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 nontrivial 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.
Cite as: Kenneth W. Simons, A New Retributive Justification for Punitive Damages
(July 13, 2021) (reviewing Erik Encarnacion, Resilience, Retribution, and Punitive Damages
, 100 Texas L. Rev.
__ (forthcoming, 2021), available at SSRN), https://torts.jotwell.com/a-new-retributive-justification-for-punitive-damages/
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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, 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.
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. 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.” 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.
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.”
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.
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. 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.
Cite as: Christopher J. Robinette, Filling the Gaps in IIED
(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/
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. 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.
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. 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.
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.” 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.” 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. 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.
Cite as: Nora Freeman Engstrom, Vetting Voir Dire
(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/
Torts-minded readers with an under-18 person or two they care about in their lives will appreciate Civil Liability for Cyberbullying (“Cyberbullying”), published in June by the Israeli private law scholar Ronen Perry. They will find ample theory, doctrine, erudition, and intellectual loft too, but this paper is peopled. In both his article and a blog post he wrote about it Perry leads by remembering a person: Megan Meier, who at age 13 heeded a suggestion posted on MySpace in 2006 that she kill herself.
From this opening Perry moves to spend most of his time on three groups whom the law could hold responsible for the harms of cyberbullying. First are young peer offenders. (P. 1226.) Next come what Perry calls “real-life supervisors” (P. 1235): parents, teachers, school administrators. Last are “virtual supervisors, namely platforms that enable juvenile cyber-activity and cyber-wrongdoing,” for example Facebook, Instagram, and YouTube. (P. 1245.) Perry has tort liability plans for all these groups. His exposition contains many virtues, of which I will mention three.
Kick #1: Attention to Abettors
Encounters with bullies in my own youth were mercifully scant, but I experienced and witnessed enough to know that the heavy shelf of authority over children’s lives—the force wielded by teachers, school administrators, peers’ parents, after-school activity managers, summer camp bosses—offered little shelter from this danger. I observed adults in charge, not all of them but too many, appearing to favor aggressors over victims.
That problem remains but ensuing decades brought a little progress. I appreciate the addition of “bullying” to the discourse, mindful that in my adolescence this term was never used to reference a broad-scale problem. Like “stalking,” “othering,” “mansplaining,” “slut-/fat-shaming,” and other newcomer-gerunds that speakers apply to conduct they don’t like, this word is hard to define with precision and maybe gets thrown around too easily. But it does tell hurt persons that they could be right to consider themselves mistreated, a belief that my generation was brought up to question and resist. Once “bullying” fell in place, a posture of disapproval could enter statutory law. “All state legislatures in the United States require school districts to prescribe and enforce anti-bullying policies,” Perry notes (P. 1223), dropping a footnote with citations that run from Ala. Code to Wyo. Stat. Ann.
Good. But not good enough as a response to preventable, deterrable, remedy-able wrongdoing that causes people to suffer. Perry wants behavior to change. He has tortfeasors in mind, choices to influence.
Because they have more money than a young perp who torments a peer, abettors are central to the Cyberbullying cast. Perry gives them what they deserve. In my first reading of the article I objected a bit to his use of “supervisors” to describe adults on the scene of children’s lives, and more so to his characterization of online platforms as “virtual supervisors.” People and entities can undertake the activity of supervision, I thought, but supervisor is not their identity. It seemed to me that Perry had gotten ahead of his evidence. I went on to drop my objection. Oh hell yes you are. If nobody forced you to interact with perpetrators, then you can be their supervisor when the law has drawn that conclusion. There is no bullying without bullies, and people who enable the actions of primary wrongdoers have earned the tort liability Perry has in store for them.
Kick #2: Tort Well Deployed
In his blog version of Cyberbullying posted in June 2019, Perry contrasted tort liability to an alternative that the United Kingdom had recently announced: New codes of conduct could be promulgated to hold internet businesses responsible for harms that their platforms or services fostered. A white paper published in April of that year had proposed taxes on these businesses to pay for an independent regulator tasked with enforcing compliance.
Perry contended that a “blind spot” marred that conclusion: The British government omitted tort liability from its fix of the problem. To be fair to the white paper, it had a wider range of online harms than cyberbullying in mind. Terrorists’ access to communication channels, for example, is not among the ills that tort can readily address.
But Perry is right to deploy tort against cyberbullying. The prospect of being ordered to pay cash damages can steer an individual toward safety and away from endangerment. Perry’s tripartite lineup of tortfeasors—(1) those who cyberbully, (2) those with power over cyberbullies in the geographic environments of schools and homes, and (3) those who provide cyberbullying an online location to reap its mischief—is in reach of a deterrence strategy: while admitting that almost all young cyberbullies are judgment proof (Pp. 1262-63), Perry concludes plausibly that “relying on victims’ common sense” (P. 1263) in the selection of defendants will conserve judicial time well enough and so tort liability ought to reach children too.
Young miscreants’ choices are peripheral here, however, because children lack the power to inflict harm that the law considers significant. Regulators necessarily focus on people who can alter their behavior in response to incentives. So seen, adults nearby and businesses at a distance that should have used ordinary care to prevent or mitigate the harms of cyberbullying are at least as central to a law-based response as the text of a government-authored prohibition.
Tort liability pressed on these defendants offers strengths that criminalization and anti-bullying rulebooks lack. Because injured persons initiate claims without having to pay fees up front, law-based sanctions can land on a responsible party even when enforcers have shrugged off this wrongdoing, when bullies are richer or more prominent than their victims, and when mens rea is either absent or found only in the roily minds of inarticulate children. Tort is also better than codified crimes and regulation at recognizing the danger of inaction and inattention.
Characteristics of origin affect the conditions that legal instruments are suited to address. A crime or codified regulation starts its life as a published official incursion on individual liberty by the government; a tort starts out as a perception that one has been wrongfully injured. Perry’s emphasis follows tort priorities. Cyberbullying tellingly includes a long paragraph that gathers harmful impacts on young human beings (Pp. 1222-23) while relegating its definition of cyberbullying to a footnote that string-cites others’ definitions. (P. 1221 n.9.)
That’s tort. Jurors know breach of duty when they feel it and condemn it when they find it: they don’t share the public-law inclination to pause over the possibility that government overreaches when it tries to stop something bad. Like the law of negligence that he enlists, Perry cares more about harm to individuals than about claims of right (to free speech, for example) against the state.
In his last sentence, Perry acknowledges that repair of the cyberbullying problem probably calls for additional tools, not just his: he says he is not “contesting the possible need for a more comprehensive framework” than civil actions for damages. (P. 1272.) Cyberbullying, in helpful contrast to the UK white paper, chooses pluralism. It frames its solution as part of a larger response.
Kick #3: Law and Economics Usefully Applied
Taking a leaf from Perry, who called Cyberbullying “[a] recent study” without naming its author, I mention a law review article, at age 15 no longer recent, that asked what remains of law and economics after one subtracts out its “tautology, circularity, vagueness, and evasion of pertinent political questions.” This article did find three things still present in law and economics as a school of thought: a focus on “the policymaker” (in contrast to an external perspective like that of the skeptic or critical theorist), a goal of improved social welfare, and an ex ante rather than ex post approach to problems that the law can reach.
Cyberbullying embraces the label. Perry announces “a law and economics analysis” (P. 1220) and “an efficient technologically-assisted model.” (P. 1225.) He says that “[o]nly if expected liability is equivalent to the expected externalized cost will the potential injurer internalize that cost and take cost-effective precautions” (P. 1249), a remark that one needs to be an economic analyst of law to make. With respect to the heart of what Cyberbullying wants to deliver—liability for supervisors—Perry adverts to “[t]he classical economic justification” (P. 1255) for this liability. Cyberbullying also shares the above-mentioned signature traits of law and economics in that it addresses policymakers and social welfare and works with an ex ante perspective.
Keeping in mind his two categories of supervisors, Perry identifies precautions they could take against cyberbullying that they now omit because the law does not steer them toward investments in safety. Parents and school authorities could educate children to know that cyberbullying is wrong, impose surveillance technology on children’s machines (Perry seems to like this precaution best), and dish out punishments and rewards aimed at improving behavior (P. 1255). Members of the “virtual supervisors” category, i.e. online platforms, have different measures at hand. Perry says they could limit or prohibit posts by users who do not identify themselves (the MySpace peer who in 2006 told Megan Meier that the world would be better without her wrote this message anonymously), collect and store data about users, and turn over this record at the behest of tort claimants who do not know who injured them. (P. 1259.)
In Perry’s economics-flavored fix of cyberbullying, the law would force each of the two supervisors to correct or complement a safety-related shortfall of the other. Parents and schools have a lot of power over potential cyberbullies but cannot easily gain information about a child’s online conduct needed to inform their task of supervision. (Pp. 1255-56.) Social media and other electronic platforms are too far from children to exercise direct supervision (P. 1262), but they’ve got the information goods, most pertinently the identity of a particular cyberbully. Safety gaps can be expressed as costs. Perry spots their cheapest avoider.
While very much a work of law and economics, Cyberbullying transcends the limitations of the genre. Visit the Law and Economics Commons, a site that provides links to oft-downloaded contemporary law review articles, if you need a reminder of how seldom an economic analyst will make an extended case for more tort liability as a source of welfare. Deterrence, incentives, cost internalization, and problems of missing information are familiar concepts, but few law and economics scholars join Ronen Perry in applying this terminology to enhancing the dignity, comfort, safety, and peace of vulnerable individuals.
Joshua Knobe, Scott J. Shapiro, Proximate Cause Explained: An Essay in Experimental Jurisprudence
, 88 U. Chi. L. Rev
__ (forthcoming, 2021) available at SSRN
A familiar rhetorical trope in modern advocacy is: “Imagine if visitors from outer space were observing x; how would they describe it?” The payoff of this exercise is to get the audience to see that the view proposed by the speaker, while superficially unfamiliar, is actually more perceptive than the conventional understanding of the practice at issue. The subtext is that only with the benefit of insights gleaned from a great distance (or an unusual perspective) can those immersed in a practice truly understand it.
I could not help but think of this trope while reading Knobe and Shapiro’s fascinating—if at times frustrating—paper on proximate cause. Of course, they are not space aliens; they are both philosophers and one (Shapiro) is a law professor as well. But neither specializes in tort law, and by their own admission they are leveraging their distance from the conventional discourse of torts scholars and judges to arrive at insights that have otherwise eluded those of us immersed in the practice.
This paper deserves attention from anyone interested in the future of private law as a distinct field. It tries to preserve private law’s relevance as a jurisprudential category by offering it a lifeline from outside its familiar precincts. Significantly, Knobe and Shapiro are not skeptics about legal reasoning, nor do they concede ground to those, like Leon Green, who sought to collapse private law into public law. The assistance they offer is intended to improve tort law from within by giving it new tools to make sense of the mass of judicial opinions which already instantiate a workable set of rules for deciding cases. The question is, how much help do they really provide?
The paper makes four distinct claims. The first is that the legal doctrine of proximate cause is a mess—that the reasoning provided, if not the outcomes reached, by judges when they deploy the doctrine are confused (and perhaps wrong, as a matter of law). The second is that the reason for the mess is because lawyers and judges, notwithstanding that they disagree with each other, are starting with a set of false premises about law. The third is that the visitors (the philosophers) can see what the insiders have missed because they are using tools heretofore unknown to the insiders, namely “experimental jurisprudence.” (P. 7.) Finally, Knobe and Shapiro claim that the conception of proximate cause they offer fits “patterns observed in legal judgments” pretty well. (P. 39.)
My reaction to these four claims, in brief, are as follows. The first is correct. The second may be correct, but Knobe and Shapiro do not add much to the reasons we have for believing it (other than the fact the first is correct). As the third depends on the validity of the fourth, and as the fourth is not wholly convincing, it seems premature to endorse the third.
It is well known that proximate cause is a controversial topic in tort law as well as other parts of the law. The source of the controversy is sometimes over terminology, but the interesting issues concern the practical implications generated by the arguments over terminology. So, for example, Reporters for the Third Torts Restatement, in a “Special Note on Proximate Cause” explain that the term “proximate cause” does a poor job of capturing the idea it expresses. In other words, the phrase “proximate cause” (and its later iteration, “legal cause”) denotes a legal concept that is part of the law, and not just a special case of some other legal concept (like duty), the only problem being that the concept has until now been poorly defined and analyzed. The Reporters state that “Tort law does not impose liability on an actor for all harm factually caused by the actor’s tortious conduct” and suggest that the phrase “scope of liability”—separate from duty and cause in fact—captures this legal concept more satisfactorily than the phrase “proximate cause.”
Thus, we have some agreement by the insiders with Knobe and Shapiro. “Proximate cause” has not served our legal system very well. But the agreement does not go very far. Knobe and Shapiro come to their conclusion by observing a debate—which they characterize as between Formalists and Realists—and discerning that both sides share certain premises but fight over the proper relation between those premises. (P. 12.) Those premises are that anyone doing adjudication (or writing about it) work in a world where there are such things as causal judgments and moral judgments, and the two kinds of judgments are conceptually independent of each other—the former referring to a “metaphysically real relation” (P. 12, emphasis supplied) and the latter referring to a judgment about who is “morally responsible for a harm.” (P. 10.) Formalists, they continue, start with judgments about causation and, depending on the moral principal employed, decide if someone should be blamed for what they have caused (e.g.: negligence vs. strict liability), whereas realists start with judgments about moral responsibility and decide if someone should be treated as if they are a ‘real’ cause based on the prior moral judgement (e.g.: Andrews’ dissent in Palsgraf).
Knobe and Shapiro argue that the better understanding of causation (all causation, not just what lawyers have called proximate cause) is that it is like a sandwich: moral judgments inform the concept of causation (as a relation between events), and judgments about causation inform legal conclusions about blame (or responsibility). (Pp. 12-15.) Their approach has two crucial steps. First, Knobe and Shapiro need a method that determines the moral concepts that guide causal judgments. This is where they introduce the innovation of experimental jurisprudence—studying ordinary people’s responses to questions posed in experiments. Second, Knobe and Shapiro need to provide content to the ‘moralized’ causal concept produced by the first step. This paper provides the content with some variations, but here is the central idea around which the variations pivot: “[P]eople’s causal judgments are impacted by their beliefs about whether the agent’s behavior is abnormal. (P. 20, emphasis in the original.) This claim reflects an understanding of causation that extend to any proximate cause query, and is applicable to, for example, causes that are statistically abnormal, thus intervening to relieve an actor of responsibility. But before I discuss these two steps in more detail, I want to make an observation about the putative novelty about their methodological innovation (what I have, slightly irreverently, called “the sandwich”).
It is not quite accurate to say that the debate over proximate cause is exhausted by the debate between Formalists and Realists. The formalist position presented in the paper resembles the so-called “directness test” found in the famous Polemis case. That is, the idea that the test for proximate cause in law involves a factual judgment about the world—whether or not an event “directly” caused another event. A version of this can be seen in Ryan v. New York Central R.R. Co. (35 N.Y. 210 (1866)), which improbably claimed that a fire spreading to a neighbor’s property was not “natural and ordinary”. As the Reporters of the Third Restatement wrote, these Formalist decisions reflected the view that proximate cause “could be determined through a neutral, scientific inquiry.” The Third Restatement’s formulation of “scope of liability” rejects the Formalist position yet does not adopt the Realist position. It is actually quite similar to the Knobe and Shapiro sandwich. The Third Restatement explicitly embraces what is sometimes called the “risk rule” for determining when an action counts as a proximate cause of an injury. The risk rule quite overtly employs a norm to determine whether an actual cause is a proximate cause—the norm which says that an actor is not subject to tort liability for causing an injury to another unless the causal connection involves the realization of one of the risks that renders the actor’s conduct tortious in the first place.
To recap: Knobe and Shapiro have told us that the Formalist and the Realist positions about proximate cause fail because they each misunderstand the need for a normative concept of causation, and they offer in the place of these alternatives a normative concept of causation that they think will work pretty well. However, as I have pointed out, tort insiders also have a normative concept of causation—the risk rule, and many have been trying to apply it since the early 1960’s , when it was formally adopted in Wagon Mound I in the U.K. and Kinsman in the U.S. So, the next question is, how does Knobe and Shapiro’s normative concept of causation compare to the risk rule?
In a short essay it is not possible to cover all of the variations of Knobe and Shapiro’s proposed test. I will focus on a few specific instances where their test and the risk rule are in direct competition. The most obvious place to begin is in cases of “superseding cause”, such as the case with which Knobe and Shapiro begin their paper, Henningsen v. Markowitz, 230 N.Y.S. 313 (1928). The case involved the question of whether a mother’s negligence in failing reasonably to execute an intervention (by ineffectively attempting to take away an air rifle from her 13-year-old son) was a reason to hold that the negligent conduct of the defendant (selling the gun to the child in violation of a state criminal statute) was not a proximate cause of the plaintiff’s injury. Knobe and Shapiro argue that the correct rule attributes causation to the negligent seller unless it is the case that the mother’s act (not doing enough to prevent her child from gaining access to the gun) was more abnormal than the defendant’s original negligent act (unlawfully selling an air rifle to a minor). The risk rule would argue that the correct rule attributes causation to the negligent defendant if the risk that was realized (the victim being shot in the eye when the child and his friend were using the gun) is one of the risks that rendered the defendant’s conduct negligent. Both approaches come up with the same answer—the defendant’s conduct constitutes a proximate cause. So why prefer one over the other?
One reason is that superseding cause cases are not really the most important, or illuminating, cases confronting courts grappling with the problem of proximate cause. As the Third Restatement has pointed out, superseding cause is an area of law with “declining importance” for a variety of reasons, including the introduction of comparative responsibility—so that the cases involving it (such as Henningsen) are of “waning influence” in this area of law. And for other, more central types of proximate cause cases—those not involving intervening wrongdoing—are better handled by the risk rule than the Knobe and Shapiro abnormality test. Consider the problem which the risk rule is especially good at solving—where the defendant causes an unusual harmful consequence without the negligent or intentional interference of a third party.
To take a classic example, suppose D, an adult, negligently entrusts a loaded handgun to a minor or an incompetent, and the minor or incompetent non-negligently drops the handgun on P’s toe, breaking it. The risk rule is robust in its ability to explain why D’s negligent is not a proximate cause of P’s injury: the risk that was realized was not one of the risks that rendered D’s conduct careless (as would have been the case if the incompetent person had accidentally shot P). Yet it is hard to know how Knobe and Shapiro’s “normality-based” approach (P. 21) can even start to address this situation. A child or incompetent non-negligently dropping a 2-pound object is not abnormal, either statistically or morally, which would suggest, counterintuitively, that D’s conduct was a proximate cause of P’s harm. Knobe and Shapiro state that “people tend to regard a factor as especially causal when it is morally wrong and when it is statistically infrequent” (like a criminal taking advantage of storeowner’s failure to light a portion of her property). (P. 22) But as the handgun example shows, under the risk rule, whether a defendant is a proximate cause depends less on a comparison between an intervening event and the defendant’s careless conduct, and much more on a comparison between the defendant’s conduct and the final event—the risk that was realized. The intervening event will be part of the process of evaluation under the risk rule, but the aspect which Knobe and Shapiro emphasize—the comparison of each events’ degree of “normality”—seems ad hoc. The question is not, as they put it, whether another cause “beats out” the defendant’s conduct as a cause of the victim’s injury (P. 27)—as if proximate cause is a race. Rather, it is whether the defendant’s wrongdoing aligns in the right way with the harm suffered by the plaintiff.
None of this is to say that Knobe and Shapiro’s “normality”-based concept of proximate causation produces the wrong answer in those cases that do involve intervening actors who are intentional wrongdoers, or involve highly unlikely intervening events. But their theory cannot explain a lot of other cases, and so it is, at best, under-determinative for many cases about which modern tort law is deeply concerned. This makes one wonder whether the results the cognitive science research, which aligns with the results of the risk rule up to a point, reveal the limits of the use of research into ordinary judgments about causation for law. One does not need to deny the truth of Knobe and Shapiro’s claim that ordinary judgments about causation, as revealed by empirical research, tell us that lay judgments about causation are motivated by norms which align with legal concepts such as the risk rule. But alignment may not be enough—it may be the case that the insiders cannot only resort to the tools being brought to us from the outside because there are some questions in law that only more legal reasoning can solve.
This paper is, in some ways, reassuring for those of us who are its intended beneficiaries. It is good to know that the conventional methods of courts and scholars aligns, to some extent, with the predictions produced by experimental jurisprudence. This should not be too surprising, since there is a way in which the process of watching juries grapple with jury instructions from scores of jurisdictions (and then thinking about what to do with those juries’ outputs when they are appealed) shares some common ground with the everyday work of research psychologists. The challenge posed by Knobe and Shapiro is one of emphasis—where do we think our efforts should go when the going gets tough and courtroom results do not easily yield to legal analysis. This paper suggests the better strategy is to ask better questions about what ordinary people believe the law is. I doubt that this is going to prove to be winning strategy, since, like so much in life, what ordinary people believe underdetermines the hardest parts of most human practices.
Cite as: Anthony Sebok, Beware of Strangers Bearing Gifts
(January 14, 2021) (reviewing Joshua Knobe, Scott J. Shapiro, Proximate Cause Explained: An Essay in Experimental Jurisprudence
, 88 U. Chi. L. Rev
__ (forthcoming, 2021) available at SSRN), https://torts.jotwell.com/beware-of-strangers-bearing-gifts/
Merle H. Weiner, Civil Recourse Insurance: Increasing Access to the Tort System for Survivors of Domestic and Sexual Violence
, 62 Ariz. L. Rev.
957 (2021), available at SSRN
The U.S. torts system features a large gap between intentional tort doctrine and actual remedies for intentional torts. Doctrine pronounces many injuries tortious and compensable—intentional torts including domestic violence and sexual violence are widespread—yet civil lawsuits for these torts continue to be rare. The reasons for this gap are not a mystery; they all relate to money. Merle Weiner’s important and well-researched article takes effective aim at this situation, meshing insights from civil recourse theory about the purpose of the torts system with empirical information about what survivors of these torts actually want (hint: it’s mostly not money). She uses these insights to shape the idea of a new type of insurance, ‘civil recourse insurance,’ that would much better support the purposes of the tort system and survivors’ goals than the current torts enforcement structure. Civil recourse insurance would be a type of legal expense insurance and would provide a policyholder with legal representation when a covered incident occurs.
The article takes civil recourse theory seriously in its assertions that the overarching purpose of tort law is to further accountability, empowerment, respect, deterrence, and even at times revenge, rather than to provide financial compensation. She applies these theses to the situation of domestic violence and sexual abuse survivors. For the most part, victims of these wrongs do not seek financial compensation. Instead, they more often seek accountability, empowerment, recognition, respect and deterrence. These kinds of remedies are not provided by the torts system as it exists because it is enforced by lawyers who seek financial compensation under contingent fee agreements requiring either insurance coverage or assets to make litigation worthwhile. Insurance exclusions for intentional acts, coupled with judgment-proof defendants, make tort litigation for these wrongs impracticable in our current system. But legal actions seeking accountability, empowerment, respect and deterrence would be possible under Weiner’s proposed ‘civil recourse insurance.’ The policyholder may want to file a lawsuit even if it will be uncollectible; may want assistance participating in the criminal justice system; or may want to have her or his harm recognized in a way that acknowledges wrongdoing. This new kind of insurance, modeled on a popular and successful type of insurance held by 40% of German households, would provide insureds with the resources to pursue these forms of recourse.
Scholars including me, Rick Swedloff, and others have proposed solutions to the civil justice gap in tort law when it comes to remedies for intentional torts. Weiner shows why my proposal of liability insurance covering intentional acts will likely never work and why Swedloff’s proposal for loss insurance also falls short. Her imaginative and well-thought out proposal responds to and rectifies the shortcomings of the prior proposals.
The heart of the article is a proposal for civil recourse insurance which would be available for individuals to buy. It is a type of first party insurance but unlike traditional first party insurance it only covers the cost of hiring an attorney. She argues persuasively that it would be a better way to guarantee access to courts than the current system of contingent fees. The insurance would increase the odds that the survivor will get what she wants from the action; this may lead to deterrence (both individual and general) as well as to positive developments in tort law. Weiner proposes having the insurance cover all intentional torts to the person in order to create a balanced risk pool and avoid adverse selection. And the attorney would be paid by the hour rather than by a contingent fee. She argues carefully that such insurance could be commercially viable. Weiner makes her calculations clear and shows that under certain plausible assumptions civil recourse insurance could cost as little as between $94 a year and $356 a year. She addresses adverse selection and moral hazard thoughtfully and acknowledges important differences between her proposal and the existing German model as well as U.S. prepaid legal services plans.
One of her many useful contributions is to highlight and propose a solution to the ‘conundrum’ that is also observed by civil recourse scholars: “if tort law is designed to empower victims, why does it make the task of responding to wrongs so difficult and cumbersome?” And why does it leave enforcement to private contingent fee lawyers when the damages remedy so plainly often does not fit the wrong?
The final section of the article proposes state support of civil recourse insurance if the insurance product turns out to not be a financially viable model without government assistance. Civil recourse theory supports government intervention, she asserts: “The state’s creation of private rights of action and its provision of a neutral decisionmaker is simply insufficient if its laws, and its failure to adopt other laws, makes access to the system practically impossible.” The existing barriers to tort enforcement and its narrow focus on financial compensation make the tort system “but a hollow shell for civil recourse.” Therefore, based on civil recourse theory, the government should offer civil recourse insurance or support it through interventions such as vouchers, federal insurance, reinsurance or mandatory insurance. Determining what market interventions really make sense for government involvement in insurance is very tricky. But that and other details can be left for another day; this article is a huge achievement and the civil resource insurance proposal is ripe for serious consideration.
Unlike its counterpart at the local IHOP®, the menu of standard tort remedies makes for a quick read. There are damages (in several ‘flavors’), injunctions (typically ordering a halt to tortious activity), declaratory judgments, and … that’s about it. In her fascinating and provocative article The Knowledge Remedy, Alexandra Lahav advocates for a new item to be included in the injunctions portion of the menu. In certain toxic tort cases, she maintains, courts can and should order a defendant to cover the cost of independent research designed to determine whether a substance for which it is responsible is capable of causing the type of injury for which the plaintiff is suing.
Lahav’s opening example, based on an actual case, conveys the basic idea. A farmer notices that his once healthy livestock are dying, as are some local, furry woodland creatures. The farmer has his suspicions. It was not so long ago that a nearby factory commenced operations, and it was only a little after that that the creek that runs through the farm, and from which the critters drink, began to foam up in an odd way. And so the farmer hires a lawyer, who sues the factory’s owner for private nuisance and obtains evidence that the factory has been dumping into the creek a chemical compound that was never vetted for safety by the EPA. Eventually, the litigation settles. In addition to agreeing to install filters, the owner agrees to fund scientific studies to determine what sorts of illnesses in animals and humans the compound is capable of causing.
The gist of Lahav’s argument is that—in a legal system that (like ours) has relatively weak forms of ex ante regulation—plaintiffs in cases like Farmer v. Owner should sometimes be able to obtain such a remedy even absent a settlement. In other words, when there is a tort claim for a toxic exposure (whether grounded in nuisance, negligence, or products liability), and when there is scientific uncertainty as to the capacity of the substance to cause the injury for which plaintiff is suing, the presiding judge has the equitable remedial power to order defendant to fund research into the substance’s toxicity and should be prepared to exercise that power. Lahav does not specify in detail the circumstances that warrant the imposition of this remedy, but she seems to have the following conditions in mind: (1) evidence suggesting some possibility that plaintiff has suffered a harm as the result of the breach of a legal duty owed by defendant to plaintiff (such as a duty not to injure plaintiff physically through careless conduct); (2) the unavailability, despite diligent discovery efforts by plaintiff, of sufficient information to determine whether the plaintiff has been injured by the breach; and (3) a superior capacity on the part of the defendant to develop the necessary information. In situations such as these, she argues, courts have discretion to order the defendant to pay for the production of the relevant knowledge and should be willing to exercise it when the plaintiff’s case raises sufficient suspicion that she has been wrongly harmed by defendant’s activity.
Lahav insists that her proposed addition to the tort remedies menu has doctrinal antecedents, particularly on the equity side of the old law-equity divide. Claimants alleging breach of fiduciary duty have long been able to request an accounting. Thus, for example, if the beneficiary of a trust has grounds for suspecting that a trustee has mishandled trust assets, the beneficiary can, under certain circumstances, obtain a court order directing the trustee to provide an accounting—i.e., records indicating what the beneficiary has done with the money. Of more recent provenance is the recognition by some courts of claims for medical monitoring. In cases in which a tort defendant has exposed a plaintiff to a known toxin, a court will sometimes order the defendant to pay for screenings to enable early detection of any illness associated with exposure to the toxin. The article concludes with an assessment of relevant policy considerations, arguing that, on balance, the availability of the knowledge remedy stands to do more good than harm by filling regulatory gaps and generating useful knowledge that otherwise would never be generated.
The Knowledge Remedy is a notable addition to a burgeoning and impressive scholarly corpus in which Lahav, with justified aggression, takes on the tort reform movement and its disparagement of tort law as merely a matter of plaintiffs’ lawyers exploiting ‘junk science’ and lay-juror biases to extract wealth from firms. Paying close attention to the power dynamics that tend to prevail in life and litigation, she explains here and elsewhere how the law’s empowerment of putative injury victims to bring civil actions serves, and might further serve, the public interest and hence warrant our support. Amidst the modern tort wars, Lahav’s is an eloquent and welcome voice: one that not only identifies the good that tort law does, but possibilities for goods it might yet deliver.
Academics who are somewhat removed from the political trenches will likewise benefit from reading Lahav’s article. Courts and commentators have long wrestled with how best to handle the difficulties of dealing with the causation aspect of toxic tort cases. Sticking with traditional tests for actual causation, and with traditional burdens of persuasion, entails that many plaintiffs who have colorable claims stand to lose merely because of an unfortunate lack of scientific knowledge. This is why commentators and, at times courts, have turned to doctrines such as “loss of a chance,” or to ‘fudge’ terms such as “substantial factor” that give juries more leeway to impose liability. The deep insight of Lahav’s article is the suggestion that creativity in injunctive remedies—which, historically, operated in the more flexible domain of equity—might provide an alternative and more satisfactory way of getting at some of these problems.
Of course in tort law, and the civil side of law more generally, a remedy is predicated on and responsive to the claimant having proved herself the victim of a legally recognized wrong. Thus, it is because the farmer in Lahav’s opening example seems well-positioned to prove that he was the victim of a private nuisance that it is intuitive to suppose that the farmer is in a position to demand relief from a court. (This is also presumably why the farmer obtained a meaningful settlement.) Yet in the cases Lahav has in mind, the plaintiff stands to obtains such relief without having made out a standard case of negligence, nuisance, or some other tort. Indeed, as noted, it is the plaintiff’s inability to prove her claim in the absence of better scientific knowledge that drives the call for the knowledge remedy. Before we can sign off on this remedy, therefore, we need an account of the wrong for which redress is being provided.
At times Lahav suggests that the knowledge remedy is suitable for instances in which defendant’s breach of duty to the plaintiff happens also to involve a wrongful evasion of regulatory scrutiny. But the Supreme Court seems to have rejected the idea that private rights of action can be harnessed to respond to misconduct of this sort, and perhaps with good reason. At other times, Lahav seems to rely on the idea that an order to fund scientific studies is an appropriate response to conduct that has some of the hallmarks of a tort such as negligence, and could eventually ripen into such a tort, but has not yet done so. In this regard, the medical monitoring cases—understood as instances in which a court, prior to the commission of a tort, orders a defendant who has imperiled a plaintiff by exposing her to a known toxin to take steps to assist the plaintiff in maintaining her health—arguably provide the most direct precedential support.
Yet, as Lahav acknowledges, medical monitoring liability of this sort is predicated on exactly what is missing from the cases she has in mind: namely, knowledge that the substance to which the defendant has exposed the plaintiff is capable of causing the illnesses that the plaintiffs are now hoping to ward off or ameliorate. (By way of analogy: it is one thing for a court in a case like Summers v. Tice to use its equitable powers to shift the burden of proof on causation to the defendants, given that the court knows to a certainty that one of the two of them actually caused the plaintiff to be shot, and hence it is exactly fifty percent likely that each did it. It is quite another to extend the rule of Summers to a case in which a plaintiff sues two defendants for an illness allegedly caused by a toxic exposure and yet it is unclear that either of the exposures actually caused the illness.) In some medical monitoring cases, courts have gone so far as to order a defendant whose misconduct might someday result in harm to plaintiff to take certain protective actions for the benefit of potential victims. Even so, the traditional rule that an adequate remedy at law counts strongly against the provision of injunctive relief suggests that equitable orders of this sort should be granted only in special circumstances. Lahav, by contrast, seems to be arguing for the general availability of the knowledge remedy in any toxic tort case where there is some evidence of wrongdoing and a plausible suspicion of toxicity.
There is a deeper irony in Lahav’s invocation of the medical monitoring cases. As courts sometimes seem to appreciate, the reason why there is something extraordinary about ordering a defendant to pay for medical monitoring before the plaintiff has manifested any injury is precisely because such an order is not merely a matter of courts providing a creative remedy. In most of these cases, the plaintiff cannot prove, in the usual manner, that a recognized legal wrong has been committed. Instead, in these cases, courts seem to be ordering defendants to fulfill a primary duty of conduct—a duty to pay for health screenings that will help plaintiffs manage a risk of injury that defendants have wrongfully imposed on them. In this respect, while Lahav makes an impressive case for a novel form of judicial order, it is arguably mislabeled. Hers, it seems, may in the end be an argument for the addition to our menu of rights, not remedies.