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Stability and Progress

The tension between stability and progress is an inherent feature of the common law. Stability in the law provides guidance to people in living their lives and reassurance that there is more to law than the personal preferences of those administering it. If, however, the law never changes with society, it will become ill suited to meet people’s needs. We know law changes over time, but how does it do so without being destabilizing?

Professors Kenneth Abraham and G. Edward White (hereafter “AW”) attempt to answer that question with regard to tort law in their latest book. AW present an illuminating study of legal change grounded in compelling tort history. The book is derived from five articles AW recently co-authored. Each article describes an episode of lost tort history that “departs from the principal focus of tort law scholarship over the last century, liability for accidental bodily injury and property damage.” (P. 3.) Two of the episodes are about tort law generally and three involve intangible harm. After publishing the articles, AW determined that a theme linked all five.

The theme AW perceived is that “change in tort law is … ‘constructed,’” (ix), by which they mean “that what the courts say the law is, and how they say they have or have not changed the law, is an important ingredient of what the law is. In this sense change is constructed or built.” (P. 1.) Additionally, AW state, “change occurs by constructing, or construing, the meaning of the past.” (P. 1.)

This process usually involves “filtering” and sometimes involves “cloaking.” According to AW, “[f]iltering is the process by which the contemporary policy implications of new cases, rather than being considered independently, are evaluated within established doctrinal frameworks to see where a new case with those policy implications fits within those frameworks.” (P. 12.) Filtering is part of the dominant model of common law change: “gradual, step-by-step change in which an exception to a rule expands to the point at which it eventually becomes the rule.” (P. 3.) Pursuant to this model, there is no destabilization because changes in the law are “almost imperceptible.” (P. 3.)

AW point to other episodes in tort history in which change was not constructed in the “seamless way the dominant model envisions.” (P. 3.) Such changes may involve cloaking, “the process by which newly emergent doctrine is described (cloaked) in the language of existing doctrinal principles, when in fact those principles have been modified in response to newly perceived policy considerations.” (P. 13.)

The processes of filtering, the evaluation through established doctrinal frameworks, and cloaking, using the language of existing doctrinal principles, both rely upon doctrine. Doctrine consists of previous cases stretching back in time, or, as AW call it, “history.” (P. 10.) It is in this manner that history is “an inevitable part of the process by which judges make decisions in tort cases.” (P. 10.) AW acknowledge that many of the changes in tort law were contingent, in the sense that they were not bound to happen. (P. 13.) However, “whenever a tort law change that was contingent materializes, the way it materializes and the way it is situated within a doctrinal framework is inevitably influenced by tort law’s history.” (P. 14.)

The heart of the book, full of rich details, is the five episodes from tort history. Episode one is the abandonment of the prohibition on party testimony that occurred in the latter part of the nineteenth century.1 Although this is an evidentiary matter, AW convincingly argue the abolition of the rule helped create modern tort law by expanding the number of negligence cases. Episode two is the struggle to conceptualize tort law that occurred in the wake of the abolition of the forms of action.2 Episode three is a mid-twentieth century attempt by several influential scholars to merge the “dignitary” torts into a unified cause of action.3 Episode four is the constitutionalization of some tort liability, including limiting the tort of defamation.4 Episode five is the failure of the prima facie tort and its significance for the recognition of future torts.5

Many readers are likely familiar with AW’s articles, three of which have themselves been the subjects of Jots.6 In this Jot, I focus mostly on the book’s theme, as opposed to the content from the original articles.

The episodes allow AW to discern patterns. Legal change is a function of both external forces and internal, doctrinal frameworks created by precedent or history. Rarely, external forces are so powerful that they “overwhelm established doctrines of practices.” (P. 214.) In episode one, AW recount the history of the abandonment of the prohibition on party testimony. According to AW, not only was the doctrine discarded, but so was the entire intellectual apparatus supporting it. Neither filtering nor cloaking was required; legislatures repealed the rule. In such an instance, the public has so thoroughly altered its belief system that no continuity is needed or desirable. This type of break from the past is not destabilizing.

Also rarely, but on the other end of the spectrum, pressure for change is internal, without any corresponding external stimulus. As an example, taken from episode two, AW detail Francis Bohlen’s attempt to reconceptualize the structure of tort law as he drafted the Restatement of Torts in the 1920s. Bohlen attempted to bring to tort law the internal coherence that it lacked; there was no external pressure from the practicing bar or public. The attempt failed, AW state, at least in part because “of the inevitable gravitational pull of history, reflected in the structure of the forms of action.” (P. 215.)

A third, and dominant, pattern is when external forces pressure courts to make doctrinal changes. Because they are constrained by history and precedent, courts “seek to maintain the continuity between the past and the future.” (P. 215.) AW describe a few instances fitting this description, including the emergence in the twentieth century of intentional infliction of emotional distress and the privacy torts, discussed in episode three. Courts drew analogies to existing actions and engaged in cloaking because “there was no received doctrinal framework acknowledging the existence of any of the torts.” (P. 215.) Another instance, taken from episode four, was the constitutionalization of defamation, certain of the privacy torts, and IIED. The need for protection against liability for criticizing the government during the civil rights movement created pressure on the courts to modify tort doctrine. Yet the doctrinal changes enacted were analogous to prior non-constitutional privileges, maintaining continuity.

AW conclude the book by looking forward. What does the traditional process of change mean for recognizing future torts? In their view, the forms of action continue to influence developing torts. Furthermore, two factors distinguish successful new causes of action from those that fail: normative weight and justiciability. Normative weight is straightforward; the more conduct is perceived by the world outside the legal system as wrongful, the more likely it is to lead to liability. (P. 205.) Justiciability covers several jurisprudential and practical considerations, including the availability of analogous precedent, the discreteness of the cause of action, the cognizability and adequacy of damages, and the number of potential suits. (P. 205.) Due to filtering, the more precedent is available to analogize to a new tort cause of action, the more likely it is to be recognized. Discrete torts, often with concrete elements, aimed at specific types of injuries have tended to be more successful in becoming established. As AW state, “a potential tort that would be open-ended tends to be unappealing to the courts.” (P. 208.) AW’s discussion in episode five of the failure of the prima facie tort, a vaguely defined tort aimed at residual liability, supports this conclusion. Damages are important because the greater the amount of damages involved, the greater the normative weight a wrong tends to have. Moreover, in a system that compensates plaintiffs’ lawyers via the contingent fee, substantial damages are necessary to attract representation. Finally, courts will need a critical mass of cases in order to construct change.

I appreciate AW’s focus on intangible harm both because it often is neglected and because it is growing in importance. Moreover, AW provide examples of how several seminal physical harm cases fit the dominant model of common law change. (P. 11.) Given the importance of physical harm, however, a more explicit discussion that their theme generally works in physical harm cases would have been comforting. Relatedly, the book’s argument raises the question of why a judicial system that prefers discrete torts aimed at specific injuries would recognize the vague, open-ended tort of negligence so soon after the writ system collapsed. I would love to read that story, and I know who could deliver it.

Despite any possible quibbles, all scholars of tort and the common law should read this book. For those who have not read AW’s articles, the book is an excellent gateway to their prolific and influential work. For those who already have read their articles, the book’s theme adds a coherence and depth to the earlier scholarship that is well worth your time.

  1. Kenneth S. Abraham & G. Edward White, The Transformation of the Civil Trial and the Emergence of American Tort Law, 59 Ariz. L. Rev. 431 (2017).
  2. Kenneth S. Abraham & G. Edward White, Conceptualizing Tort Law: The Continuous (and Continuing) Struggle, 80 Maryland L. Rev. 293 (2021).
  3. Kenneth S. Abraham & G. Edward White, The Puzzle of the Dignitary Torts, 104 Cornell L. Rev. 317 (2019).
  4. Kenneth S. Abraham & G. Edward White, First Amendment Imperialism and the Constitutionalization of Tort Liability, 98 Tex. L. Rev. 813 (2020).
  5. Kenneth S. Abraham & G. Edward White, Torts Without Names, New Torts, and the Future of Liability for Intangible Harm, 68 Am. U. L. Rev. 2089 (2019).
  6. Kenneth W. Simons, Is Tort Law Hopelessly Fragmented?, JOTWELL (July 27, 2020) (reviewing Kenneth S. Abraham & G. Edward White, Conceptualizing Tort Law: The Continuous (and Continuing) Struggle 80 Maryland L. Rev. 293 (2021), https://torts.jotwell.com/is-tort-law-hopelessly-fragmented/; 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. 317 (2019), https://torts.jotwell.com/what-ever-happened-to-dignity/; Anthony Sebok, What Is It Like to Think Like a Pre-Modern?, JOTWELL (February 13, 2017) (reviewing Kenneth S. Abraham & G. Edward White, The Transformation of the Civil Trial and the Emergence of American Tort Law, 59 Ariz. L. Rev. 431 (2017), https://torts.jotwell.com/what-is-it-like-to-think-like-a-pre-modern/.
Cite as: Christopher J. Robinette, Stability and Progress, JOTWELL (April 8, 2022) (reviewing Kenneth S. Abraham & G. Edward White, Tort Law and the Construction of Change: Studies in the Inevitability of History (2022)), https://torts.jotwell.com/stability-and-progress/.

Facilitating the Information-Forcing Function of Tort Law

Elizabeth Chamblee Burch & Alexandra D. Lahav, Information for the Common Good in Mass Torts, 70 DePaul L. Rev. 345 (2021).

Most believe that tort law, at its root, is about dollars and cents. The defendant pays; the plaintiff pockets a specified sum. It is through this financial transfer that tort law’s broader aims—deterrence and compensation—are achieved. Yet, in Information for the Common Good in Mass Torts, recently published as part of the twenty-sixth annual Clifford Symposium, Elizabeth Chamblee Burch and Alexandra D. Lahav complicate that simple story. In the piece, Burch and Lahav argue that, besides damages, tort law very often involves the transfer of something just as valuable if less quantifiable: information.

To see tort litigation as a source of information is to see tort through a different lens. Seen through this lens, in fact, much of what we know—or think we know—about what tort law does or how it works becomes subject to reexamination.

One implication is that, once we center the importance of information disclosure, we see that tort litigation promotes safety, not only (and maybe not primarily) through the much-discussed path of cost internalization (as Richard Posner and Steven Shavell, among others, would suppose), but rather, by triggering disclosures. The idea is that plaintiffs’ lawyers are well-equipped to connect dots, cultivate whistle-blowers, and pry incriminating information out of company vaults. And this information is key. It is vital to helping regulators regulate. It can help ensure that reputations reflect reality so that reputational effects steer consumers to safer, not shoddier, goods. And it can even catalyze cultural shifts: In the face of damning revelations, certain products or activities (such as smoking) may become markedly less cool.

And while this story is facially attractive and easy to tell, Burch and Lahav bring the receipts. They show how, time and again, litigation has brought previously confidential information to light, and the revelation of that information has, in turn, triggered salutary institutional change. Litigation against a fast-food restaurant that served hamburgers contaminated with E. coli ultimately led to new federal standards for cooking meat. (P. 353.) Attorney Lance Cooper’s efforts on behalf of the family of Brooke Melton uncovered a faulty ignition switch in Brooke’s 2005 Chevy Cobalt—and ultimately led to the discovery of a massive cover-up at GM and the recall of some 8.7 million vehicles. (Pp. 354-55.) As Bob Rabin and I have written at length, it was litigation against tobacco companies that pulled back the curtain on the companies’ grave misconduct and ultimately set off waves of regulatory activity. (Pp. 356-58.) And, more recently, public entities’ opioid litigation triggered the disclosure of the ARCOS data—a previously confidential government database that mapped where every prescription painkiller originated and where it was sold. This disclosure has made it possible for journalists, researchers, health experts, and the public to measure and map the precise roots and contours of the opioid epidemic—and also to identify, with precision, which manufacturers and distributors shipped the most pills to the hardest-hit communities. (Pp. 364-66.)

And yet, Burch and Lahav observe: Not every litigation that unearths a public health hazard generates a public disclosure. Sometimes there’s a kink in the above process. In fact, precisely because information is valuable, it may stay under wraps, as the defendant may choose to pay extra in order to keep the plaintiff’s lips sealed. Thus, the authors call information unearthed in litigation a “common good.” By that they mean that the information is “useful to society—the commons” and also that it is “a good that can be commodified and sold for a secrecy premium.” (P. 349.) The bottom line is that, even in the face of urgent public health hazards, the choice of secrecy or publicity is very often in private parties’ hands.

The recent Sandy Hook settlement offers a vivid illustration. On February 15, 2022, the families of nine individuals killed at Sandy Hook Elementary School announced that they had resolved their long-running lawsuit against Remington, the maker of the AR-15-style weapon that gunman Adam Lanza had used in the 2012 massacre. As part of the settlement, Remington’s insurers are poised to pay $73 million, an unusually large sum. The settlement agreement is also unusual for another reason. The agreement compels Remington to release thousands of pages of internal company documents, including its plans for how to market the weapon. The families’ lawyer has explained that the families could have settled more quickly and with less difficulty had they not held out for the disclosure of that material. But, united in the desire “to do whatever they could to help prevent the next Sandy Hook,” the families insisted on sunlight.

But, what to do when plaintiffs lack the Sandy Hook families’ fortitude? That question has swirled for decades.1 And, as Burch and Lahav recognize, it defies easy resolution.

After all, though the case for disclosure is powerful, there are also countervailing considerations. For starters, there’s the matter of litigant privacy and autonomy: Plaintiffs, already victimized, should arguably be free to call their own shots, and defendants should not forfeit all rights to privacy simply by virtue of becoming embroiled in litigation. Furthermore, transparency requirements could possibly create a drag on judicial efficiency and may well be susceptible to circumvention. And even if we believe, generally, in disclosure, operationalizing that default is tricky. Should all (or nearly all) information unearthed during discovery be publicized?

But, even while recognizing the question’s root difficulty, Burch and Lahav take three meaningful steps to advance the current debate.

First, they offer a fresh analysis of the age-old question: “What are courts for?” In particular, they add, to the traditional mix of law declaration and private dispute resolution, a third purpose for courts: truth revelation.

Second, Burch and Lahav consider, and mostly reject, the notion that, in order to promote transparency, we have to come up with one tidy solution. They convincingly argue that our commitment to disclosure needn’t be one-size-fits-all. And, just as importantly, transparency and secrecy needn’t be binary. Instead, judges can analyze disclosure on a spectrum and can “tailor confidentiality orders to the public interest at issue.” (P. 394.)

Third, Burch and Lahav highlight a provocative link between transparency and trials. Trials are undeniably public. Thus, as long as trials are a regular part of the American system of civil justice, the tort system’s information-forcing function is apt to operate well, even without significant judicial intervention. But, on the other hand, if trials are rare or exceptional, more judicial intervention may be necessary in order for tort law’s information-forcing function to operate properly.

Mapped onto the real world, this last insight counsels for more sustained attention to the promotion of transparency in litigation. After all, civil trials have all but vanished. For the twelve-month period ending in September 30, 2019, in the federal system, there were a total of 2,228 jury or non-jury trials out of a total of 311,520 cases terminated: a trial rate of 0.7%.2 Given that the American civil trial is all but an artifact, courts’ affirmative obligation “to promote public discourse and truth revelation, safeguard public health and safety, explain and give life to public values, and clarify and define the law through transparent reasoning—traditional features of public adjudication—increases.” (Pp. 392-93.) In other words, for tort law to serve its information-forcing role in a world without trials, more judicial attention (including more searching judicial scrutiny of protective orders and less tolerance for the submission of material under seal) may well be warranted.

  1. Confronting the question, some have worked to promote litigation transparency by enacting legislation, at the state or federal level. Some such bills have been enacted. E.g., Zoe Schiffer & Sean Hollister, California Just Made It a Lot Harder for Companies to Cover Up Harassment and Abuse, The Verge, Oct. 7, 2021 (describing California’s recent legislative efforts to ban certain secret settlements: the STAND Act and the Silenced No More Act). Other bills have not (yet) made it into law. E.g., S.B. 1149 (2022) (proposing California’s “Public Right to Know Act of 2022”); H.R. 1053, 115th Cong. (2017) (proposing the federal “Sunshine in Litigation Act of 2017”). Some have tried to promote transparency by altering procedural rules. See, e.g., S.C. Local Civil Rules for the U.S. District Court R. 5.03(E) (specifying that “[n]o settlement agreement filed with the court shall be sealed pursuant to the terms of this rule”); Tex. Rules of Civ. Pro. 76a (creating a strong presumption of public access). And, some have sought to address the problem via modifications to the Model Rules of Professional Conduct. E.g., Richard A. Zitrin, The Case Against Secret Settlements (Or, What you Don’t Know Can Hurt You), 2 J. Inst. for Study Legal Ethics 115, 116 (1999) (proposing an amendment to Model Rule 3.2).
  2. Calendar year 2020 data is also available, although that data is skewed given the pandemic’s effect on court processes. Note that this data is drawn from Table C-4, maintained by the Administrative Office of the U.S. Courts. That Table defines a trial as “a contested proceeding at which evidence is introduced” and therefore counts as “trials” certain events which we might not believe truly qualify (e.g., a contested hearing to determine whether to issue a restraining order). See Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. Empirical Legal Stud. 459, 461 (2004).
Cite as: Nora Freeman Engstrom, Facilitating the Information-Forcing Function of Tort Law, JOTWELL (March 22, 2022) (reviewing Elizabeth Chamblee Burch & Alexandra D. Lahav, Information for the Common Good in Mass Torts, 70 DePaul L. Rev. 345 (2021)), https://torts.jotwell.com/facilitating-the-information-forcing-function-of-tort-law/.

Making Sense of Proximate Cause

Mark A. Geistfeld, Proximate Cause Untangled, 80 Md. L. Rev. 420 (2021).

Negligence poses special challenges for legal scholars and practitioners. The broad sweep of the cause of action is made possible by reliance on concepts that operate at a high level of abstraction. This explains why negligence is so adaptable, and hence so adept at responding to new social problems. But the use of abstract concepts also poses problems of understanding, and produces high levels of doctrinal instability. Few areas of negligence law illustrate the difficulties more graphically than the issue generally referred to in the US as ‘proximate cause’, and in the Commonwealth as ‘remoteness’ or ‘scope of liability’.

When faced with the difficulties that beset proximate cause, it is tempting for the torts scholar to throw up her hands in despair, or to dismiss the need for conceptual analysis, on the ground that ‘It’s all policy anyway’. But Mark Geistfeld is having none of it, and in this article, Proximate Cause Untangled, he sets himself the tough task of ‘untangling’ the doctrine. His analysis is illuminating and thought-provoking, and provides a plausible explanation for key features, not only of American law, but of the law of many Commonwealth jurisdictions. And while his core thesis is straightforward, his argument is so richly layered that even readers who are not persuaded by that thesis are bound to find much of value in his contribution.

As Geistfeld points out, the role of proximate cause is less extensive now than in the past, because issues like recovery of stand-alone mental harm and pure economic loss were long ago hived off into duty. But in his view the slimmed down modern doctrine still has its problems, most obviously a seemingly intractable tension between a forward-looking enquiry into ‘the risks foreseeably created by the defendant at the time of the tortious conduct’ and a backward-looking enquiry into ‘whether the plaintiff’s injury can be directly traced back’ to that conduct. (P. 422.) The key to resolving this tension, he believes, lies in recognizing that the doctrine serves two different purposes, and that the foreseeability and directness tests each have a distinctive role that can be seen when the question of proximate cause in the prima facie case (or liability stage) is ‘untangled’ from its role at the damages stage.

When it comes to the prima facie case, Geistfeld favours the use of a foreseeability test, thereby endorsing a version of the ‘risk principle’, according to which ‘a negligence defendant’s liability should be limited to those foreseeable harms caused by the risks that rendered the conduct unreasonably dangerous’ (p. 431; see also at pp. 440–1). According to Geistfeld, the rationale for the foreseeability rule lies in the fact that the duty to exercise reasonable care is limited to the risks of foreseeable harm. Such a duty ‘necessarily absolves a defendant from responsibility—and thus liability—for any harm that is entirely unforeseeable’. (P. 436.)

I was not convinced by this move, however, as it rests on a contestable view of duty as necessarily encompassing foreseeability issues. And it seems unlikely that we need to explain the foreseeability/risk rule by reference to duty, since civilian systems that do without duty adopt versions of the rule as well. Perhaps we might instead find the explanation in breach. If my conduct was negligent because it exposed you to risks x and y, and not because it exposed you to risk z, does it not seem logical that my liability is limited accordingly?

Whatever its rationale, the foreseeability/risk rule provides a relatively simple and intuitively appealing solution to the issue of proximate cause at the liability stage. But what of the criticism that the outcome of applying this approach rests on how the risk is characterized? Frame the risk in more general terms and the plaintiff will likely win; frame it in more specific terms and the reverse is true. In a passage of the article that I found particularly helpful, Geistfeld challenges this indeterminacy objection, arguing that similar issues arise at the breach stage, and that the answer to the objection lies in a ‘behavioral conception’ of foreseeability. When people think about risks, he contends, they lump them into categories at a high level of generality, and this is echoed in the proximate cause analysis. The connection to ordinary perceptions of risk is preserved in the US by assigning determinations of proximate cause to the jury, and while of course the jury still needs to make a judgment call, there is nothing particularly unusual or troublesome about that.

Turning to the damages stage, Geistfeld argues that foreseeability is no longer determinative, as shown by the ‘eggshell-plaintiff’ rule, which he considers to be of general application. (Here his analysis seems to depart from the positive law, at least in England, where the rule is generally thought to be limited to personal injury: see, e.g., Nicholas J. McBride and Roderick Bagshaw, Tort Law (6th ed. 2018) 318.) Instead, damages are limited by the retrospective ‘directness’ test, which asks whether an intervening force ‘broke the causal chain’ between the defendant’s negligence and the harm in respect of which the plaintiff seeks compensation. Geistfeld gives a simple yet ingenious explanation for this switch to directness, which he thinks ‘resolves a normative problem that is distinctive to the damages phase of a tort case’. (P. 453.) The problem is that compensatory damages are limited to the harm actually suffered, even if this was unforeseeably low (think of an unusually thick skull rather than an unusually thin one). Hence using a foreseeability test at the damages stage creates an imbalance: where the harm occurred but was unforeseeable the defendant is off the hook, and yet where the harm was foreseeable but did not occur no damages are payable. By contrast, directness is fairer, as it ‘does not confer a one-sided advantage on either party’. (P. 454.)

This struck me as an important insight, though I would have welcomed some more unpacking of the argument, and in particular why it was distinctive to the damages stage. I also wondered whether Geistfeld might have been able to marshal some additional reasons for switching to directness when it came to damages, such as the difficulty of applying the risk principle to secondary effects of the initial injury. He might also have emphasized another reason why he would differentiate using the directness test at the liability stage and at the damages stage. Geistfeld rejects the directness test at the liability stage in part because this produces a troubling distinction between causative events prior to the defendant’s breach (which by definition are incapable of breaking the causal chain) and subsequent causative events (which are capable of doing this). That objection no longer applies at the damages stage.

Geistfeld’s article contains many insights, to which it is impossible to do justice in the space of a short review. (For example, he also considers the implications of his analysis for the intentional torts and recklessness). But I hope that enough has been said to persuade torts scholars to take a careful look at this recent addition to the voluminous literature on proximate cause. It is doubtless too much to expect a single article to dispel all the confusion surrounding that troublesome doctrine, but after reading Geistfeld’s analysis, I felt that at least some of my own mental fog had lifted.

Cite as: Donal Nolan, Making Sense of Proximate Cause, JOTWELL (February 8, 2022) (reviewing Mark A. Geistfeld, Proximate Cause Untangled, 80 Md. L. Rev. 420 (2021)), https://torts.jotwell.com/making-sense-of-proximate-cause/.

Law’s Duct Tape? Using Public Nuisance to Fix the Holes in Administrative Law

David A. Dana, Public Nuisance Law: When Politics Fail (May 26, 2021), available at SSRN.

Public nuisance is in the news again. Three important opioid cases have been recently decided. In November plaintiffs lost a bench trial in California state court, and eight days later, the Oklahoma Supreme Court reversed a $465 million trial verdict, holding that, as a matter of law, public nuisance does not extend to the manufacturing or marketing of prescription drugs. About a week later, a jury in a bellwether, the Ohio federal MDL, held that pharmacies caused a public nuisance by failing to respond to curb medically unnecessary prescriptions.

David Dana’s article offers a bold prescription to courts about how to approach public nuisance, including the opioid litigation. Dana’s argument should, in theory, make sense of November’s mixed bag of decisions. His argument operates at two levels, first about the relationship between public nuisance and democracy, and second about the specific wrongful conduct which the tort of public nuisance should address.

Dana begins his analysis at a familiar place: that the meaning of public nuisance is “contestable,” (P. 9). This is, perhaps, the only thing on which there is wide-spread agreement among scholars and courts. Not only has caselaw expanded to include conduct that earlier courts would have excluded, but there have also been episodes of genuine conflict over the best account of that caselaw, as when, in 1970, the American Law Institute refused to adopt Prosser’s more restrictive definition of public nuisance as arising from conduct that was criminal.

In light of this familiar challenge, Dana adopts a familiar strategy. He asks, “when have courts actually been willing to find a public nuisance and order relief?” (P. 9.) The three categories he identifies are (1) quasi-crime cases, (2) environmental cases and (3) product-based cases. (P. 9.) From this empirical observation, he draws the following conclusion: the three categories are united in that they “all do the work of what a well-functioning administrative state should do.” (P. 10, emphasis in original.)

Dana’s next analytic move is unexpected and clever. He observes that modern public nuisance – as defined as the universe of the three categories above – is “in tension” with the “ideal of the administrative state” (P. 11), because every public nuisance claim implies that the administrative state has failed. The function of public nuisance is to “make actionable unreasonable interferences” with “public rights”. (P. 11, paraphrasing Restatement (Second) of Torts § 821B.) This being the case, Dana acknowledges that the criticism of public nuisance as lacking democratic legitimacy—made, for example, by Donald Gifford—has some superficial appeal, and his project is to defend public nuisance against it. I say that this move is unexpected because by assuming that modern public nuisance properly understood appears to function like administrative law, Dana seems to be conceding Gifford et. al.’s chief objection. The move is clever because if he can pull off this defense, then the doctrinal scope of modern public nuisance law will be as broad as that of the modern administrative state.

Dana argues that when critics of modern public nuisance law claim that courts cannot hear claims concerning “public rights” because doing so oversteps the power of the democratically elected branches, they treat public and private rights differently without offering an argument other than stipulating that the former cannot be enforced by the courts. (P. 13.) Turning the tables on the critics, Dana argues that it would be odd—in fact, positively undemocratic—for courts to retreat from their traditional role of remedying all rights violations, including “public rights.” (P. 14.)

Dana’s defense is doubly clever, because it will appeal to torts scholars, like myself, who are committed to viewing torts as redress for rights violations. It is undeniable that public nuisance is defined in the Restatement Second? as a common law action in response to a violation of “a right common to the general public,” and, unlike Tom Merrill, I would not want to banish public nuisance from tort law. A right “common to the public” does not on its face identify? the state as the right-holder. The implication is that this “right” has the same basic private law character as other rights in tort: it is a private relational right running between persons. Unlike other tort rights, a right common to the public is “common” in that it runs from every member of society to every other member of society.

To the extent that public nuisance deals with relational rights held by persons (and not the state), it would seem to be consistent with tort law, which has also gradually imposed new obligations on various powerful members of society, especially businesses, without violating democratic principles. And from this perspective, the putative tension with administrative law that Dana places at the center of his defense can be resolved. To say that the law of negligence empowered MacPherson to demand that Buick carefully inspect wheels purchased from a supplier does not entail that New York tort law was “in tension” with the power of the New York legislature to require a seller of automobiles to carefully inspect wheels purchased from a supplier.

MacPherson had a right—personal to him—that Buick engage in specific conduct (carefully assembling a car) only under New York tort law. The fact that public law and tort law may address identical conduct and secure identical ends does not mean that they are in competition; it means that they are complementary (unless there is preemption, of course).

However, I have trouble with Dana’s further arguments that (1) for any harmful conduct which could be lawfully addressed by administrative law, there is a correlative public right to be free of that harmful conduct which could be addressed by public nuisance, and (2) whether that ‘could’ becomes ‘is’ depends on a balancing test that weighs rule of law values against social welfare. (P. 6.) The remainder of this Jot challenges the first half of this argument.

Dana unduly conflates the domain of administrative law with the domain of public nuisance. The former includes a wide range of ends which the state can secure under the police powers, including sanctioning conduct to promote policy goals. A decision by the Treasury Department not to classify cryptocurrency issuers as banks may be, in fact, a mistake, but that does not mean that the issuers have committed a wrong if they do things that would not have been permitted had the Treasury Department done its job. Public nuisance is narrower than administrative law “done right”: its wrongs must be grounded in an (unreasonable) interference with a “public” right.

Legal rights are correlative to legal duties. But not all legal duties generate legal rights. As Goldberg and Zipursky have explained, relational duties—based on directives about how to conduct oneself in relation to another—generate rights. Simple duties—based on directives about how one should act simpliciter—do not generate rights. The law contains simple duties, which are owed to the state, based on simple directives, and relational duties, which are typically owed to other persons but can also be owed to the state when the state’s right is based on its ownership of property, not its police powers.1

Public nuisance claims only embrace conduct that breaches a relational duty to private parties, not to the state. If the Park Service cannot drive one of its maintenance vehicles into a portion of a park because of a trespasser, it cannot bring a public nuisance suit to get an injunction to remove the trespasser (although it can, of course, sue in trespass or use public law). But the Park Service can (in theory) claim standing under public nuisance if the trespasser significantly interferes with the public’s ability to enter the park. Every public nuisance claim protects a public right—a right whose correlative is a special kind of relational duty between the defendant and members of the public.

Given that, by definition, a “public” right is a subset of the private rights extant in tort, what test can identify them? A test based on the interest invaded seems to be a non-starter. Even ancient examples of public nuisance, such as classic cases of “fouling a public waterway” can be characterized as conduct that interferes with either (i) an interest that could not ground a public nuisance action (the user of the waterway’s right to control what touches his property) and (ii) an interest that could ground a public nuisance action (the user of the waterway’s right to traverse the waterway). A better test, I think, is Merrill’s: a public right is grounded on the obligation not to cause a “public bad”. He defines a violation of a public right as “conduct that] produces undesirable effects that are nonexcludable and nonrivalrous.” (Is Public Nuisance a Tort, at 8.)

While I don’t agree with Merrill’s ultimate conclusion—that public nuisance is not a tort—I think he is absolutely right about what kind of rights violation grounds public nuisance. It is a private right—held by everyone in society—that the defendant conduct himself in such a way not to interfere with each rightholder’s capacity to x, where x is a “non-rivalrous” interest, such as access to the public roads or clean air. The correlative of the nonrivalrous nature of the right is that the remedy is “nonexcludable”: removing the obstruction in the road is relief to everyone, not just one person or the person who most immediately wants to use the road.

Once the precise character of a public right as a subject of a relational duty is established, it is easy to see how Dana’s conflation between administrative law and public nuisance gets things wrong. Administrative law’s domain is huge, and a moment’s reflection reveals the implausibility of saying that every interest protected by a legitimate exercise of administrative law becomes by definition a “public right”. The legitimate exercise of authority by New York to require employers to distribute an information sheet on sexual harassment, which is required by NYC Administrative Code § 8-107, sub. 29(e), protects the interests of employees. If the employer fails to comply with that regulation, and an employee suffers an injury cognizable in tort as a result, the breach of the relevant relational duty is not between the public and the employer but only between that employee and the employer (although the regulation can be used as evidence of liability).

This suggests that injuries that are only contingently connected to the violation of a public right, such as personal injuries, are distinguishable from injuries to the public. The right of the public in California that justified the injunction against gang members in People ex rel. Gallo v. Acuna2, contingently resulted in fewer personal injuries (and property damage) to be sure, but the court specified that the wrong redressed was the gang members’ unreasonable interference with the “right to public order”. Many important interests protected by tort law will not be directly protected by public nuisance. This understanding of public nuisance explains the skepticism of critics like Gifford towards using public nuisance to remedy the many evils done by powerful actors like the tobacco industry and the opioid industry.

Dana, like many who have defended recent public nuisance litigation in connection with tobacco, lead paint, and other commercial activities that caused widespread personal injuries, rejects the argument that because these cases involve defective products, they cannot also be brought under public nuisance. I agree with his general point; there is no reason to categorically deny a plaintiff a right to redress under public nuisance simply because the conduct at issue by the defendant is coextensive with conduct that also could be redressed under products liability law. But expansionists like Dana must still make the positive argument still must be sustained for holding that the conduct related to the manufacturing, and distribution, of a product violates a relational duty that is within the domain of public nuisance.

As Dana notes,

[P]roduct-based public nuisance claims differ from standard product liability claims, to the extent that … the producers of the harmful products were able to inflict harm on the public for profit because they misrepresented what they knew about the risks inherent in their products and thereby undermined the ability of the government – the legislature, agencies – to protect the public, as well as undermining the ability of members of the public to protect themselves. (P. 37.)

This is an interesting insight. Interference with the ability of the state to regulate products is conduct which simultaneously may violate (1) a simple duty to the state (e.g., criminal and civil commands of candor and disclosure); (2) a relational duty to the consumer in products liability (and perhaps fraud); and (3) a relational duty to each member of the public to provide truthful information in anticipation of public regulation of the product. The third duty is grounded on a right of each person to have an “unpolluted” information environment similar to the ancient right of each person to unfettered transit on the public roads and free and unpolluted waterways. Concerning this last duty, each person’s right is non-rivalrous, and the remedy for the invasion of the right would be nonexcludable.

But framed in this way, Dana’s public nuisance covers much less than, for example, has been claimed in the major opioid cases around the country. If the interest invaded is the right of each person in (for example) Oklahoma that both state and federal regulators receive information that is not false and misleading, then the plaintiffs’ case for liability and damages looks different than has been claimed in court.

For example, there may be a major difference between the claims against opioid manufacturers, like Purdue and Endo, and opioid distributors like McKesson, and opioid retailers, like Wal-Mart. The 2020 settlement with the Justice Department includes allegations that Purdue misrepresented to federal and state regulators the true purpose of its Abuse and Diversion Detection program, which was to push back against physicians’ concerns about addiction in their patients and thus encourage unnecessary prescriptions. (See Settlement Agreement, October 21, 2020, Addendum A, Section I.) In Alabama’s public nuisance suit, the claim against distributors is quite different: Since McKesson (a distributor) was “required by law to ensure that . . . opioids would not be diverted for illicit purposes,” Alabama claimed that it breached a public law duty “to report, investigate, and halt suspicious orders.” An Alabaman’s claim that McKesson breached its relational duty to take reasonable care to monitor orders of opioids faces significant causation problems, as well, as in the tobacco litigation, the defense of plaintiff fault. But even if these problems could be overcome, there is no colorable violation of public right. While the failure to assist Alabama in policing illegal prescriptions may have been a violation of public law, it is hard to see why it was an unreasonable interference with a right owed to every person in Alabama, unless we are to retreat to the position that every person in Alabama has a right that every person in Alabama fulfill their obligations to the state of Alabama.

If limited only to a manufacturer, framing the public nuisance in terms of a duty to provide uncorrupted information about opioids reveals the difficulty in proving liability. The trial judge in the California case focused on this hurdle when he found for the defendants. He stressed that the plaintiffs, four counties, ignored their burden at trial of proving causation. Even if it were true, as seems obvious, that the false and misleading marketing described above occurred, liability could only attach if the plaintiffs proved that the breach of the public’s right to uncorrupted information caused members of the public to suffer as a result of the absence of accurate information.

The critical problem for the plaintiffs was that they had the burden of proving that that “medically inappropriate prescriptions” were caused by the violation of the public right.3 The trial judge held that, unlike lead paint, which had no appropriate consumer use once its defect was known, opioids continued to have appropriate consumer use during the period the plaintiffs claimed the public right was violated. (The federal government and the State of California approved and encouraged the use of opioids.) Unlike tobacco, where, arguably, it might have been the case that but for the violation of the public right to information about cigarettes, tobacco use would have been dramatically limited, the claim about the causal relationship between the manufacturer’s violation of public right and liability is highly attenuated, and that proved quite problematic given that the plaintiffs offered virtually no evidence on causation.

Dana’s article is valuable at two levels. First, it illustrates why some have invested into public nuisance their hopes that tort law can effectively tackle seemingly intractable crises such as climate change and the creation of markets for harmful but popular products like guns and opioids. The hope is that the private law remedy of public nuisance can be as broad as the scope of administrative law. Although I have raised concerns that this strategy broadens public nuisance too greatly, Dana helps us see clearly what is at stake. Second, although not his primary purpose, Dana provides a roadmap for describing a modern public right that the seller of a product must provide “unpolluted” information to the public. For those of us who seek to use tort law to protect rights, this is something to take seriously.

  1. Sometimes the content of a simple duty and a relational duty are coextensive. “Don’t trespass” can be both a simple directive (criminal trespass) and a relational directive (the tort of trespass).
  2. 14 Cal. 4th 1090, 60 Cal. Rptr. 2d 277, 929 P.2d 596 (1997)
  3. See People of the State of California v. Purdue Pharma LP et al., case number 2014-00725287 (Nov. 1, 2021), at 15.
Cite as: Anthony Sebok, Law’s Duct Tape? Using Public Nuisance to Fix the Holes in Administrative Law, JOTWELL (January 3, 2022) (reviewing David A. Dana, Public Nuisance Law: When Politics Fail (May 26, 2021), available at SSRN), https://torts.jotwell.com/laws-duct-tape-using-public-nuisance-to-fix-the-holes-in-administrative-law/.

Seeing Negligence for What It Is

Nicolas Cornell, Looking and Seeing, in New Conversations in Philosophy, Law & Politics (Ruth Chang & Amia Srinivasan eds., forthcoming), available at SSRN.

1Ls are often taught that the tort of negligence differs from its counterpart in morality by not requiring blameworthy or culpable misconduct. As Holmes famously put it, whereas “the courts of Heaven” will make allowances for the defects of a “hasty and awkward” person, no such generosity is extended to defendants facing a negligence suit in a common law court. But is it correct to suppose that the moral wrong of negligence necessarily involves culpability or blame? In his marvelous essay Looking and Seeing, Professor Nico Cornell engages an array of recent work in the moral philosophy of negligence to argue, in effect, that Heaven’s courts are as demanding as their earthly counterparts.

Cornell begins with a discussion of Moore v. Dashiell, a run-of-the-mill, mid-twentieth century negligence suit. On a clear, dry day, Dashiell, driving his car, stopped to pick up two hitchhikers: Moore and a friend. Shortly thereafter, with Dashiell driving at a lawful speed on a straight and level road, the car struck a large mule. Moore was seriously injured and sued. At trial, Dashiell testified that, just before the collision, he was turning the dial on his car radio to find a station, but was looking at the road as he did. (There was no point in looking at the radio, he explained, because its markings did not accurately identify the wavelengths at which stations’ signals would be picked up.) He further testified that he saw two cars approaching from the other direction, but never saw the mule. Dashiell’s testimony notwithstanding, verdict was entered for Moore and the Maryland Supreme Court affirmed.

On one reading, the high court’s affirmance rests on the straightforward evidentiary ground that the factfinder needn’t have believed Dashiell’s testimony. (One can reasonably infer that a driver who, under good visibility conditions, misses a half-ton creature standing directly in front of his car actually was not paying enough attention to the road.) But Cornell entertains a different interpretation. Even if the factfinder was entitled to believe and did believe Dashiell’s testimony, he says, it still was entitled to find him to have been negligent in the legal sense. On this reading, Dashiell stands for the proposition that perceptual failure in and of itself—the very fact that Dashiell did not see the mule—counts as negligence. So far as tort law is concerned, Dashiell could not avoid liability even if he was as vigilant as he was required to be (i.e., even if he was appropriately scanning for road obstacles but just happened somehow to miss the mule).

Shifting from law to morality, Cornell uses his rendering of Dashiell to consider various philosophical treatments of negligence. He begins with worries raised by “skeptics” including Matt King, Heidi Hurd, and Michael Moore. Their worry is that negligent conduct, at least when inadvertent, cannot be morally wrongful. Moral duties demand action in conformity with norms of conduct. As such, they presuppose that persons subject to them have an opportunity for deliberation and choice about conforming. Yet the duty at the heart of negligence—the duty of care—seems to demand conformity to a norm irrespective of whether any such opportunity was present. Recall that, on Cornell’s interpretation of Dashiell, the defendant did all the things he was required to do, including looking where he was going. Yet Dashiell was deemed (legally) negligent for failing to have seen something that he was required to see. Negligence so understood seems not to be a moral wrong, say the skeptics. (And thus, if Dashiell is a heartland case of the tort of negligence, negligence law can’t be understood as law that holds actors responsible for their moral wrongs.)

Cornell next considers various responses to the skeptics. “Tracers”—a group that includes Holly Smith, Seana Shiffrin, and Gideon Rosen—maintain that nonculpable negligent action can be deemed morally wrongful so long as it is linked to an actor’s prior culpable acts. (Imagine a different driver who causes a crash after inadvertently nodding off but who, before getting into his car, took medication that his doctor had told him would make him drowsy.) While, according to Cornell, tracers can explain how there is some sense in which an actor who inadvertently injures another had an opportunity to do otherwise, they do not explain how an actor such as Dashiell—whose failure to see the mule was not traceable to a prior irresponsible act—can cogently be deemed to have committed a moral wrong. Likewise, Cornell argues that the recognition of negligence qua failure to see defeats the efforts of other moral theorists— “reflectors,” who include Nomy Arpaly and Angela Smith—to salvage negligence’s status as moral wrong by suggesting that inadvertently careless conduct is wrongful in so far as it displays a deficiency of character or will in the negligent actor. (Dashiell’s failure does not seem to seem to offer any such demonstration.)

Finally, Cornell considers “externalists,” a group that includes Ben Zipursky, Arthur Ripstein, Ori Herstein, and me. Externalists argue that, in the context of determining the accountability of one person to another—as opposed, say, to that of determining whether a person has acted culpably and is thus eligible for punishment—negligence is nothing more or less than an actor’s failure, on a given occasion, to act with required care. An externalist thus could conclude that Dashiell was morally negligent as to Moore (and the other passenger and others in the vicinity), because not seeing and not avoiding the mule was a failure to drive as a careful driver would have driven under the circumstances, and that is sufficient for conduct to be deemed negligent.

Cornell worries that the externalists’ relatively thin understanding of what can count as a breach of duty too radically detaches judgments of wrongful conduct from agency. Indeed, he suggests that the externalists unintentionally vindicate the skeptic’s worry that negligence cannot be a breach of duty. In order for the duty of care to be a genuine moral duty, the skeptics argue, it must be one that can figure in an actor’s deliberation. Yet externalists, in his view, are indifferent to whether the duty of care can so figure.

Having completed his survey, Cornell concludes by sketching a distinctive path forward. The key, he says, is to pry apart two questions that lawyers and moral philosophers often lump together: (1) What duties do we owe one another?, and (2) Under what circumstances is one answerable or accountable to another? Interpersonal moral accountability, he argues, arises as soon as one injures another, irrespective of whether the injury was wrongfully inflicted (i.e., regardless of whether it resulted from a breach of a duty of conduct). Just by virtue of injuring, the injurer is already answerable to the victim—she owes the victim a justification. And if no justification is provided, then there is wrongdoing and additional responsibility beyond the obligation to offer a justification.

Thus, in Dashiell, when Moore was injured in the crash, Moore was morally entitled to demand an account from Dashiell of how the accident could have happened. What answer from Dashiell would have been sufficient to answer such a demand? Whatever might suffice, Cornell reasons, the answer “I didn’t see the mule” is not among them. And, crucially, its insufficiency can be explained without treating Dashiell’s failure to see the mule as a breach of duty. Instead, it fails in roughly the manner of a failure by a defendant in civil litigation to plead an affirmative defense. The statement “I didn’t see the mule” simply fails to identify considerations that defeats the prima facie case for liability grounded in Dashiell’s having injured Moore. The same would be true if Dashiell met Moore’s imagined demand for an explanation by asking “What would you have wanted me to do (that I did not do)?” According to Cornell, in so far as Moore was injured by Dashiell, Moore does not have the burden to answer this question.

In casting moral negligence on the foregoing terms, Cornell thus detaches the question of whether there has been wrongdoing, and whether there is liability to the victim for wrongdoing, from the question of whether the person subject to liability failed to heed a duty of conduct owed to the victim. From within this framework, an actor can be deemed “negligent” even though the actor’s conduct did not fall short of any standard of conduct. This is how Cornell proposes to sidestep entirely the skeptics’ puzzle of whether an actor can breach a moral duty without the right sort of opportunity for reasoning or deliberation. It is enough that the actor acted volitionally so as to injure another, and is unable to mount an adequate justification for the injuring. An actor who can offer only Dashiell’s explanation—“I didn’t see”—cannot justify the injury-causing action: she has done nothing more than attest to her lack of “attunement to the world.” Negligence, in other words, is conduct marked by a failure of perception that leaves actors unable to account adequately for what they have done to others.

For lawyers and moral philosophers interested in the nature of negligence, Cornell’s article is a must read.1 I conclude with some observations and questions prompted by his fascinating use of the legalistic framework of prima facie answerability and affirmative defenses to illuminate the moral concept of negligence.

Cornell depicts moral negligence as injurious (or perhaps merely risky) conduct for which an actor is answerable to another, yet for which the actor can only provide a particular and unsatisfactory answer, namely: “I didn’t perceive or apprehend the danger.” Although he derives this account in part from tort law and civil litigation, it is notable that it does not actually track modern negligence law. In a negligence suit, it is the job of the plaintiff to prove not only injury, but injury proximately caused by careless conduct (or a careless failure to act). Insofar as legal negligence and moral negligence are thought to be at least cousins, it would be interesting to reflect on what might explain this difference, particularly given the extent to which law informs Cornell’s understanding of the moral wrong of negligence.

On this point, Cornell perhaps might strengthen his case by turning to legal history. For the structure he attributes to moral negligence bears some resemblance to a form of legal accountability long central to English law, namely, accountability for injury under the writ of trespass. To make out a claim under that writ required the complainant only to allege that the defendant had forcibly and directly injured the complainant. With that allegation in place (and leaving aside outright denials), the defendant could avoid liability only by providing a satisfactory account of why the injury occurred. English courts eventually deemed proof of “inevitable accident” to be such an account, but the contours of that defense were never very well defined. As a matter of history and normative theory it would be interesting to consider whether, for example, a responsive plea of “I did not see” would have sufficed to establish an inevitable accident defense in a seventeenth-century or eighteenth-century version of Moore v. Dashiell.

Finally, as an externalist, I can’t help but worry that Cornell’s effort to detach moral negligence from misconduct (whether misfeasance or nonfeasance) is too sharply at odds with the grammar and ‘phenomenology’ of moral and legal negligence. As explained, his view hinges on the thought that one person can wrong another without having breached a duty to conform to a standard of conduct. Yet, in ordinary parlance, “negligence” and its cognates seem overwhelmingly to be used to describe just that sort of breach. To assert that someone was negligent is to allege a defective performance—that they didn’t proceed with enough caution, or didn’t do something that prudence required. Of course, my concern about the gap between ordinary notions of negligence and Cornell’s reconstruction may attest to my own blind spots. In any event, it does nothing to undermine my bottom-line assessment, which is that legal scholars and moral philosophers will do well to take a close look at Cornell’s ingenious and illuminating essay.

  1. My frequent co-author Professor Zipursky has written an equally important and illuminating treatment of these topics. Benjamin C. Zipursky, From Law to Moral Philosophy in Theorizing about Negligence, in Agency, Negligence and Responsibility (Veronica Rodriguez-Blanco and George Pavlakos eds., forthcoming).
Cite as: John C.P. Goldberg, Seeing Negligence for What It Is, JOTWELL (November 24, 2021) (reviewing Nicolas Cornell, Looking and Seeing, in New Conversations in Philosophy, Law & Politics (Ruth Chang & Amia Srinivasan eds., forthcoming), available at SSRN), https://torts.jotwell.com/seeing-negligence-for-what-it-is/.

Accountability and Addictive Wrongs

Nora Engstrom & Robert Rabin, Pursuing Public Health Through Litigation: Lessons from Tobacco and Opioids, 73 Stan. L. Rev. 285 (2021).

In Pursuing Public Health Through Litigation: Lessons from Tobacco and Opioids, Nora Engstrom and Robert Rabin set out to isolate the essential similarities and differences between the tobacco and opioids public health crises, and to extract lessons for future crises. In both the extent of the harm that they have done—and in their slow-motion train wreck extension across decades—both crises are vast. Indeed, they have lasted so long that they are part of the background noise of our lives. Yet, there is still shock value in Engsrom and Rabin’s short summaries of just how devastating these two crises have been—and still are. We all seem to have grown accustomed to appalling baseline levels of death and devastation. Engstrom and Rabin drive this point home simply and powerfully at the beginning of their fine article.

“Since 1999, opioids have claimed nearly 450,000 American lives, including nearly 50,000 in 2019 alone, dwarfing the carnage caused by either car crashes or gun violence. . .. Opioids are on track to claim the lives of another half-million Americans within the next decade. That’s like wiping out all of the men, women, and children in Atlanta in one fell swoop.” (P. 287.) Deaths “of course, only tell a sliver of the story. . . the lives of millions more are diminished and upended. Roughly, 2.1 million Americans suffer from an opioid-use disorder, over four million Americans misuse opioids each month, and an opiate dependent American child is born every fifteen minutes.” The economic costs of all this addiction and suffering are equally staggering; they are estimated to exceed “$500 billion annually, which works out to nearly 3% of U.S. gross domestic product.” (Pp. 287-88, emphasis in original.)

The devastation wrought by smoking is even worse, and still continuing. Even today, the “ravages of smoking-related disease remain at a historic level. Over the past half-century, Americans have consumed nearly 25 trillion cigarettes, which have, in turn, killed more than 20 million Americans—that’s more than ten times the number of U.S. citizens who have died in all wars fought by the United States, combined.” Even today, “though smoking rates are down sharply from their mid-twentieth-century peak . . . cigarette smoking in the United States accounts for more than 480,000 premature deaths per year.” Smoking thus accounts for “about one in every five U.S. fatalities—including the deaths of an estimated 41,000 nonsmokers from exposure to secondhand smoke.” (Pp. 288-89.) Only the immense harms that these public health disasters inflicted at their peaks makes the havoc that they are now wreaking seem merely endemic.

These two product-related public health disasters are tied together by the fact that cigarettes and opioids are highly addictive. The products responsible for other prominent public health disasters—asbestos, DES, the Dalkon Shield, Thalidomide, lead paint, Fen-Phen—were not addictive. Both cigarettes and opioids were sold in staggering numbers to a public that was “mostly unwitting,” and both products were spectacularly successful at addicting their mostly unsuspecting users. In both cases, the result was decades of failed individual tort lawsuits—forty years’ worth in the case of tobacco—even though the claims being brought were doctrinally unadventurous. In both cases, the product manufacturers failed to warn about, and even misrepresented, product risks—including the risk of addiction—of which they were or should have been aware. For long stretches of both crises the manufacturers behind the products were well aware of their dangers and determined to conceal them. And, in both cases, juries were consistently disinclined to find for individual plaintiffs—instead blaming the victims for the addictions that eventually precipitated their disabilities, declines, and deaths. Unbeknownst to the victims themselves, the defendants chemically disabled their agency, but juries overwhelmingly found the victims morally responsible for the harms that their addictions brought upon them.

There is more to this complicated tale and there is also more to the failure of the individual tort suits. Defendants waged total legal war against each individual plaintiff, and they directed their concealment and misrepresentation efforts as much at the public at large as at the users of their products. Furthermore, good things arose, Phoenix-like, out of the ashes of the individual suits. Their failure helped to catalyze class actions and led to lawsuits brought by public entities (e.g., by state AGs) which sought to recover the costs that these public health crises inflicted on state governments and taxpayers. States, unlike individual smokers, “had never smoked. As nonsmokers, they were impervious to character assassination and insulated from assumed-risks defenses.” Their clean hands turned the tables on the defendants. As the Mississippi Attorney General who pioneered the tobacco lawsuits observed, “State actions are not about personal responsibility; they are about corporate responsibility.” (Pp. 349-50.) Not only were these suits largely successful, the discovery that they also enabled eventually turned the tide of public opinion against the defendants.

The success of the state actions in the tobacco context was not unqualified, but it was significant and, in some ways, remarkable. (Pp. 342-44.) The litigation spawned by the opioid crisis is at an earlier stage, but it is now following a similar path. In the opioid crisis, litigation has come “to be aggregated, rather than individualized”; it has come to be “quarterbacked by public, rather than private actors”; and “like the tobacco litigation before it, the opioid litigation seems destined to involve the payment of eye-popping sums.” (P. 290.) Indeed, in the case of opioids, the unfolding sequence of legal actions has left opioid manufacturers caught in quicksand of their own making. They are now enmeshed in so many suits with so many state and local government actors that the path to a global settlement is difficult even to envision.

In short, even though private tort litigation has been spectacularly unsuccessful, it has played a catalyzing role in precipitating more successful public litigation. Those public actions have fallen well short of curing their respective public health crises, but they have helped to mitigate them and they have delivered a measure of accountability. This story, told well and persuasively by Engstrom and Rabin, is only one thread in the tapestry of their article. Indeed, at least as much of the article is about how and why these crises (the opioid crisis especially) surpass the governance powers of any form of litigation. Responding to these crises requires deploying the entire array of tools available to government officials— taxes, prices, regulatory regimes, and administrative processes, as well as public and private litigation. The article’s overview of how the pieces fit together and fall apart, as well as its overview of how the two crises resemble and differ from one another, are concise and highly instructive. The article is an immensely valuable road map to these two vast public health crises and, even more, to the legal crises that these public health crises have bred.

For tort purposes, the tale that Engstrom and Rabin tell about the relative powerlessness of the private law of torts is the most salient lesson of the article. On their persuasive account, individual tort suits have indirectly served to stimulate effective lawsuits by public actors and thereby purchased some deterrent effect, but “tort law does not, and logically cannot, serve its compensatory function—and, as a procedural-justice matter, surrogate actions leave direct victims on the outside looking in.” (P. 350.) The point here transcends Engstrom and Rabin’s instrumentalist understanding of tort as an institution pursing the twin objectives of deterrence and compensation. Tort scholars committed to thinking in terms of rights, wrongs, and reparation, can recast the failure here at as a failure to hold wrongdoers accountable to their victims for the harm that they have wrongly done. The point is well-taken. So, too, is the point that aggregation and public actions overcame the obstacles that defeated private tort claims by making the harm to the public at large, not the harm to the victims, the issue. There is an important measure of justice in this success. Responsibility to the public at large is a remedy that fits the wrong of inflicting the harm of a massive public health crisis.

There may, however, also be a fault in tort doctrine. Tort doctrine counts addiction as a harm only for purposes of warning obligations; it does not count becoming addicted as a harm in itself. The distance between harm as tort law normally conceives it and addiction is not so very great. Tort law is preoccupied with physical harm. Physical harm, for its part, is understood in a way that is both straightforward and morally significant. It is “the physical impairment of the human body (‘bodily harm’) or of real property or tangible personal property . . . Bodily harm includes physical injury, illness, disease, impairment of bodily function, and death.” Restatement (Third) of Torts: Liability for Physical & Emotional Harm § 4 (2010). The morally significant point here is that broken fingers, diseased lungs, disabled legs and so on are harms because they impair our normal powers of agency. We cannot do normal things or lead normal lives when our bodies are broken. But addiction, like physical disability, is also an impairment of agency—and a physical one at that. It robs people of their normal power of control over what they consume; it defeats the normal capacity to avoid using products that you know to be dangerous to your health. It is a harm, and a devastating one.

It is one of the many virtues of Pursuing Public Health Through Litigation: Lessons from Tobacco and Opioids that it put squarely on the table the question of whether the time has come for the law of torts to recognize addiction itself, wrongly inflicted, as a form of actionable harm. Until it does so, the law of torts seems to be in the dubious position of expecting jurors to be more morally perceptive than the law that they are bound to apply.

Cite as: Gregory Keating, Accountability and Addictive Wrongs, JOTWELL (October 26, 2021) (reviewing Nora Engstrom & Robert Rabin, Pursuing Public Health Through Litigation: Lessons from Tobacco and Opioids, 73 Stan. L. Rev. 285 (2021)), https://torts.jotwell.com/accountability-and-addictive-wrongs/.

Torts That Heal Words That Wound

Tasnim Motala, Words Still Wound: IIED & Evolving Attitudes toward Racist Speech, 56 Harv. Civ. Rts.-Civ. Lib. L. Rev. 115 (2021).

Among legal academics, the intentional infliction of emotional distress tort is having a moment. Long derided as the “redheaded stepchild”1 of personal injury law, IIED is being rediscovered by scholars seeking new interventions against social ills like workplace oppression and ethnoviolence.2 Tasnim Motala is the latest writer to explore the promise of the IIED tort, this time as a response to racist speech. In Words Still Wound: IIED & Evolving Attitudes toward Racist Speech, Motala makes three crucial moves: she concretizes the injury of racial insult; she documents the limits of legislative efforts to stigmatize and deter this speech; and she revisits the intellectual history of the tort to suggest its capacity to redress speech-inflicted wounds. Some of these moves work better than others, but in the end, Motala has advanced an important conversation about private law’s power to change social norms.

From its inception in the early twentieth century, lawyers and judges have been suspicious about IIED, often because they have resisted the idea that emotional injuries are sufficiently “real” to merit the law’s protection. This suspicion has been especially intense where the claimed injury arises from a defendant’s use of the legal right and cultural privilege to express personal opinions. Motala meets this objection head-on, showing how racial epithets rupture both the individual and society. She draws on extensive interdisciplinary literature showing that racial insults in person-to-person encounters inflict harms so widely recognized that psychologists have medicalized them as “race-based trauma.” (P. 123.) This trauma has been empirically demonstrated to cause “anxiety, hypervigilance to threat, [and] lack of hopefulness for [the] future,” often leading to depression and substance abuse. (P. 123-24.) Leveraging tort’s simultaneous concern with private rights and social concerns, Motala argues that when these injuries are unredressed, they corrode both individual well-being and the social trust on which economic and democratic structures rely. (P. 120, 123.) Notably, Motala does not try to placate critics who insist that only physiological injury counts for tort liability. She subtly rejects the terms on which these critics want to joust, instead urging readers that tort’s concerns go beyond the tangible alone.

Motala may aspire to a broader application of tort because, in her telling, twentieth century public law efforts to address racism have stalled out. While existing civil rights laws have had some impact on conduct in shared public spaces (public accommodations, government programs, employment, and education), they are powerless to address private racial hostility. (P. 131, 139-49.) State legislatures are equally hamstrung; when they have used their political capital to criminalize and punish hate speech, the Supreme Court has thwarted those efforts as unconstitutional abridgments of expression. (P. 134.)

Against this backdrop, IIED is offered as the “best vehicle” (P. 117) for stigmatizing and deterring racial insults; in fact, Motala makes the historical claim that the tort was “designed” for this purpose. (P. 118.) This claim is as bold as the two that precede it, but not quite as persuasive. Motala provides a capsule history of the academic drive to put a label on the cluster of turn-of-the-century tort cases recognizing emotional injury. (P. 135-39.) But she deemphasizes the history of institutional ambivalence about this effort – both within the American Law Institute and among the judiciary at the time. And she plays down the extent to which IIED advocates declined to specify the goals they thought the tort would serve over time.3 Yes, the creators of IIED have said behavior is more likely to be “outrageous” where it takes place between those who do not share power equally, (P. 138) and in theory, this does suggest that it is an apt response to racialized insults. But the creators of IIED stopped short of framing the tort as a means to empower victims of those insults. And while Motala points to a few cases where courts have used IIED this way, (P. 155) she points to just as many where they have refused to compensate victims, undercutting her claim that IIED was designed for this space. (P. 156-58.) Of course, law evolves over time. So even if IIED was not expressly created to do racial justice decades ago, it can do justice today and Motala persuasively argues that it should. But as a member of the pro-IIED choir, I am easy to persuade. Whether the speech absolutists and tort consequentialists in the congregation will agree is another question.

Motala’s enthusiasm for IIED arises in part from a presumption that Americans have definitively pronounced racism immoral and racial insults socially taboo. (P. 117.) She backs these assertions by pointing to celebrities, student activists, and others who have leveled racist insults in recent years and been “cancelled” as a result. (P. 126-28, discussing, among others, comedian Roseanne Barr.) Unhappily, it is not clear what inference to draw from these scandals. Popular outrage against Barr, for example, suggests that many Americans consider such insults intolerable. But the very fact that Barr chose to tweet her insults for all to see suggests that many people freely traffic in words that wound.

Of course, the persistence of American racism does not doom Motala’s bid for racial justice through IIED. If anything, it raises the stakes of her project. Here, her proposal might benefit from a deeper theorization of tort’s operation and purposes. Like other instrumentalists who deploy tort in the service of the values they think society demonstrably prefers, she wants judges to impose anti-racist norms in these cases. (P. 159.) But if tort is a body of evolving common law that facilitates the construction of community norms, maybe IIED should be framed less as a tool of top-down judicial morality, and more as a vehicle for bottom-up norm modernization through jury conversations about race, equity, and interpersonal dignity. These conversations might organically produce the racial reckoning that Motala presumes to be largely behind us.

Whatever the future of IIED in the context of racist speech, Motala’s article should spur an essential conversation about the comparative competencies of public and private law as tools of social justice.

  1. Constance A. Anastopoulo & Daniel J. Crooks III, Where’s the Outrage: “Outrageous” Conduct in Analyzing the Tort of Intentional Infliction of Emotional Distress in the Wake of Snyder v. Phelps, 19 Tex. Wes. L. Rev. 667 (2013).
  2. See, e.g., Christopher J. Robinette, Filling the Gaps in IIED, JOTWELL Torts (2021); Alex B. Long, Using the IIED Tort to Address Discrimination and Retaliation in the Workplace, Ill. L. Rev. (2021); Hafsa S. Mansoor, Modern Racism but Old-Fashioned IIED: How Incongruous Injury Standards Deny “Thick Skin” Plaintiffs Redress for Racism and Ethnoviolence, 50 Seton H. L. Rev. 881 (2020); and, well, Cristina Carmody Tilley, The Tort of Outrage and Some Objectivity about Subjectivity, 12 J. Tort Law 283 (2019).
  3. See Tilley, supra note 2, at nn 89-93.
Cite as: Cristina Tilley, Torts That Heal Words That Wound, JOTWELL (September 27, 2021) (reviewing Tasnim Motala, Words Still Wound: IIED & Evolving Attitudes toward Racist Speech, 56 Harv. Civ. Rts.-Civ. Lib. L. Rev. 115 (2021)), https://torts.jotwell.com/torts-that-heal-words-that-wound/.

Law’s Arithmetic

Edward Cheng, Ehud Guttel and Yuval Procaccia, Sequencing in Damages, 74 Stan. L. Rev. __ (forthcoming, 2022), available at SSRN.

My favorite type of paper is the type where you hit your forehead asking yourself: how did I miss this simple point? How did everyone else miss it? Why didn’t I write this paper myself, given that its main insight was under my nose for so many years? In Sequencing in Damages, Edward Cheng, Ehud Guttel and Yuval Procaccia (hereinafter: CGP) made me hit my forehead. The paper is forthcoming in the Stanford Law Review, and deservedly so.

CGP’s paper is about law’s arithmetic. It is a well-known stereotype that students go to law school because they cannot stand math. Perhaps this is why lawyers, judges and law professors seem to fail in applying what looks like really simple math.

Consider the following elementary school exercise:

(1,200,000-400,000)* ½ = 1,200,000 * ½ -400,000

True or False?

Everybody knows it is false: the left-hand side equals 400,000 and the right-hand side equals 200,000. Subtracting and then multiplying is not the same as multiplying and then subtracting. And yet although the order of operations matters courts, lawyers and professors get (intentionally or not) different answers to this (and similar exercises) all the time.

Consider Jill who is a victim of a tort. Jill suffered harm of $1,200,000. At trial, it was discovered that Jill’s health insurance had already paid $400,000 to cover her medical expenses. Because she lives in a state which has modified the “collateral source rule”, this payment should be deducted from her damage award. The arithmetic problem begins because Jill was also found to be 50% negligent.1 Should the payment by the collateral source (CS) be deducted first, and then comparative fault (CF) applied? In that case Jill will receive $400,000 (like in the left-hand side above). Or perhaps it should be the other way around, and the CF should be applied first and only then the CS deducted? In that case Jill will receive only $200,000 (like in the right-hand-side above).

CGP show that courts do not reach a uniform answer to this simple question even though there are only two options to choose from. And if courts err in this simple example, one should expect courts to err when they try to solve lengthier arithmetic exercises, such as when a $500,000 damages caps is added to the mix. Should caps apply first, second or third in the order of operations? It turns out that this time we do not have just two options, but rather six, none of which is equal to the other. Here are the six options (→ means applying the $500,000 caps):

  1. Caps first, CS second, CF third: ($1,200,000 → $500,000-$400,000) * ½ =$50,000 recovery
  2. Caps first, CF second, CS third: $1,200,000 → $500,000 * ½ -$400,000= -$150,000
  3. CS first, Caps second, CF third: ($1,200,000-$400,000) → $500,000 * ½ = $250,000
  4. CS first, CF second, Caps third: ($1,200,000-$400,000) * ½ = $400,000
  5. CF first, CS second, Caps third: $1,200,000 * ½ – $400,000= $200,000
  6. CF first, Caps second, CS third: $1,200,000 * ½ → $500,000-$400,000= $100,000

Two quick things to note. First, option 2 yields a negative number, meaning the plaintiff perhaps needs to pay the defendant $150,000(!), or at the very least should receive nothing. That might be an easy option to rule out. Second, if we add a fourth component to the exercise such as the plaintiff’s failure to mitigate her harm, we will get 4-factorial or 24 different options. And if we add a fifth component, such as when the plaintiff settled with one of the defendants for an amount different from that which the court later found the other defendant to be responsible for, we get 5-factorial or 120 different options.

But then, with so many options how one can even expect courts to reach the correct answer? Remember, judges were once our students and (as we have agreed above) many of them came to law school to escape math…

Returning to Jill’s problem, CPG find that courts apply different approaches even to this simple two-option problem. They then show that courts commit similar errors when they deal with other two-option arithmetic problems such as when comparative fault and mitigation of damages both exist, and more. Further, CPG go beyond just showing courts land everywhere and also offer a solution. And the solution they offer is conceptual, not formulaic. In my own view, when properly applied, their solution can solve not just Jill’s two-option problems, but also the more complicated 24 or 120-option problems. As CPG correctly explain, the key is to properly conceptualize what is at stake in each stage of the arithmetic exercise. And the good news is that this is exactly the exercise students, lawyers, and courts are trained to master.

Let’s give one quick example for how properly conceptualizing what’s at stake transforms what seems like an arithmetic problem to one of public policy. CPG conceptualize Jill’s two-option problem by observing that the problem is one of allocating a windfall that would accrue if the insurance money the plaintiff received from her insurance company is added to the pot of money she receives from the injurer. And, as the above exercise showed, if one applies the collateral source first, the victim benefits more than if one applies comparative fault first (recall Jill received $400,000 in the former case and only $200,000 in the latter). CPG argue that most cases where the collateral source is applied first involve broad public-interest programs such as Social Security or Medicare. To have individual wrongdoers benefit from these programs at the expense of victims “would seem strange, if not perverse.” (P. 23.) In contrast, in many of the cases where comparative fault was applied first, the wrongdoer was a government entity and therefore protecting the public coffers became an important interest. To be sure, one need not necessarily agree with CPG’s explanation to appreciate the fact they offer one. In their paper, CPG further explain how to solve the other two-option arithmetic problems they discovered.

The truth is that courts face more than just a problem of arithmetic when they decide the order of operations in calculating tort damages. They are facing classic problems of applying form to content, of revealing legal rules’ internal logic, or of implementing policy goals. Therefore, even our math-deterred students should find these problems not just important but also decipherable.

In sum, anyone studying, teaching, practicing, or judging tort cases needs to read CPG’s new paper. It is clear and simple, it is correct to the dot, and it is insightful both as a matter of theory and as a matter of practice. What else can one ask from a paper?

  1. Although in some jurisdictions if P is 50% (or more) at fault, P recovers nothing, for simplicity I am assuming that such a rule does not apply.
Cite as: Ronen Avraham, Law’s Arithmetic, JOTWELL (August 11, 2021) (reviewing Edward Cheng, Ehud Guttel and Yuval Procaccia, Sequencing in Damages, 74 Stan. L. Rev. __ (forthcoming, 2022), available at SSRN), https://torts.jotwell.com/laws-arithmetic/.

A New Retributive Justification for Punitive Damages

Erik Encarnacion, Resilience, Retribution, and Punitive Damages, 100 Texas L. Rev. __ (forthcoming, 2021), available at SSRN.

Most American states permit the award of extra-compensatory punitive damages to tort plaintiffs if the defendant’s conduct was especially culpable. The conventional rationales for this practice are the value of punishing such conduct and the special need to deter it. Yet these rationales are focused entirely on the defendant: they explain why a defendant should pay more than compensatory damages but do not explain why that additional punitive award should be transferred to the plaintiff. And indeed, many states, under “split recovery” schemes, require that a specified proportion of a punitive damage award be paid to the state, not to the plaintiff. But critics of punitive damage awards are not satisfied by this response: they believe that transferring any nontrivial1 portion of a large punitive damage award to a plaintiff gives that plaintiff an unjust and undeserved “windfall.”

Can the practice of awarding substantial punitive damages to plaintiffs be justified? The literature on the propriety of punitive damages in tort law is enormous, but that literature has paid little attention to the “windfall” objection. The objection is not especially troubling to consequentialist or law and economics scholars: punitive damage awards help incentivize plaintiffs’ lawyers to fully investigate serious wrongdoing and may offer useful additional deterrence of especially culpable conduct. But corrective justice and civil recourse theories cannot so readily overcome the windfall objection, insofar as they emphasize the close bipolar relationship between defendant’s wrong and plaintiff’s injury, and between defendant’s duty to pay damages and plaintiff’s right to receive those damages.

In this sophisticated and insightful article, Professor Erik Encarnacion offers a provocative and novel solution, a solution that he believes is consistent with nonconsequentialist justifications of tort law. He suggests reconceptualizing punitive damages as a particular form of retributive justice: a plaintiff has the right to demand that a highly culpable defendant satisfy the plaintiff’s “resilience interests,” and this requires the wrongdoer to make the plaintiff better off than the plaintiff would have been absent defendant’s wrongful conduct. After briefly reviewing Encarnacion’s criticisms of existing justifications of punitive damages, I will explain in more detail his own original solution.

Encarnacion persuasively argues that many supposed justifications for punitive damages are inconsistent with the usual doctrinal requirements for awarding such damages. He notes that courts require proof of some form of ill will or especially culpable behavior before awarding punitive damages, a requirement for which economic explanations of punitive damages cannot easily account And insofar as retribution is asserted as a justification, he points out that transferring punitive damages to the state to finance the state’s criminal justice system might better serve retributive objectives, at least as “retribution” is ordinarily understood.

Further, Encarnacion identifies difficulties with treating punitive damages as either a form of revenge or as a civil avenue for revenge. To be sure, these approaches have the structural advantage of not exclusively focusing on the wrongdoer to the exclusion of the victim. But, he argues, seeking revenge might be a normatively undesirable interest for the state to pursue. And the alternative of providing a civil remedy as a substitute for revenge (or in order to avoid civil unrest) is still troublesome insofar as it does not explain why tort law awards punitive damages to the plaintiff.

Encarnacion also notes and critiques two other strategies for dissolving the problem. The first approach justifies punitive damages as properly awarding compensation for intangible and dignitary injuries that compensatory damage criteria sometimes undercompensate. The second justifies punitive damages when the defendant has inflicted social harms on the community beyond the harm to the plaintiff. But, Encarnacion persuasively replies, these approaches ignore the genuinely “punitive” feature of punitive damage awards: these awards are available only for especially egregious conduct that deserves punishment.

What is Encarnacion’s solution? In his words:

Punitive damages empower victims to act punitively against their oppressors by requiring them to finance those victims’ resilience interests—i.e., their interests in bouncing back better than before the wrongdoing—if they so demand. (P. 25.)

Encarnacion uses the term resilience, not in the popular sense of a character trait of persistence in the face of adversity, but in the sense of the victim actively responding to a setback by “mak[ing] oneself better off, in some meaningful sense, than before [the] setback.” (P. 29.) Encarnacion builds his approach on philosopher Jean Hampton’s account of retributive justice. Hampton viewed retributive punishment as defeating the wrongdoer and countering the wrongdoer’s message that the victim is subordinate to the wrongdoer. But, Encarnacion argues, “[r]esilience … complements the retributive message by communicating that not only has the wrongdoer been defeated, the victim has emerged victorious, as demonstrated by becoming better off (in some sense) than before.” (P. 34; emphasis in original.) Creating this “counterstory” signals to others how the victim should be treated and demonstrates to victims their agency and dignity. By contrast, merely restoring the victim to the status quo ante is inadequate (P. 36.) Punitive damages enable plaintiffs to make themselves better off by securing justice against their wrongdoers, in effect “transforming their malefactors into benefactors” (page 1). Criminal law theorists have recently offered potent criticisms of retributive justice theories: they justify cruel and destructive punishment practices and legitimize the problematic view that causing wrongdoers to suffer is intrinsically good. By contrast, Encarnacion believes that his account shows how retributive justice can be a constructive rather than destructive practice.

Encarnacion concludes his largely theoretical analysis by identifying two practical implications of his approach. First, he would sharply distinguish “retributive damages” from “deterrence damages”: although the plaintiff is entitled to the former, the latter could be shared with the state in order to avoid unjust windfalls to plaintiffs. Second, he would revise the list of factors that juries are instructed to consider when awarding the retributive type of punitive damages: juries should consider culpability-related factors, but should not consider incentives on plaintiffs to bring claims or deterrence of would-be wrongdoers. The wealth of the defendant (which is typically considered under existing law) could also be relevant, “since a $1,000 punitive damages award may not qualify as genuinely punitive to a multi-billionaire because it will fail to signal the plaintiff’s victory unambiguously” (P. 48), insofar as a larger punitive award against a wealthy defendant is needed in order to express plaintiff’s resilience interests. Provocatively, Encarnacion suggests that the victim’s wealth should also be a relevant consideration when the defendant is relatively impecunious, militating against a punitive damage award, because making a wealthy plaintiff better off in this situation would conflict with the principle that the punishment must be proportionate.

This is a well-reasoned and impressive article, demonstrating theoretical sophistication and containing insightful analysis of tort doctrine, tort theory, and punishment theory. Not surprisingly, Encarnacion’s highly original perspective raises a number of questions, questions that I hope he addresses in future work:

  • Why does resilience entail that the victim be made financially better off via punitive damages? Suppose P’s life goes much better after (and because) P suffers harm from D’s tort. (P writes a successful book about the experience, or P meets the love of his life in the hospital while recovering from his injuries.) Should such a P be denied punitive damages?
  • How do we resolve the tension between imposing an amount of punitive damages that is proportional to defendant’s wrong and empowering the victim to be better off than if the victim had not been wronged? Put differently, how much better off should the victim be? If punitive damages are ten or one hundred times compensatory damages, is that excessive? If they are only 10% more than compensatory, is that inadequate?
  • What if the direct victim of the tort has died? Should family members or the victim’s estate be entitled to punitive damages? Isn’t the expressive value of recognizing the victim’s resilience weaker in this situation? Yet it would be problematic not to permit punitive damage awards in death cases.
  • Does criminal punishment itself satisfy Encarnacion’s criteria of retributive justice? How does inflicting punishment on criminal wrongdoers make victims better off than before they were victimized?

The article would also benefit from additional concrete examples, especially of punitive damage awards against corporate wrongdoers.

Despite these questions, Encarnacion’s article is intriguing, creative, and ambitious, thoughtfully addressing fundamental questions in both tort theory and punishment theory. It should be of great interest to academics in both fields.

  1. I add the qualification “nontrivial” portion because critics of punitive damage awards might be willing to accept punitive awards as consistent with a compensatory rationale if those awards are modest. For example, if the victorious plaintiff must pay 1/3 of the compensatory damage award to his lawyer, the compensatory award arguably should be increased proportionately (in this case, by ½) so that the net award to the plaintiff provides full compensation for his injury.
Cite as: Kenneth W. Simons, A New Retributive Justification for Punitive Damages, JOTWELL (July 13, 2021) (reviewing Erik Encarnacion, Resilience, Retribution, and Punitive Damages, 100 Texas L. Rev. __ (forthcoming, 2021), available at SSRN), https://torts.jotwell.com/a-new-retributive-justification-for-punitive-damages/.

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