catastrophe.

Examples such as these raise the deeper question whether Oberdiek has successfully identified the problem in pure risk cases. Is the diminished scope of B’s choices really what is at stake in the speeding driver case, or instead the diminished ability of B to lead his or her life free of risks of material harm such as death or injury? Consider a different case. D negligently conducts surgery on patient P, and P is now at much greater risk of a sudden fatal heart attack. Oberdiek is correct about one way that D has constrained P’s freedom (even if P does not know about the risk): P cannot now engage in high-exertion exercise, smoking, or prodigious eating as safely as before. But is this really why P would be upset to discover, on his deathbed, that D had greatly increased his risk of suffering a heart attack?

Or imagine a more extreme case: a surgeon accidentally leaves a sponge in a patient; the sponge could cause deadly internal bleeding at any time, but no individual choices the patient makes in later life will increase the risk of that fatal result. In one sense, this conduct surely must count as a dramatic restriction of P’s “autonomy,” just in light of the risk that the patient will die and lose the ability to make any future choices. But the conduct does not seem to restrict autonomy at all in the sense that Oberdiek emphasizes, of making the consequences of a person’s choices less safe.8

In the final portions of the book, Oberdiek offers an intriguing account of rights as the conclusion rather than the premises of normative arguments; rejects the distinction between infringing and violating rights; and explains how he would identify which risks are permissible and which are impermissible. The discussion of the last topic is tantalizing but incomplete. Relying on a contractualist framework, Oberdiek argues that a risk is permissible if no person, considering the intrapersonal benefits and disadvantages of a risky activity, could reasonably reject the principle that justifies that activity. This approach is illuminating, but I do wish that Oberdiek had been more specific in identifying the threshold of permissibility—for example, he could have more explicitly compared his approach to different conceptions of negligence in tort law.

Oberdiek recognizes that his approach might appear to be too restrictive of risky human activity. In reply, he suggests that in assessing the justifiability of specific instances of risky conduct, we must consider the implications of this assessment for “any activity with the same risk profile.” (P. 13.) On this wider view, “even those who do not participate in or reap the benefits of certain risky practices nevertheless do participate in and reap the benefits from imposing risk as such.” (Id.) Thus, even if Amish farmers reject modern transportation, they probably do not reject, and could not reasonably reject, the more general principle that activities with similar benefits and risks are acceptable or desirable. This reply is promising, but it does provoke a worry. In generalizing in this manner, is Oberdiek surreptitiously reintroducing an interpersonal aggregation criterion that he elsewhere critiques?

Let me conclude by emphasizing that this book is a creative, thought-provoking, carefully argued, and immensely clarifying analysis of the morality of risking. Tort theorists, moral philosophers interested in risk, and tort scholars engaged by reasonableness and negligence doctrines will learn a great deal from Oberdiek’s arguments, whether or not they find all of the arguments fully persuasive.

  1. See, e.g., Heidi Hurd, The Deontology of Negligence, 76 B.U. L. Rev. 249 (1996); Richard A. Posner, Economic Analysis of Law (9th ed. 2014). For a critique of Hurd, see Kenneth Simons, Deontology, Negligence, Tort, and Crime, 76 B.U. L. Rev. 273 (1996).
  2. For a different characterization of the Learned Hand test as consistent with nonconsequentialist principles, see Gregory C. Keating, Must the Hand Formula Not Be Named?, 163 U. Pa. L. Rev. 367 (2015); Kenneth Simons, The Hand Formula in the Draft Restatement (Third) of Torts: Encompassing Fairness As Well as Efficiency Values, 54 Vand. L. Rev. 901 (2001).
  3. However, this understates a bit the recent flurry of scholarship on the topic, See, e.g. Johann Frick, Contractualism and Social Risk, 43 Phil. & Pub. Affairs 175 (2003); Aaron James, Contractualism’s (Not So) Slippery Slope, 18 Legal Theory 263 (2012); Rahul Kumar, Risking and Wronging, 43 Phil. & Pub. Affairs 27 (2015) (all cited by Oberdiek at page 13, n. 5); Joseph Raz, Responsibility and the Negligence Standard, 30 Oxford J. of Legal Stud. 1 (2010); Seana Valentine Shiffrin, The Moral Neglect of Negligence, in Oxford Studies in Political Philosophy, Volume 3 (2017).
  4. Sturgeon v. Curnutt, 29 Cal. App. 4th 301, 307 (1994), citing Thing v. La Chusa 771 P.2d 814 (1989).
  5. In a footnote, Oberdiek states without further explanation: “I do not wholly endorse tort law’s elaboration of the reasonable person.” 48 n. 30. He does not clarify elsewhere how his moral account differs from tort law’s account.
  6. See , e.g., R.A. Duff, Strict Responsibility, Moral and Criminal, 43 J. Value Inquiry 295 (2009). The widespread view that moral luck justifies greater blame or punishment might also be interpreted as a partial endorsement of strict moral responsibility.
  7. John Locke, Essay Concerning Human Understanding, Book II, Chapter XXI (originally published 1690). Oberdiek does not discuss this example.
  8. Here is another way to think about the foreclosed options argument. If I am sitting in a chair and you fire a gun at me that will kill me only if I sit perfectly still, you have foreclosed only one of my options—remaining still in the chair. If instead you set up a contraption such that if I were to move the slightest bit, the contraption will kill me, you have foreclosed every single one of my options except the one I am presently exercising, of sitting still in the chair. From Oberdiek’s analysis, it seems to follow that the risk posed by the contraption has a much more serious effect on my autonomy, and is thus much more morally troublesome, than the risk posed by the aimed gun. Yet, if I really do plan to sit in my chair for a while, and you really do plan to kill me, this conclusion is implausible. The firing of the gun seems to interfere with my rights in a more serious way than does the contraption, precisely because the risk of serious harm that it poses is much greater.
Cite as: Kenneth W. Simons, The Morality of Risking, JOTWELL (September 14, 2018) (reviewing John Oberdiek, Imposing Risk: A Normative Framework (2017)), https://torts.jotwell.com/the-morality-of-risking/.

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

Kenneth S. Abraham and Robert L. Rabin, Automated Vehicles and Manufacturer Responsibility for Accidents: A New Legal Regime for a New Era, 105 Va. L. Rev. __ (forthcoming 2019), available at SLS.

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

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

To regulate this mixed environment, Abraham and Rabin propose plans for the short term and the long term. For the near future, when conventional vehicles predominate, Abraham and Rabin would retain the current “driver-focused” tort liability regime alongside regulation of automated technologies. As the authors explain, driver-focused negligence liability accords with the profile of current accidents, which involve frequent driver errors. Also, individualized insurance underwriting comports with a driving context in which drivers are more or less careful. Regulating automated technologies under current systems is a more difficult matter. Abraham and Rabin are pessimistic about the adequacy of regulation by the National Highway Transportation Safety Agency. Their plea is for the agency to set up ex ante performance standards to guide innovation and ex post oversight of design miscalculations. They also examine the potential for, and pitfalls of, products liability claims in cases of automation defects.

For the long run, once highly automated vehicles comprise 25% of the fleet, they would adopt a system of “’Manufacturer Enterprise Responsibility’ (MER).” (P. 17.) This system entails “auto manufacturer responsibility for all injuries arising out of the operation of HAVs (highly automated vehicles).” (P. 5.) The system would be “a manufacturer-financed, strict responsibility bodily-injury compensation system, administered by a fund created through assessments and levied on HAV manufacturers.” (P. 21.) For this system, physical harm to victims would trigger liability, without need for proof of vehicle defect.

The argument for an enterprise responsibility system stems from the authors’ belief that this system will more effectively promote safety and provide consistent and predictable compensation for injuries. With less driving by individuals, there is less reason to impose liability on individuals or underwrite insurance on an individualized basis. (P. 8.) The MER system would place liability for harm with the manufacturer, the entity that seems most capable of preventing harm. Much of the article is then focused on adopting and activating an enterprise liability system.

The strength of the Abraham and Rabin piece is its practicality. They outline the virtues of an enterprise liability system—it would be more predictable for manufacturers and more even-handed for injured parties. They draw parallels to other systems such as workers compensation and long-term disability. And they examine how the manufacturer-focused system might work in practice—through contracts with parts suppliers and caps on damages, for example. Abraham and Rabin also forthrightly address potential weaknesses of their plan. For example, enterprise liability could increase the cost of highly automated vehicles and make them more expensive to produce, even though their better safety profile would suggest encouraging rather than discouraging manufacturers to produce them. Here, Abraham and Rabin suggest government subsidies to offset the manufacturers’ increased liability costs.

The plan is thoughtful and one that policymakers would do well to engage. Enterprise liability is worthy of consideration in this area, as it has been in others. But what is perhaps most striking about the plan is how much the recommended new legal regime resembles suggestions for the old one. Indeed, the advent of highly automated vehicles seems to have little influence on the proposed legal system at all. In Professor Rabin’s 1996 article, Some Thoughts on the Ideology of Enterprise Liability, he begins with George Priest’s “core definition of enterprise liability in the context of product-related injuries.” In particular, “the twin notion that an enterprise should bear the risks of accidents it produces because (1) an enterprise has superior risk-spreading capacity compared to victims who would otherwise bear the costs of accidents, and (2) an enterprise is generally better placed to respond to the safety incentives created by liability rules than is the party suffering harm.” Abraham and Rabin’s proposal applies existing ideas of enterprise liability to a new context. This idea is sound and adaptive, but far from disruptive.

A disruptive system may not be needed. Existing theories of enterprise liability may be well suited to HAVs, like other products. The law of the HAV, like the law of the horse, may not need to be written.3 A difficulty with manufacturer enterprise liability seems to be a difficulty with enterprise liability in general. HAVs seem like many products—one of multiple causes of accidents. Current auto accidents are caused by a combination of driver failure, vehicle design, and driving context, particularly road design. After the shift to HAVs, even if driver error can be completely eliminated from the accident equation, driving context will likely remain as important, if not more important a factor in traffic accidents.

Even after automation, ordinary contextual elements like rain and snow can play a role in crashes. After automation, newer contextual elements may play a role as well. Through vehicle-to-vehicle communication, the function of nearby vehicles and roadway networks may become a particularly important determinant of accidents. Network design, and even events like theft of valuable metals from smart roadways can interfere with car safety. If highly automated vehicles are one factor among others in roadway crashes, in this context, as in others, scholars will need to make the case for the efficacy and fairness of enterprise liability more broadly.4 In the HAV context, as in other enterprise liability contexts, scholars will have to wrestle with the difficult question of when an accident should be attributed to an automated vehicle rather than weather, road design, or other factors.

Another possibility, is that this transformative technology really will warrant a completely new legal regime. As we enter an era of HAV’s and more sophisticated technology, perhaps those technologies themselves might be designed to better regulate accidents or compensate injured parties. HAVs could be required to record and transmit automated records of accident or near-accident data and update federal regulatory performance standards directly or pay fines per design miscalculation (running a red light, for example), rather than per injury. Imagine disputes settled through crowdsourcing.

It may be that the more things change the more they stay the same, and that new technologies can be regulated with existing ideas. But it may also be that we will not fully envision the new legal regime that best fits radical new technologies until those technologies are not just roaming the streets, but embedded in the streets themselves.

 

  1. Daisuke Wakabayashi, Self-Driving Uber Car Kills Pedestrian in Arizona, Where Robots Roam, N.Y. Times (March 19, 2018).
  2. See, e.g., Mark Geistfeld, The Regulatory Sweet Spot for Autonomous Vehicles, NYU Public Law & Legal Theory Working Paper No. 18-29 (May 2018).
  3. Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. Chi. Legal F. 207, 207–08 (1996) (“Dean Casper’s remark [that he refused to offer a course on the law of the horse] had a second meaning–that the best way to learn the law applicable to specialized endeavors is to study general rules”).
  4. See, e.g., Gregory C. Keating, Products Liability as Enterprise Liability, 10 J. Tort L. 1 (2017).
Cite as: Ellen Bublick, When Cars are the Drivers: Tort Law in the Fourth Industrial Revolution, JOTWELL (July 31, 2018) (reviewing Kenneth S. Abraham and Robert L. Rabin, Automated Vehicles and Manufacturer Responsibility for Accidents: A New Legal Regime for a New Era, 105 Va. L. Rev. __ (forthcoming 2019), available at SLS), https://torts.jotwell.com/when-cars-are-the-drivers-tort-law-in-the-fourth-industrial-revolution/.

Privacy for the Privileged Few

Scott Skinner-Thompson, Privacy’s Double Standards, 93 Wash. L. Rev., (forthcoming), available on SSRN

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

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

Skinner-Thompson’s impression of a double standard favoring the privileged and the famous is backed up by his persuasive empirical study of published public disclosure cases decided in the last decade (2006-2016). (P. 15.) His study of dispositive motions in 150 such cases reveals that a plaintiff’s privacy claim survived only 31 times (or roughly 20%), a notable statistic that demonstrates that “while privacy torts are not dead yet, they are on life support.” (P. 47.) Against this unfavorable backdrop, Skinner-Thompson concludes that “privacy doctrine often is applied in such a way that it is having a disparate negative impact on certain marginalized populations, and, in some instances, there is also evidence of disparate treatment.” (P. 6.)

Most significantly for purposes of his doctrinal analysis, Skinner-Thompson finds that most of the dismissals (61%) are traceable to two black letter requirements which he argues amount to a double standard in the operation of this tort: (1) proof that the defendant widely publicized the private information and (2) proof that the plaintiff held the information completely private or secret. As he reads the cases, courts are willing to relax the requirements in cases involving prominent people and celebrities, but apply them stringently in cases involving ordinary or marginalized plaintiffs. Thus, the outed gay man loses his case because the pastor’s disclosure is too limited to constitute “publicity” and the revenge porn victim’s claim fails because she shared her nude image with her boyfriend and did not keep it completely secret. However, in Hulk Hogan’s case, the court allows the claim to go to the jury, even though the plaintiff publicly revealed details about his sexual exploits and “stills” from the offending video had already been posted by a third party.

In addition to unearthing compelling stories from the cases and tracing the negative effects of the two requirements, Skinner-Thompson makes a normative and structural argument for providing more privacy protection for marginalized plaintiffs whose cases get swept away in the non-privileged pile unlikely to go to trial. Drawing on part of his prior work, he argues that “privacy rights are particularly important for marginalized communities,” who are disproportionately the object of surveillance and who are often unable to “absorb the social and economic costs that flow from the exposure of sensitive information.” (P. 3.) He also views privacy rights as serving as a “liminal or transitional right” until such time as the group, for example LGBT plaintiffs, “gain both formal anti-discrimination protection and lived equality.” Finally, Skinner-Thompson observes that for many living on the margins of society, keeping information completely secret may be a “practical impossibility,” given that sharing stigmatized information (such as medical information or sexual orientation) may be “necessary to mental health and identity exploration/play.” (P. 20.) For Skinner-Thompson, the teenage revenge porn plaintiff should have the right to expect her ex-boyfriend not to post compromising pictures of her in order to allow teenage girls to explore their sexuality without being publicly exposed.

Quite rightly, Skinner-Thompson criticizes the disparate pattern of recovery in public disclosure cases as contrary to what we should expect to see in this area of the law in which celebrities and public figures are supposed to receive fewer privacy rights because of the newsworthiness of their lives and their greater capacity to fight back in the press and other channels. He then uses the courts’ disparate application of the two requirements to make a broader theoretical point. He maintains that the courts’ uneven application of privacy rights is unsupportable because it violates a fundamental tenet of a body of common law, such as tort law, i.e., that like cases should be treated alike and that purportedly universal principles should apply to everyone.

To rectify what he sees as the “built-in inequality” in the requirements of the public disclosure tort, Skinner-Thompson urges the courts to take a page from constitutional law, particularly the equality guarantee of the equal protection clause. When Skinner-Thompson argues for importing constitutional principles into tort law, he makes it clear that he is not suggesting that plaintiffs mount a constitutional attack on the disclosure tort, similar to the successful cut back on defamation and privacy claims made in the name of the First Amendment since New York Times v. Sullivan. Instead, what he has in mind is using constitutional equality norms as “substantive guideposts as judges craft the common law of privacy torts.” (P. 4.) Using constitutional equality norms to shape tort law, he argues, will provide the “doctrinal foothold justifying reform” and offer courts a solid reason for expanding the “flimsy protections” of the disclosure tort.

Although Skinner-Thompson’s call for infusing constitutional principles into tort law is not novel, his analysis of the possible sources courts may look to for guidance is the most thorough I have encountered in the literature. He begins his argument by noting that courts have already allowed the federal constitution to shape the contours of tort law in a number of contexts.  His argument re-positions New York Times v. Sullivan and its progeny as cases that actively reshaped the common law doctrine of privacy and defamation law, not simply as First Amendment attacks on state law. More importantly, Skinner-Thompson sees no warrant for limiting importation of constitutional principles to the First Amendment, citing the punitive damages cases that have relied on the due process clause to re-shape the remedial law of torts.

In a novel and creative part of the article, Skinner-Thompson argues that courts should look to the equality guarantees of state constitutions to influence the substance of privacy torts. He notes that many state equal protection clauses are more expansive than the federal constitutional guarantee, providing explicit protection to additional protected classes and dispensing with the state action requirement. Influenced by Helen Hirshkoff’s work on state common law, Skinner-Thompson asserts that there is evidence that state constitutional provisions “indirectly influence the substance of common law causes of action.” (P. 33.) In this way, constitutional norms, including equality norms, are “infused into the common law through ‘private law portals,’” as evidenced by cases in which state courts have held private employers accountable for employment discrimination, even when the employers were exempt from state statutory anti-discrimination provisions. (P. 34.) His analysis suggests that by grounding reforms in state constitutional norms and principles, common law courts can go beyond vague and open-ended appeals to “public policy.” This interplay between state constitutional norms and tort law seems natural and appropriate to Skinner-Thompson because “common law torts, after all, are a creature of state law.” (P. 33.)

In the end, Skinner-Thompson advocates for a contextual approach to the disclosure tort that would comply with constitutional equality principles by ensuring that “individuals in marginalized communities are able to bring claims on the same terms as privileged individuals.” (P. 41.) His solution is to “level up” by relaxing the widespread publicity and complete secrecy requirements for all plaintiffs, not just for the privileged few. Once the strict requirements are relaxed, he hopes that judges will be freed up to consider the specific facts of the case, such as the degree of harm caused by even a limited disclosure of sensitive information and the reasonableness of a plaintiff’s failure to keep the information completely secret. Presumably, such a reform would have the effect of taking the disclosure tort off life support by sending more cases to the jury.

Privacy’s Double Standards is the kind of article that speaks to torts scholars of different stripes. For the more doctrinal, Restatement-type scholars, Skinner-Thompson’s empirical study of the public disclosure tort is highly informative, indicating that the tort is under pressure and has taken a perverse turn, no longer serving its function of ensuring the privacy of intimate and sensitive matters except in cases in which disclosure is warranted by the newsworthiness of the plaintiff or the information. For critical torts scholars who hope to see tort law used to promote social equality and social justice, Skinner-Thompson’s article takes us in a new direction. He searches not only for gender, race, and other identity-based biases in the deep structures of the common law, but also for indications that the law as it operates on the ground offers redress mainly to the privileged, even if the black letter doctrine is stated in neutral and universal terms.

To be sure, many will not agree with Skinner-Thompson’s proposals for reform. Unless you share the normative view that privacy is good for everyone and particularly precious for marginalized people, you may just use the results of Skinner-Thompson’s empirical study to argue that courts should “level down” and apply the stringent requirements in every case without exception. At a minimum, however, his article should stimulate a re-examination of the value of the disclosure tort and prevent it from withering away without anybody noticing.

Cite as: Martha Chamallas, Privacy for the Privileged Few, JOTWELL (July 3, 2018) (reviewing Scott Skinner-Thompson, Privacy’s Double Standards, 93 Wash. L. Rev., (forthcoming), available on SSRN), https://torts.jotwell.com/privacy-for-the-privileged-few/.

Justifying Liability without Proof of Causation

Emmanuel Voyiakis, Causation and Opportunity in Tort, 38 Oxford J. Legal Stud. 26 (2018).

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

To understand Voyiakis’ approach, it’ll be useful to consider his analysis of a case and contrast it with that of some other prominent theoretical frameworks. Consider, then, the decision of the House of Lords in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32. In Fairchild, D1, D2, D3, C’s employers, each successively, but independently, expose C negligently to asbestos dust. C contracts mesothelioma, an asbestos-induced cancer, but cannot prove on the balance of probabilities (more likely than not) which of D1, D2, D3 (or which combination) was a cause of C’s cancer. Scientific understanding of the aetiology of mesothelioma does not allow us to say whose exposure causally contributed to the mesothelioma. Applying the orthodox balance of probabilities approach, C will be unable to establish liability against any defendant, the probability of causation against each being only 1/3.1 The House of Lords, nonetheless, held each defendant liable in full.

The finding of liability in a case like Fairchild is not terribly difficult for those who believe that it is morally permissible to use tort law to achieve optimal deterrence. In situations where defendants can predict that claimants will be unable to attribute causation to defendants’ careless conduct, as in Fairchild, without the potential for liability, defendants would have no tort-law-given self-interested incentive to take reasonable care. For the optimal deterrence theorist, the question is then largely a technical one as to whether incentives to take proper care in situations of predictable causal uncertainty are best restored through a reversal of the burden of proof, liability in proportion to the probability of causation, or a liability rule based simply upon wrongful increase in risk.

But those who are not hard-nosed consequentialists tend to find these cases difficult. The reason is simple: the dominant non-consequentialist approach to tort liability insists that a defendant’s liability to compensate is grounded in that defendant’s violation of the claimant’s rights. On the facts of Fairchild, the claimant was unable to establish against any particular defendant that that defendant violated his rights (or at least, not his right not to be negligently harmed).

And yet there is a powerful intuition that it would be unjust to reject the claimant’s claim for compensation against the defendants entirely in cases like Fairchild. Rights-based theorists typically go to some lengths to show that their accounts can deliver such intuitive results in structurally similar cases of causal uncertainty. Thus Ernest Weinrib argues that Summers v Tice, 33 Cal 2d 80 (1948), where two negligent hunters fired simultaneously in the direction of the plaintiff, one bullet causing his primary injury, is correctly decided as a matter of corrective justice. By preventing the claim being established against the other defendant each defendant wrongfully injured either the plaintiff’s bodily integrity, or the plaintiff’s remedial right to his bodily integrity. ,. Therefore, both defendants wrongfully violated the plaintiff’s right to bodily integrity.2 This approach depends upon a controversial assimilation of the right to bodily integrity and the remedial right to compensation for invasion of that right.

Voyiakis is neither a hard-nosed consequentialist nor a hard-nosed rights theorist. Drawing on the work of HLA Hart and TM Scanlon, Voyiakis suggests that the central justificatory question for the imposition of a burden, tort liability included, is whether the burden flows from: ‘a principle that … allows those persons [subject to the burden] the opportunity to affect how things will go through their choices, and that opportunity is something that those persons have reason to value’ (P.31). For example, it may sometimes be justifiable for a person to bear a harm without compensation if they were provided with a perfectly adequate warning which gave them a valuable opportunity to avoid incurring the harm. He dubs this the ‘value-of-choice’ account. This idea, Voyiakis argues, explains the general rule that the burden of proof on causation is on the claimant: this burden can be justified to the claimant because the burden is contingent on the claimant having access to a valuable opportunity: civil recourse (P.35). By contrast, a general rule that the defendant had the burden of disproving causation would not be a burden that is contingent upon a valuable opportunity for defendants: generally, defendants do not have reason to value a change in the status quo.

Cases like Fairchild are ‘hard’ cases, according to Voyiakis, because the parties do not have reason to value the opportunity to establish the causal truth: the causal truth is impossible to obtain, even on a balance of probabilities. So the imposition of the burden of proof on the claimant in such cases cannot be justified on the ground that it affords the claimant this valuable opportunity: ‘A principle that required Fairchild claimants to prove causation on the balance of probabilities would not have put the outcome of the causal enquiry in the claimants’ hands in any way’ (P.37). The same is true of the defendants: the defendants also have no reason to value the opportunity to establish the causal truth in circumstances where it is impossible to do so.

But Voyiakis argues that the defendant is justifiably liable in Fairchild because it has a reason to value the opportunity to produce a situation where causation is impossible to prove. The defendant cannot reasonably object to an adverse finding on the causal issue where this finding is made contingent on the exercise of an opportunity that the defendant had reason to value. The defendant has a reason to value the opportunity to engage in an industry involving the use of asbestos dust, and set the conditions of safety for its employees, including the risks to which they are exposed. By contrast, from the claimant’s perspective, it is difficult to see the value in their having the ‘opportunity to decide whether or not to be exposed to the risk of harm of unclear aetiology’ (P.38). This line of reasoning would also generate liability in Summers v Tice, according to Voyiakis, because the members of a hunting party have reason to value how to co-ordinate their hunt, including the type of bullets used. But it would not generate liability in a Summers v Tice variant where the shots came from different hunting groups: here the imposition of liability could not justified as contingent upon the exercise of an opportunity to co-ordinate one’s conduct with hunt members (say, by using different bullets from each other). Hence, Voyiakis’ approach does not generate liability in every case where there is causal uncertainty. Indeed a central attraction of his view is that it does not wholly undermine the general rule that claimant bears the burden of proving causation.

I will make three comments. First, it is true that the defendants have reason to value the opportunity to expose their employees to risk and to set the terms of doing so (at least up to a point: defendants also have reason to value reliable authorities setting standards of safety), but do they have reason to value this because it creates a situation where causation is impossible to prove (cf p.39 where the idea that a person with asbestos expertise has reason to value the opportunity to work in the asbestos industry is rejected on the ground that the person does not value the opportunity for the reason that it creates causal uncertainty)? Certainly, defendants have a self-interested reason to value this opportunity where the general burden of proof applies: producing causal uncertainty will get them off the hook from tort liability. But it is not obvious that having this, morally valueless, opportunity to deprive others of the ability to enforce their rights is something that should play a normative role in determining the burden of proof (except in so far as we accept the deterrence arguments mentioned above).

Second, where the defendant is made liable without proof that they caused the claimant’s damage, upon what valuable opportunity is the imposition of this liability contingent? The opportunity to produce a situation of causal uncertainty was only valuable (as a matter of the defendant’s self-interest) where the law insists upon the general rule that proof of causation by the claimant is required. If the answer is that the defendant has reason to value the opportunity to engage in activities involving the exposure of employees to asbestos dust, this opportunity cannot be valuable for the reason that it allows the defendant to escape liability. The defendant does not escape liability. Perhaps the answer is that the defendant escapes moral responsibility for violating the claimant’s rights, but Voyiakis doesn’t go down this route. Or perhaps the idea that the opportunity must be valuable for the reason it allows the defendant to avoid responsibility should be dropped.

Third, the results reached by Voyiakis’ account may not be so different from those reached by Ernest Weinrib’s, at least once the latter’s analysis is extended. Voyiakis’ approach would find that the defendant is not liable in a hypothetical case where the employer provided employees with cheap and easy-to-use devices which detect when the employee was exposed to a risk of contracting cancer. In such circumstances, the absence of liability can be justified to the employee because he or she was provided with a valuable opportunity to provide causal proof. Here, by contrast, Weinrib could appeal to the idea that the invasion of the claimant’s remedial right, in such circumstances, is wholly the claimant’s own fault. On normal principles, this could lead to a break in the chain of causation between the defendant’s breach of duty and the invasion of the claimant’s remedial right.

These points notwithstanding, Voyiakis’ account seems to register, at a general level, a plausible intuition that rights-based accounts miss: this is the idea that, in distributing a compensatory burden, it is important to consider the value of a person’s opportunities to affect the incidence of that burden, even if these do not bear upon whether the person breached a duty. For those who think that the normative basis of liability in tort is not exhausted by rights-based considerations, nor considerations of optimal deterrence, the value of choice account offers an interesting alternative, or supplement, to these views.

  1. This is a simplification, since the possibility of cumulative causation increases the probability of causation in relation to each defendant. This was not, however, considered by the House of Lords.
  2. See Ernest Weinrib, Causal Uncertainty, 36 Oxford J. Legal Stud. 135 (2016); see also Allan Beever, Rediscovering the Law of Negligence  459-64 (2007); Sandy Steel, Justifying Exceptions to Proof of Causation in Tort Law, 78 Mod. L. Rev. 729 (2015).
Cite as: Sandy Steel, Justifying Liability without Proof of Causation, JOTWELL (May 11, 2018) (reviewing Emmanuel Voyiakis, Causation and Opportunity in Tort, 38 Oxford J. Legal Stud. 26 (2018)), https://torts.jotwell.com/justifying-liability-without-proof-of-causation/.

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.

(Id.)

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)), https://torts.jotwell.com/measuring-common-claims-about-class-actions/.

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), https://torts.jotwell.com/expressivism-corrective-justice-civil-recourse/.