Torts-minded readers with an under-18 person or two they care about in their lives will appreciate Civil Liability for Cyberbullying (“Cyberbullying”), published in June by the Israeli private law scholar Ronen Perry. They will find ample theory, doctrine, erudition, and intellectual loft too, but this paper is peopled. In both his article and a blog post he wrote about it Perry leads by remembering a person: Megan Meier, who at age 13 heeded a suggestion posted on MySpace in 2006 that she kill herself.
From this opening Perry moves to spend most of his time on three groups whom the law could hold responsible for the harms of cyberbullying. First are young peer offenders. (P. 1226.) Next come what Perry calls “real-life supervisors” (P. 1235): parents, teachers, school administrators. Last are “virtual supervisors, namely platforms that enable juvenile cyber-activity and cyber-wrongdoing,” for example Facebook, Instagram, and YouTube. (P. 1245.) Perry has tort liability plans for all these groups. His exposition contains many virtues, of which I will mention three.
Kick #1: Attention to Abettors
Encounters with bullies in my own youth were mercifully scant, but I experienced and witnessed enough to know that the heavy shelf of authority over children’s lives—the force wielded by teachers, school administrators, peers’ parents, after-school activity managers, summer camp bosses—offered little shelter from this danger. I observed adults in charge, not all of them but too many, appearing to favor aggressors over victims.
That problem remains but ensuing decades brought a little progress. I appreciate the addition of “bullying” to the discourse, mindful that in my adolescence this term was never used to reference a broad-scale problem. Like “stalking,” “othering,” “mansplaining,” “slut-/fat-shaming,” and other newcomer-gerunds that speakers apply to conduct they don’t like, this word is hard to define with precision and maybe gets thrown around too easily. But it does tell hurt persons that they could be right to consider themselves mistreated, a belief that my generation was brought up to question and resist. Once “bullying” fell in place, a posture of disapproval could enter statutory law. “All state legislatures in the United States require school districts to prescribe and enforce anti-bullying policies,” Perry notes (P. 1223), dropping a footnote with citations that run from Ala. Code to Wyo. Stat. Ann.
Good. But not good enough as a response to preventable, deterrable, remedy-able wrongdoing that causes people to suffer. Perry wants behavior to change. He has tortfeasors in mind, choices to influence.
Because they have more money than a young perp who torments a peer, abettors are central to the Cyberbullying cast. Perry gives them what they deserve. In my first reading of the article I objected a bit to his use of “supervisors” to describe adults on the scene of children’s lives, and more so to his characterization of online platforms as “virtual supervisors.” People and entities can undertake the activity of supervision, I thought, but supervisor is not their identity. It seemed to me that Perry had gotten ahead of his evidence. I went on to drop my objection. Oh hell yes you are. If nobody forced you to interact with perpetrators, then you can be their supervisor when the law has drawn that conclusion. There is no bullying without bullies, and people who enable the actions of primary wrongdoers have earned the tort liability Perry has in store for them.
Kick #2: Tort Well Deployed
In his blog version of Cyberbullying posted in June 2019, Perry contrasted tort liability to an alternative that the United Kingdom had recently announced: New codes of conduct could be promulgated to hold internet businesses responsible for harms that their platforms or services fostered. A white paper published in April of that year had proposed taxes on these businesses to pay for an independent regulator tasked with enforcing compliance.
Perry contended that a “blind spot” marred that conclusion: The British government omitted tort liability from its fix of the problem. To be fair to the white paper, it had a wider range of online harms than cyberbullying in mind. Terrorists’ access to communication channels, for example, is not among the ills that tort can readily address.
But Perry is right to deploy tort against cyberbullying. The prospect of being ordered to pay cash damages can steer an individual toward safety and away from endangerment. Perry’s tripartite lineup of tortfeasors—(1) those who cyberbully, (2) those with power over cyberbullies in the geographic environments of schools and homes, and (3) those who provide cyberbullying an online location to reap its mischief—is in reach of a deterrence strategy: while admitting that almost all young cyberbullies are judgment proof (Pp. 1262-63), Perry concludes plausibly that “relying on victims’ common sense” (P. 1263) in the selection of defendants will conserve judicial time well enough and so tort liability ought to reach children too.
Young miscreants’ choices are peripheral here, however, because children lack the power to inflict harm that the law considers significant. Regulators necessarily focus on people who can alter their behavior in response to incentives. So seen, adults nearby and businesses at a distance that should have used ordinary care to prevent or mitigate the harms of cyberbullying are at least as central to a law-based response as the text of a government-authored prohibition.
Tort liability pressed on these defendants offers strengths that criminalization and anti-bullying rulebooks lack. Because injured persons initiate claims without having to pay fees up front, law-based sanctions can land on a responsible party even when enforcers have shrugged off this wrongdoing, when bullies are richer or more prominent than their victims, and when mens rea is either absent or found only in the roily minds of inarticulate children. Tort is also better than codified crimes and regulation at recognizing the danger of inaction and inattention.
Characteristics of origin affect the conditions that legal instruments are suited to address. A crime or codified regulation starts its life as a published official incursion on individual liberty by the government; a tort starts out as a perception that one has been wrongfully injured. Perry’s emphasis follows tort priorities. Cyberbullying tellingly includes a long paragraph that gathers harmful impacts on young human beings (Pp. 1222-23) while relegating its definition of cyberbullying to a footnote that string-cites others’ definitions. (P. 1221 n.9.)
That’s tort. Jurors know breach of duty when they feel it and condemn it when they find it: they don’t share the public-law inclination to pause over the possibility that government overreaches when it tries to stop something bad. Like the law of negligence that he enlists, Perry cares more about harm to individuals than about claims of right (to free speech, for example) against the state.
In his last sentence, Perry acknowledges that repair of the cyberbullying problem probably calls for additional tools, not just his: he says he is not “contesting the possible need for a more comprehensive framework” than civil actions for damages. (P. 1272.) Cyberbullying, in helpful contrast to the UK white paper, chooses pluralism. It frames its solution as part of a larger response.
Kick #3: Law and Economics Usefully Applied
Taking a leaf from Perry, who called Cyberbullying “[a] recent study” without naming its author, I mention a law review article, at age 15 no longer recent, that asked what remains of law and economics after one subtracts out its “tautology, circularity, vagueness, and evasion of pertinent political questions.” This article did find three things still present in law and economics as a school of thought: a focus on “the policymaker” (in contrast to an external perspective like that of the skeptic or critical theorist), a goal of improved social welfare, and an ex ante rather than ex post approach to problems that the law can reach.
Cyberbullying embraces the label. Perry announces “a law and economics analysis” (P. 1220) and “an efficient technologically-assisted model.” (P. 1225.) He says that “[o]nly if expected liability is equivalent to the expected externalized cost will the potential injurer internalize that cost and take cost-effective precautions” (P. 1249), a remark that one needs to be an economic analyst of law to make. With respect to the heart of what Cyberbullying wants to deliver—liability for supervisors—Perry adverts to “[t]he classical economic justification” (P. 1255) for this liability. Cyberbullying also shares the above-mentioned signature traits of law and economics in that it addresses policymakers and social welfare and works with an ex ante perspective.
Keeping in mind his two categories of supervisors, Perry identifies precautions they could take against cyberbullying that they now omit because the law does not steer them toward investments in safety. Parents and school authorities could educate children to know that cyberbullying is wrong, impose surveillance technology on children’s machines (Perry seems to like this precaution best), and dish out punishments and rewards aimed at improving behavior (P. 1255). Members of the “virtual supervisors” category, i.e. online platforms, have different measures at hand. Perry says they could limit or prohibit posts by users who do not identify themselves (the MySpace peer who in 2006 told Megan Meier that the world would be better without her wrote this message anonymously), collect and store data about users, and turn over this record at the behest of tort claimants who do not know who injured them. (P. 1259.)
In Perry’s economics-flavored fix of cyberbullying, the law would force each of the two supervisors to correct or complement a safety-related shortfall of the other. Parents and schools have a lot of power over potential cyberbullies but cannot easily gain information about a child’s online conduct needed to inform their task of supervision. (Pp. 1255-56.) Social media and other electronic platforms are too far from children to exercise direct supervision (P. 1262), but they’ve got the information goods, most pertinently the identity of a particular cyberbully. Safety gaps can be expressed as costs. Perry spots their cheapest avoider.
While very much a work of law and economics, Cyberbullying transcends the limitations of the genre. Visit the Law and Economics Commons, a site that provides links to oft-downloaded contemporary law review articles, if you need a reminder of how seldom an economic analyst will make an extended case for more tort liability as a source of welfare. Deterrence, incentives, cost internalization, and problems of missing information are familiar concepts, but few law and economics scholars join Ronen Perry in applying this terminology to enhancing the dignity, comfort, safety, and peace of vulnerable individuals.
Joshua Knobe, Scott J. Shapiro, Proximate Cause Explained: An Essay in Experimental Jurisprudence
, 88 U. Chi. L. Rev
__ (forthcoming, 2021) available at SSRN
A familiar rhetorical trope in modern advocacy is: “Imagine if visitors from outer space were observing x; how would they describe it?” The payoff of this exercise is to get the audience to see that the view proposed by the speaker, while superficially unfamiliar, is actually more perceptive than the conventional understanding of the practice at issue. The subtext is that only with the benefit of insights gleaned from a great distance (or an unusual perspective) can those immersed in a practice truly understand it.
I could not help but think of this trope while reading Knobe and Shapiro’s fascinating—if at times frustrating—paper on proximate cause. Of course, they are not space aliens; they are both philosophers and one (Shapiro) is a law professor as well. But neither specializes in tort law, and by their own admission they are leveraging their distance from the conventional discourse of torts scholars and judges to arrive at insights that have otherwise eluded those of us immersed in the practice.
This paper deserves attention from anyone interested in the future of private law as a distinct field. It tries to preserve private law’s relevance as a jurisprudential category by offering it a lifeline from outside its familiar precincts. Significantly, Knobe and Shapiro are not skeptics about legal reasoning, nor do they concede ground to those, like Leon Green, who sought to collapse private law into public law. The assistance they offer is intended to improve tort law from within by giving it new tools to make sense of the mass of judicial opinions which already instantiate a workable set of rules for deciding cases. The question is, how much help do they really provide?
The paper makes four distinct claims. The first is that the legal doctrine of proximate cause is a mess—that the reasoning provided, if not the outcomes reached, by judges when they deploy the doctrine are confused (and perhaps wrong, as a matter of law). The second is that the reason for the mess is because lawyers and judges, notwithstanding that they disagree with each other, are starting with a set of false premises about law. The third is that the visitors (the philosophers) can see what the insiders have missed because they are using tools heretofore unknown to the insiders, namely “experimental jurisprudence.” (P. 7.) Finally, Knobe and Shapiro claim that the conception of proximate cause they offer fits “patterns observed in legal judgments” pretty well. (P. 39.)
My reaction to these four claims, in brief, are as follows. The first is correct. The second may be correct, but Knobe and Shapiro do not add much to the reasons we have for believing it (other than the fact the first is correct). As the third depends on the validity of the fourth, and as the fourth is not wholly convincing, it seems premature to endorse the third.
It is well known that proximate cause is a controversial topic in tort law as well as other parts of the law. The source of the controversy is sometimes over terminology, but the interesting issues concern the practical implications generated by the arguments over terminology. So, for example, Reporters for the Third Torts Restatement, in a “Special Note on Proximate Cause” explain that the term “proximate cause” does a poor job of capturing the idea it expresses. In other words, the phrase “proximate cause” (and its later iteration, “legal cause”) denotes a legal concept that is part of the law, and not just a special case of some other legal concept (like duty), the only problem being that the concept has until now been poorly defined and analyzed. The Reporters state that “Tort law does not impose liability on an actor for all harm factually caused by the actor’s tortious conduct” and suggest that the phrase “scope of liability”—separate from duty and cause in fact—captures this legal concept more satisfactorily than the phrase “proximate cause.”
Thus, we have some agreement by the insiders with Knobe and Shapiro. “Proximate cause” has not served our legal system very well. But the agreement does not go very far. Knobe and Shapiro come to their conclusion by observing a debate—which they characterize as between Formalists and Realists—and discerning that both sides share certain premises but fight over the proper relation between those premises. (P. 12.) Those premises are that anyone doing adjudication (or writing about it) work in a world where there are such things as causal judgments and moral judgments, and the two kinds of judgments are conceptually independent of each other—the former referring to a “metaphysically real relation” (P. 12, emphasis supplied) and the latter referring to a judgment about who is “morally responsible for a harm.” (P. 10.) Formalists, they continue, start with judgments about causation and, depending on the moral principal employed, decide if someone should be blamed for what they have caused (e.g.: negligence vs. strict liability), whereas realists start with judgments about moral responsibility and decide if someone should be treated as if they are a ‘real’ cause based on the prior moral judgement (e.g.: Andrews’ dissent in Palsgraf).
Knobe and Shapiro argue that the better understanding of causation (all causation, not just what lawyers have called proximate cause) is that it is like a sandwich: moral judgments inform the concept of causation (as a relation between events), and judgments about causation inform legal conclusions about blame (or responsibility). (Pp. 12-15.) Their approach has two crucial steps. First, Knobe and Shapiro need a method that determines the moral concepts that guide causal judgments. This is where they introduce the innovation of experimental jurisprudence—studying ordinary people’s responses to questions posed in experiments. Second, Knobe and Shapiro need to provide content to the ‘moralized’ causal concept produced by the first step. This paper provides the content with some variations, but here is the central idea around which the variations pivot: “[P]eople’s causal judgments are impacted by their beliefs about whether the agent’s behavior is abnormal. (P. 20, emphasis in the original.) This claim reflects an understanding of causation that extend to any proximate cause query, and is applicable to, for example, causes that are statistically abnormal, thus intervening to relieve an actor of responsibility. But before I discuss these two steps in more detail, I want to make an observation about the putative novelty about their methodological innovation (what I have, slightly irreverently, called “the sandwich”).
It is not quite accurate to say that the debate over proximate cause is exhausted by the debate between Formalists and Realists. The formalist position presented in the paper resembles the so-called “directness test” found in the famous Polemis case. That is, the idea that the test for proximate cause in law involves a factual judgment about the world—whether or not an event “directly” caused another event. A version of this can be seen in Ryan v. New York Central R.R. Co. (35 N.Y. 210 (1866)), which improbably claimed that a fire spreading to a neighbor’s property was not “natural and ordinary”. As the Reporters of the Third Restatement wrote, these Formalist decisions reflected the view that proximate cause “could be determined through a neutral, scientific inquiry.” The Third Restatement’s formulation of “scope of liability” rejects the Formalist position yet does not adopt the Realist position. It is actually quite similar to the Knobe and Shapiro sandwich. The Third Restatement explicitly embraces what is sometimes called the “risk rule” for determining when an action counts as a proximate cause of an injury. The risk rule quite overtly employs a norm to determine whether an actual cause is a proximate cause—the norm which says that an actor is not subject to tort liability for causing an injury to another unless the causal connection involves the realization of one of the risks that renders the actor’s conduct tortious in the first place.
To recap: Knobe and Shapiro have told us that the Formalist and the Realist positions about proximate cause fail because they each misunderstand the need for a normative concept of causation, and they offer in the place of these alternatives a normative concept of causation that they think will work pretty well. However, as I have pointed out, tort insiders also have a normative concept of causation—the risk rule, and many have been trying to apply it since the early 1960’s , when it was formally adopted in Wagon Mound I in the U.K. and Kinsman in the U.S. So, the next question is, how does Knobe and Shapiro’s normative concept of causation compare to the risk rule?
In a short essay it is not possible to cover all of the variations of Knobe and Shapiro’s proposed test. I will focus on a few specific instances where their test and the risk rule are in direct competition. The most obvious place to begin is in cases of “superseding cause”, such as the case with which Knobe and Shapiro begin their paper, Henningsen v. Markowitz, 230 N.Y.S. 313 (1928). The case involved the question of whether a mother’s negligence in failing reasonably to execute an intervention (by ineffectively attempting to take away an air rifle from her 13-year-old son) was a reason to hold that the negligent conduct of the defendant (selling the gun to the child in violation of a state criminal statute) was not a proximate cause of the plaintiff’s injury. Knobe and Shapiro argue that the correct rule attributes causation to the negligent seller unless it is the case that the mother’s act (not doing enough to prevent her child from gaining access to the gun) was more abnormal than the defendant’s original negligent act (unlawfully selling an air rifle to a minor). The risk rule would argue that the correct rule attributes causation to the negligent defendant if the risk that was realized (the victim being shot in the eye when the child and his friend were using the gun) is one of the risks that rendered the defendant’s conduct negligent. Both approaches come up with the same answer—the defendant’s conduct constitutes a proximate cause. So why prefer one over the other?
One reason is that superseding cause cases are not really the most important, or illuminating, cases confronting courts grappling with the problem of proximate cause. As the Third Restatement has pointed out, superseding cause is an area of law with “declining importance” for a variety of reasons, including the introduction of comparative responsibility—so that the cases involving it (such as Henningsen) are of “waning influence” in this area of law. And for other, more central types of proximate cause cases—those not involving intervening wrongdoing—are better handled by the risk rule than the Knobe and Shapiro abnormality test. Consider the problem which the risk rule is especially good at solving—where the defendant causes an unusual harmful consequence without the negligent or intentional interference of a third party.
To take a classic example, suppose D, an adult, negligently entrusts a loaded handgun to a minor or an incompetent, and the minor or incompetent non-negligently drops the handgun on P’s toe, breaking it. The risk rule is robust in its ability to explain why D’s negligent is not a proximate cause of P’s injury: the risk that was realized was not one of the risks that rendered D’s conduct careless (as would have been the case if the incompetent person had accidentally shot P). Yet it is hard to know how Knobe and Shapiro’s “normality-based” approach (P. 21) can even start to address this situation. A child or incompetent non-negligently dropping a 2-pound object is not abnormal, either statistically or morally, which would suggest, counterintuitively, that D’s conduct was a proximate cause of P’s harm. Knobe and Shapiro state that “people tend to regard a factor as especially causal when it is morally wrong and when it is statistically infrequent” (like a criminal taking advantage of storeowner’s failure to light a portion of her property). (P. 22) But as the handgun example shows, under the risk rule, whether a defendant is a proximate cause depends less on a comparison between an intervening event and the defendant’s careless conduct, and much more on a comparison between the defendant’s conduct and the final event—the risk that was realized. The intervening event will be part of the process of evaluation under the risk rule, but the aspect which Knobe and Shapiro emphasize—the comparison of each events’ degree of “normality”—seems ad hoc. The question is not, as they put it, whether another cause “beats out” the defendant’s conduct as a cause of the victim’s injury (P. 27)—as if proximate cause is a race. Rather, it is whether the defendant’s wrongdoing aligns in the right way with the harm suffered by the plaintiff.
None of this is to say that Knobe and Shapiro’s “normality”-based concept of proximate causation produces the wrong answer in those cases that do involve intervening actors who are intentional wrongdoers, or involve highly unlikely intervening events. But their theory cannot explain a lot of other cases, and so it is, at best, under-determinative for many cases about which modern tort law is deeply concerned. This makes one wonder whether the results the cognitive science research, which aligns with the results of the risk rule up to a point, reveal the limits of the use of research into ordinary judgments about causation for law. One does not need to deny the truth of Knobe and Shapiro’s claim that ordinary judgments about causation, as revealed by empirical research, tell us that lay judgments about causation are motivated by norms which align with legal concepts such as the risk rule. But alignment may not be enough—it may be the case that the insiders cannot only resort to the tools being brought to us from the outside because there are some questions in law that only more legal reasoning can solve.
This paper is, in some ways, reassuring for those of us who are its intended beneficiaries. It is good to know that the conventional methods of courts and scholars aligns, to some extent, with the predictions produced by experimental jurisprudence. This should not be too surprising, since there is a way in which the process of watching juries grapple with jury instructions from scores of jurisdictions (and then thinking about what to do with those juries’ outputs when they are appealed) shares some common ground with the everyday work of research psychologists. The challenge posed by Knobe and Shapiro is one of emphasis—where do we think our efforts should go when the going gets tough and courtroom results do not easily yield to legal analysis. This paper suggests the better strategy is to ask better questions about what ordinary people believe the law is. I doubt that this is going to prove to be winning strategy, since, like so much in life, what ordinary people believe underdetermines the hardest parts of most human practices.
Cite as: Anthony Sebok, Beware of Strangers Bearing Gifts
(January 14, 2021) (reviewing Joshua Knobe, Scott J. Shapiro, Proximate Cause Explained: An Essay in Experimental Jurisprudence
, 88 U. Chi. L. Rev
__ (forthcoming, 2021) available at SSRN), https://torts.jotwell.com/beware-of-strangers-bearing-gifts/
Merle H. Weiner, Civil Recourse Insurance: Increasing Access to the Tort System for Survivors of Domestic and Sexual Violence
, 62 Ariz. L. Rev.
957 (2021), available at SSRN
The U.S. torts system features a large gap between intentional tort doctrine and actual remedies for intentional torts. Doctrine pronounces many injuries tortious and compensable—intentional torts including domestic violence and sexual violence are widespread—yet civil lawsuits for these torts continue to be rare. The reasons for this gap are not a mystery; they all relate to money. Merle Weiner’s important and well-researched article takes effective aim at this situation, meshing insights from civil recourse theory about the purpose of the torts system with empirical information about what survivors of these torts actually want (hint: it’s mostly not money). She uses these insights to shape the idea of a new type of insurance, ‘civil recourse insurance,’ that would much better support the purposes of the tort system and survivors’ goals than the current torts enforcement structure. Civil recourse insurance would be a type of legal expense insurance and would provide a policyholder with legal representation when a covered incident occurs.
The article takes civil recourse theory seriously in its assertions that the overarching purpose of tort law is to further accountability, empowerment, respect, deterrence, and even at times revenge, rather than to provide financial compensation. She applies these theses to the situation of domestic violence and sexual abuse survivors. For the most part, victims of these wrongs do not seek financial compensation. Instead, they more often seek accountability, empowerment, recognition, respect and deterrence. These kinds of remedies are not provided by the torts system as it exists because it is enforced by lawyers who seek financial compensation under contingent fee agreements requiring either insurance coverage or assets to make litigation worthwhile. Insurance exclusions for intentional acts, coupled with judgment-proof defendants, make tort litigation for these wrongs impracticable in our current system. But legal actions seeking accountability, empowerment, respect and deterrence would be possible under Weiner’s proposed ‘civil recourse insurance.’ The policyholder may want to file a lawsuit even if it will be uncollectible; may want assistance participating in the criminal justice system; or may want to have her or his harm recognized in a way that acknowledges wrongdoing. This new kind of insurance, modeled on a popular and successful type of insurance held by 40% of German households, would provide insureds with the resources to pursue these forms of recourse.
Scholars including me, Rick Swedloff, and others have proposed solutions to the civil justice gap in tort law when it comes to remedies for intentional torts. Weiner shows why my proposal of liability insurance covering intentional acts will likely never work and why Swedloff’s proposal for loss insurance also falls short. Her imaginative and well-thought out proposal responds to and rectifies the shortcomings of the prior proposals.
The heart of the article is a proposal for civil recourse insurance which would be available for individuals to buy. It is a type of first party insurance but unlike traditional first party insurance it only covers the cost of hiring an attorney. She argues persuasively that it would be a better way to guarantee access to courts than the current system of contingent fees. The insurance would increase the odds that the survivor will get what she wants from the action; this may lead to deterrence (both individual and general) as well as to positive developments in tort law. Weiner proposes having the insurance cover all intentional torts to the person in order to create a balanced risk pool and avoid adverse selection. And the attorney would be paid by the hour rather than by a contingent fee. She argues carefully that such insurance could be commercially viable. Weiner makes her calculations clear and shows that under certain plausible assumptions civil recourse insurance could cost as little as between $94 a year and $356 a year. She addresses adverse selection and moral hazard thoughtfully and acknowledges important differences between her proposal and the existing German model as well as U.S. prepaid legal services plans.
One of her many useful contributions is to highlight and propose a solution to the ‘conundrum’ that is also observed by civil recourse scholars: “if tort law is designed to empower victims, why does it make the task of responding to wrongs so difficult and cumbersome?” And why does it leave enforcement to private contingent fee lawyers when the damages remedy so plainly often does not fit the wrong?
The final section of the article proposes state support of civil recourse insurance if the insurance product turns out to not be a financially viable model without government assistance. Civil recourse theory supports government intervention, she asserts: “The state’s creation of private rights of action and its provision of a neutral decisionmaker is simply insufficient if its laws, and its failure to adopt other laws, makes access to the system practically impossible.” The existing barriers to tort enforcement and its narrow focus on financial compensation make the tort system “but a hollow shell for civil recourse.” Therefore, based on civil recourse theory, the government should offer civil recourse insurance or support it through interventions such as vouchers, federal insurance, reinsurance or mandatory insurance. Determining what market interventions really make sense for government involvement in insurance is very tricky. But that and other details can be left for another day; this article is a huge achievement and the civil resource insurance proposal is ripe for serious consideration.
Unlike its counterpart at the local IHOP®, the menu of standard tort remedies makes for a quick read. There are damages (in several ‘flavors’), injunctions (typically ordering a halt to tortious activity), declaratory judgments, and … that’s about it. In her fascinating and provocative article The Knowledge Remedy, Alexandra Lahav advocates for a new item to be included in the injunctions portion of the menu. In certain toxic tort cases, she maintains, courts can and should order a defendant to cover the cost of independent research designed to determine whether a substance for which it is responsible is capable of causing the type of injury for which the plaintiff is suing.
Lahav’s opening example, based on an actual case, conveys the basic idea. A farmer notices that his once healthy livestock are dying, as are some local, furry woodland creatures. The farmer has his suspicions. It was not so long ago that a nearby factory commenced operations, and it was only a little after that that the creek that runs through the farm, and from which the critters drink, began to foam up in an odd way. And so the farmer hires a lawyer, who sues the factory’s owner for private nuisance and obtains evidence that the factory has been dumping into the creek a chemical compound that was never vetted for safety by the EPA. Eventually, the litigation settles. In addition to agreeing to install filters, the owner agrees to fund scientific studies to determine what sorts of illnesses in animals and humans the compound is capable of causing.
The gist of Lahav’s argument is that—in a legal system that (like ours) has relatively weak forms of ex ante regulation—plaintiffs in cases like Farmer v. Owner should sometimes be able to obtain such a remedy even absent a settlement. In other words, when there is a tort claim for a toxic exposure (whether grounded in nuisance, negligence, or products liability), and when there is scientific uncertainty as to the capacity of the substance to cause the injury for which plaintiff is suing, the presiding judge has the equitable remedial power to order defendant to fund research into the substance’s toxicity and should be prepared to exercise that power. Lahav does not specify in detail the circumstances that warrant the imposition of this remedy, but she seems to have the following conditions in mind: (1) evidence suggesting some possibility that plaintiff has suffered a harm as the result of the breach of a legal duty owed by defendant to plaintiff (such as a duty not to injure plaintiff physically through careless conduct); (2) the unavailability, despite diligent discovery efforts by plaintiff, of sufficient information to determine whether the plaintiff has been injured by the breach; and (3) a superior capacity on the part of the defendant to develop the necessary information. In situations such as these, she argues, courts have discretion to order the defendant to pay for the production of the relevant knowledge and should be willing to exercise it when the plaintiff’s case raises sufficient suspicion that she has been wrongly harmed by defendant’s activity.
Lahav insists that her proposed addition to the tort remedies menu has doctrinal antecedents, particularly on the equity side of the old law-equity divide. Claimants alleging breach of fiduciary duty have long been able to request an accounting. Thus, for example, if the beneficiary of a trust has grounds for suspecting that a trustee has mishandled trust assets, the beneficiary can, under certain circumstances, obtain a court order directing the trustee to provide an accounting—i.e., records indicating what the beneficiary has done with the money. Of more recent provenance is the recognition by some courts of claims for medical monitoring. In cases in which a tort defendant has exposed a plaintiff to a known toxin, a court will sometimes order the defendant to pay for screenings to enable early detection of any illness associated with exposure to the toxin. The article concludes with an assessment of relevant policy considerations, arguing that, on balance, the availability of the knowledge remedy stands to do more good than harm by filling regulatory gaps and generating useful knowledge that otherwise would never be generated.
The Knowledge Remedy is a notable addition to a burgeoning and impressive scholarly corpus in which Lahav, with justified aggression, takes on the tort reform movement and its disparagement of tort law as merely a matter of plaintiffs’ lawyers exploiting ‘junk science’ and lay-juror biases to extract wealth from firms. Paying close attention to the power dynamics that tend to prevail in life and litigation, she explains here and elsewhere how the law’s empowerment of putative injury victims to bring civil actions serves, and might further serve, the public interest and hence warrant our support. Amidst the modern tort wars, Lahav’s is an eloquent and welcome voice: one that not only identifies the good that tort law does, but possibilities for goods it might yet deliver.
Academics who are somewhat removed from the political trenches will likewise benefit from reading Lahav’s article. Courts and commentators have long wrestled with how best to handle the difficulties of dealing with the causation aspect of toxic tort cases. Sticking with traditional tests for actual causation, and with traditional burdens of persuasion, entails that many plaintiffs who have colorable claims stand to lose merely because of an unfortunate lack of scientific knowledge. This is why commentators and, at times courts, have turned to doctrines such as “loss of a chance,” or to ‘fudge’ terms such as “substantial factor” that give juries more leeway to impose liability. The deep insight of Lahav’s article is the suggestion that creativity in injunctive remedies—which, historically, operated in the more flexible domain of equity—might provide an alternative and more satisfactory way of getting at some of these problems.
Of course in tort law, and the civil side of law more generally, a remedy is predicated on and responsive to the claimant having proved herself the victim of a legally recognized wrong. Thus, it is because the farmer in Lahav’s opening example seems well-positioned to prove that he was the victim of a private nuisance that it is intuitive to suppose that the farmer is in a position to demand relief from a court. (This is also presumably why the farmer obtained a meaningful settlement.) Yet in the cases Lahav has in mind, the plaintiff stands to obtains such relief without having made out a standard case of negligence, nuisance, or some other tort. Indeed, as noted, it is the plaintiff’s inability to prove her claim in the absence of better scientific knowledge that drives the call for the knowledge remedy. Before we can sign off on this remedy, therefore, we need an account of the wrong for which redress is being provided.
At times Lahav suggests that the knowledge remedy is suitable for instances in which defendant’s breach of duty to the plaintiff happens also to involve a wrongful evasion of regulatory scrutiny. But the Supreme Court seems to have rejected the idea that private rights of action can be harnessed to respond to misconduct of this sort, and perhaps with good reason. At other times, Lahav seems to rely on the idea that an order to fund scientific studies is an appropriate response to conduct that has some of the hallmarks of a tort such as negligence, and could eventually ripen into such a tort, but has not yet done so. In this regard, the medical monitoring cases—understood as instances in which a court, prior to the commission of a tort, orders a defendant who has imperiled a plaintiff by exposing her to a known toxin to take steps to assist the plaintiff in maintaining her health—arguably provide the most direct precedential support.
Yet, as Lahav acknowledges, medical monitoring liability of this sort is predicated on exactly what is missing from the cases she has in mind: namely, knowledge that the substance to which the defendant has exposed the plaintiff is capable of causing the illnesses that the plaintiffs are now hoping to ward off or ameliorate. (By way of analogy: it is one thing for a court in a case like Summers v. Tice to use its equitable powers to shift the burden of proof on causation to the defendants, given that the court knows to a certainty that one of the two of them actually caused the plaintiff to be shot, and hence it is exactly fifty percent likely that each did it. It is quite another to extend the rule of Summers to a case in which a plaintiff sues two defendants for an illness allegedly caused by a toxic exposure and yet it is unclear that either of the exposures actually caused the illness.) In some medical monitoring cases, courts have gone so far as to order a defendant whose misconduct might someday result in harm to plaintiff to take certain protective actions for the benefit of potential victims. Even so, the traditional rule that an adequate remedy at law counts strongly against the provision of injunctive relief suggests that equitable orders of this sort should be granted only in special circumstances. Lahav, by contrast, seems to be arguing for the general availability of the knowledge remedy in any toxic tort case where there is some evidence of wrongdoing and a plausible suspicion of toxicity.
There is a deeper irony in Lahav’s invocation of the medical monitoring cases. As courts sometimes seem to appreciate, the reason why there is something extraordinary about ordering a defendant to pay for medical monitoring before the plaintiff has manifested any injury is precisely because such an order is not merely a matter of courts providing a creative remedy. In most of these cases, the plaintiff cannot prove, in the usual manner, that a recognized legal wrong has been committed. Instead, in these cases, courts seem to be ordering defendants to fulfill a primary duty of conduct—a duty to pay for health screenings that will help plaintiffs manage a risk of injury that defendants have wrongfully imposed on them. In this respect, while Lahav makes an impressive case for a novel form of judicial order, it is arguably mislabeled. Hers, it seems, may in the end be an argument for the addition to our menu of rights, not remedies.
In Reconceptualising Strict Liability for the Tort of Another Christine Beuermann—a Lecturer in Law at the University of Newcastle—shines new light on strict liability for the wrongdoing of others. In the United States, we generally classify these as vicarious liabilities and non-delegable duties, and we usually conceptualize them in terms of the liability of principals for the acts of their agents. Perhaps surprisingly, these liabilities are at once ancient, very active at present, and poorly understood. Professor Beuermann’s book supplies a badly needed, original, and illuminating framework for thinking about these forms of liability. The book both offers an answer to longstanding theoretical puzzles, and guidance in deciding cases that presently vex the courts. It repays a reader’s careful study by reorienting the reader’s thinking.
Vicarious liability may well be the oldest form of tort liability extant in contemporary tort law. Legal historians often trace it back to Roman law, which held masters liable for the legal wrongs of their slaves, husbands liable for the wrongs of their wives, and fathers liable for the wrongs of their children. Blackstone distanced himself from Roman law’s instantiations, but he saw in them the roots of a more modern and general liability of masters for the torts of their servants. Over time, that liability transformed into the liability of employers for the torts of their employees committed within the scope of their employment. If the broad outlines of the history are clear, both the doctrine and the justification are not. Oliver Wendell Holmes thought that vicarious liability was wrong in principle, if too entrenched to uproot. Modern corrective justice theorists also tend to see the doctrine as anomalous because it is not fault-based. Other contemporary scholars have been more receptive to justifying the doctrine by reference to policies of accident prevention and loss-spreading, or by reference to “a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities.” Whatever their virtues, these justifications have not been particularly helpful to courts struggling to decide the wave of sexual assault cases that have recently arisen. Why, exactly, is sexual assault a characteristic risk, say, of being a teacher but not of being a school janitor?
For its part, legal doctrine in this domain is an untidy morass of highly specific rules. The Restatement (Second) of Agency, for instance, once summarized the liability of “masters” (or principals) for the torts of the independent contractors that they employ by stating a general rule of non-liability and followed up that general rule with a list of specific exceptions. The Restatement (Second) of Torts accepted the same general rule and followed its statement with twenty exceptions. The sheer number of exceptions suggests a domain where the doctrine lacks overarching logical unity. Consequently, when new problems arise, it’s hard for everyone—lawyers, scholars, and judges—to know how to reason even analogically from the preexisting materials of the law. And pressing problems do arise. On both sides of the Atlantic, we have just muddled our way through extremely disturbing scandals involving the sexual abuse of minors. Just how to conceptualize the problem of institutional liability for the wrongful acts of individual actors exploiting their positions as priests—or pastors, or teachers, or coaches, or school janitors—to commit such abuse has proven very difficult. The problems do not get any easier when the parties involved are adults, and the questions have to do with sexual batteries and sexual harassment.
Professor Beuermann’s account speaks to both to Holmes’s objection and to the difficulties that courts confront. Her framework puts relations among persons at its center and makes authority the master key to liability. The basic thesis that Professor Beuermann develops is simple: authority relations are the key to understanding strict liability for the wrongdoing of another. In the vicarious liability context, the relevant authority is the authority of the principal over the agent. In the non-delegable duty context, the authority is the authority of that the principal has conferred on the agent over a third party. In the first circumstance, the relation between the principal and the agent is the critical relationship: the agent is under the thumb of the principal. In the second, the relation between the principal and the third party is critical: the principal puts the third party under the thumb of the agent. In both cases, strict liability is a check on the abuse of authority.
In the vicarious liability context, the authority of an employer over an employee may lead an employee to pay insufficient regard to their obligations not to wrong third persons in diverse ways. For example, a pizza company’s authority over the drivers who deliver its pizzas puts the drivers in a position where they have reason to assign less weight than they should to their obligations to others, and more weight to delivering pizzas promptly. It is this standing possibility that justifies strict liability. In the non-delegable duty context, the authority that a principal confers on an agent over a third party may be used to wrong the third party. Authority over someone can enable wrongs that the wrongdoer might otherwise lack the means to commit. When this framework is brought to bear on sexual assaults in school setting, it is illuminating in two ways. First, it shows that non-delegable duty is the right doctrine, not vicarious liability. That is, the connection between the institution and the wrong is the authority that the institution confers on the teacher over pupils, not the school’s authority over the teacher. The school’s authority over the teacher might tempt the teacher to disregard obligations to third persons in favor of pursuing the institutions’ interests. Abusing students, though, isn’t an institutional interest in the way that, say, delivering pizzas to customers within thirty minutes of the customer placing of the order is. The authority that teachers have over students creates special powers which might be used for sexual abuse. Second, it shows why we might sensibly distinguish between teachers and janitors. Teachers have an authority over students which they may deploy to sexually assault a student. A teacher may usher a student into an empty classroom, or isolate a student in their office under pretext of educational purpose, and do so in order to commit an assault. Janitors do not have similar authority. The authority they have to clean the premises does not confer authority to direct the conduct of students in comparably extensive ways. The framework pours content into the concept of “characteristic risk”.
The framework that Beuermann’s book develops responds to Holmes’ objection. The principles of responsibility that govern wrongs committed by others differ from the principles that govern wrongs that people commit personally, because liability for the wrongdoing of others responds to a phenomenon—namely, authority over either the wrongdoer or the victim—that is simply absent when personal wrongs are at issue. Moreover, because this account is relational, it does not suffer from the defect that afflicts policies of loss-spreading and accident-prevention. Those policies identify states of the world in which a desirable end is realized; it remains unclear exactly why a particular person or institution can be singled out by the law of torts to promote that desirable end. Beuermann puts her finger on grounds of responsibility which arise from forms of authority that some people either assume over others, or confer on others. Beuermann’s framework holds people responsible for what they have done—for authority relations they have created.
To be sure, there are questions. For one thing, Beuermann’s book addresses the law in Commonwealth countries. American law appears to be somewhat different. In the United States, it is common to call the inherent, peculiar, and abnormally dangerous risk exceptions to the non-liability of principals for the torts of independent contractors “non-delegable duties”. For another, the features of relations between employers, employees, other kinds of agents, and victims of tortious wrongs that attract forms of responsibility for the wrongs of others may go beyond “authority” as Beuermann conceives it. Sometimes, as in the Bushey case, the justification for liability appears to be the fact that the institution at issue (i.e., the Coast Guard) imposes on people a distinctive kind of risk for which the institution is more responsible than the individual wrongdoer. American courts appear to care more about whether the risk is created by the institution than Commonwealth courts do. The may be doing something different, and for good reason. For another, one might think that there are forms of vulnerability to institutional power and position which should be checked by strict liability even if the relations are not relations of authority. Ultrasound technicians may not have authority that enables them to commit sexual batteries on patients, but their institutional role may put them in a position where victims have little power to protect themselves against such assaults. Yet, even if this book is does not really address American incarnations of the doctrines it discusses, that silence is a limit not a fault. The book’s chief and considerable virtue remains intact: its account does more to illuminate non-delegable duty than any other account that I have read. It finds unity of principle where the weight of American authority has seen only ad hoc judgment or a delicate balance of competing considerations of “policy”. Better yet, Strict Liability for the Tort of Another teases that unity out of the cases. These are impressive achievements.
Kenneth S. Abraham & G. Edward White, Conceptualizing Tort Law: The Continuous (and Continuing) Struggle
__ Maryland L. Rev.
__ (forthcoming 2020), available at SSRN
Like Gaul, tort law is divided into three parts: torts of intent, negligence, and strict liability. At least, that is what most torts professors teach and what many scholars, judges and practitioners suppose.
In an engaging, lively, and perceptive article, Professors Abraham and White remind us that this tripartite division is descriptively inadequate for characterizing the variety of individual torts recognized today. They further claim that this plethora of distinct torts is a disorganized, fragmented mess. They then surprise the reader with a provocative conclusion: tort law is incapable of principled organization. The authors provide solid evidence of their descriptive thesis. Their critiques of the inevitability of this unprincipled disorganization are more controversial, for reasons that I will later suggest.
The authors uncover a “lost history” that largely supports their descriptive argument. They point out that treatise and casebook writers in the 19th and early 20th centuries tried without much success to create a more straightforward organization of tort law after the abolition of the old procedure-based forms of action. In their view, a classification according to the underlying rights that were violated was circular; a classification according to standards of conduct was more promising but still problematic insofar as different scholars had quite different conceptions of the relevant standards. For example, some but not all commentators recognized a category of “willful or wanton” harm; and some but not all restricted “intent” to “malice” or “animus.”
The authors then turn to the efforts of Francis Bohlen in the first Restatement of Torts in the 1920s to develop a more coherent organization of tort law. Bohlen’s earliest drafts displayed a new vision of how to organize tort law—namely, according to the right infringed and then, according to the standard of conduct (intent, negligence, or strict liability). Thus, Bohlen originally suggested that the right to personality includes a right to freedom from bodily harm that should be protected from intentional, negligent, or, in a few cases, faultless invasions, a suggestion that could have been the basis of a rational organization of all torts. But, the authors point out, in the end Bohlen did not realize this vision. Instead, although he organized some of the first Restatement according to intent, negligence, and strict liability, large portions ignore that structure. The authors speculate that Bohlen might have given up on his original, more ambitious classification plan after he drafted the materials on negligence and other specific torts, perhaps because Bohlen concluded that the task was not feasible. And, according to the authors, the Second and Third Restatement of Torts have largely followed the first Restatement in rejecting any rational organizing principles, leaving judges, academics, and practitioners with a fragmented, unprincipled concatenation of miscellaneous individual torts.
The analysis offered by the authors of early tort scholars’ classification schemes and of successive drafts of the first Restatement of Torts is an illuminating exploration of the early history of American tort law—and also quite detailed. Not all readers will relish bushwhacking through these weeds. But many will savor the adventure. The authors are also correct that the Restatement, Second and Restatement, Third of Torts largely carry forward the classification system of the first Restatement. The Third Restatement, they say, “is effectively a collection of independent modules” (P. 53).
The authors conclude that three main reasons explain the fragmented state of contemporary tort law. First, no comprehensive substantive theory explains why some harmful activities are actionable and others are not. Economic efficiency, corrective justice, and civil recourse theories are too abstract to give particularized guidance, they plausibly claim.
Second, a more coherent organization has only limited usefulness to the practicing bar, which is perfectly content with atomistic listing of numerous distinct torts. This argument has force but seems overstated. For example, a new classification scheme that categorized all emotional harm torts together might spur the development of more consistent legal rules for negligent infliction of emotional distress and intentional infliction of severe emotional distress.
Third, the authors assert that the actual nature of tort law is inevitably fragmented, because of the consensus “that some kinds of harms should be actionable and that some should not be, and that the degree of blame attributable to the party causing the harm may be relevant, but that this relevance may vary, depending on the kind of harm or other circumstances in question. As long as these things are true, then something like the forms of action—separate causes of action with distinctive, mandatory elements—is inevitable” (P. 58).
The authors’ skepticism about the promise of principle is understandable. History indeed plays a significant role in explaining otherwise arbitrary and archaic distinctions between torts (as well as distinctions between different property rights and other legal rights and duties). Why, for example, do courts not require contemporaneous awareness of an offensive contact for offensive battery liability, yet require contemporaneous awareness of a confinement for false imprisonment, and require awareness of an anticipated touching for assault? At the same time, the article does not mention, and we should not forget, some of the remarkable and principle-based changes that occurred in tort doctrine in the 20th century—expanding negligence doctrines; recognizing new torts of privacy and of intentional infliction of emotional distress; and developing elaborate, and sometimes strict, rules to govern product liability for defective products.
As an academic who has considered these issues in some prior work I agree with the authors to a point. The tripartite division of all torts into intentional torts, negligence, and strict liability torts is indeed a gross oversimplification. As chief Reporter for the Restatement of Torts, Third: Intentional Torts to Persons, I confess that I have participated in some of the developments that the authors decry. (Why are battery, assault, and false imprisonment singled out for a distinct project, and not combined with privacy and defamation, for example?) Perhaps I am a guilty accomplice. But before the authors pass their final sentence upon me and (more importantly) on the American Law Institute and on other tort scholars, let me raise some questions about their analysis.
First, although the authors are correct in noting the piecemeal way that the Restatement, Third of Torts has been developed over many years, the full story of its evolution is more complex. The original plan of the American Law Institute was to restate only certain portions of the Restatement Second of Torts in the Restatement Third—those that were in special need of updating, such as products liability (in 1992) and apportionment (in 2000). Over time, however, the Institute determined that this partial approach was inadequate and that a comprehensive Restatement was necessary. This was a wise judgment. As evidence, consider the Third Restatement’s evolving treatment of the traditional intentional torts—battery, assault, and false imprisonment. The Restatement Third, Torts: Liability for Physical and Emotional Harm (completed in 2012) asserted a broad criterion of intentional tort liability in § 5: “An actor who intentionally causes physical harm is subject to liability for that harm.” Unfortunately, this umbrella provision is an awkward fit with the traditional intentional torts. Battery, for example, requires an intent to contact but (in most states) does not require an intent to cause physical harm or offense. The ongoing Restatement Third of Intentional Torts is much more careful in identifying the specific intent requirements and other elements of harmful battery, offensive battery, assault and false imprisonment. Although it is true that the many projects that comprise the Third Restatement of Torts are overlapping and, on first appearance, haphazard, the best explanation is a change in direction, not a commitment to fragmentation.
Second, when an actor causes bodily harm to another, the tripartite division does have some descriptive power—and more than the authors concede. Ceteris paribus, intentionally causing such a harm is a more serious wrong than negligently causing it; and liability is least justifiable when the harm is caused faultlessly. These differences matter: they affect the availability of punitive damages, the relevance of plaintiff’s fault, the causal scope of liability, and whether another will be vicariously liable, as well as collateral legal rules such as insurance and worker’s compensation coverage.
For evidence that the tripartite classification remains vital, consider a recently adopted provision in the Intentional Torts Restatement, imposing liability for the purposeful infliction of bodily harm. This provision effectively expands the ancient tort of battery and recognizes that an actor’s purposeful causation of bodily harm is a proper basis of liability, even if the actor does not physically contact the plaintiff. (Suppose a prison guard turns off the heat to an inmate’s cell in order to make the inmate sick.) Strikingly, Bohlen’s first Restatement of Torts also adopts this expansionist approach in a little-noticed provision, recognizing “an actor’s liability for the intentional infliction of bodily harm by means other than bodily contact”—precisely the position recently adopted in the Intentional Torts Restatement. Thus, Bohlen executed his vision of a comprehensive tripartite approach to the right to freedom from bodily harm to a greater extent than the article acknowledges.
Third, the article’s account of the tripartite approach is somewhat oversimplified. Most torts do not merely identify a relevant harm and then simply require that the actor have intentionally, negligently, or faultlessly caused that harm. Rather, torts typically contain several elements, and often the fault required for one element differs from that required for another. For example, trespass to land requires an intent to enter but does not require the actor to know that the parcel that she intentionally entered is the property of another. Battery requires an intent to contact, and in some states an additional intent to harm or offend, but it does not require that the actor intend or know that the plaintiff does not consent to the contact.
Fourth and relatedly, the authors seem to assume that a principled account of tort law would entail either the tripartite division or some other relatively simple classification system. Others have also endorsed a much greater degree of simplification of tort law. But this assumption can be, and has been, questioned. Pluralism, in both law and morality, can be principled. On this view, the wrongs addressed by tort law are multifarious because the rights underlying them, their potential fault requirements, and their other relevant characteristics are multiple. Yet these characteristics can be combined in a principled way.
Notwithstanding these questions, Abraham and White have written an enlightening historical and critical analysis, nicely framing an important challenge to tort scholars, the challenge of developing a principled and useful classification of the wide range of tort doctrines.
Cite as: Kenneth W. Simons, Is Tort Law Hopelessly Fragmented?
(July 27, 2020) (reviewing Kenneth S. Abraham & G. Edward White, Conceptualizing Tort Law: The Continuous (and Continuing) Struggle
__ Maryland L. Rev.
__ (forthcoming 2020), available at SSRN), https://torts.jotwell.com/is-tort-law-hopelessly-fragmented/
Aaron D. Twerski, An Essay on the Quieting of Products Liability Law, 105 Cornell L. Rev. 101 (forthcoming, 2020), available at SSRN.
Over and over, legal scholars have revealed situations in which different legal rules do not produce the different legal outcomes they portend. When states limit juries’ power to award punitive damages, juries instead award increased damages under a compensatory damage head. Catherine M. Sharkey, Crossing the Punitive-Compensatory Divide, in Civil Juries and Civil Justice 79, (Bornstein, Wiener, Schopp & Willborn eds. 2008). When states require juries to apportion responsibility between intentional and negligent tortfeasors, jurors may preserve negligence liability by apportioning more civil responsibility to a negligent party than an intentional one. Ellen M. Bublick, Upside Down – Terrorist, Proprietors, and Civil Responsibility for Crime Prevention in the Post – 9/11 Tort-Reform World, 41 Loy. L.A. L. Rev. 1483 (2008). Legal rules matter, but not as much as we may think. Other normative values intercede.
In An Essay on the Quieting of Product Liability Law, Restatement (Third) of Torts: Products Liability Reporter Aaron Twerski examines one of the most fevered controversies of recent products liability law— “whether liability for defective product design should be covered by risk-utility balancing or the consumer expectation test.” (P. 102.) Twenty years after the debate, Professor Twerski examines the difference between the risk-utility test applied in most states and the consumer expectations test followed in 17 jurisdictions. After much case analysis, Twerski concludes that the answer to the difference question in the two sets of jurisdictions is: not much. In 15 of the 17 jurisdictions that retain a consumer expectations test, Twerski could not find a single case in which the plaintiff did not introduce evidence of a reasonable alternative design. (P. 101, Pp. 111-120.) California and Florida are the outliers. (P. 120.) In California, reasonable alternative design (RAD) evidence is barred completely. (P. 121.)
What happened to the foretold split in practice? Twerski theorizes that “four significant reasons support the ubiquitous presence of a RAD in design litigation.” (P. 108.) The four reasons are that the RAD test: 1) tells “a far more compelling story” than consumer expectations; 2) relates to fault which, in turn, augers higher damage awards; 3) may be needed as a substitute if a judge denies a “consumer expectations” instruction, and 4) supports the claim that a product disappoints consumer expectations. (Pp. 109-110.) Thus, the choice of “reasonable alternative design” or “consumer expectation” standard, which seems important at first blush, turns out to be a non-starter in the realm of practice, in which RAD is ubiquitous.
The strength of the article is Twerski’s willingness to travel deep into the caselaw, and to mark the trails he takes. Twerski makes the time to really look at what courts are doing—state by state—despite the slow and laborious nature of the work. Because he does, and footnotes his findings extensively, readers understand that they can trust the guide. Moreover, Twerski lets readers know where he has searched and where he has not, as well as the limitations of his choices. (P. 107.)
Through this transparency, a reader can decide if additional journeys are necessary. For example, the focus of this piece is on the 17 minority consumer-expectation jurisdictions. It would be nice to see a review of the majority jurisdictions as well. Could it also be that consumer-expectations language pervades reasonable-alternative-design jurisdictions? If the reasonable-alternative-design test speaks to consumer expectations, could we just as easily make consumer expectations rather than risk-utility the reigning test and still employ RAD? Perhaps most importantly, even if evidence of the RAD test is used in both risk-utility and consumer-expectations jurisdictions, could the manner of use, or nature of outcomes in the two sets of jurisdictions differ?
Specifically, evidence of other designs and products under RAD might perform different roles in the jurisdictions. In risk-utility jurisdictions the RAD test focuses on product engineering from the perspective of someone putting the product on the market. In consumer-expectation jurisdictions, the RAD test may speak to product performance from the perspective of a user or consumer. Even when using evidence of reasonable alternative designs, the questions asked, and outcomes reached may not be the same.
Still, Twerski’s article and its conclusion should be the focal point of any future analysis. Twerski claims: “[W]hether courts demand a RAD or not is of minor importance, for whatever theory a court adopts, the case will be decided on whether there was a reasonable alternative design available.” (P. 124.) The care Twerski takes to sift through the many state cases reveals again why there are few voices as powerful on the subject of products liability as Professor Twerski’s. As Twerski documents in his article, in recent years there have been fewer voices on the subject of products liability at all. (P. 102 n.7.) Perhaps as cases accumulate under the recent standards, some newer voices will join the search—whether to expand on Professor Twerski’s findings, or to debate them.
In The Curious Incident of the Falling Win Rate, Alexandra Lahav and Peter Siegelman highlight a remarkable—but heretofore overlooked—fact: Between 1985 and 1995, the plaintiff win rate in adjudicated civil cases in federal courts fell precipitously, from 70 percent to 30 percent. In subsequent decades, although the plaintiff win rate has fluctuated, it has generally hovered at or below 40 percent, significantly off its 1985 peak. (P. 1371.) From there, Lahav and Siegelman put their discovery in context and explore potential explanations for the observed trend. In this Jot, I’ll endeavor to explain why their Essay—on the face of it, not about the tort system—in fact, supplies an important piece of the tort-decline puzzle. Then, I’ll offer a fuller account of the Essay itself. Finally, I’ll share a few questions the paper stimulates.
First, how is this Essay about the civil justice system in general—and the federal civil justice system, no less—a tort law piece? It’s a fair question since only around 2 percent of tort claims are litigated in federal court. But, the tort system has long been the most controversial corner of the civil justice system, and it’s still one where myths and misinformation abound.
Americans continue to believe that the system is “choked” with tort claims and that there’s a pot of gold waiting, even for undeserving plaintiffs. Yet, over the past two decades, the evidence has accumulated to paint a very different portrait. We know that tort filings are way down. According to the Wall Street Journal, in fact, we know that, in the state system, there is a “nationwide ebb in lawsuits.” Whereas, in 1993, about ten in 1,000 Americans filed tort lawsuits annually, as of 2015, that number was fewer than two in 1,000. “Tort cases declined from 16% of civil filings in state courts in 1993 to about 4% in 2015, a difference of more than 1.7 million cases nationwide.” Supplying information from the federal system, here, Lahav and Siegelman add to our understanding. Comparing federal tort suits initiated in 1985 and 2016, their data reveal a stunning drop: There were 29,655 such cases filed in 1985 but only 12,114 such cases filed in 2016, a decline of 69 percent.
There’s some evidence (at least within the state system), that, when plaintiffs recover, their recoveries are lower than in prior years. According to a Bureau of Justice Statistics study, the median jury award in state court tort cases was $33,000 in 2005, whereas the median jury award in tort cases was $71,000 in 1992, in inflation-adjusted dollars—a drop of 53.5 percent.
And, there is no question: Trials are also down sharply. The federal civil trial rate is 0.7 percent. One way to look at that: Federal courts conducted half as many civil trials in 2019 as they did in 1962, even as they disposed of over five times as many civil cases. A similar trend is apparent in the states. According to data maintained by the National Center for State Courts, in 2015, the percentage of civil cases resolved by jury trial ranged from .05 percent to .5 percent in the twenty-one jurisdictions studied.
The final piece of the puzzle, of course, is plaintiff win rates. While limited to the federal system, Lahav and Siegelman help to bridge that gap by showing that, just as filings are down, damages are down, and trials are down, plaintiff win rates are dropping, too. As noted above, they show that, generally, plaintiff win rates in civil cases plummeted starting in 1985. And, zeroing in on tort cases in particular, their data reveal a sharp fall in plaintiff win rates from 1985 through 2016. Of the federal tort lawsuits initiated in 1985, the plaintiff win rate was 38.1 percent. Of those initiated in 2016, the rate was 11.9 percent. Even though fewer lawsuits were initiated over that three-decade period (suggesting, possibly, that lawyers had become more selective in their filings), the tort-specific federal court plaintiff win rate was slashed more than in half.
Even if the piece did nothing more than highlight those core findings, it would make a very large contribution, to tort scholars and beyond. Yet, the authors do more than merely surface this surprising trend. They also seek to explain it. Seeking to address why the general plaintiff win rate has dropped so sharply, they suggest that most of the observed decline (perhaps 60 percent) is attributable to shifting inputs, to “changes in the makeup of the federal caseload” during the period. (P. 1374.) Over time, they find, cases in subject-matter areas where plaintiffs tend to fare poorly (e.g., prisoner-rights litigation) became more prevalent, even while categories of suits in which plaintiffs tend to fare well (e.g., suits to enforce student loan obligations) became less prevalent or were eliminated altogether. But, even if that’s right, as Lahav and Siegelman note, that still leaves the remaining 40 percent of the drop unexplained.
This 40 percent may be attributable to any number of factors, which the authors proceed to explore, and for the most part reject, as either belied by the available data or inconsistent with rational litigant behavior. For example, one might hypothesize that a chunk of the reduction is attributable to selection effects, including plaintiffs filing a higher proportion of junk cases, plaintiffs litigating (rather than settling) a higher proportion of junk cases, and/or “selective settlement of winning cases that would previously have been litigated.” (P. 1387.) But, as Lahav and Siegelman observe, none of these hypotheses are clearly supported by available evidence.
So, too, it could be that the composition of plaintiffs, themselves, or defendants, themselves, has changed—which the authors can’t entirely rule out—but which, again, is hardly self-evident. Finally, drawing on the work of Steve Burbank, Sean Farhang, and others, the authors consider—but once again, mostly scrap—the possibility that “judicial attitudes towards plaintiffs” may have changed during the period, “making judges more skeptical of plaintiffs’ claims.” (P. 1408.)
From there, Lahav and Siegelman set forth the data that would be needed in order to better unravel the mystery. They survey the relevant theoretical and empirical literature (with particular attention to the classic work by George Priest and Benjamin Klein). And, in the paper’s final part, they draw out a normative claim: “[T]he justice system,” they assert “is obligated to explain suspicious developments in the administration of justice at the systemic level.” (P. 1375.)
I find Lahav and Siegelman’s discussion learned, persuasive, and extraordinarily thought-provoking. In terms of thoughts that spring to my mind, for starters (though, probably unrealistically), I find myself hungry for more data, and, in particular, data stretching back further, so we can identify trends prior to 1985. (Could it be that the early 1980s were themselves anomalous and what we see is merely a reversion to the mean?)
Further, when it comes to probing potential hypotheses, I can think of a few more possibilities that might be addressed and, if possible, tested. Regarding inputs, for example, when the authors discuss the possibility that some of the observed reduction might be explained by plaintiffs opting to file lower-quality cases, it would have been helpful to draw out the fact that the boundary between federal and state litigation is porous. Could it be that, in the mid-1980s, federal courts started to get a bad rap, so plaintiffs started to filter—to file more viable cases in state court, leaving longer shots for the federal system?
So, too, while the authors draw on Burbank’s and Farhang’s important work to discuss the political leanings of trial court judges, we might also interrogate the law handed down from on-high. We know that, during this period, Congress enacted numerous statutes that made life harder for plaintiffs. (The Private Securities Litigation Reform Act and the Prison Litigation Reform Act come to mind.) We know SCOTUS handed down a raft of defendant-friendly decisions—doing everything from tightening standing requirements, to limiting expert testimony, to eliminating aider and abettor liability, to expanding the preemptive effect of certain regulatory activity, to liberalizing Rule 56.
And, last but not least, we know that significant tort reform measures—including noneconomic damage caps, contingency fee restrictions, alterations to the collateral source rule, and extensions of statutes of repose—were enacted in many states. Might these myriad changes explain some of the observed trends?
Finally, while I am fully persuaded by the authors’ plea for more and better data, I’m not wholly convinced of the authors’ more insistent claim that, whenever “system-level consequences . . . are inconsistent with the understandings of how the civil justice system should work,” (P. 1430) “the system” must offer a “justification that is consistent with rule of law values.” (P. 1370.) The justice system, of course, is a “they” not an “it,” and it’s not clear to me who, within the messy and fragmented system, should bear such responsibility. Furthermore, when judging whether outputs are inconsistent with observers’ “understandings,” it’s not clear to me whose understandings should prevail.
Quibbling aside, the fact remains: Lahav and Siegelman document and highlight a phenomenon that had been hiding in plain sight. And they do so in a paper that is nuanced, technically sophisticated, and richly generative. Scholars—from tort and beyond—will be drawing on Lahav and Siegelman’s “curious” and critically important discovery for years to come.
Cite as: Nora Freeman Engstrom, Supplying a Key Piece of the Tort-Decline Puzzle
(March 30, 2020) (reviewing Alexandra D. Lahav & Peter Siegelman, The Curious Incident of the Falling Win Rate: Individual vs System-Level Justification and the Rule of Law
, 52 U.C. Davis L. Rev.
1371 (2019)), https://torts.jotwell.com/supplying-a-key-piece-of-the-tort-decline-puzzle/
Richard H. Fallon, Jr.’s Bidding Farewell to Constitutional Torts is an important article at many levels. The provision by a leading constitutional scholar of a thoughtful and rigorous overview of the field, recent Supreme Court decisions within it, and new trains of scholarship criticizing those decisions is itself of great value. But there is much more here, and some of it is surprising. One might have expected a robust defender of the rule of law such as Fallon to excoriate the Supreme Court’s repeated expressions of skepticism about the principle that “where there’s a right, there is a remedy.” Instead, Fallon shares much of the Court’s skepticism and, in principle, shares its view that, in a range of scenarios, it is sensible to permit anticipated social costs to defeat the ability of victims of constitutional rights violations to hold those who have victimized them accountable. While the article ultimately defends the landmark Bivens decision itself, and a certain notion of state accountability to victims before courts of law, this too is something of a surprise in a piece purporting to “bid farewell” to the entire field.
In a manner consistent with his sensitivity to a range of constraints on legal interpretation, Fallon subdivides his article into three parts: (1) a doctrinal descriptive section; (2) the articulation of normative considerations relevant to the establishment of an attractive framework of liability rules for government actors and a proposal for such a framework; and (3) an analysis of which institutions are well-suited to adopt and implement that framework. Each of these inquiries is thoughtful, defensible, and important.
On the doctrinal descriptive section, Fallon makes several points. First, he emphasizes the Court’s increasingly adamant yet not quite complete rejection of the possibility of new Bivens claims in Ziglar v. Abbasi (following on the heels of Ashcroft v. Iqbal). Second, he describes the remarkable breadth of qualified immunity under Harlow v. Fitzgerald and its progeny, and the still-greater breadth of official immunity for judicial and legislative acts. Third, he recognizes the Court’s efforts to restrict plaintiffs’ remedies further by procedural requirements such as those laid down in Iqbal. Similarly, he notes the weakening of Ex Parte Young and rights to injunctive relief as laid out in Armstrong v. Exceptional Child Care Center.
While the descriptive section of the article ends by condemning the Rehnquist and Roberts Courts for its “methodologically untethered activism in service of the apparent cause of limiting suits to enforce the Constitution,” Fallon is also highly critical of recent scholars advocating a reinvigoration of constitutional torts by a common law tort mindset. Instead, he puts forth a framework that treats individual rights as interests and candidly recognizes both the value of private rights of action to vindicate rights and the value of pragmatic judicial crafting that balances those interests against the needs of the state, the costs of liability, and the practicalities of litigation. Bivens and 1983 doctrine, he argues, should be adjusted in light of all of these considerations. Neither qualified immunity nor absolute immunity should be regarded as “regrettable” necessities but as “valuable, adaptive device[s] for achieving the best overall regime of substantive rights, rights to sue for tort remedies, and immunity defenses.” Recognizing the incompatibility of his view with the common-law mindset advocated by other scholars, he writes:
However serviceable a tort-law-based mode of controlling official misconduct may have been in the Founding era, a framework built on common law concepts and categories is outdated, misleading, and potentially dangerous as a guide to thinking about constitutional and rule-of-law issues in the current day. Since the collapse of the Lochner era, it has been widely recognized that modern legislatures should have broad authority to displace common law assignments of private rights and duties. And just as the common law fails to provide a reliable baseline for identifying constitutionally protected rights, a tort-law-based conceptual scheme fails to mark the categories of legal norms that most urgently require judicial enforcement against public officials for the rule of law to thrive in the modern era.
When we view rights and remedies as part of a package, moreover, it may sometimes be better to have more broadly defined rights with a set of partially incomplete remedies than to have individually effective remedies for every constitutional violation. To give a pair of concrete examples, if the costs of the Supreme Court rulings in cases such as Brown v. Board of Education and Miranda v. Arizona had included damages remedies against school officials who had maintained racially segregated classrooms or against judges who had allowed the admission of confessions obtained without Miranda warnings, the Court might have felt unable to decide Brown and Miranda as it did.
Once engaged in crafting a theoretical framework from an instrumentalist point of view, Fallon identifies three important functions of constitutional remedies: compensation to the victims of official misconduct, empowerment of victims to hold accountable those who have injured them, and deterrence (and enforcement of the law as against the government itself) in recognition of the importance of rule-of-law values. A crucial point of the article is that the existence of rights of action for injunctions or damages – which would putatively (and sometimes, actually) help to achieve the aforementioned goals – must be weighed against the offsetting social costs not only to the state, but also to the individuals whose substantive rights might not be recognized by courts were their recognition necessarily connected to an expansion of liability.
The last part of Fallon’s article offers reasons for thinking that a place remains for judicially created remedies for official wrongdoing, and that the Supreme Court’s restriction of Bivens is unjustifiable not only from an instrumentalist point of view, but from the point of view of constitutional theory and in light of the institutional competence concerns that have been offered in defense of the Court’s current position. When he finally does weigh in on various substantive issues in this field, he argues (among other things) that: (a) the FTCA and the Westfall Act actually provide reasons for the Court to be more open to Bivens claims than it has been, not less open; (b) some forms of official immunity and qualified immunity are indeed justifiable, but the sharply pro-defendant form that has developed since Harlow v. Fitzgerald is unjustifiably restrictive; (c) the conception of municipal liability in Monell v. Department of Social Services is too narrow; there should be substantial constitutional tort liability for state and municipal entities.
There are at least three paradoxical features of Fallon’s article. The first is at one level semantic, but at another substantive. The article is titled “Bidding Farewell to Constitutional Torts,” but it is in fact a reacquaintance with the field and an argument for a more robust return (hence, the title of this jot). A second is that what Fallon recommends as a replacement for a common law tort approach to official liability is in fact what the Supreme Court and a range of legal scholars have long regarded as the very core of common law tort thinking, namely, an approach that favors crafting liability rules based on a pluralistic instrumentalism that calls for the weighing of various social consequences that seem likely to follow from the presence of more or less liability. Third, it is a central tenet of rule-of-law scholars like Fallon that no one is above the law and that government actors must know that they will be held accountable for their misuses of office, yet Fallon seems to be advocating for free-form judicial policymaking as to when there is and when there is not accountability for the government’s infringement of individual rights.
I will take these points in order. Fallon must mean by “constitutional torts” a particular conceptualization of Bivens and 1983 actions that has attracted significant scholarly attention in recent years – roughly speaking, an overlap of the views defended by James Pfander and William Baude (respectively) in recent articles. Pfander points to a broad period in American legal history when it was widely understood that government actors are straightforwardly liable in their individual capacity for torts they commit against private citizens, unless what they did was in fact proper under the Constitution. On this view, constitutional torts are just common law torts (like trespass or battery or negligence), committed by governmental actors. Pfander and others have sharply criticized the Supreme Court of the past quarter century not only for eviscerating liability in Bivens and 1983 more generally, but also for undercutting this common law conception of what a constitutional tort claim really is. Fallon is with them on the first point, but not on the second. He thinks the Court is closer to having the right conception of constitutional torts than Pfander or others. For any number of reasons he elaborates in the paper, he believes that the common law conception cannot really work. That is why he wants to bid it farewell. It would have been less catchy but more perspicuous if he had named the article “Bidding Farewell to the common law conception of constitutional torts,” or, more precisely, “Bidding Farewell to the Nineteenth Century common law conception of constitutional torts.”
For scholars like myself and my collaborator John Goldberg (Fallon’s colleague), it is ironic that Fallon contrasts common law tort thinking with pluralistic and instrumentalist reasoning that takes seriously compensation, deterrence, and social costs. That is what a great deal of common law thinking has been since roughly 1960s when William Prosser was the country’s preeminent tort scholar and the California Supreme Court became the nation’s leading expositor of tort law. Fallon seems to be under the impression – perhaps from recent constitutional tort commentators like Pfander, Baude, and Wells – that common law torts is widely understood as a rights-based, non-instrumentalist domain of legal reasoning. For better or worse, neither courts nor the majority of law professors look at common law torts this way today. Indeed, the pragmatic instrumentalist mindset Fallon ultimately prescribes to courts for thinking about Bivens and 1983 is quite close to the way most law professors think about common law torts today.
The most striking feature of Fallon’s article is his willingness to say that the social costs of providing redress to individuals whose constitutional rights were violated will sometimes count as a decisive reason to decline to hold those state actors accountable. This is one of the reasons he believes official immunity of various forms must be maintained. And it is the principal reason he rejects the outright attack on the results reached by the Roberts’ Court in constitutional tort cases. On the face of it, this recognition of costs defeating rights – put forward not simply as a law professor telling a hard truth but as an approval of judicial cautiousness in recognizing rights of action – is at odds with a strong commitment to the rule of law in its classic, Diceyan form, and, relatedly, to a Dworkinian conception of rights as trumps.
Ironies have two sides, of course, and my own principal takeaway is that Fallon, in the end, is a great advocate for further elaboration of constitutional rights and rights of action. Indeed, I commend this article because, in its deliberately down-to-earth quality, it both educates torts professors as to where we are in this complex field and indicates the availability of many middle paths in these times of extremism. Coming from a leading figure in constitutional law and theory, this is a lot to ask for, and we get it.
My problem, of course is more in marketing than in substance. Why did Fallon have to pitch the discussion as a critique of rights, when he is indeed a rights-based thinker? It appears to me that Fallon has fallen into the trap that also caught Prosser and mid-Twentieth Century common law scholars. They believed there were two choices in the judicial crafting of doctrine – ‘traditional’ common law, which (in their minds) carried with it an inherent bent toward laissez faire, or a flexible form of instrumentalism that would allow for progressive law reform. In response to the worry that, even today, contemporary advocates of a common-law approach are intentionally or unintentionally arguing for the restoration of a narrow, classical liberal conception of government, Fallon advocates for instrumentalism. As John Goldberg and I have argued, however, it is fallacious to align common law with laissez-faire and instrumentalism with progressivism – these were merely contingent associations characteristic of a certain phase of our history. Fallon is on solid ground when he rejects rights-based formalism for constitutional torts, but a rights-sensitive form of pragmatism will be needed if we are serious about preserving government accountability and the rule of law.
Ori J. Herstein, Nobody’s Perfect: Moral Responsibility in Negligence, Canadian Journal of Law & Jurisprudence, Vol. XXXII, No.1 (Feb. 2019), Pp. 109-125.
The sad story of Menlove, the defendant in the English case Vaughn v. Menlove is well known to all first-year torts students. Menlove was born, according to his lawyer, with the “misfortune of not possessing the highest order of intelligence,” and, as a result did something quite imprudent with flammable material that no person of average or typical intelligence (or judgment) would have done, resulting in a fire that damaged the plaintiff, his neighbor.
Menlove’s defense on appeal was that he had acted “to the best of his judgment,” and it was unfair to call him a wrongdoer, given that he had acted prudently, given the cognitive and behavioral handicaps under which he operated. Of course, his defense was rejected and, as Holmes said memorably in The Common Law, while “the courts of Heaven” might forgive Menlove, the common law courts would not, since “his neighbors . . . require him . . . to come up to their standard,” not his. This is what is now known as the reasonable person standard, which holds that negligence in the law is measured against an objective standard of care under the relevant circumstances.
Ori Herstein offers a nuanced defense for why the court of Heaven would be right to hold Menlove harmless. Herstein’s argument is worth the attention of torts scholars because it indirectly strengthens the objective standard and Holmes’ approach, although it also makes more complicated the Restatement Third’s further embrace of the idea that “if an actor has skills or knowledge that exceed those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful person.”
Herstein begins with the classic question of why the pejorative “fault” is even attributed to unintentional injurious conduct. For intentional conduct, the action fulfills the actor’s subjective purpose, and hence is easily attributable to the will of the “witting actor”. But “all negligence is unwitting” since it produces a result at variance with the actor’s purpose. More specifically, it is not so much that the result is at variance with one’s purpose, since that can be true of intentional acts that go awry. Negligence occurs when one’s conduct is at variance with one’s purpose, and one’s purpose was to perform the act in a conformity with a standard of care drawn either from an external source or from one’s picture of what conduct is desirable. (Pp. 4 – 6.)
Herstein argues that the commonsense argument that fault is attributable whenever an actor had the capacity to cause her conduct to meet the purpose she desired is too harsh, and fails because is unfair to fault someone for failing to succeed at something where success depended on factors outside their agency. Herstein notes that it obviously would be unjust to find fault with an actor whose purpose – to act in a way that everyone agrees is careful – was thwarted by external conditions that the actor could not know about. (P. 7.) For the same reason, argues Herstein, it would be unfair to find fault with an actor whose purpose – to act in a way that everyone agrees is careful – was thwarted by internal conditions “regarding the actor herself,” as in Menlove. (P. 7.) Herstein offer the following illustration of an internal condition which is not attributable to the actor – a doctor, never trained in a certain type of diagnosis, is no more responsible for missing a disease than a doctor trained in the right kind of diagnosis treating a patient whose symptoms have not yet presented. (P. 7). Where an actor’s purpose is frustrated by external and internal conditions, her agency is frustrated and she cannot be held blameworthy or morally responsible.
Herstein’s argument for the blamelessness of the internally frustrated but diligent actor is crucial to his argument. He makes the following point. In an activity that is hard to do, we evaluate an actor’s performance of the activity based on a baseline of competency. (P. 9.) His example is playing basketball. For someone who is competent at basketball, certain actions are part of the basic repertoire of actions that anyone who plays basketball knows how to do. For example, the “lay-up” is a basic shot that every competent basketball player knows how to do. It can be done competently or incompetently, and given the vagaries of external conditions, not every layup attempt will be successful, even if competently done. But, when a competent basketball player fails at a layup, it makes sense to find fault with the player’s actions, even if she intended to make a competent layup, if, in retrospect the layup she executed failed to meet the minimum standard of conduct that constitutes competent play. (P. 9)
One the other hand, were I to attempt a layup, I would almost certainly fail, in terms of success (the ball would not go in the hoop) and action (my execution would fail to meet the minimum standard of conduct that constitutes competent play). That is because I played basketball a few times in my childhood and not once since then. Herstein would say that it would not be accurate to say that my layup is “faulty.” The fault label would be inapt because my failure to perform a competent layup was not a reflection of my agency but of my lack of competency. (P. 10.) My lack of prior training in basketball means that I cannot be evaluated as someone for whom the practice of “playing basketball” is “reliably, regularly, readily, and relatively easily, and confidently available to” me. I am capable of playing basketball as well as a competent basketball player, but my failure to perform a lay-up is not something for which I should be held responsible, because I am not competent at basketball. For Herstein, my failure to make a lay-up in an empty court under ideal conditions is no more my responsibility than were I blocked by a falling piece of the roof as I attempted the shot. Not so for a competent player – her failure to achieve something she is capable of doing is excused only if her shot was blocked by an external event – something like the falling piece of roof.
An important consequence of Herstein’s argument is that negligence is a result of two variables: competency and agency. Herstein offers the following observation. Two surgeons, Ed and Ned, may be equally competent – equally dexterous and equally trained with equal grades and board scores and equal years on practice – but instantiate different degrees of “quality of agency” in surgery. “Quality of agency” means “how good [Ed and Ned] are at meeting their individual competency of doctoring.” (P. 12.) In the hypothetical Herstein offers, Ed and Ned’s competency is ex hypothesi the same (let’s stipulate that is 1.0) but Ed is “better” at applying his 1.0 unit of competency every time he cuts into a patient – he’s not perfect, but he is close, so let’s stipulate that he performs the act competently 999 times out of 1000. Ned applies his 1.0 unit of competency less well, so let’s stipulate that he performs the act competently 980 times out of 1000. Despite being equally competent, Ed is an excellent surgeon – 1/10 of 1% error rate – while Ned is merely an average surgeon, with a 2% failure rate. (Pp. 11 – 12.)
According to Herstein, if on the same day, in neighboring operating rooms, Ed and Ned fail the same way, we would react differently to the news that they had failed. In Ned’s case, per standard medical malpractice doctrine, we would say that his failure was blameworthy. It is no defense to say that Ned tried his best, or that there is no such thing as perfect surgery. As Mark Grady observed, “when a surgeon forgets to count the sponges before she sews up a patient, she may not present a claim of innocent mistake to the jury” even if she can show that she took every precaution and had a good history of care. A deviation from the standard of care is attributed to Ned’s agency, and we fault him. But, curiously, according to Herstein, we should not fault Ed. Even if Ed is held legally liable (for the reasons Grady noted), we should not say that he is at fault. (“Ed is not responsible for his malpractice or, at least . . . he is far less responsible than Ned.”) (P. 14.) Why?
Herstein’s argues that the error – which is one in a thousand that will occur in Ed’s life – is not the result of his agency, but the result of his humanity. (P. 13.) To err is human, and so some errors must be a result of our humanity, not a part of our personality. Herstein puts it this way: “[I]n the case of negligence, responsibility grows the more the failure of one’s agency is due to shortcomings in one’s facility – as an individual agent – to live up to one’s competency.” This produces a series of curious results. For example, according to Herstein’s logic, although at least one of Ned’s patients will be harmed by an error for which he is not at fault (the same must be true of Ned as Ed – his humanity causes one error), we will blame him for that error too, since we have no way of distinguishing between the one error cause of Ned’s humanity and the none caused by his agency. That doesn’t seem fair.
Also, as Herstein observes, if we can distinguish between degrees of competency, then it may be the case that certain less-competent surgeons, even when they are as diligent as Ed, will be held blameless for all erroneous surgeries, despite Ned being blamed for all of his. Imagine Meg, whose competency is 10% less than Ed and Ned’s (perhaps she comes from a less – advantaged medical community, or is just a little more “hasty and awkward”, etc.) – but she compensates for this by being as diligent as Ed. So, she comes to each surgery with less competency than Ed and Ned and, because of her Ed-like ability to make the most of her reduced competency, she performs the surgical act competently 980 times out of 1000. According to Herstein, it makes sense to blame Meg for zero errors, even though we would blame Ed for twenty. (P. 22.)
Tort theorists should pay attention to Herstein’s argument for two reasons. First, regardless of whether it is ultimately persuasive, it illustrates the wisdom of the reasonable person test and the rejection of Menlove’s defense. Herstein concedes in a footnote that “legal negligence is not conditioned on competency,” (P. 7, n. 9.) but I think he understates the degree to which the objective standard endorsed by Holmes rejects not only competency but what Herstein calls agency. Both, after all, are variables that must be weighed in the moral judgment of negligence. Chief Judge Tindal, who ruled against Menlove, anticipated the practical difficulty of processing a defense based on these two variables. He noted that it would be impossible for a jury to make a judgment about fault if the question was whether “the Defendant had acted honestly and bona fide to the best of his own judgment”. The reference to “honest and bona fide” action recalls Herstein’s concept of agency and the reference to “the best of his own judgment” recalls Herstein’s concept of competency.
Second, as my observations about Ned’s situation relative to Ed and Meg illustrate, the argument for the objective standard is not just practical (although that may be sufficient). While Herstein concedes that conventional tort law would hold Ed, Ned, and Meg liable for each of their medical misadventures, the logic of his argument entails that if the legal system could ascertain, from a “God’s Eye” vantage point, the facts as Herstein asserted them in his hypotheticals, the rationale for holding Ed and Meg liable sound in strict liability, but in negligence for Ned (in 19 out of 20 of his misadventures). Herstein’s logic entails that holding Ed and Meg responsible for their misadventures is like blaming a competent basketball player for failing to complete a lay-up because a piece of the roof fell onto the ball in flight. A troubling by-product of Herstein’s theory is that it forces tort law to embrace a theory of liability in cases like Ed and Meg’s that, both rhetorically and normatively, goes further than necessary.
It is not clear why Ned is more blameworthy than either Ed or Meg. The implication is that Ned’s conduct instantiates a normatively significant fact that grounds personal responsibility (as opposed to Ed and Meg, whose failures merely implicates their “humanity”). But it is quite mysterious (a) what mental states correspond to the “quality of agency” to which Herstein refers and (b) why agency is normatively significant in a way that competency is not.
Herstein is emphatic that the “quality of agency” is not a subjective state in relation to the purpose of the actor – that is clear from the description, consistent throughout the article, of negligence as unwitting agency. (P. 16.) But the “quality” of agency also presents in differing degrees in different unwitting actors (Ed and Meg have more of it than Ned). The problem is not with Herstein’s claim that different actors produce similar outcomes for different reasons (although, as noted above, it may be very hard to discern the underlying cause of an identical error), the problem is that there seems to be little argument offered by Herstein as to why the different etiology of an error should matter. His one effort to explain why lower “quality of agency” is a ground for attributing fault is where he considers the objection that person’s “quality of agency” may be immutable, like their competency. His response:
Moreover, even if to an extent our capability to meet our competency is set at birth . . . ascribing responsibility to an individual person based on her agency’s innate shortcomings may still in some sense involve personal responsibility. Because responsibility here is attributed based on features that make one the individual person one is, rather than merely a member of a species. (P. 18.)
It is not clear in what way this is a justification. The argument could run in reverse – for the same reason that Herstein doesn’t think that attributing responsibility to Ed based just on his humanity is fair, neither should responsibility be attributed to Ned based on his innate “Ned-ness”.
Herstein’s analysis sheds light on a confusion suffered by Section 12 of Restatement (Third). Under the Restatement, Menloves are not treated more generously but the extra-competent are treated more harshly than the merely competent actor. Comment A of Section 12 says, “[O]n balance it is best to take persons’ actual knowledge and skills into account when the level of their knowledge or skills exceeds the average.” Under Herstein’s logic, the Restatement would be right to treat Ed more harshly than Ned were he fail to “meet” his above-average competency and produce (for the sake of argument) 10 misadventures out of 1000. Despite doing better than both Ned and Meg, Ed js, according to Herstein, either equally or more blameworthy then they. For the same reason I cannot accept Herstein’s differential treatment of Ed and Ned based on his agency analysis, I cannot accept Section 12’s reverse analysis—that we should depart from the objective standard adopted by negligence law after Menlove in order to impose more liability on the actor with greater competency because their agency was somehow lacking. Perhaps the inadvertent lesson from Herstein’s effort is that the objective standard should be preserved across the spectrum of competency in tort law—not more and not less.
Herstein’s article is not about tort law, but it is instructive for tort lawyers because it illustrates how not to justify why we impose liability on the Menloves of the world. Barring a declaration that all tort law is either intentional torts or strict liability, the answer to Menlove, or Ed, Ned, or Meg, of why they are deemed faulty has to do with their what is reasonable for others to endure. Herstein’s analysis shows why it is a fool’s errand to try and ground judgments about personal fault on counterfactual outcomes that rooted in a fixed aspect of the character of the defendant that went ‘awry’. The putative distinction Herstein draws between competency and agency is not only spurious, it is normatively banal, since, as Herstein is the first to admit, neither are sensitive to the conscious choices of the actor. To paraphrase Shakespeare, Herstein’s mistake is to think that when it comes to negligence, fault must lay either in “our stars” or in “ourselves” – but that false dichotomy leads to confusion, not understanding.