The Journal of Things We Like (Lots)
Select Page

Seeing Negligence for What It Is

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Accountability and Addictive Wrongs

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

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

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

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

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

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

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

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

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

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

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

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

Torts That Heal Words That Wound

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

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

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

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

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

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

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

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

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

Law’s Arithmetic

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

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

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

Consider the following elementary school exercise:

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

True or False?

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

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

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

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

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

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

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

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

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

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

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

A New Retributive Justification for Punitive Damages

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

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

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

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

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

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

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

What is Encarnacion’s solution? In his words:

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

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

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

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

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

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

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

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

Update of Jotwell Mailing Lists

Many Jotwell readers choose to subscribe to Jotwell either by RSS or by email.

For a long time Jotwell has run two parallel sets of email mailing lists, one of which serves only long-time subscribers. The provider of that legacy service is closing its email portal next week, so we are going to merge the lists. We hope and intend that this will be a seamless process, but if you find you are not receiving the Jotwell email updates you expect from the Torts section, then you may need to resubscribe via the subscribe to Jotwell portal. This change to email delivery should not affect subscribers to the RSS feed.

The links at the subscription portal already point to the new email delivery system. It is open to all readers whether or not they previously subscribed for email delivery. From there you can choose to subscribe to all Jotwell content, or only the sections that most interest you.

Leaving the Horse and Buggy Days of Limited Recovery for Economic Loss

Catherine M. Sharkey, Public Nuisance as Modern Business Tort: A New Unified Framework for Liability for Economic Harms, 70 DePaul L. Rev. __ (forthcoming, 2021), available at SSRN.

More than a hundred years ago, in Mitchell v. Rochester Railway Co., 151 N.Y. 107, 108 (1896), New York’s highest Court denied recovery to a plaintiff who had being negligently charged by a team of horses. Although the plaintiff was rendered unconscious and suffered a miscarriage, the Court held that she could not recover for “mere fright.” The court excluded recovery even though the team of horses “came so close to the plaintiff that she stood between the horses’ heads when they were stopped.” (P. 108.) The court reasoned: cases had not historically allowed recovery for fright or shock; if recovery were established “it would naturally result in a flood of litigation… a wide field would be opened for fictitious or speculative claims”; and “damages were too remote.” Today, notwithstanding these historical worries, most authorities would permit recovery on the Mitchell line of facts.

In her important article, Public Nuisance as a Modern Business Tort: A New Unified Framework for Liability for Economic Harms, Professor Cathy Sharkey invites readers to question whether nonliability for economic loss, and courts’ similar rationales, should also go the way of horse and buggy. Sharkey suggests “the calculus may be shifting in an age of global financial crises, escalation of digital and informational harms, and growing sense that societal harms of the 21st century involve risky conduct leading to purely financial harms.” (P. 3.) In particular, Sharkey focuses her attention on the public nuisance tort. Are authorities right to specifically permit liability in public nuisance cases while generally limiting liability for negligently caused economic loss? Are they right to focus on liability limitation as their exclusive policy concern in both the public nuisance and economic loss space?

Sharkey’s answer to both questions is a resounding no. First, she tackles the interplay between the economic loss rule(s) and the public nuisance tort. The Restatement Third of Torts: Liability for Economic Harms restricts liability for most negligently inflicted economic losses. However, it then permits the public nuisance tort to stand as an exception to the general rule. Doctrinally, the stance is unsurprising. But on reflection, it is theoretically difficult to justify. The Restatement Third says public nuisance recovery is permitted because social and private costs of a public nuisance are large and private rights of action can deter wrongs. True enough. But as Sharkey points out, this rationale does not differ from many contexts of negligently caused economic loss—contexts in which liability is generally excluded. Sharkey skillfully guides the reader through a number of situations­—street and bridge closures, oil spills and gas leaks—to show that public nuisance claims are best understood cases in which courts (rightly) grant liability for negligently caused economic harm. As such, public nuisance claims and economic loss claims “should rise or fall together—the business’s ability to recover should not be contingent on whether the case is framed as negligence or public nuisance.” (P. 11.)

Sharkey also takes issue with an exclusive policy focus on restricting unlimited liability in public nuisance and economic loss cases. Instead, she would add a second, and equally compelling policy concern­— “a channeling or enforcement rational: namely, deputizing a class of significantly impacted individuals or entities who can sue to force the tortfeasor to internalize the costs of its activities.” (P. 3.) With this dual focus on deterring negligently caused economic loss and restricting unlimited liability, “the aim should be to find a class of victims most immediately and obviously affected by the violation of a public right, … incentivize this class of persons to sue the tortfeasor, who must thereby internalize the costs of its actions, and thus realize tort law’s objective of allocative efficiency in the case of economic or business torts.” (P. 16.) For Sharkey then, courts should concern themselves with underdeterrence as well as overdeterrence. The need for enforcement mechanisms to foster deterrence is particularly salient in the modern era because of “widespread financial harms in which there are not likely to be physical injuries (such as data breaches).” (P. 16.)

After situating private actions for public nuisance within the context of other negligently caused economic losses and articulating dual concern for liability imposition and liability limitation, Sharkey presents three questions courts should ask in negligent economic loss/public nuisance actions, such as the Southern California Gas case in which a gas leak drove people from their homes and shuttered businesses. “Who are the ‘immediate and obvious’ victims of the gas leak”? “Does deputizing the first tier of plaintiffs … suffice for deterrence purposes”? And finally, “are the marginal gains from expanding the circle of plaintiffs to the next tier of impacted victims worth the higher administrative costs that multiple actions for lost profits entail”? Sharkey then brings this critical analysis to an important set of claims of the day—public nuisance actions for opioid addiction. The issues center not on whether plaintiffs should be able to seek recovery, but instead on which plaintiffs should be able to do so.

Sharkey’s article adds a fresh perspective that immediately adds value. Her evaluation of public nuisance alongside negligent economic loss cases is both surprising and obviously helpful. Doctrinally, it is easy to say that liability is to be eschewed in one circumstance (economic loss) and granted in another (public nuisance), but why should we? Her article asks readers to step back and reevaluate why liability should and should not be granted with respect to negligently caused economic loss in general, and in private actions for public nuisance in particular. Her focus is on reasoning and not just historical experience.

Sharkey’s conclusion in the public nuisance context hearkens back to a similarly thoughtful discussion by Professor Willem Van Boom in the economic loss sphere. In Pure Economic Loss: A Comparative Perspective,1 Van Boom writes: “Some authors have suggested that the ripple effect might be taken quite literally as a demarcation method: if a ripple consists of ever decreasing circles, it might be efficient – be it, admittedly, somewhat arbitrary at times – to discard the exclusionary rule [for economic loss] and instead allow the first two or three circles adjacent to the primary victim to claim compensation (provided that all the other requirements for liability are met).” (P. 50.) Sharkey’s article makes a compelling case that in public nuisance cases, like the negligent economic loss cases, courts should demarcate a few ripples of harm. As such, instead of evaluating public nuisance claimants through a “special injury” analysis that asks if the plaintiff’s injury is “different in kind” from others’ (an analysis already abandoned in a number of areas of tort law), or attempting to define the nature and extent of “public rights,” courts should ask which negligently harmed individuals or entities should be incentivized to sue. That latter question turns out to be a difficult one. Still, Sharkey makes a compelling argument that, even if difficult, the question is an important one to ask. These are new days of financial loss. Perhaps in the modern times, courts are best advised to think about catching (at least some of) a wave.

  1. , W.H. van Boom, Pure Economic Loss: A Comparative Perspective in Pure Economic Loss (W.H. van Boom, H. Koziol & C. A. Witting, eds., 2004).
Cite as: Ellen Bublick, Leaving the Horse and Buggy Days of Limited Recovery for Economic Loss, JOTWELL (June 21, 2021) (reviewing Catherine M. Sharkey, Public Nuisance as Modern Business Tort: A New Unified Framework for Liability for Economic Harms, 70 DePaul L. Rev. __ (forthcoming, 2021), available at SSRN), https://torts.jotwell.com/leaving-the-horse-and-buggy-days-of-limited-recovery-for-economic-loss/.

Kantian Justice and Aggregate Welfare

Yitzhak Benbaji, Welfare and Freedom: Towards a Semi-Kantian Theory of Private Law, 39 Law & Phil. 473 (2020), available at SpringerLink.

Is it permissible to take into account considerations of aggregate welfare, distributive justice, and others which concern the impact of the law on society as a whole in setting the content of private law rules? Certain Kantian theories—notably, Arthur Ripstein’s—seem to answer ‘no’: the only normative business of private law should be the realization of our innate right to freedom as independence.1 Benbaji’s article, Welfare and Freedom: Towards a Semi-Kantian Theory of Private Law, seeks to show that a superior Kantian theory should answer ‘yes’, but only in so far as a legislator is choosing between private law systems which equally realize our innate right to freedom. In his view, the Kantian state’s duty to realize a private law that secures freedom has strict lexical priority over other non-freedom-related considerations.

Consider a toy example to illustrate Benbaji’s basic idea. Suppose there are two different, inconsistent, schemes of private law rights in relation to unreasonable risk imposition, P1, and P2, which equally realize freedom as independence. According to Benbaji, it would be permissible for the Kantian legislator to choose between P1 and P2 on the ground that P2 maximises aggregate welfare. If, however, P1 realized freedom as independence but P2 fell short of realizing freedom as independence, then the Kantian legislature would be duty-bound to establish P1, even if P2 scored much higher on welfarist grounds. Benbaji calls his view ‘semi-Kantian’, then, because it accords lexical priority to Kantian freedom, but departs from Ripstein’s Kantian ‘minimalism’ in permitting non-freedom-based considerations to determine the content of private law entitlements once that lexical threshold is met.

The bulk of Benbaji’s article is given over to showing that semi-Kantianism (henceforth ‘SK’) is possible. SK is possible only if there are multiple private law arrangements which equally realize freedom as independence. Why believe this? Part of the justification for the state, on Kantian views, is normally the inherent indeterminacy of certain kinds of entitlement. A public determination of the content of rights in positive law is necessary in order for entitlements to be permissibly insisted upon. One major reason for this is that “the juridical concepts of property, authorization, duty, excessive risk, etc. are vague.” (P. 481.) Consequently it might be “indeterminate, indefinite, or unsettled” where a defendant’s conduct on a particular occasion was “unreasonably dangerous.” Similarly, a contractual duty may employ concepts which “run dry” in their application to particular cases: a duty requiring a shipment of grapefruit pulp pellets to arrive in “good condition” does not allow one to determine precisely how many spoiled pellets are consistent with the shipment being in “good condition.” (P. 482.) While this may appear to be a highly localized indeterminacy, Benbaji holds that many central freedom-as-independence-realizing concepts, such as those mentioned above, are indeterminate in their extension until specified. This being so, one could envisage a large-scale legislative choice that could legitimately be said to be a choice between different ‘systems’ of private law.

Not only are the concepts by which freedom as independence is articulated vague, they also “incorporate conceptions that are inconsistent with each other.” (P. 482.) One of Benbaji’s examples is the notion of “excessive risk.” He gives the following scenario to illustrate the point that “excessive risk” could be conceptualised in multiple, inconsistent, ways:

Suppose that the plaintiff had been at a 30% risk of being hit by the right hand side of a very large trolley. The defendant threw a switch and thereby the plaintiff was pushed to the other side of the track. As a result, the plaintiff was under a 30% risk of being hit by the left hand side of the trolley. (You may ask, why the defendant threw the switch. Answer: the defendant was about to be hit by the right hand side of the trolley, was trying to avoid it, and the plaintiff was blocking his way.) On the one hand, the plaintiff was under a 30% risk of being hit by the right hand side of the trolley, and the defendant effectively removed it. On the other hand, the defendant created a 30% risk that the plaintiff will be hit by the left hand side of the trolley. How risky was the defendant’s action?

One analysis is that the defendant does not impose a risk upon the plaintiff at all here since the defendant’s act does not alter the magnitude of the risk which the plaintiff faces. Another analysis is that the fact that the defendant saves the claimant from a pre-existing 30% risk is irrelevant to the assessment of whether the act was excessively dangerous. If the defendant negligently damaged the plaintiff, thereby preventing her boarding a flight which crashed, the defendant saved the claimant from a greater harm, but might still be said to have wronged the claimant; perhaps, analogously, then, one can wrongfully impose a risk upon a person, even when one does not increase the overall magnitude of risk faced by the person.

Having thus argued for the possibility of SK, one might think Benbaji would conclude that, other things being equal, private law adjudication in the Kantian state could also take into account considerations of aggregate welfare etc., whenever there is a genuine indeterminacy by the lights of freedom as independence. Or, more generally, private law judges ought to give lexical priority to freedom as independence, but may permissibly decide on the basis of other considerations once freedom as independence is realised. That is not his position, however. Interestingly, Benbaji holds—in line with the view he attributes to Kantian minimalists like Weinrib and Ripstein—that judges should not act upon these considerations under SK. Only the legislature is permitted to do so. Why? For Benbaji, a person’s right to be free from the state’s domination “implies that a concrete dispute between two individuals ought to be resolved by attending exclusively to facts about how things stand between them.” (P. 490.) Benbaji’s essential point here seems to be that private law litigants would be unjustly singled out as the bearers of a distributive policy, when the burdens ought to be borne across society. By the nature of private law adjudication, the thought goes, judges can only make ad hoc, piecemeal contributions to the advancement of distributive goals; that being so, particular litigants will arbitrarily be singled out for distributive justice treatment, so to speak.

In the final three pages of his article, Benbaji offers a tentative argument for the superiority of semi-Kantianism over minimal Kantianism. The basic idea is that the Kantian normative ideal of securing equal freedom as independence for everyone through public institutions leaves Kantians minimalists with insufficient resources to favour, say, progressive taxation regimes. Progressive or regressive taxation achieved by public institutions will both leave members of society as equally free members of society—in the Kantian sense of freedom as independence. While freedom as independence may rule out some allocations of the burdens of social co-operation, it is implausibly permissive. In determining what constitutes a fair allocation of the burdens of social co-operation, then, further normative resources are required beyond the austere ideal of freedom as independence.

Overall, Benbaji’s thoughtful, rich and careful article describes a very interesting, plausible alternative to minimalist Kantian views, which preserves the appealing importance given in those theories to stringent interpersonal restrictions on the use of, and harm to, other people’s bodies and property. By way of conclusion, here are some reflections on his analysis.

First, while Benbaji is correct that ‘enhancing welfare’ is not itself a permissible end of state action in Kantian theories such as Ripstein’s, these theories may well allow some considerations about the ‘wider impact on society as a whole’ of private law rules to bear upon the content of those rules. Weinrib’s view, for instance, is that the scope of rights may justifiably be narrowed or extended compared to the right that would exist prior to the existence of the state, because of the need “to adjust the effects of rights so that rights fit within the totality of conditions under which the freedom of all can coexist.”2 Precisely what this permits is not entirely clear, but conceivably it could permit restriction in the private law remedies available to a right-holder if the effect of granting relief would be for the court substantially to contribute towards other right-violations in the future. While a simple ‘consequentialism of rights’ is clearly not permitted, there may be room within ‘minimalist’ Kantianism for certain consequential impacts on rights to be taken into account in the design of remedial rules. Possibly, it would permit rules limiting the scope of liability in situations in which crushing liabilities would overdeter and result in more right-violations in the future.

Second, I was not fully persuaded by Benabji’s argument against judicial consideration of non-freedom-based considerations within semi-Kantianism, i.e. once the lexical demands of freedom are met. It is possible for judges to create rationes decidendi of relatively broad and general scope. It is conceivable that judicial law-making power could be permissibly exercised in certain situations in such a way that any additional burdens of a private law rule due to non-freedom-based considerations could be equitably shared. If so, then the arbitrariness objection that Benbaji makes to judicial reliance upon such considerations will not hold in all cases. In some cases, in other words, judges will be able to construct freedom-respecting rules which equally, or otherwise appropriately, burden all relevant members of the distributive class. For instance, suppose that one method of contractual interpretation in cases of vagueness is freedom-consistent, but more likely to maximise welfare than another. If this method is judicially decreed, then all persons who seek to create contractual rights will be subject to the same rules. It is not clear that other distributive changes would need to be made across society for the creation of such a rule to avoid arbitrarily singling out certain members. At any rate, Benbaji’s objection seems to give rise to a more contingent objection to judicial reliance upon non-freedom-based considerations than his discussion suggests.

Third, while I am sympathetic to the general structure of Benbaji’s argument, one might dispute some of his examples of when Kantian right is supposedly indeterminate. Consider again his example of the defendant’s shifting the risk posed by the trolley again. Kantians such as Weinrib would, I think, insist that the required characterisation of the risk in this example is not simply one which considers whether the defendant had an impact on the overall magnitude of risk faced by the victim. If running someone over due to failure to pay proper attention to their interests is wrongful on the Kantian view even when, relative to the facts, it ends up saving that person’s life (as in the doomed flight example), and if there is a strong analogy between this example and Benbaji’s, then isn’t Kantian right non-neutral on the issue of how the risk is characterised?

Fourth, while semi-Kantianism may be an improvement on minimal Kantianism, perhaps an even weaker form of Kantianism (semi-semi-Kantianism?) would be still more attractive. One further weakening would involve the introduction of requirements to consider and act upon considerations of welfare in certain contexts. While Benbaji argues for the permissibility of taking into account considerations of aggregate welfare, he does not argue for the existence of requirements to do so. Suppose, however, that P1, P2, and P3 all satisfy the demands of freedom, but P3 would be enormously more beneficial in terms of welfare. Other things being equal between P1, P2, and P3, it’s plausible to think that there is a requirement for the legislator to choose P3.

  1. See Arthur Ripstein, Force and Freedom (2016).
  2. Ernest J. Weinrib, Private Law and Public Right, 61 U. Toronto L.J. 191 (2011).
Cite as: Sandy Steel, Kantian Justice and Aggregate Welfare, JOTWELL (May 13, 2021) (reviewing Yitzhak Benbaji, Welfare and Freedom: Towards a Semi-Kantian Theory of Private Law, 39 Law & Phil. 473 (2020), available at SpringerLink), https://torts.jotwell.com/kantian-justice-and-aggregate-welfare/.

Filling the Gaps in IIED

Alex B. Long, Using the IIED Tort to Address Discrimination and Retaliation in the Workplace, (Mar. 31, 2021) __ U. Ill. L. Rev. __ (forthcoming), available on SSRN.

The intentional infliction of emotional distress (IIED) is, in some ways, an outlier among the intentional torts. Most intentional torts are ancient, dating back centuries. By contrast, the original Restatement of Torts, published in the 1930s, did not recognize IIED; it first appeared in a supplement in 1948. More importantly, the intentional torts tend to focus on delineated forbidden conduct. The gist of battery is contact; of assault, it is apprehension; of false imprisonment, it is confinement. IIED is broader, vaguer than the other intentional torts. Although vagueness has the advantage of flexibility, it creates significant difficulties in application.

Alex Long’s recent article, Using the IIED Tort to Address Discrimination and Retaliation in the Workplace, provides concrete guidance on a specific and important fact pattern.

In spite of Title VII and other antidiscrimination statutes, discrimination and harassment in the workplace remain a problem. Long wants to use tort law to help. Mindful of courts’ reluctance to use the tort of IIED in the employment context, Long singles out a limited set of circumstances for liability. He argues that “courts should recognize retaliatory conduct as an especially weighty factor in deciding whether conduct is extreme and outrageous for purposes of IIED claims, particularly where it is coupled with discriminatory conduct.” (P. 4.) Long’s reasoning is partially instrumental; deterring retaliation would arguably incentivize people to complain about and, thus, reduce harassment. He focuses primarily, however, on the harm to the victim, using social science research to support his argument.

Long begins by covering the basics of IIED and its vague standard of extreme and outrageous conduct. He notes that the lack of a clear standard is one of the defining traits of the tort, creating the danger of unpredictable outcomes. Concerns about limiting the tort are as old as the tort itself. Recognizing the dangers of vagueness, courts have set a demanding threshold for liability and attempted to find concrete circumstances under which liability is imposed. The Restatement (Third) of Torts lists potential indicators of extreme and outrageous conduct, including: “the relationship of the parties, whether the actor abused a position of authority over the other person, whether the other person was especially vulnerable and the actor knew of the vulnerability, the motivation of the actor, and whether the conduct was repeated or prolonged.”1

As reluctant as courts are to allow liability in general, some are particularly leery of liability in the employment context. Many courts there take an “especially strict approach” to the extreme and outrageous standard, and Long provides the case examples to prove it. To the extent courts justify this tightening of the standard, they tend to do so on the grounds of preserving the employment at-will rule and employer discretion. Significantly, discrimination and harassment, by themselves, rarely meet the extreme and outrageous standard, and again Long documents this admirably. For example, Long describes a 2012 case in which a supervisor referred to a Black man as a monkey, sent a KKK-themed text depicting a noose to another employee, and used racial epithets on a nearly daily basis. An Illinois federal court held that this behavior did not reach the level of extreme and outrageous conduct.2

Title VII and other antidiscrimination statutes also make it illegal to retaliate for exercising certain rights, such as opposing unlawful discrimination. Yet it is a rare case in which retaliation creates a jury issue on the question of extreme and outrageous conduct, even if the retaliation is unlawful. A few jurisdictions, however, recognize that discriminatory or harassing conduct combined with retaliation may be extreme and outrageous. Focusing on Pennsylvania and Illinois, Long cites cases containing both factors that at least survive motions to strike. The key is that these courts do not view the discrimination or harassment and the retaliation as isolated, but as inextricably linked.

Long advocates for the further adoption of this minority approach. He notes that one potential benefit of expanding liability on these facts is that retaliation may decline. If retaliation declines, arguably more victims would feel comfortable reporting harassing and discriminatory conduct, which misconduct itself would decline. Long largely relies on the fact that retaliation stemming from opposition to harassment or discrimination is a “special kind of wrong” that has a “greater detrimental impact upon victims.” (P. 38.) To establish that harassment and discrimination are particularly harmful, Long reviews social science research linking harassment and discrimination victims to feelings of humiliation, which Long ties to powerlessness. Humiliation, and the sense of powerlessness, is aggravated if there is no way to express the grievance. Retaliation often cuts off the avenue for voicing grievances.

You know a paper is enjoyable when you wish the author had expanded it. I am intrigued by the similarities between Long’s article and a recent piece by Cristina Tilley.3 In that article, Tilley attempts to fortify IIED using neuroscience. She argues the gist of outrageous conduct is based in biology, and is, therefore, objective. The “fight or flight” response in human beings is positive in that it serves to aid survival. When the response is triggered, but external impediments prevent a person from acting, antisocial emotional distress is created. Tilley argues it is the purposeful creation of this antisocial emotional distress that is the crux of outrageous conduct.

Both Long’s and Tilley’s articles use scientific research to reduce the vagueness of the extreme and outrageous requirement by identifying circumstances under which liability is particularly appropriate. Moreover, it seems that Long’s category of liability would qualify as objective under Tilley’s taxonomy. An employee with power over another employee harasses or discriminates against them and then retaliates for protected opposition to that conduct. The employee with power is an external impediment to action, leaving the other employee feeling, and actually being, powerless. Is there a formula here? Can we map liability in IIED beyond the category identified by Long?

Regardless of whether further advances are possible, Long’s article is a good and convincing read. Long has articulated a discrete and concrete set of facts under which liability should flow. He is helping to fill the gaps in the vagueness of IIED.

  1. Restatement (Third) of Torts: Phys. & Emot. Harm § 46 cmt. D (2012).
  2. Golden v. World Sec. Agency, Inc., 884 F. Supp.2d 675, 683-84, 697 (N.D. Ill. 2012).
  3. Cristina Carmody Tilley, The Tort of Outrage and Some Objectivity About Subjectivity, 12 J. Tort L. 283 (2019).
Cite as: Christopher J. Robinette, Filling the Gaps in IIED, JOTWELL (April 14, 2021) (reviewing Alex B. Long, Using the IIED Tort to Address Discrimination and Retaliation in the Workplace, (Mar. 31, 2021) __ U. Ill. L. Rev. __ (forthcoming), available on SSRN), https://torts.jotwell.com/filling-the-gaps-in-iied/.

Vetting Voir Dire

John Campbell et al., An Empirical Examination of Civil Voir Dire: Implications for Meeting Constitutional Guarantees and Suggested Best Practices (Apr. 27, 2020), available at SSRN.

An Empirical Examination of Civil Voir Dire: Implications for Meeting Constitutional Guarantees and Suggested Best Practices is a provocative new paper by an all-star cast of empirical legal scholars, including John Campbell, Jessica Salerno, Hannah Phalen, Samantha Bean, Valerie Hans, Less Ross, and Daphna Spivack. In the paper, the authors start with a set of key questions: “[I]f a fair jury is the real goal, how do we ensure we have one? Which jurors should be seated, and which excluded? And how do we achieve the goal of finding the biases that pervert the jury system?” (P. 2-3).

In tackling these key questions, the authors recognize that juries sit in the center of our civil justice system; the decisions they make cast shadows that affect myriad claims. And voir dire (the process whereby questions are asked of the venire panel to identify the prospective jurors who will be excluded by peremptory challenges or for cause) is the filter that determines which individuals serve on juries and which do not. Yet, despite the process’s importance and centrality, we know remarkably little about how voir dire is conducted in the United States and how good it is at achieving its stated aims. The authors’ much-needed investigation starts to answer both questions—and, as I explain below, might also have implications far beyond the paper’s four corners.

To gain leverage on the voir dire efficacy question, the authors gave 2,567 Mechanical Turk participants three scenarios that presented three separate vignettes involving (variously) a bad faith insurance law claim, a wrongful birth claim, and a medical malpractice claim. The “prospective jurors,” meanwhile, were “screened” either not at all, via bare-bones questioning, or via an extended inquiry that probed, among other things, the individuals’ support for litigation, discomfort with noneconomic damages, attitudes toward lawsuits, suspicion regarding fraudulent claims, and political ideology.

Ultimately, the authors conclude that a rigorous voir dire examination matters—and it matters more than you might think.

Interestingly, the authors found that the information surfaced by truncated voir dire questioning—in use in hundreds of American courthouses—did not usefully predict jurors’ judgments. By contrast, the authors found that responses to extended voir dire significantly predicted how jurors would rule. Indeed, responses to extended voir dire questioning offered insight beyond the obvious. For example, the authors discovered that jurors who were opposed to noneconomic damages were more than twice as likely to also offer a verdict favoring the defendant, even though views regarding the appropriateness of such damages, logically, should not impact judgments regarding liability.

When it came to uncovering those prospective jurors who would have trouble following a judge’s directions—i.e., those prospective jurors who really ought to be excluded for cause—findings were similar.

In all, the authors uncovered a “surprisingly high number of jurors”—42 percent of the sample— “whose responses revealed that they might have trouble following the law.” (P. 80.) Yet, these non-law-followers “would not have been identified and struck from the jury based only on the minimal voir dire questions that required jurors to self-identify biases.” (P. 80.) It took more sustained interrogation in order for their unsuitability to come to light. Also disquieting: When the non-law-followers were allowed into the jury pool, they were less likely to rule for the plaintiff and also awarded significantly depressed damages. Indeed, the non-law-followers awarded $852,932 less than respondents generally, on average.

Given all this, the authors conclude that, to be done reasonably well, “voir dire requires time.” (P. 84.) If voir dire is rushed, or if it’s conducted in a perfunctory fashion, its value is, unfortunately, de minimis, and jurors will be empaneled who, by rights, ought to be excluded for cause.

The paper is critically important in its own right: With concrete tips for how voir dire should be conducted, alongside sober evidence about the peril of side-stepping or short-circuiting these guidelines, this piece is essential reading for every trial judge interested in the impartial operation of the civil (or criminal) justice system.

Yet, I find the paper valuable for another reason, too: Embedded deep within it, perhaps, is a clue to solving a crucial puzzle—relevant for tort scholars and practitioners, in particular.

It is well known that there are dramatically fewer tort trials in the United States than there used to be.1 We also know that, when there are tort trials, damage awards are down sharply. According to the Bureau of Justice Statistics, the median jury award in state court tort cases was $71,000 in 1992 but only $33,000 in 2005—a drop (in inflation-adjusted dollars) of 53.5 percent.2

But why? What explains that steep decline? There are, to be sure, any number of possible culprits—from reforms to substantive law, to changes in judicial composition, to the advent of AI-driven tech.3 One possible explanatory variable that I return to, however, is that juries might be viewing cases differently than they did in the days of yore—and that, therefore, to unlock the mystery of declining damages, a close look at jury composition and conduct is called for.4

And that brings us full circle to John Campbell and co-authors’ work. Campbell and co-authors find that, without a detailed voir dire, non-law-followers will be included on juries—and when these non-law-followers do make it on to juries, they are apt to significantly skew judgments and drive down damages.

And, what has happened to voir dire in recent decades? Fueled by a shift toward “managerial judging” and a sense that court time is a scarce resource that must be restricted and rationed, judges have “streamlin[ed] voir dire procedures.”5 Perhaps as a consequence, voir dire in many courts (particularly in the federal system) has, it appears, become ever more cursory. As one recent article explains: “Numerous courts across the country, citing time constraints, have either reduced the time allocated for voir dire or switched from attorney- to judge-conducted voir dire.” Owing to these restraints, “most federal courts, and many state courts, only provide litigants with very basic identifying information.”6 This cursory examination, Campbell and co-authors show, yields almost nothing of use.

Now, did the restriction of voir dire partially cause the observed drop in tort damages? Are the two trends causally linked? Not necessarily. Correlation is not causation; far more research is required.7 But, given Campbell et al.’s findings—that (1) many prospective jurors actually have disqualifying biases, (2) cursory voir dire fails to identify these individuals, and (3) when these individuals are seated on juries, they tend to side with defendants and depress damages—certainly, we ought to find out.

  1. Nora Freeman Engstrom, The Diminished Trial, 86 Fordham L. Rev. 2131, 2131–32 (2018).
  2. Bureau of Just. Stat., 223851, Civil Bench and Jury Trials in State Courts, 2005 (2009). These numbers come from trials conducted in the nation’s seventy-five most populous counties. During this period, damages in contract cases rose (from $77,000 in 1992 to $92,000 in 2005), suggesting that the change reflects something about tort, in particular. Interestingly, as damages have fallen, tort filings have dropped as well—meaning, likely, that the cases that are filed have survived more stringent screening and are therefore (one might assume) of relatively higher quality. See Nora Freeman Engstrom, Supplying a Key Piece of the Tort Decline Puzzle, Jotwell, Mar. 30, 2020, https://torts.jotwell.com/supplying-a-key-piece-of-the-tort-decline-puzzle/ (collecting statistics).
  3. For a discussion of these and other changes that might explain observable trends, see David Freeman Engstrom & Nora Freeman Engstrom, Legal Tech and the Litigation Playing Field, at 1–3 (working draft, 2021).
  4. Some trial lawyers, at least, seem to share the view that juries have changed, observing: “[J]uries have gotten mean, real mean.” Stephen Daniels & Joanne Martin, Texas Plaintiffs’ Practice in the Age of Tort Reform: Survival of the Fittest – It’s Even More True Now, 51 N.Y.L. Sch. L. Rev. 285, 297 (2007) (quoting a Texas trial lawyer, interviewed in the late 1990s).
  5. Judicial Conference of the United States, Committee on Court Administration and Case Management, Civil Litigation Management Manual 110 (2d ed. 2010); see also Elizabeth G. Thornburg, The Managerial Judge Goes to Trial, 44 U. Richmond L. Rev. 1261, 1278, 1300, 1304–05 (2010) (noting that various proponents of managerial judging have pushed for limits on voir dire).
  6. Andrew Guthrie Ferguson, The Big Data Jury, 91 Notre Dame L. Rev. 935, 953–54 (2016) (quotation marks omitted).
  7. For other potential culprits, see supra note 3.
Cite as: Nora Freeman Engstrom, Vetting Voir Dire, JOTWELL (March 12, 2021) (reviewing John Campbell et al., An Empirical Examination of Civil Voir Dire: Implications for Meeting Constitutional Guarantees and Suggested Best Practices (Apr. 27, 2020), available at SSRN), https://torts.jotwell.com/vetting-voir-dire/.