In this book, legal scholar and philosopher John Oberdiek offers an elegantly written, meticulously argued, and highly original account of when it is morally permissible to impose mortal risks on others. Tort scholars and theorists have long examined the permissibility of risky conduct, but, as Oberdiek observes, their efforts have usually focused more on interpreting legal doctrine than on the more fundamental question of the morality of risking. And insofar as scholars have evaluated this more fundamental question, they have often provided a simplistic and normatively questionable answer: cost-benefit analysis or utilitarian balancing is the only realistic and sensible way to distinguish legally permissible from legally impermissible risky conduct. This answer is also reflected in the most common characterization of the famous (or infamous) Learned Hand test of negligence: an actor is negligent if but only if (i) she failed to take a precaution and (ii) the burdens or costs of taking that precaution outweighed the precaution’s benefits (in reducing the risks of harm. At the same time, Oberdiek notes, moral philosophers have paid relatively little attention to the moral evaluation of risky conduct. in part because they usually assume the existence of idealized conditions under which the outcomes of a person’s actions are certain. Turning the trolley (or shoving a fat person into its path) will cause the death of one; not turning it will permit the death of five. Framing an innocent person will prevent a mob from killing more people. And so on.
In contrast with these unpersuasive or overly stylized approaches, Oberdiek’s book is a very welcome and invigorating breath of fresh air. Oberdiek offers a rigorous, nuanced, and novel account of the morality of risking, an account that seriously engages with the difficult challenge of explicating the concepts of risk, a right against risk, and the permissible level of risk under contractarian principles. Although some aspects of the analysis might be questioned, this philosophically sophisticated work should provoke renewed attention to a terribly important and unduly neglected topic.
Oberdiek begins with a lucid explanation of the two major accounts of probability—subjective and objective. The risk literature employs these terms in a specialized sense: subjective probability refers to the individual actor’s belief about a risk, while objective probability typically refers to the relative frequency of an event (such as D dying in a car accident next year). Oberdiek concludes that purely subjective accounts are “suitably practical but insufficiently normative,” because they cannot explain why we might fault an actor for engaging in what the actor believes to be low-risk conduct even though the actor failed to respond to evidence that the risk was high. By contrast, purely objective accounts are “suitably normative but insufficiently practical” (P. 4), largely because of the reference class problem.
The problem is this: One can specify the class that includes the relevant event in innumerable ways. If D is characterized as an American male, we get one probability of his dying in a car crash. If D is instead characterized as an Indiana-born actor, or a regular cigarette smoker, the probability of death could be significantly lower or higher. Many tort teachers and scholars will not be familiar with “the reference class problem” under that description, but they will be well acquainted with the problem itself, a problem that has long bedeviled reasonable foresight criteria in duty and proximate cause analysis. “On a clear day, you can foresee forever.” It might seem unforeseeable (i.e. extremely improbable) that a person on a subway platform will be injured as a result of a subway employee pushing a passenger onto a subway car a significant distance away, but it is surely foreseeable that pushing a person carrying dynamite onto a subway car will injure any person within the normal detonation range of such an explosive. How one characterizes the relevant risk makes an enormous difference both to the “objective probability” of an event and to the foreseeability of a risk. Thus, the objective risk approach suffers from the fatal defect of practical indeterminacy.
The solution? In a phrase, “epistemic contractualism.” (P. 40.) “[W]e have an epistemically-inflected moral duty to characterize the risks that we impose in a manner that is interpersonally justifiable. Morality itself…places normative pressure on our factual beliefs.” (P. 42.) Oberdiek endorses an “evidence-relative perspective” that characterizes risks in a way that is neither too demanding of agents imposing risk nor (as the subjective belief perspective would be) insufficiently demanding of agents and insufficiently protective of “patients” (or victims). To give content to this idea, Oberdiek brings to the stage that hoary legal construct, the reasonable person. One has a moral duty to exercise reasonable care in investigating causally relevant facts before acting; but because moral norms are action-guiding, this duty must be sensitive to our limited epistemic capacities. In the course of this discussion, Oberdiek powerfully and persuasively criticizes the view of philosopher Judith Jarvis Thompson that the actual facts (determined ex post) must be the decisive criterion of one’s moral duty.
I share Oberdiek’s view that a reasonable person perspective is a persuasive middle-ground between a fact-based and a belief-based account of permissible risk-imposition. Nevertheless, his account raises several questions. First, in articulating the content of the perspective, Oberdiek asserts that “risks must be given their gravest characterization” (P. 7), in order to be justifiable to potential victims. Yet it is not clear what this amounts to. Oberdiek’s illustrations here could be more illuminating. For example, he says that proper respect for the interests of coal miners in West Virginia requires consideration of the risks that such coal miners face in the mines, not the (lower) risks faced by anyone living in coal country. (P. 62.) Fair enough. But should we consider the (higher) risks faced by inattentive coal miners? Coal miners with preexisting health conditions? Coal miners who choose not to use safety equipment? His injunction to employ the “gravest” characterization of the relevant risk does not resolve these questions.
Second, that injunction also begs the more fundamental question whether one can reliably and legitimately draw a distinction between “patients” (or victims) who suffer risks and agents who impose them. In many of our activities, such as driving a car or even walking down the street, we occupy both roles. To be sure, some people are pedestrians but never drivers. In such a case, perhaps there is more force to Oberdiek’s claim that we must employ the “gravest” characterization of the risk, in order to make up for the fact that the nondriving pedestrian is the more vulnerable party. (P. 64.) In the end, however, these issues point to the importance of distributive justice constraints on risk, constraints that Oberdiek largely neglects in this book. If risks are reciprocal and benefits are widely shared, arguably it is unduly restrictive to condemn risk imposition as frequently as the patient-sensitive “grave” characterization would require.
Third, in emphasizing that norms about permissible risk are action-guiding, Oberdiek seems to presuppose a fault-based account. Yet he does not provide an argument for privileging fault-based responsibility over strict responsibility. In tort law, of course, many strict liability doctrines exist—e.g., abnormally dangerous activities, animals, vicarious liability, and manufacturing defects in products. In morality, too, some scholars have argued that responsibility is sometimes strict. Put differently, a strict liability norm can provide that an actor has a duty to compensate even if the norm does not entail that the actor’s primary conduct should have been different.
In Chapters 3 and 4, Oberdiek explores the moral significance of risking and what a right against risking would entail. The most common answer is straightforward: imposing risk is wrong because one could thereby cause physical harm (such as property damage or personal injury) or other material harms (such as fear of injury, a type of emotional harm; or disrupting the lives of those who choose to avoid the risk). And no one denies that people have a right not to suffer a material harm. Oberdiek abjures the obvious answer, however. He argues that even in cases of pure risk—cases in which none of these material harms comes to pass—a person has a right not to be subjected to an impermissible risk. Oberdiek also worries that the obvious answer conflates the distinct questions whether the agent is culpable and whether the act is impermissible or wrongful.
And why is pure risk imposition potentially wrongful? Not because the conduct might cause material harm, but because it can diminish the autonomy of those subject to the risk. For example, a drunk driver diminishes the autonomy of those he endangers, even if they are unaware that they are put at risk, because that dangerous conduct forecloses certain options that would otherwise be available to those who were endangered, thus narrowing their set of worthwhile opportunities. Imposing risk is like laying a trap: “the trap takes away the option, or more accurately renders unacceptable the exercise of the option, of stepping where the trap has been set.” (P. 86.)
This is a highly original and bracingly provocative claim. And in some circumstances, it is intuitively very attractive. Consider the following example from philosopher John Locke. A person wakes up in a room, has a conversation with another, and makes no effort to leave because he enjoys the conversation. As it turns out, he was locked in the room. Locke characterizes the actor’s decision to remain in the room as voluntary but also concludes that the actor was “not at liberty not to stay.” There is indeed an important sense in which an actor unaware of his lack of choice and content with his current circumstances may nevertheless lack a genuine choice.
However, the autonomy explanation of why pure risking can be wrongful also raises significant questions. First, Oberdiek’s analogy to the laying of traps seems problematic. Much of the force of the analogy flows from the high level of culpability of the “trapper.” One who lays a trap has the intention or purpose to limit the freedom of another, precluding their physical mobility by ensnaring them within the trap. But risky conduct can be impermissible even if it is not intended to limit the autonomy of others. A speeding driver might simply intend to arrive at her destination more quickly or to enjoy the feeling of wind flowing through her hair, but it hardly follows that the risk she imposes is therefore permissible. Oberdiek’s real concern is the effect of risky conduct on others’ options, not the intention of the actor. ((Consider two examples, in both of which P is unaware of the risk.
- X lays a trap in a particular location by which he intends to confine P, and there is a 10% chance that P will fall into the trap.
- Y builds a ditch that completely encircles P and that will cause the same degree and duration of confinement if P falls into it, and there is an 80% chance that P will fall into the ditch. Unlike X, Y is entirely unaware of P’s presence. (If Y had reasonably used his epistemic faculties, he would have investigated first and would have discovered P’s presence.)
On Oberdiek’s account of autonomy as a range of options, X has restricted P’s autonomy to a much lesser extent than Y, yet X is the one who has intentionally “laid a trap,” while Y has (merely) negligently built a ditch. Laying a trap is thus a somewhat misleading illustration of his theory.))
The trap example displays another potential problem with Oberdiek’s autonomy approach: the example illustrates a restriction of locational autonomy, yet Oberdiek is also properly concerned with restrictions of many other types of autonomy. The trap, once triggered, prevents a person from moving or relocating elsewhere, but Oberdiek is concerned with the permissibility of a broad array of risks, including those posed by drunk drivers and negligent manufacturers of products. How exactly do these risks constraint autonomy? By making it unsafe for the actor to pursue certain options, Oberdiek explains. If speeding driver A is weaving in and out of traffic, a nearby driver B’s freedom of safe movement has been significantly restricted, even if B is unaware of A, since a small turn of the wheel by B could have resulted in catastrophe.
Examples such as these raise the deeper question whether Oberdiek has successfully identified the problem in pure risk cases. Is the diminished scope of B’s choices really what is at stake in the speeding driver case, or instead the diminished ability of B to lead his or her life free of risks of material harm such as death or injury? Consider a different case. D negligently conducts surgery on patient P, and P is now at much greater risk of a sudden fatal heart attack. Oberdiek is correct about one way that D has constrained P’s freedom (even if P does not know about the risk): P cannot now engage in high-exertion exercise, smoking, or prodigious eating as safely as before. But is this really why P would be upset to discover, on his deathbed, that D had greatly increased his risk of suffering a heart attack?
Or imagine a more extreme case: a surgeon accidentally leaves a sponge in a patient; the sponge could cause deadly internal bleeding at any time, but no individual choices the patient makes in later life will increase the risk of that fatal result. In one sense, this conduct surely must count as a dramatic restriction of P’s “autonomy,” just in light of the risk that the patient will die and lose the ability to make any future choices. But the conduct does not seem to restrict autonomy at all in the sense that Oberdiek emphasizes, of making the consequences of a person’s choices less safe.
In the final portions of the book, Oberdiek offers an intriguing account of rights as the conclusion rather than the premises of normative arguments; rejects the distinction between infringing and violating rights; and explains how he would identify which risks are permissible and which are impermissible. The discussion of the last topic is tantalizing but incomplete. Relying on a contractualist framework, Oberdiek argues that a risk is permissible if no person, considering the intrapersonal benefits and disadvantages of a risky activity, could reasonably reject the principle that justifies that activity. This approach is illuminating, but I do wish that Oberdiek had been more specific in identifying the threshold of permissibility—for example, he could have more explicitly compared his approach to different conceptions of negligence in tort law.
Oberdiek recognizes that his approach might appear to be too restrictive of risky human activity. In reply, he suggests that in assessing the justifiability of specific instances of risky conduct, we must consider the implications of this assessment for “any activity with the same risk profile.” (P. 13.) On this wider view, “even those who do not participate in or reap the benefits of certain risky practices nevertheless do participate in and reap the benefits from imposing risk as such.” (Id.) Thus, even if Amish farmers reject modern transportation, they probably do not reject, and could not reasonably reject, the more general principle that activities with similar benefits and risks are acceptable or desirable. This reply is promising, but it does provoke a worry. In generalizing in this manner, is Oberdiek surreptitiously reintroducing an interpersonal aggregation criterion that he elsewhere critiques?
Let me conclude by emphasizing that this book is a creative, thought-provoking, carefully argued, and immensely clarifying analysis of the morality of risking. Tort theorists, moral philosophers interested in risk, and tort scholars engaged by reasonableness and negligence doctrines will learn a great deal from Oberdiek’s arguments, whether or not they find all of the arguments fully persuasive.
Kenneth S. Abraham and Robert L. Rabin, Automated Vehicles and Manufacturer Responsibility for Accidents: A New Legal Regime for a New Era
, 105 Va. L. Rev.
__ (forthcoming 2019), available at SLS
Now that self-driving vehicles roam the roads and have already caused injury and death, many talented torts scholars are reviewing the role of tort law as a regulator of this new technology and as an insurer of its victims. In their recent article, Automated Vehicles and Manufacturer Responsibility for Accidents: A New Legal Regime for a New Era, the formidable duo of Ken Abraham and Robert Rabin join the inquiry. Abraham and Rabin write, “The new era of automated vehicles will eventually require a new legal regime that properly fits the radical new world of auto accidents.”
Having laid down this challenge—to fit a new legal regime to a new technological era—Abraham and Rabin assess both the anticipated challenges of self-driving vehicles and the appropriate tort law responses to them. The authors expect automobiles to evolve through a number of stages, beginning with vehicles that are driver controlled, progressing to vehicles that are machine-assisted, then transitioning to vehicles that are machine-controlled but driver-assisted, and culminating in vehicles that are fully machine-controlled. Abraham and Rabin welcome this evolution. They believe that “[a]ccident rates will decline precipitously, by some estimates as much as 80-90 percent.” (P. 2.) Yet they also believe that the transition to automated technology will be “long and uneven.” Abraham and Rabin foresee periods in which varied vehicles will coexist on the roadway—much as the horse and buggy ultimately, but not immediately, gave way to the automobile.
To regulate this mixed environment, Abraham and Rabin propose plans for the short term and the long term. For the near future, when conventional vehicles predominate, Abraham and Rabin would retain the current “driver-focused” tort liability regime alongside regulation of automated technologies. As the authors explain, driver-focused negligence liability accords with the profile of current accidents, which involve frequent driver errors. Also, individualized insurance underwriting comports with a driving context in which drivers are more or less careful. Regulating automated technologies under current systems is a more difficult matter. Abraham and Rabin are pessimistic about the adequacy of regulation by the National Highway Transportation Safety Agency. Their plea is for the agency to set up ex ante performance standards to guide innovation and ex post oversight of design miscalculations. They also examine the potential for, and pitfalls of, products liability claims in cases of automation defects.
For the long run, once highly automated vehicles comprise 25% of the fleet, they would adopt a system of “’Manufacturer Enterprise Responsibility’ (MER).” (P. 17.) This system entails “auto manufacturer responsibility for all injuries arising out of the operation of HAVs (highly automated vehicles).” (P. 5.) The system would be “a manufacturer-financed, strict responsibility bodily-injury compensation system, administered by a fund created through assessments and levied on HAV manufacturers.” (P. 21.) For this system, physical harm to victims would trigger liability, without need for proof of vehicle defect.
The argument for an enterprise responsibility system stems from the authors’ belief that this system will more effectively promote safety and provide consistent and predictable compensation for injuries. With less driving by individuals, there is less reason to impose liability on individuals or underwrite insurance on an individualized basis. (P. 8.) The MER system would place liability for harm with the manufacturer, the entity that seems most capable of preventing harm. Much of the article is then focused on adopting and activating an enterprise liability system.
The strength of the Abraham and Rabin piece is its practicality. They outline the virtues of an enterprise liability system—it would be more predictable for manufacturers and more even-handed for injured parties. They draw parallels to other systems such as workers compensation and long-term disability. And they examine how the manufacturer-focused system might work in practice—through contracts with parts suppliers and caps on damages, for example. Abraham and Rabin also forthrightly address potential weaknesses of their plan. For example, enterprise liability could increase the cost of highly automated vehicles and make them more expensive to produce, even though their better safety profile would suggest encouraging rather than discouraging manufacturers to produce them. Here, Abraham and Rabin suggest government subsidies to offset the manufacturers’ increased liability costs.
The plan is thoughtful and one that policymakers would do well to engage. Enterprise liability is worthy of consideration in this area, as it has been in others. But what is perhaps most striking about the plan is how much the recommended new legal regime resembles suggestions for the old one. Indeed, the advent of highly automated vehicles seems to have little influence on the proposed legal system at all. In Professor Rabin’s 1996 article, Some Thoughts on the Ideology of Enterprise Liability, he begins with George Priest’s “core definition of enterprise liability in the context of product-related injuries.” In particular, “the twin notion that an enterprise should bear the risks of accidents it produces because (1) an enterprise has superior risk-spreading capacity compared to victims who would otherwise bear the costs of accidents, and (2) an enterprise is generally better placed to respond to the safety incentives created by liability rules than is the party suffering harm.” Abraham and Rabin’s proposal applies existing ideas of enterprise liability to a new context. This idea is sound and adaptive, but far from disruptive.
A disruptive system may not be needed. Existing theories of enterprise liability may be well suited to HAVs, like other products. The law of the HAV, like the law of the horse, may not need to be written. A difficulty with manufacturer enterprise liability seems to be a difficulty with enterprise liability in general. HAVs seem like many products—one of multiple causes of accidents. Current auto accidents are caused by a combination of driver failure, vehicle design, and driving context, particularly road design. After the shift to HAVs, even if driver error can be completely eliminated from the accident equation, driving context will likely remain as important, if not more important a factor in traffic accidents.
Even after automation, ordinary contextual elements like rain and snow can play a role in crashes. After automation, newer contextual elements may play a role as well. Through vehicle-to-vehicle communication, the function of nearby vehicles and roadway networks may become a particularly important determinant of accidents. Network design, and even events like theft of valuable metals from smart roadways can interfere with car safety. If highly automated vehicles are one factor among others in roadway crashes, in this context, as in others, scholars will need to make the case for the efficacy and fairness of enterprise liability more broadly. In the HAV context, as in other enterprise liability contexts, scholars will have to wrestle with the difficult question of when an accident should be attributed to an automated vehicle rather than weather, road design, or other factors.
Another possibility, is that this transformative technology really will warrant a completely new legal regime. As we enter an era of HAV’s and more sophisticated technology, perhaps those technologies themselves might be designed to better regulate accidents or compensate injured parties. HAVs could be required to record and transmit automated records of accident or near-accident data and update federal regulatory performance standards directly or pay fines per design miscalculation (running a red light, for example), rather than per injury. Imagine disputes settled through crowdsourcing.
It may be that the more things change the more they stay the same, and that new technologies can be regulated with existing ideas. But it may also be that we will not fully envision the new legal regime that best fits radical new technologies until those technologies are not just roaming the streets, but embedded in the streets themselves.
Scott Skinner-Thompson, Privacy’s Double Standards
, 93 Wash. L. Rev.
, (forthcoming), available on SSRN
In an age of growing income inequality and daily reminders of the privileged lives led by the rich and famous, it should come as no surprise that tort law might come to mimic the glaring disparities in the larger culture. The thesis of Scott Skinner-Thompson’s new article is that the courts have done just that in adjudicating privacy claims for the tort of public disclosure of private facts. Specifically, Skinner-Thompson argues that in applying the black letter law, courts have systematically favored privileged plaintiffs (often celebrities) without showing a similar regard for ordinary individuals, particularly plaintiffs from marginalized communities.
The article is rich in examples of disparate results linked to the identity of the plaintiff. There is the case of the gay man who loses his public disclosure lawsuit, despite being “outed” by the pastor of his church to other church members and a future in-law. Yet Hulk Hogan, the professional wrestler and reality show star, known for boasting about his sex life, wins a multi-million judgment when Gawker posts a sex tape of one of his sexual encounters. No recovery for a teenage victim of revenge porn when a website publishes a nude photo of the plaintiff she had privately sent to her boyfriend, but a sizable recovery for professional football player resulting from a tweet of his medical records indicating that he had to have a finger amputated. And on and on.
Skinner-Thompson’s impression of a double standard favoring the privileged and the famous is backed up by his persuasive empirical study of published public disclosure cases decided in the last decade (2006-2016). (P. 15.) His study of dispositive motions in 150 such cases reveals that a plaintiff’s privacy claim survived only 31 times (or roughly 20%), a notable statistic that demonstrates that “while privacy torts are not dead yet, they are on life support.” (P. 47.) Against this unfavorable backdrop, Skinner-Thompson concludes that “privacy doctrine often is applied in such a way that it is having a disparate negative impact on certain marginalized populations, and, in some instances, there is also evidence of disparate treatment.” (P. 6.)
Most significantly for purposes of his doctrinal analysis, Skinner-Thompson finds that most of the dismissals (61%) are traceable to two black letter requirements which he argues amount to a double standard in the operation of this tort: (1) proof that the defendant widely publicized the private information and (2) proof that the plaintiff held the information completely private or secret. As he reads the cases, courts are willing to relax the requirements in cases involving prominent people and celebrities, but apply them stringently in cases involving ordinary or marginalized plaintiffs. Thus, the outed gay man loses his case because the pastor’s disclosure is too limited to constitute “publicity” and the revenge porn victim’s claim fails because she shared her nude image with her boyfriend and did not keep it completely secret. However, in Hulk Hogan’s case, the court allows the claim to go to the jury, even though the plaintiff publicly revealed details about his sexual exploits and “stills” from the offending video had already been posted by a third party.
In addition to unearthing compelling stories from the cases and tracing the negative effects of the two requirements, Skinner-Thompson makes a normative and structural argument for providing more privacy protection for marginalized plaintiffs whose cases get swept away in the non-privileged pile unlikely to go to trial. Drawing on part of his prior work, he argues that “privacy rights are particularly important for marginalized communities,” who are disproportionately the object of surveillance and who are often unable to “absorb the social and economic costs that flow from the exposure of sensitive information.” (P. 3.) He also views privacy rights as serving as a “liminal or transitional right” until such time as the group, for example LGBT plaintiffs, “gain both formal anti-discrimination protection and lived equality.” Finally, Skinner-Thompson observes that for many living on the margins of society, keeping information completely secret may be a “practical impossibility,” given that sharing stigmatized information (such as medical information or sexual orientation) may be “necessary to mental health and identity exploration/play.” (P. 20.) For Skinner-Thompson, the teenage revenge porn plaintiff should have the right to expect her ex-boyfriend not to post compromising pictures of her in order to allow teenage girls to explore their sexuality without being publicly exposed.
Quite rightly, Skinner-Thompson criticizes the disparate pattern of recovery in public disclosure cases as contrary to what we should expect to see in this area of the law in which celebrities and public figures are supposed to receive fewer privacy rights because of the newsworthiness of their lives and their greater capacity to fight back in the press and other channels. He then uses the courts’ disparate application of the two requirements to make a broader theoretical point. He maintains that the courts’ uneven application of privacy rights is unsupportable because it violates a fundamental tenet of a body of common law, such as tort law, i.e., that like cases should be treated alike and that purportedly universal principles should apply to everyone.
To rectify what he sees as the “built-in inequality” in the requirements of the public disclosure tort, Skinner-Thompson urges the courts to take a page from constitutional law, particularly the equality guarantee of the equal protection clause. When Skinner-Thompson argues for importing constitutional principles into tort law, he makes it clear that he is not suggesting that plaintiffs mount a constitutional attack on the disclosure tort, similar to the successful cut back on defamation and privacy claims made in the name of the First Amendment since New York Times v. Sullivan. Instead, what he has in mind is using constitutional equality norms as “substantive guideposts as judges craft the common law of privacy torts.” (P. 4.) Using constitutional equality norms to shape tort law, he argues, will provide the “doctrinal foothold justifying reform” and offer courts a solid reason for expanding the “flimsy protections” of the disclosure tort.
Although Skinner-Thompson’s call for infusing constitutional principles into tort law is not novel, his analysis of the possible sources courts may look to for guidance is the most thorough I have encountered in the literature. He begins his argument by noting that courts have already allowed the federal constitution to shape the contours of tort law in a number of contexts. His argument re-positions New York Times v. Sullivan and its progeny as cases that actively reshaped the common law doctrine of privacy and defamation law, not simply as First Amendment attacks on state law. More importantly, Skinner-Thompson sees no warrant for limiting importation of constitutional principles to the First Amendment, citing the punitive damages cases that have relied on the due process clause to re-shape the remedial law of torts.
In a novel and creative part of the article, Skinner-Thompson argues that courts should look to the equality guarantees of state constitutions to influence the substance of privacy torts. He notes that many state equal protection clauses are more expansive than the federal constitutional guarantee, providing explicit protection to additional protected classes and dispensing with the state action requirement. Influenced by Helen Hirshkoff’s work on state common law, Skinner-Thompson asserts that there is evidence that state constitutional provisions “indirectly influence the substance of common law causes of action.” (P. 33.) In this way, constitutional norms, including equality norms, are “infused into the common law through ‘private law portals,’” as evidenced by cases in which state courts have held private employers accountable for employment discrimination, even when the employers were exempt from state statutory anti-discrimination provisions. (P. 34.) His analysis suggests that by grounding reforms in state constitutional norms and principles, common law courts can go beyond vague and open-ended appeals to “public policy.” This interplay between state constitutional norms and tort law seems natural and appropriate to Skinner-Thompson because “common law torts, after all, are a creature of state law.” (P. 33.)
In the end, Skinner-Thompson advocates for a contextual approach to the disclosure tort that would comply with constitutional equality principles by ensuring that “individuals in marginalized communities are able to bring claims on the same terms as privileged individuals.” (P. 41.) His solution is to “level up” by relaxing the widespread publicity and complete secrecy requirements for all plaintiffs, not just for the privileged few. Once the strict requirements are relaxed, he hopes that judges will be freed up to consider the specific facts of the case, such as the degree of harm caused by even a limited disclosure of sensitive information and the reasonableness of a plaintiff’s failure to keep the information completely secret. Presumably, such a reform would have the effect of taking the disclosure tort off life support by sending more cases to the jury.
Privacy’s Double Standards is the kind of article that speaks to torts scholars of different stripes. For the more doctrinal, Restatement-type scholars, Skinner-Thompson’s empirical study of the public disclosure tort is highly informative, indicating that the tort is under pressure and has taken a perverse turn, no longer serving its function of ensuring the privacy of intimate and sensitive matters except in cases in which disclosure is warranted by the newsworthiness of the plaintiff or the information. For critical torts scholars who hope to see tort law used to promote social equality and social justice, Skinner-Thompson’s article takes us in a new direction. He searches not only for gender, race, and other identity-based biases in the deep structures of the common law, but also for indications that the law as it operates on the ground offers redress mainly to the privileged, even if the black letter doctrine is stated in neutral and universal terms.
To be sure, many will not agree with Skinner-Thompson’s proposals for reform. Unless you share the normative view that privacy is good for everyone and particularly precious for marginalized people, you may just use the results of Skinner-Thompson’s empirical study to argue that courts should “level down” and apply the stringent requirements in every case without exception. At a minimum, however, his article should stimulate a re-examination of the value of the disclosure tort and prevent it from withering away without anybody noticing.
In ‘Causation and Opportunity in Tort’, Emmanuel Voyiakis offers a thought-provoking analysis of some of the field’s classic causation problems. His focus is upon situations where the crux of the causal difficulty is epistemic – for some reason or other, we don’t have enough evidence to attribute causality of a particular claimant’s damage to a particular defendant’s conduct according to the civil standard of proof.
To understand Voyiakis’ approach, it’ll be useful to consider his analysis of a case and contrast it with that of some other prominent theoretical frameworks. Consider, then, the decision of the House of Lords in Fairchild v Glenhaven Funeral Services Ltd  1 AC 32. In Fairchild, D1, D2, D3, C’s employers, each successively, but independently, expose C negligently to asbestos dust. C contracts mesothelioma, an asbestos-induced cancer, but cannot prove on the balance of probabilities (more likely than not) which of D1, D2, D3 (or which combination) was a cause of C’s cancer. Scientific understanding of the aetiology of mesothelioma does not allow us to say whose exposure causally contributed to the mesothelioma. Applying the orthodox balance of probabilities approach, C will be unable to establish liability against any defendant, the probability of causation against each being only 1/3. The House of Lords, nonetheless, held each defendant liable in full.
The finding of liability in a case like Fairchild is not terribly difficult for those who believe that it is morally permissible to use tort law to achieve optimal deterrence. In situations where defendants can predict that claimants will be unable to attribute causation to defendants’ careless conduct, as in Fairchild, without the potential for liability, defendants would have no tort-law-given self-interested incentive to take reasonable care. For the optimal deterrence theorist, the question is then largely a technical one as to whether incentives to take proper care in situations of predictable causal uncertainty are best restored through a reversal of the burden of proof, liability in proportion to the probability of causation, or a liability rule based simply upon wrongful increase in risk.
But those who are not hard-nosed consequentialists tend to find these cases difficult. The reason is simple: the dominant non-consequentialist approach to tort liability insists that a defendant’s liability to compensate is grounded in that defendant’s violation of the claimant’s rights. On the facts of Fairchild, the claimant was unable to establish against any particular defendant that that defendant violated his rights (or at least, not his right not to be negligently harmed).
And yet there is a powerful intuition that it would be unjust to reject the claimant’s claim for compensation against the defendants entirely in cases like Fairchild. Rights-based theorists typically go to some lengths to show that their accounts can deliver such intuitive results in structurally similar cases of causal uncertainty. Thus Ernest Weinrib argues that Summers v Tice, 33 Cal 2d 80 (1948), where two negligent hunters fired simultaneously in the direction of the plaintiff, one bullet causing his primary injury, is correctly decided as a matter of corrective justice. By preventing the claim being established against the other defendant each defendant wrongfully injured either the plaintiff’s bodily integrity, or the plaintiff’s remedial right to his bodily integrity. ,. Therefore, both defendants wrongfully violated the plaintiff’s right to bodily integrity. This approach depends upon a controversial assimilation of the right to bodily integrity and the remedial right to compensation for invasion of that right.
Voyiakis is neither a hard-nosed consequentialist nor a hard-nosed rights theorist. Drawing on the work of HLA Hart and TM Scanlon, Voyiakis suggests that the central justificatory question for the imposition of a burden, tort liability included, is whether the burden flows from: ‘a principle that … allows those persons [subject to the burden] the opportunity to affect how things will go through their choices, and that opportunity is something that those persons have reason to value’ (P.31). For example, it may sometimes be justifiable for a person to bear a harm without compensation if they were provided with a perfectly adequate warning which gave them a valuable opportunity to avoid incurring the harm. He dubs this the ‘value-of-choice’ account. This idea, Voyiakis argues, explains the general rule that the burden of proof on causation is on the claimant: this burden can be justified to the claimant because the burden is contingent on the claimant having access to a valuable opportunity: civil recourse (P.35). By contrast, a general rule that the defendant had the burden of disproving causation would not be a burden that is contingent upon a valuable opportunity for defendants: generally, defendants do not have reason to value a change in the status quo.
Cases like Fairchild are ‘hard’ cases, according to Voyiakis, because the parties do not have reason to value the opportunity to establish the causal truth: the causal truth is impossible to obtain, even on a balance of probabilities. So the imposition of the burden of proof on the claimant in such cases cannot be justified on the ground that it affords the claimant this valuable opportunity: ‘A principle that required Fairchild claimants to prove causation on the balance of probabilities would not have put the outcome of the causal enquiry in the claimants’ hands in any way’ (P.37). The same is true of the defendants: the defendants also have no reason to value the opportunity to establish the causal truth in circumstances where it is impossible to do so.
But Voyiakis argues that the defendant is justifiably liable in Fairchild because it has a reason to value the opportunity to produce a situation where causation is impossible to prove. The defendant cannot reasonably object to an adverse finding on the causal issue where this finding is made contingent on the exercise of an opportunity that the defendant had reason to value. The defendant has a reason to value the opportunity to engage in an industry involving the use of asbestos dust, and set the conditions of safety for its employees, including the risks to which they are exposed. By contrast, from the claimant’s perspective, it is difficult to see the value in their having the ‘opportunity to decide whether or not to be exposed to the risk of harm of unclear aetiology’ (P.38). This line of reasoning would also generate liability in Summers v Tice, according to Voyiakis, because the members of a hunting party have reason to value how to co-ordinate their hunt, including the type of bullets used. But it would not generate liability in a Summers v Tice variant where the shots came from different hunting groups: here the imposition of liability could not justified as contingent upon the exercise of an opportunity to co-ordinate one’s conduct with hunt members (say, by using different bullets from each other). Hence, Voyiakis’ approach does not generate liability in every case where there is causal uncertainty. Indeed a central attraction of his view is that it does not wholly undermine the general rule that claimant bears the burden of proving causation.
I will make three comments. First, it is true that the defendants have reason to value the opportunity to expose their employees to risk and to set the terms of doing so (at least up to a point: defendants also have reason to value reliable authorities setting standards of safety), but do they have reason to value this because it creates a situation where causation is impossible to prove (cf p.39 where the idea that a person with asbestos expertise has reason to value the opportunity to work in the asbestos industry is rejected on the ground that the person does not value the opportunity for the reason that it creates causal uncertainty)? Certainly, defendants have a self-interested reason to value this opportunity where the general burden of proof applies: producing causal uncertainty will get them off the hook from tort liability. But it is not obvious that having this, morally valueless, opportunity to deprive others of the ability to enforce their rights is something that should play a normative role in determining the burden of proof (except in so far as we accept the deterrence arguments mentioned above).
Second, where the defendant is made liable without proof that they caused the claimant’s damage, upon what valuable opportunity is the imposition of this liability contingent? The opportunity to produce a situation of causal uncertainty was only valuable (as a matter of the defendant’s self-interest) where the law insists upon the general rule that proof of causation by the claimant is required. If the answer is that the defendant has reason to value the opportunity to engage in activities involving the exposure of employees to asbestos dust, this opportunity cannot be valuable for the reason that it allows the defendant to escape liability. The defendant does not escape liability. Perhaps the answer is that the defendant escapes moral responsibility for violating the claimant’s rights, but Voyiakis doesn’t go down this route. Or perhaps the idea that the opportunity must be valuable for the reason it allows the defendant to avoid responsibility should be dropped.
Third, the results reached by Voyiakis’ account may not be so different from those reached by Ernest Weinrib’s, at least once the latter’s analysis is extended. Voyiakis’ approach would find that the defendant is not liable in a hypothetical case where the employer provided employees with cheap and easy-to-use devices which detect when the employee was exposed to a risk of contracting cancer. In such circumstances, the absence of liability can be justified to the employee because he or she was provided with a valuable opportunity to provide causal proof. Here, by contrast, Weinrib could appeal to the idea that the invasion of the claimant’s remedial right, in such circumstances, is wholly the claimant’s own fault. On normal principles, this could lead to a break in the chain of causation between the defendant’s breach of duty and the invasion of the claimant’s remedial right.
These points notwithstanding, Voyiakis’ account seems to register, at a general level, a plausible intuition that rights-based accounts miss: this is the idea that, in distributing a compensatory burden, it is important to consider the value of a person’s opportunities to affect the incidence of that burden, even if these do not bear upon whether the person breached a duty. For those who think that the normative basis of liability in tort is not exhausted by rights-based considerations, nor considerations of optimal deterrence, the value of choice account offers an interesting alternative, or supplement, to these views.
Joanna C. Schwartz’s 2016 article, The Cost of Suing Business, comes out of the Clifford Symposium on Tort Law and Social Policy at DePaul University College of Law—an annual gathering now in its twenty-fourth year that, under Professor Stephan Landsman’s singular stewardship, has been the site of so much valuable inquiry.
In the article, Schwartz questions a narrative that has succeeded in both Congress and the Court: that “class actions are the most significant scourge on business ever conjured up by man.” (P. 655.) In her words:
In brief after brief to the U.S. Supreme Court, the Chamber of Commerce and other business amici tell the same story: Meritless class actions, filed by rapacious plaintiffs’ attorneys for the ostensible benefit of consumers, employees, and shareholders, are so devastatingly expensive to defend against, and threaten such financial devastation if plaintiffs prevail, that corporate defendants cannot help but accept “blackmail settlements” that harm both businesses’ bottom lines and society at large.
It’s certainly familiar. And it’s undeniably arresting. But is it true?
To find out, Schwartz follows in the tradition of civil justice scholars such as Ted Eisenberg, Marc Galanter, Deborah Hensler, and Bert Kritzer, who have long sought to use empirics to supply an “antidote to the anecdote”—and she works systematically. She breaks the Chamber’s narrative down into its distinct, but related, components—that, for example, class actions force blackmail settlements and impose catastrophic costs on corporate defendants—and, using what Galanter has called a “bricolage strategy,” she gathers what scattered data exist and methodically lays these facts alongside the Chamber’s claims.
For example, what of the notion that class action certification coerces defendants into settling even meritless claims? This idea, first articulated by Milton Handler, has captured judges’ imagination, fueled the Court’s embrace of arbitration, and even driven the Committee on Rules of Practice and Procedure to authorize interlocutory review. But does class certification strong-arm defendants into settling dubious claims? Answer: Not so much. The idea that class actions generate more coercive settlements than non-class action cases has been frequently studied—yet never confirmed. Indeed, available evidence undercuts the Chamber’s claims. Schwartz cites research, for example, showing that about thirty percent of class actions are dismissed or otherwise judicially resolved without a settlement or trial, and that “when courts grant class certification and deny motions to dismiss in class actions, defendants do not immediately settle to avoid discovery and trial (as one would expect if fears of blackmail settlements were well founded).” (P. 664.)
Another frequent gripe with class actions is that they impose “catastrophic” costs on business. But again, Schwartz holds that contention up to the light and finds that its truth is hardly self-evident. Class actions surely can trigger substantial cash transfers: Brian Fitzpatrick has found that, during 2006 and 2007, businesses paid a total of $33 billion in federal class action settlements alone. But when viewed from another perspective, that $33 billion seems far less significant: “the federal class action settlement amounts reported by Fitzpatrick amount to less than .2% of the $20.5 trillion in revenues earned by Fortune 500 companies during the same period.” (P. 666.) Further, Schwartz amasses evidence suggesting that “corporations likely spend as much—or more—suing each other than they do on class actions.” (Id.) Indeed, while current data do not allow for a comparison of the total judgments and settlements in class actions versus non-class, intra-business disputes, Schwartz highlights the astoundingly high costs of the latter. She also points out that, while enormous securities settlements draw outsized attention, plenty of class actions—consumer, employee benefits, and labor and employment cases, for example—involve relatively modest sums.
To be sure, in the course of this study, Schwartz faces the same problem that afflicts all scholars of the contemporary civil justice system: a stunning dearth of reliable data. Two decades ago, Michael Saks famously declared: “Much of what we think we know about the behavior of the tort litigation system is untrue, unknown, or unknowable.” Even beyond the four corners of tort law, that dismal conclusion remains more or less true today. Most of the action in the civil justice system (and the vast majority of tort law) occurs in the states, and state court data are remarkably spotty and incomplete. And, even when we think we have good statistics—of the annual number of federal civil trials, for example—it turns out that various gaps and holes confound clear conclusions.
But rather than being a weakness in Schwartz’s argument, this paucity of hard and reliable evidence is kind of her point. Schwartz’s ultimate contention is not that the empirical record proves the value of class actions. Instead, it’s a more nuanced claim that the current record doesn’t support those assertions currently being used to restrict those actions, or to limit access to the civil justice system more generally. She, in fact, returns us to the old adage, familiar to carpenters, home decorators, and school children alike: “Measure twice, cut once.” Unless and until we know what we’ve got, how it works, and how procedural tinkering will alter the status quo, we should be far less eager to nip and tuck—and far more disciplined in taking out the ruler and making clear and precise measurements.
Scott Hershovitz, Treating Wrongs as Wrongs: An Expressive Argument for Tort Law
, 10 J. Tort L.
1 (2017), available at SSRN
With clear examples, incisive and sweeping philosophical argumentation, and an engaging prosaic lilt, Scott Hershovitz writes about tort law the way his mentor Ronald Dworkin wrote about constitutional law. If this sounds like high praise, it is. Hershovitz’s Treating Wrongs as Wrongs: An Expressive Argument for Tort Law, 10 J. Tort L. 1 (2017) is a pleasure to read. Indeed, I regard Treating Wrongs as Wrongs as one of the most important torts articles published in many years. Its excellence of course motivates me to push hard against its central themes to see whether they stand up.
Hershovitz’s principal claim in this article is that “tort law is very much an expressive institution.” He explains what it means to say that an area of law is an expressive institution, why this is correctly said about tort law, what messages tort law expresses – “this person is entitled to be treated with dignity” and “the defendant wronged the plaintiff” – and why it is an important fact about tort law that it sends these messages.
The article concludes on two overtly normative observations – one practical and one theoretical. On the practical side, he suggests that tort reform measures are undermining the capacity of tort law to serve its important expressive function, and that such measures must therefore be squelched. On the theoretical side, he suggests that his expressivism is actually a form of corrective justice theory, and a better form than those that have been advanced by Ernest Weinrib and others, as descendants of Aristotelian corrective justice.
* * *
Criminal punishment is, for Hershovitz, the paradigm of an expressive institution. A central point (although not the only point) of incarcerating someone who has stabbed another person or swindled innocent investors is to send a message of condemnation. The state, on behalf of the public, is proclaiming that such behavior is disrespectful and unacceptable and the actor is to be recognized as deserving of negative judgment.
The imposition of tort liability is similar, but the message is somewhat different. Hershovitz presents the chestnut Alcorn v. Mitchell, in which a wealthy person spat on the lower-class plaintiff in order to express his contempt for him. The jury found for the plaintiff in his battery claim – the spit being the battery – and awarded him $2,000 in vindictive damages (reduced by the trial judge to $1,000). The point of the judgment entered against the defendant was to express or announce that the defendant had wronged the plaintiff. A finding of nominal damages or miniscule compensatory damages would not have done so; the significant financial award gives meaning to the court’s recognition of the wrong that was done. As in Anthony Sebok’s important 2007 article on punitive damages in the Iowa Law Review, Hershovitz links Jean Hampton and Jeffrie Murphy’s expressivist account of criminal punishment to punitive damages in tort law. Critically, the plaintiff’s verdict corrected the implicit message of the defendant that he was better than the plaintiff; it asserted the plaintiff’s equality and dignity.
Hershovitz defends his broader view that tort law is an expressive institution by adapting replies to standard objections to wrongs-based theories. One is the objection that, since many torts are not predicated on blameworthy conduct, it makes no sense to call torts “wrongs” and to see tort law as expressing the wrongfulness of the defendant’s conduct.
One particular example – Kresin v. Sears, Roebuck & Co. – captures both the power and the vulnerability of Hershovitz’s article. Seventy-three-year-old Rose Kresin was walking through a Sears parking lot when a Sears employee backed up a van and accidentally ran her over. Kresin lived, but suffered devastating injuries: she endured facial, rib, leg, and collarbone fractures, and a skull fracture that left her blind; she became permanently wheelchair bound and incontinent, and suffered numerous serious infections (including meningitis) during a two-month-long hospital stay after the accident. The jury found that the Sears employee, Alfredo Jijon, was negligent in backing up without looking behind him sufficiently, and the court entered a judgment against Sears for $16.5 million in compensatory damages – including compensation for past and future medical care and homecare, disfigurement, and pain and suffering. The appellate court affirmed.
Kresin is clearly not a case involving punitive damages, for the defendant employee’s conduct was neither willful nor wanton; it was simply negligent. Hershovitz agrees that this is a case of compensatory damages, but he plausibly rejects the idea that this is loss-shifting or indemnification or “making whole” in any satisfactorily clear sense. Compensatory damages may be meant to compensate, but that is quite different from saying they are there to reproduce the plaintiff’s prior physical condition. Rather, Jijon’s conduct sent the message, “I do not have to watch out for you.” The verdict, too, is expressive. It expresses that the plaintiff was wronged by the defendant – she was injured by the defendant’s failure to be sufficiently vigilant of her possible whereabouts or the possible presence of someone behind him. In awarding her a $16.5 million verdict, the court was apparently making the point that Kresin is to be treated with dignity too.
The damage award said to Jijon: This is what you did. This is your fault—the disability, the disfigurement, the pain and suffering. The damages did not make Kresin whole, not even close. But they did make clear that her injuries were Jijon’s responsibility. And they ensured that Kresin would be paid for her injuries, so that they would not stand as markers of mistreatment her community did not care to do anything about. If we did not offer that to Kresin—if we left in place injuries that might be repaired or sat silent about those that could not—then she would indeed have reason to doubt her social standing. Maybe she could be treated that way, she might think, because she was, and nobody cared to do anything about it. The compensatory damages stopped that train of thought cold. They made clear that Kresin could not be treated that way.
(P. 33-34; emphasis and footnote omitted.)
Hershovitz’s elegant expansion of the vindicative to beyond punitive damages is of course a crucially important part of his project of making expressivism a theory of tort law more generally. The next step in generalizing the account (in moving past intentional torts to negligence) concerns whether this must be a trial in which a verdict is actually announced. Does his expressivism turn on there being a trial and a verdict, or it is applicable to cases that have settled, perhaps confidentially? The settlement phenomenon would seem to present Hershovitz with a lesser-of-two-evils type of dilemma. If expressivism does extend to such settlements, the metaphor of “expression” seems to be vanishingly thin, because there is no audience (other than the parties) to whom the message of “plaintiff standing” is being expressed. Conversely, if it is only the trial verdict cases that count, then the account touches only a very small percentage of tort cases, and hence seems unable to bear the weight of a theory of tort law. Hershovitz tries to dull each horn of this dilemma: he concedes that in confidential settlements there is an audience of only the parties, but contends that is a significant audience, and he uses the pervasiveness of settlement in the shadow of the law as a ground for seeing the cases actually tried as especially important.
Critics will see tension between expressivism and the objectivity of the standard of care in negligence law, and Hershovitz anticipates this objection. His reply builds on the work of numerous recent tort theory scholars, explaining that a person who has committed a wrong might nevertheless not have been at fault in a manner that warrants blame. The key, however, is that whether or not the defendant was blameworthy, the plaintiff actually was wronged and suffered a rights invasion. On the expressivist account, the need for our system to send a message vindicating the rights of the person who was injured still exists. That is why expressivism is, according to Hershovitz, consistent with the objectivity of the standard of care in negligence law, and even with strict liability.
Finally, the normative payoffs, theoretical and practical. After providing a powerful argument that the material make-whole conception of corrective justice theory fails, he contends that expressivism is itself a form of corrective justice theory:
And corrective justice is not a form of justice because it governs the allocation of goods that shift as the result of wrongdoing. It is a form of justice because the way that we respond to wrongdoing is partly constitutive of the basic structure of our social relations. The distinctive demand of corrective justice is that we treat wrongs as wrongs, so that victims enjoy the social standing that wrongdoers threaten to deny them.
At a practical level, Hershovitz argues, expressivism provides reasons to push against recent tort reform measures: “Many recent changes to tort law serve mainly to muck up the messages that tort aims to send. In jurisdictions that have abandoned the collateral source rule, for example, damages no longer reliably convey the seriousness of the injuries inflicted.” (P. 62.) Hershovitz touches critically on other particular measures as well, but also reminds the reader that, since the institution of tort law is fundamentally meaning-conferring and thus in one sense constructive, it is in many respects a flexible and contingent matter how we decide to do it.
* * *
My principal concern arises when we push hard on a crucial ambiguity in Hershovitz’s account. Sometimes, “expressivism” is meant to connote that the body of law in question categorizes the conduct of various actors according to what the primary actor’s conduct expresses (intentionally or unintentionally). At other times “expressivism” stands for a view according to which what the court does when it imposes liability is to send a message. Recall that the discussion of Kresin alluded to both: Jijon’s conduct sent the message, “You [Kresin] do not matter,” and the jury verdict of over $16 million sent the message, “You, Kresin, do matter!”
Expressivism in torts has significant problems on either of these versions – defendant-conduct expressivism and court expressivism. We already know why the defendant-conduct expressivism will not work; Hershovitz told us when he conceded that a rights violation meriting redress in tort need not be accompanied by the sort of conduct that expresses a lack of respect for the dignity of the plaintiff. The objective standard of care and strict liability pertain to conduct that counts as wrongful and tortiously actionable, notwithstanding that it need not express anything about the victim.
Liability imposition in any case that reached a plaintiff’s verdict is arguably expressive, however, and in this respect, court expressivism is more promising. But now we must return to the concerns about settlement I described earlier. Given that the vast majority of cases settle, we must concede that the theory explains only a tiny piece of the area. While decided against a backdrop of possibilities, the whole point of settling cases is to skip the step in which a neutral party (judge or jury) actually decides whether the plaintiff was wronged. And unlike plea agreements in criminal law, the defendant never actually admits or acknowledges having committed a legal wrong at the core of the allegation by the adversary in litigation.
In his eagerness to see the legal system as a morality play, Hershovitz misstates the way that equality grounds tort law. Equality is fundamental to tort law, but not principally because of the shows of equality the state enacts through trials that end in victim vindication. Through tort law, the state respects equality by empowering each person to demand redress from someone who wronged her or him should she or he so choose. Physical power, wealth, connections, gender, and race are supposed to be irrelevant both to whether one will be subjected to wrongs of another, and, concomitantly, whether one will be able to hold another accountable for having done such a wrong (Hershovitz is certainly right that in light of the uncertain and unequal real-world availability of such power, today’s tort law needs reform). It is not so much what the verdict and the state’s entering of a judgment mean or express. More important is the power – one might even say “leverage” – that having a private right of action supplies to those who have been wronged. In this way, the capacity to extract compensation from defendants through confidential settlement is not an anomaly or a puzzle (as it appears to be on an expressivist theory); it is a vivid illustration of the equalizing and empowering force of tort law.
Expressivism, like civil recourse theory, shares much with corrective justice as developed by Weinrib, but in the end rejects it. Hershovitz nonetheless asserts that he adheres to a form of corrective justice theory – a better form than Weinrib’s. He retains the teleological aspect of corrective justice theory – tort involves seeing to it that justice, even rectification, is done through courts after someone has been wrongfully injured by another. What it contests is the nature of the rectification – the true message of the plaintiff’s dignity is being sent when a judge enters a judgment for the plaintiff based on a jury verdict.
Torts is more private than recognized by either Weinrib or Hershovitz. It is rooted in the private power to hold to account those who have violated one’s rights. As a Dworkinian, Hershovitz might argue that his more teleological account better justifies tort law. Leaving aside whether that is so (I am skeptical), I worry that Hershovitz’s expressivism does not qualify at the basic level of fit. Tort law respects dignity by giving power to those who have been wronged by others, not by expressing the moral truth about them.
Notwithstanding what I, as a civil recourse theorist, am able to depict as a fundamental difference between my views and Hershovitz’s – power allocation versus message-giving – Treating Wrongs as Wrongs is an important article for anyone in tort theory or torts to read. In one place, it neatly constructs a promising and previously underdeveloped approach to tort law and takes on the leading pragmatic and philosophical criticisms of morally inflected tort theories. In so doing it captures, in philosophically sophisticated but easily readable form, the strong intuition of law students and lawyers that torts is not just about money and harm, it is also about people and power.
Stephen D. Sugarman, Restating the Tort of Battery
(Sept. 19, 2017), UC Berkeley Public Law Research Paper, available at SSRN
Steve Sugarman is one of contemporary tort law’s leading figures, and one feature of his career which stands out is that he is willing to challenge modern orthodoxy. As the title of his classic 1985 article, Doing Away With Tort Law suggests, Sugarman is willing to recommend sweeping changes to private law. In Restating the Tort of Battery, Sugarman offers a proposal almost as radical as his 1985 proposal to get rid of tort law. Although he doesn’t say he wants to get rid of battery, once he is finished “restating” it, it is hard to see what is left of it. In this essay, I will not engage directly with Sugarman’s proposal, but I will try to describe its motivation and determine its limits – which, I believe, are not as easy to find as Sugarman may believe.
Sugarman thinks that the Reporters for the Restatement of the Law, Third, Torts: Intentional Torts to Persons have done the best that could be done given the job they were asked to do. The Reporters were asked by the American Law Institute to restate the law of intentional torts, including battery. Sugarman believes that the project is based on a false assumption, which is that there is a separate branch of tort law called “battery”. This is, Sugarman thinks, no longer true, if it were ever true. The truth is, if we were to restate the case law as it exists in 2017, we would see that all of our battery law that deals with harmful batteries can really be explained as instances of the same legal principles that explain liability for physical harm due to negligence.
In other words, Sugarman thinks that more than just the Third Restatement sections currently being drafted about battery need to be rewritten; so do the sections concerning negligence that have already been adopted by the ALI. So, for example, within the Restatement of Torts, Third, Liability for Physical and Emotional Harm, § 6 (Liability for Negligence Causing Physical Harm) ought to be combined with § 5 (Liability for Intentional Physical Harm), and, although he does not argue this in the article, it may be the case that future Reporters would have reason to eliminate §§ 1 – 3, which define intent, recklessness, and negligence, unless a continued use for these concepts can still be found in other parts of tort law (for example, where the victim has suffered pure emotional harm) or some other part of the law, such as the awarding of punitive damages.
The reason for combining §5 and §6, according to Sugarman, is that nothing is added to the analysis of whether a defendant is liable in tort by denoting that the defendant acted intentionally when the result is a physical harm to the victim. In these cases, argues Sugarman, the law determines whether a defendant is liable by asking not whether the defendant was negligent or acted with the intent to make a contact, but simply whether the defendant acted wrongfully and caused the victim’s harm. As Sugarman says early in the paper at p. 3:
If we remove the negligence-specific language [of § 6] the more general principle becomes, my wrongful behavior has physically harmed you (the victim) giving you a right to recover money damages from me in tort.
So, for at least some parts of negligence (those involving personal injury and injury to property) and intentional tort (involving harmful battery) there is one master rule to “rule them all”. Let’s call this the Wrongdoing Rule. Under the Wrongdoing Rule, one has a duty to repair all physical injuries actually and proximately caused by one’s wrongful behavior.
Sugarman anticipates a number of objections to the elimination of battery in favor of the Wrongdoing Rule. Some might object that intentional conduct cannot be treated under the same rule as negligence because it is as essential element of battery that the defendant acted intentionally. Sugarman’s response to this is that this argument is circular and incomplete. It is circular because, while it may be the case that an essential feature of battery, as it has been defined in the common law, is that the defendant acted with intent (as defined in §1 of Restatement of Torts, Third, Liability for Physical and Emotional Harm), that does not entail that the category is particularly useful and should be retained. It is incomplete because in many battery cases it is not the intentional quality of the defendant’s act that determine whether the defendant is liable, but the wrongfulness of the defendant’s intentional act, all things considered. Sugarman points out that in cases involving self-defense and consent, what determines liability is whether the defendant is deemed to have acted wrongfully (or not) when causing the victim’s injury. According to Sugarman, in these types of cases, at least, the question of liability is not answered by asking, did the defendant establish that there was no battery, despite proof of an intentional act, but rather, did the defendant show that the “harms were not wrongfully caused” … which, Sugarman points out, “is exactly how negligence is evaluated.” (P. 9.)
Sugarman has responses to further objections to his project of collapsing battery and negligence into the Wrongdoing Rule, some more startling than others. He is surely right that that the objection that the category of battery is necessary so that parties will know when punitive damages should be available is hard to sustain given that punitive damages are available in certain cases of negligence, and nothing, presumably, would prevent courts from importing into the new Wrongdoing Rule principles that allow punitive damages to be awarded in some cases of wrongdoing. (See pp. 16 – 18.)
Sugarman also rejects the argument that the line between harmful battery and negligence leading to injury to persons and property must be maintained in order to determine when to apply two different tests for proximate cause (on the assumption that batterers are liable for a greater range of consequences that merely negligent actors). (See pp. 23 – 26.) Here he is on solid ground, since it must be admitted that one of the more puzzling aspects of proximate cause is why, as it is often said, that courts as a matter of policy will allow liability to be imposed for more remote consequences in the cases of wrongful intent than in negligence. See, e.g., Leon Green, Rationale of Proximate Cause 170 (1927). Sugarman invites us to stop worrying about whether the in fact courts treat intentional tortfeasors differently than negligent tortfeasors by asking us to see both groups as wrongdoers, and the proximate cause judgments of courts in any individual case as reflective of the specific circumstances of the actor’s wrongdoing.
Sugarman’s treatment of various doctrines that are entailed by the invocation of either battery or negligence – and why they are functionally the same, and thus suitable to be reclassified as instances of the Wrongdoing Rule – is fascinating, but they cannot be treated fully in this short essay. Instead, I want to make two observations, one which might be seen as supportive of Sugarman’s project, and the other as a challenge.
First, in support. Although he does not invoke comparative law in support of his project, Sugarman might have wanted to note that European tort system are structured in much the way he proposes. For example, German tort law does not distinguish between intentional and negligent wrongdoing. BGB 823, which is the portion of the German code that forms the foundation of the German tort law’s protection of interests in bodily integrity, covers anyone who “wilfuly or negligently injures” the victim. As Markesinis and Unberath point out in their commentary on BGB 823, the “fault” that grounds a claim under this portion of the code can be categorized under five or six types of culpability, ranging from dolus directus (direct intent) to leichte Fahrlässigkeit (light negligence). See Basil S. Markesinis & Hannes Unberath, The German Law of Torts 83 (4th ed. 2002). The same tort category that grounds a claim for compensation in cases of road accident is also the same category in which consent to surgery is deemed non-tortious. See Markesinis and Unberath at 80. This approach is exactly as Sugarman would have it. Sugarman argues that under his proposed Wrongdoing Rule, there would be no need for a separate concept of consent, since it would be part of the very meaning of “wrongdoing” that the harms to which the victim could not be deemed wrongdoing.
Second, a challenge. Certainly, Sugarman is taking on a big challenge by proposing the merger of battery into negligence, and the rebranding of intentional and negligent injury to the body under the more general Wrongdoing Rule. But battery does have another dimension, offensive contacts, which of course Sugarman recognizes. He promises to give full treatment to his view, which is that offensive battery should be merged with negligence under the Wrongdoing Rule, but that it would be “best to establish a single Restatement section involving intentional dignitary harms to the person” covering offensive battery, false imprisonment and intentional infliction of emotional distress. (P. 43.)
It is not at all obvious why Sugarman’s Wrongdoing Rule does not cover all intentional dignitary harm as well as harmful batteries. His rationale for collapsing the categories between negligence and intentional contacts that harm applies equally to all forms of voluntary conduct that causes foreseeable emotional distress. If anything, the Sugarman’s chief point, that modern tort law focuses primarily on society’s judgment about the wrongfulness of conduct, and not the actor’s intentions or the victim’s voluntary choices, would apply even more, I would think, to conduct which is interpreted through the lens of society’s values, and not the actor’s or defendant’s beliefs or values.
It is worth pausing a moment to think about what we might learn from taking seriously the Wrongdoing Rule’s full scope, as entailed by Sugarman’s argument for the elimination of harmful battery. Offensive battery and assault, false imprisonment and IIED would be placed under the same rule because, according to Sugarman, “in each of the these instances the freedom not have one’s bodily dignity/integrity invaded is protected.” (P. 44.) But there is something odd about this rationale – it reminds the reader that intentional tort protects rights (such as the right to control how one’s body is touched) and it does so sometimes without regard to the reasonableness of the defendant’s conduct. In other words, sometimes intentional tort overlaps with strict liability (it does so even more in the tort of trespass to land, which Sugarman does not discuss). Earlier in his article, Sugarman considered much the same point in the context of harmful battery for self-defense based on reasonable mistake. (P. 7.) In that context, however, he said the “focus has to be” on the defendant’s reasonableness in promoting his ends, and not the victim’s right not to have her bodily integrity invaded. When explaining why harmful battery was merely an expression of the Wrongdoing Rule, the victim has no right that cannot be trumped by the defendant’s reasonableness. If he were to be consistent, Sugarman should treat all losses – whether bodily, property, or hedonic – as subject to the same test of wrongfulness.
If one believed that tort protects autonomy interests separate from the welfare interests embodied in our physical and emotional selves, then the the strict liability aspect of intentional tort provides to tort plaintiffs something that the test of reasonableness does not. The Wrongdoing Rule would, if it were adopted, come to rule almost all of tort because it is grounded on a premise – not too deeply hidden – that the only interests that tort protects are the welfare embodied in the bodies, property and emotional states of all members of society. I think that Sugarman may have undersold the reach of his project. It may be that by promising to restate only a part of battery law, Sugarman has given us a glimpse of how he would restate all of tort law were tort law to reject any ambition to protect rights.
Cite as: Anthony Sebok, Doing Away With Battery Law
(December 20, 2017) (reviewing Stephen D. Sugarman, Restating the Tort of Battery
(Sept. 19, 2017), UC Berkeley Public Law Research Paper, available at SSRN), https://torts.jotwell.com/doing-away-with-battery-law/
Victor P. Goldberg, The
(2017), available at SSRN
In The MacPherson-Henningsen Puzzle, Victor Goldberg juxtaposes two landmark product liability cases to identify an interesting historical question about product manufacturers’ ability to contract around their tort obligations. With some nice detective work, he then offers an answer to the question, in the process reminding us of the complex interrelation among legal rules, the legal profession, and social norms.
Claus Henningsen purchased from Bloomfield Motors a car manufactured by Chrysler. While Claus’s wife Helen was driving, the car “took an unscheduled turn into a wall” (to borrow Marc Franklin’s memorable description). In Henningsen v. Bloomfield Motors (1960), the New Jersey Supreme Court upheld a verdict for the plaintiffs. The court deemed automobile manufacturers implicitly to warrant their products’ fitness not only to purchasers but also to certain nonpurchasers. Notably, because warranty liability was understood to sound in contract rather than tort, the decision imposed a form of strict liability on sellers of mass-produced automobiles.
Henningsen’s grounding of liability in contract also raised a complication, for warranties can be disavowed, and liability for their breach limited. And, indeed, the major U.S. automobile manufacturers, including Chrysler, had long incorporated a boilerplate warranty provision into their sales contracts that, on its face, excluded liability for personal injuries. The provision proceeded in three steps. First, it expressly warranted that the manufacturer’s cars would be free from defects. Second, however, it limited liability for breach of this warranty to the cost of repairing or replacing the defective automobile, and even then restricted the ability of consumers to make good on this remedy. Third, it asserted that the obligations and limited liability generated by the express warranty were “in lieu of all other obligations or liabilities.” In sum, standardized automobile sales contracts seemed to eliminate all (civil) legal obligations owed by manufacturers to purchasers other than the obligation generated by the express warranty, with its limited remedy.
The New Jersey court thus could not be content merely to eliminate privity as a limitation on implied warranty liability. It also had to rule that the disclaimer in the contract signed by Claus was ineffective to defeat liability for personal injury. Writing for the court, Justice Francis did exactly that, disparaging the disclaimer as “a studied effort to frustrate” legal protections that traced back nearly fifty years to Henningsen’s most famous forerunner, MacPherson v. Buick (N.Y. 1916). Of course, it was MacPherson that—in a suit against a different automobile manufacturer—dismantled the privity limitation on negligence liability for personal injuries caused by dangerous products.
It’s at this point Goldberg’s puzzle begins to take shape. According to Henningsen, the standard disclaimer contained in automobile sales contracts had to be declared void to prevent manufacturers from using contract law to escape from implied warranty and negligence liability for personal injuries. Yet, Henningsen itself was among the first state high-court decisions to do so. (By contrast, for example, Sections 574 and 575 of the First Restatement of Contracts (1932) had deemed liability disclaimers for simple negligence enforceable outside of certain special contexts.) Given the language of the standard disclaimer, and the absence of a general commitment among courts to void such disclaimers, one might expect that a review of judicial decisions concerning personal injury suits against automobile manufacturers in the period from 1916 to 1960 would reveal plenty of instances in which courts dismissed personal injury suits on the strength of the disclaimer. In other words, the very terms on which Henningsen was decided would seem to support the depressing hypothesis that Cardozo’s celebrated, Herculean effort in MacPherson to ground liability for product-related injuries in tort was doomed to be defeated by a contractual end-run.
But here’s the funny thing. According to Goldberg, a 1960 survey of reported appellate decisions (Cornelius Gillam, Product Liability in the Automobile Industry) found that Justice Francis was wrong insofar as he had supposed that lawyers for automobile manufacturers routinely invoked boilerplate to defeat personal injury claims. And so we arrive at the puzzle of the disclaimer that didn’t bark. Why didn’t defense counsel raise an obviously available argument that, if successful, would have provided a complete victory for their clients?
Goldberg’s surprising but plausible answer is that the lawyers didn’t invoke the disclaimer because they didn’t need to. Prior to Henningsen’s removal of the privity requirement for warranty claims, only immediate purchasers were entitled to pursue a warranty-based claim for personal injuries. Already, then, a large class of potential claimants (non-purchasers) was excluded. Moreover, purchasers who could sue for breach of warranty faced other hurdles, including limitations periods for providing notice of breach. Finally, MacPherson’s ditching of the privity limitation on negligence liability hardly generated (nor did it purport to generate) a frictionless path to recovery. Proving fault on the part of manufacturers often remained a daunting task, and contributory negligence was a complete defense. (In Henningsen itself, the plaintiffs had pressed a negligence claim along with their warranty claims, but it was dismissed by the trial judge for lack of evidence of carelessness.) To be sure, none of these features of warranty or negligence law immunized manufacturers from liability. However, they did serve to contain manufacturers’ liability within financially viable bounds. And that, Goldberg concludes, was more than good enough for the manufacturers and their lawyers.
Goldberg’s story is fascinating, well-told, and largely convincing. It is a powerful reminder that questions of tort are always potentially bound up with questions of contract, and that close attention must be paid to the law in action. It also adds support to the contention that the emergence of strict products liability was, in part, a response to the hurdles imposed even by post-MacPherson negligence law on plaintiffs pursuing claims against product manufacturers.
I wonder, however, if Goldberg’s proffered solution to the puzzle pulls up a bit short. It may well be that defense lawyers did not need to invoke contractual disclaimers to keep liability at tolerable levels. But why is “need” the relevant criterion? Presumably the manufacturers would have faced even less liability had they invoked the disclaimers. So we still need an explanation of why their lawyers didn’t go for the jugular.
Moreover, it is not as if defense counsel ignored the disclaimers entirely. Indeed, as Goldberg notes, these provisions were invoked to defeat negligence liability in cases in which the plaintiff sued for a defect that had caused damage to the car itself—a result that mirrors the outcome that today would be reached under the “economic loss rule.” (Probably in these cases plaintiffs sought to rely on negligence law to avoid a procedural obstacle to their obtaining repair or replacement costs under the manufacturer’s warranty, or perhaps to obtain compensation for certain consequential property damage.) Instead, the lawyers seem to have been concerned that, by invoking the disclaimers in personal injury cases, they would be overplaying their hand.
Even prior to Henningsen, only the most incautious attorney for an automobile manufacturer would have guaranteed victory in a personal injury suit based on the standard disclaimer. As Holmes observed in The Path of the Law, a good lawyer reads cases not just for their rules but to gain a sense of the judicial zeitgeist. MacPherson may not have expressly forbade manufacturer and consumer from contracting around its holding. (Query: was there a disclaimer in the contract that Donald MacPherson signed? So far as I am aware, there’s no mention of one in court opinions or litigation documents.) Nonetheless, MacPherson’s emphasis on the right of the negligently injured to redress, and its refusal to allow manufacturers to use the dealership model of distribution as a means of avoiding tort liability, suggested doubts as to the enforceability of disclaimers. This is why it’s hardly shocking to find, for example, a 1939 New York trial court decision voiding a disclaimer of liability in a case involving the unfortunate deli patron who encountered a tack in his danish. Linn v. Radio Center Delicatessen, Inc., 9 N.Y.S.2d 110 (N.Y. Mun. Ct. 1939).
There was also a problem of fairness as among plaintiffs. Under the traditional rules of warranty law, only purchasers were the beneficiaries of express warranties. By the same logic, it was only purchasers who were subject to disclaimers attached to those warranties. It followed that, while the disclaimers in automobile sales contracts were written so as to block negligence liability for personal injury claims by purchasers, they could not block negligence claims by the very non-purchasers whom MacPherson had rendered eligible to sue for negligence. Chrysler’s brief to the New Jersey Supreme Court in Henningsen—we learn from Goldberg—expressly conceded this point.
The manufacturers’ lawyers presumably had little appetite for arguing that, whereas (thanks to MacPherson) they owed a tort-based duty to take care not to injure non-purchaser drivers such as Helen Henningsen, or for that matter innocent bystanders, they owed no such duty to their actual, paying customers. Technically speaking, that argument was available, but there was a decent chance that it would backfire, causing courts to void the disclaimers and perhaps even prompting remedial legislation. The more prudent course was to include the disclaimer in the sales contract without pressing it in personal injury cases, both because the disclaimer might discourage some personal injury claimants from suing in the first place, and because it could be more safely invoked to protect the manufacturers from other kinds of claims, including claims seeking compensation for damage to the automobile itself.
If these speculations are valid, then an important moral to draw from Goldberg’s story is that MacPherson did pretty much what it set out to do. By signaling judicial solicitude for victims of negligently inflicted personal injuries and excising the privity rule from negligence, Cardozo made it very difficult for defense lawyers to argue that courts should enforce contractual disclaimers in personal injury cases. MacPherson’s power stemmed not merely from its holding and tone. It became an instant landmark because, in the manner of all great common law decisions, it fed off of, and helped to crystallize, an emerging set of social norms. Rightly, as it turns out, Cardozo both divined and pronounced that his era would no longer regard contract as the sole source of the duty to take care against causing harm to life and limb. That duty, he insisted, has its source “in the law.” Perhaps, then, the solution to the MacPherson-Henningsen puzzle is that lawyers understood the implications of MacPherson for disclaimers of liability for product-related personal injuries even before Justice Francis and his colleagues formally embraced them.
Aaron James, The Distinctive Significance of Systemic Risk
, 30 Ratio Juris
239 (2017), available at SSRN
In one of his more famous aphorisms, Oliver Wendell Holmes remarked that “[o]ur law of torts comes from the old days of isolated, ungeneralized wrongs, assaults, slanders, and the like,” whereas “the torts with which our courts are kept busy to-day are mainly the incidents of certain well known businesses … railroads, factories, and the like.” In the 120 years since Holmes penned his remark, our social world has become ever more organized. Holmes wrote before the mass production of consumer products and before environmental harms on a global scale existed. Indeed, Holmes seems to have had in mind just one kind of systemic risk, namely, the repeat imposition of the same risk by an institution that repeats the same action over and over again. Railroads, for instance, run trains past the same intersections on a regular basis.
We are familiar with more advanced and diverse forms of systemic risk. Some products are characterized by risks that are present every time the product is used but that are responsible for physical harm only relatively rarely. Many product design defects are like this. The Ford Pinto gas tank is a case in point. The defective design was present in every Ford Pinto but its risks remained dormant until a car was involved in a collision. Other products impose unacceptable risks every time someone is exposed to them. Asbestos is the most notorious example. In still other cases, the independent actions of innumerable people coalesce into a critical mass and that critical mass imposes a major risk. Climate change is a case in point. It is surprising, then, that the distinctive issues raised by systemic risk imposition have received so little attention, and heartening to see that sophisticated political philosophers have now begun to pay them heed. In The Distinctive Significance of Systemic Risk, Aaron James, a political philosopher at the University of California at Irvine, zeros in on several of the thorniest moral issues presented by practices of systemic risk imposition. James is preoccupied with two questions.
(1) When persons, firms, or systems (e.g., the banking system) impose risk systemically, is risk imposition itself problematic, independent of any resulting harm?
(2) When institutions—not individual actors—systematically impose objectionable risks, who is responsible for the imposition of these risks, when are they responsible, and what are they responsible for not doing differently?
These important and fundamental questions are raised by systemic risk imposition, by virtue of its systematicity.
“Many of the great moral problems of our time—including the scourge of financial crises and the specter of global climate change—are,” James rightly observes, “problems of systemic risk. That is to say, what is problematic is not the risk-taking of any particular agent, but rather risk of harm created by large numbers of people acting together, in perhaps unwittingly coordinated ways.” When each of us drives or flies or boards a train or a bus, for example, we participate in a system of transportation that is contributing to an ever-increasing risk of devastating climate change. But my driving by itself—and your driving by itself, and everyone else’s driving by itself—is not a problem. There is no negative externality imposed by my particular acts of driving. It is the critical mass of human activity that creates more CO2 than the atmosphere can absorb, thereby threatening catastrophic climate change. Do we each nonetheless do wrong whenever we drive or fly, or air condition our houses, or turn on our appliances? And is the risk of climate change itself objectionable? Or is the systemic imposition of such risk objectionable only when it ripens into harm through climate change?
In answering these questions, James attends mostly to practices that impose a different kind of risk from those that preoccupy tort law and tort scholars. Tort law is preoccupied with physical risk leading to physical harm through physical cause. James is concerned primarily with the vast and often ruinous financial risks which increasingly loom over our economic landscape and endanger the livelihoods and financial security of millions. Because systemic risk has fundamental and common characteristics regardless of the type of harm it risks, much of what James says about financial risk has broader relevance to physical risk as well. James’ discussion of whether systemic risk imposition may be objectionable in itself is particularly provocative and relevant. Generally speaking, tort law cares about risk only when it results in harm. There is no tort liability for attempts. Wrongful risk imposition results in liability only when it results in injury, understood as physical impairment of normal bodily functioning. The Third Restatement, for example, defines “physical harm” as “the physical impairment of the human body (‘bodily harm’) or of real property or tangible personal property … [Such impairment] includes physical injury, illness, disease, impairment of bodily function, and death.” In exceptional cases, tort law allows recovery for subjective emotional distress, precipitated by the imposition of risk of physical harm. The ancient tort of assault, for example, allows recovery for the fright induced by almost being battered. But in general, harm, rather than risk, is required for tort liability.
Multiple reasons can no doubt be given for the traditional tort position. It seems likely, however, that one prominent justification for the position is rooted in the fact that traditional tort law is preoccupied with one-shot, episodic risk. If I step off the sidewalk at a crosswalk with the light in my favor and you speed by me—just missing my foot as you run the red light, utterly indifferent to my emotional tranquility—I will be furious and frightened but physically unharmed. My fury and fright will probably be transitory and I will go on my way intact if indignant. Episodic risk of this sort may not be objectionable enough to justify the imposition of civil liability. Continuous exposure to ongoing systemic risk, however, seems quite different. If I live in a “cancer alley” created by the regular discharge of some toxin or pollutant—and so go about my daily life under the cloud of higher than average risk of contracting a debilitating and often deadly disease—matters seem different. First, I am subject to a special psychic burden. A special sword of Damocles dangles over me. I know that I have escaped harm at its hands only when I die of something other than the cancer threatened by my daily exposure to risk. In addition, if I live with this threat because I am too poor to live somewhere safer, or because I am a member of a discriminated-against minority group, my fate seems especially objectionable because of the inequity. My life is being treated as less valuable than the life of someone wealthier, or than the life of a member of a dominant social group.
This intuition that systemic risk imposition can make risk imposition itself objectionable in a way that episodic risk imposition is not has, I suspect, struck many a tort scholar contemplating systemic risk imposition. To my knowledge, however, the intuition itself has not been systematically developed. Focusing on structurally similar cases of systemic financial risk concentrated on vulnerable populations, James argues persuasively that such risk imposition can be objectionable in itself, because it devalues those on whom it is imposed, whether or not it ever injures them. James’ argument is worth the attention of anyone interested in systemic risk imposition. Not only is the argument powerful and carefully thought through, it is philosophically sophisticated in a way in which too few analyses of risk imposition are.
In its philosophical posture, The Distinctive Significance of Systemic Risk argues persuasively that we can evaluate the moral significance of systemic risk adequately only if we move beyond the confines of consequentialist moral theory and the aggregative procedure of cost-benefit analysis. It is not the case that the only question to be asked about practices of risk imposition is whether their effects are net beneficial or not. When less privileged populations are asymmetrically exposed to practices of systemic risk imposition whose benefits redound disproportionately to those more advantaged, those exposed have good reason to complain that they are being treated unjustly by their fellow citizens. What we owe to each other as fellow citizens (and persons) is as important a question of political morality as whether the consequences of some practice are net beneficial or not. Professor James’ persuasive development of this point expands the moral resources available to tort scholars when we contemplate the distinctive risks of our time.
The Distinctive Significance of Systemic Risk also illuminates its second question—where and how to lodge responsibility for systemic practices in which many of us have no choice but to participate. Collective practices of risk imposition call for the creation of new forms of governance adequate to the practices of risk imposition at issue. For those of us whose bread and butter is liability, not governance, the thought that we should revive and extend enterprise liability comes to mind. For reasons of space, however, I must encourage readers to explore this part of James’ paper on their own. They will not regret doing so.
Ronen Avraham and Kimberly Yuracko, Torts and Discrimination
, Law and Economic Research Paper No. E570 (2017), available at SSRN
When plaintiffs suffer actionable injury, courts in the United States attempt to repair the harm by awarding compensatory damages that put victims in the position they would have been in but for the wrongs that they have suffered. Courts calculate an individualized measure of compensatory damages for each plaintiff. The damage measure not only includes plaintiff’s actual past expenses, but also, a plaintiff’s lost earning capacity, future pain and suffering, and future medical costs. As a starting point for juries’ projections, courts allow forensic economists to introduce three types of government-generated statistical tables—life expectancy tables, work-life expectancy tables and average-wage tables. (P. 17.) All of these tables come in blended and non-blended versions. The non-blended editions disaggregate data by race and gender. For example, a non-blended table might tell you that a “white” girl born in 2014 has a life expectancy of 81.2 years, while a “black or African American” boy has an expectancy of only 72.5 years. Similarly, a non-blended table might suggest that a 16-year old white male has a longer work-life expectancy than a black female. (P. 26.)
Courts frequently, perhaps “routinely,” permit the use of non-blended statistical tables as a foundation for damage awards in tort and other claims, including even Title VII discrimination cases. (Pp. 15, 59.) Furthermore, as Avraham and Yuracko document, legislatures have also adopted statutes or pattern jury instructions which permit gender-based, and sometimes race-based calculations. (P. 16.)
The problems with using race and gender in damage calculations are many. Building on the work of Martha Chamallas and Jennifer Wriggins in The Measure of Injury: Race, Gender and Tort Law (2010), and earlier works, Avraham and Yuracko argue that using gender and race based tables may well result in disparate damage awards, and not only reflect historical inequities, but perpetuate them. (P. 106.) Furthermore, they argue that these race and gender disparities may themselves create discriminatory incentives for care. Moreover, they find the explicit distinctions based on gender and race to be an embarrassment, presumably along the line of expressive harm (that welfare maximization values some lives above others). They suggest that the use of differentiated tables might be inaccurate and inefficient to boot. (Pp. 74-93.) Ultimately, the authors argue that “Courts should immediately stop using non-blended tables.”
The conclusion seems sound and the issue both important and practical. Courts should repair victims within a framework that incorporates other important social values like gender equity. The authors’ engagement with norms of both equality and efficiency—an area in which few U.S. torts scholars dare to tread—is also admirable. Avraham and Yuracko are at their best when they provide real-world examples of systems that seem to function without differentiation. Apparently in projected future earnings of minors and young adults—cases in which individualized earnings histories are unavailable–Israel has decided not to differentiate earnings potential by race, gender, origin or religion. (P. 127.) Moreover, as the authors note, government regulation does not distinguish based on race and gender in regulatory models. (P. 108.) Nor do insurer rating formulas provide for such distinctions. (P. 109.) And of course some legislatures and judges have rejected the use of non-blended tables in civil cases. Other authorities could be added.
For all of the strength of their thoughtful work, Tort and Discrimination never really goes for the jugular. Although Avraham and Yuracko suggest that using race- and gender-specific statistics raises constitutional concerns, they never fully articulate the constitutional argument that a court should consider. And while they label the use of race- and gender- based tables “discriminatory,” they don’t establish what is wrongful about these group-based distinctions, something they could perhaps do by reference to doctrines like redlining or stereotyping. In addition, while they raise many empirical reasons to suggest courts and legislatures should be concerned about non-blended statistical measures–“the damages black women receive for future losses caused by bodily injury or wrongful death are lower than the damages their white male counterparts would receive,” (P. 4) –they don’t fully develop empirical evidence to support their claims. Before the final ink is dry on their work, this distinguished pair might think more carefully about arguing to the judges and legislators who can enact the changes they seek, not primarily to law and economics scholars who, even if they agree, can do nothing to change the rules.