Yearly Archives: 2016

I Can Explain That

Nov 29, 2016 John C.P. GoldbergAdd a Comment

Richard Posner has claimed that tort law is best understood as a means of incentivizing actors to take cost-efficient precautions against inflicting losses on others. “Not so!” says Ernest Weinrib, who insists that tort is an embodiment of corrective justice. Against both, Robert Stevens maintains that tort law defines and vindicates rights we have against each other. How are we to decide which of these theories, if any, offers the best interpretation of tort law?

In their provocative article, The Failure of Universal Theories of Tort Law, Professors Goudkamp and Murphy make a basic, important, yet oft-ignored point: to assess the validity of an interpretive theory, one must be clear on the object of interpretation. About what body of law are Weinrib, Posner, and Stevens theorizing? What permits these and other interpretive theorists to claim support from, or to dismiss as erroneous, decisions issued by American, Australian, Canadian, and English courts? Until we answer this question, we can’t assess whether any of them have offered fitting interpretations.

More pointedly, Goudkamp and Murphy argue that the aforementioned theories, as well as others, badly overreach. (Full disclosure: the authors suggest in passing that this critique applies to the civil recourse theory that Benjamin Zipursky and I have propounded.) The problem, they say, is that each purports, explicitly or implicitly, to provide an interpretation of a pan-national entity that sometimes goes under the name of “the common law of tort.” Under present conditions, no theorist can hope to offer a satisfactory interpretation of this body of law because … well … there is no such body of law. The rules that have been adopted by the national or subnational units that supposedly comprise the common law of tort (or “Anglo-American tort law”) are inconsistent.

For example, Posner’s theory famously hinges on the thought that, in negligence cases, courts have settled on the Hand Formula conception of breach. Goudkamp and Murphy point out that, at best, Posner’s claim fits U.S. decisions, not decisions from Australia, Canada, and England. Indeed, Weinrib claims in support of his corrective justice account that courts approach the breach question in a manner that is largely insensitive to precaution costs—an approach he associates with Lord Reid’s opinion in the English decision of Bolton v. Stone. Yet even if this is what Lord Reid had in mind, other English judges and judges in other commonwealth countries seem to apply notions of breach that are at least somewhat cost-sensitive. Meanwhile, Stevens claims as a “plus” for his rights-based theory that it can explain the absence of liability for negligence causing pure economic loss. (There is no right, he says, to mere economic expectancies.) Yet Goudkamp and Murphy tell us that Australian and Canadian law sometimes allow recovery for such loss.

The Failure of Universal Theories of Tort Law sounds a valuable cautionary note. Any scholar who purports to offer an interpretive theory of a body of law (rather than, say, a wholly prescriptive theory) must be attentive to the question of what is being interpreted, as well as the reach of the interpretation—that is, the level of detail at which the interpretation is supposed to provide explanations. Moreover, it is both fair and useful to have a pair of grounded skeptics “call out” theorists for maintaining that their theories have unique doctrinal entailments. Posner really does seem to be committed to asserting that courts have in fact adopted a Hand Formula conception of reasonable care. (That is, unless we are to treat his appeals to doctrine as mere window-dressing.) Weinrib seems no less committed to claiming that courts across common law jurisdictions have embraced a largely cost-insensitive conception.

Still, I wonder if Goudkamp and Murphy’s charge of overreach can be turned against them. Or perhaps it would be fairer to say that they are not as precise as they might be in explaining what counts as a “universal” tort theory, and hence are coy as to the reach of their argument.

I would submit that their beef is not with all theories that purport to make sense of the common law of tort. Rather, it is with theories that purport to derive fully specified substantive rules of the common law of tort from general principles. It is only theories of this extraordinary ambition that can be shown to fail upon proof of doctrinal disagreement. Notably, on this reading, even if Goudkamp and Murphy’s argument is valid, it leaves lots of room for interpretive theories of Anglo-American tort law.

Suppose Australian courts long ago rejected Vaughan v. Menlove’s insistence on an objective standard of care in favor of a subjective standard. Now imagine a theory asserting that Anglo-American tort law is concerned to define and prohibit interpersonal injurious wrongs, and to empower victims of those wrongs to obtain redress from those who have wronged them. This theory (after it is more fully elaborated) may have a lot to say about what the common law of tort is and how it differs from criminal law, contract law, etc. It may also have robust doctrinal implications. (For example, it may tell us that strict liability that results from courts’ having adopted relatively unforgiving definitions of legal wrongs counts as genuine tort liability, whereas strict liability that is fully detached from any notion of wrongdoing does not.) But the fact that the theory does not call for a unique answer to the question of whether negligence law’s standard of care should be objective or subjective hardly seems like a ground for deeming it a failure. Different courts define torts and tort defenses differently. But when they do so, they understand themselves, and we understand them, as operating within the domain of tort law. If this were not the case, then there would be no basis for asserting the existence of conflicting rules of tort law.

Goudkamp and Murphy provide a healthy dose of lawyerly skepticism about academic theories that treat tort law as a brooding omnipresence. But their intended prey is an exotic creature. What they aim to hunt down is not grand theory but grandiose theory: theory that aims to explain Anglo-American tort law on terms that leave no room for doctrinal variation. The theories they criticize probably are guilty of moments of grandiosity. And yet it surely remains possible to theorize across jurisdictions. If there can be a Restatement of “Torts,” there can be theories of U.S. tort law. And if there can be theories of U.S. tort law, there can be theories of Anglo-American tort law. Tort theory should pay attention to jurisdictional boundaries. It needn’t be confined by them.

A Duty To Sell Life-Saving Medicine?

Oct 28, 2016 Sheila ScheuermanAdd a Comment

Imagine that you have a rare, life-threatening medical condition. You are prescribed a drug that is critical to your survival. You thrive on the prescribed drug and your health improves significantly. However, only one company manufacturers this drug. Unfortunately, due to contamination during the production process, the manufacturer experiences inventory shortages. As a result, you cannot get prescriptions filled as ordered by your doctor, and your health deteriorates rapidly. Does the drug company have a legal duty to continue selling you the prescribed medicine? And, if the manufacturer’s negligence caused the inventory shortage, can you sue the company for tort-based damages? Professor William M. Janssen tackles these intriguing questions in his recent article, A “Duty” To Continue Selling Medicines.

I was fascinated by the dilemma that Janssen lays out in his article. He begins his exploration of the legal duty question with a compelling and heart-wrenching tale. In 2004, a Salt Lake City man was diagnosed with a rare, life-threatening disease, but he thrived after receiving a biological enzyme replacement therapy. In 2010, however, the biologic manufacturer reduced its inventory in order to make space available to produce a different therapy. At around the same time, a virus struck the manufacturing facility, contaminating the product, and in addition, the biologic was somehow contaminated during the production process with tiny pieces of steel, rubber, and fiber. These events led to a shortage of the drug, and the Utah patient received only 70% of his prescribed dosage. When he died, his widow brought suit alleging that the manufacturer failed to use reasonable care to ensure an adequate supply of the biologic. Her claim failed in court based on the finding that the manufacturer had no legal duty to continue to supply the drug. Specifically, the Utah court rejected the widow’s argument that the manufacturer engaged in affirmative wrongdoing by allowing the biologic to become contaminated by the virus, and thereby creating a drug shortage. Rather, the court found that the alleged medicine shortage was merely a failure to act (nonfeasance), and therefore, tort law did not provide a remedy.

After presenting a few of these case scenarios, the article surveys a wide range of theories—from statutory pharmaceutical laws to federal constitutional law—that could be considered potential sources for legal claims. Of particular interest, Janssen considers a variety of tort principles including the no-duty-to-rescue doctrine. An exception to the no-duty-to-rescue rule provides, however, that a person responsible for an instrumentality must render aid if the instrumentality causes harm, even if there’s no fault. Janssen situates this hornbook doctrine in the medicine shortage context: Arguably, the drug manufacturer’s inadequate supply is an instrumentality of harm, regardless of any fault. Janssen, however, concludes that this exception does not apply because the patient’s harm is not caused by the drug shortfall, but rather by the underlying medical condition.

Janssen next considers the corollary rescue principle that one who undertakes a rescue must do so non-negligently. Liability may attach if the rescuer abandons his attempt in a manner detrimental to the injured party. But Janssen rejects this theory on the ground that the drug shortfall did not place the plaintiff in a worse position than where he was before beginning treatment. Still, perhaps the loss-of-chance doctrine could apply here, and compensate the plaintiff for his reduced chance of survival without the drug. Although Janssen does not directly address this theory, his analysis implicitly rejects it. In examining the common law duty to avoid interfering with a rescue, Janssen concludes that the manufacturer’s failure to supply adequate amounts of the drug should be considered passive inaction, not the “active intervention” required by the no-duty-to-rescue doctrine (P. 378), or presumably, the affirmative misconduct required under the loss-of-chance doctrine.

Given the lack of a viable legal theory under current doctrine, Janssen explores whether tort law should be extended to provide a remedy for these patients. On the one hand, imposing a duty to supply life-saving drugs on drug manufacturers could encourage them to take risk-reduction precautions. Perhaps supply interruptions could be avoided or minimized if drug manufacturers faced tort liability. Likewise, it would seem that drug manufacturers are in the best position to absorb the costs of injury. Yet on the other hand, such liability could stifle research and development, especially where, as in the cases discussed, the drugs serve a very small population.

Trying to balance these competing policy concerns, Janssen recommends a regulatory solution that would avoid the drug shortfall in the first place. The first step of this solution would place responsibility on the manufacturer to submit a “realistic proposal” to the FDA, “supported by appropriate commitments and resources,” to resolve the shortage. (P. 390.) Alternatively, the manufacturer could enter into a license agreement with a substitute manufacturer to resolve the shortage. Where the original manufacturer fails to “satisfy [the FDA] that a reasonable proposal is in place to resolve the shortage,” Janssen proposes empowering the FDA to license an alternative drug manufacturer. (Id.) The goal, then, would be to fix the supply interruption and also to incentivize the original manufacturer to remedy the shortfall as quickly as possible.

Janssen’s article is well worth reading. He calls attention to an important social problem and his conclusion highlights the inability of tort law to address all of society’s injuries. One hopes to see more work on this topic.

Are Corporations Responsible Agents?

Sep 29, 2016 Gregory KeatingAdd a Comment

In The Structure of Tort Law, Revisited: The Problem of Corporate Responsibility, Benjamin Ewing, a visiting assistant professor at Duke Law School, breaks fresh ground by stitching together contemporary tort theory and recent philosophical work on responsibility. By knitting these threads together, Ewing’s fluent, sophisticated paper shows that imputing moral responsibility to artificial legal persons is an eminently plausible enterprise. The Structure of Tort Law, Revisited shows us that it makes eminently good sense to think about corporations not merely as institutions that we may manipulate to pursue valuable social objectives, but as institutions that bring responsibility upon themselves by their actions. In doing so, the paper broadens the horizons of normative non-instrumental tort theory.

As Ewing notes at the outset of his article, “moralized accounts of tort law” seem “particularly impotent” (whereas economic approaches to tort “seem especially powerful”) in tort cases in which corporate defendants are either held vicariously liable for the torts of their employees, or are themselves held directly liable for the marketing of defective products. (P. 2.) “It is obvious that tort law may affect corporations’ incentives but it is not self-evident that tort liability can be meaningfully understood as a form of moral accountability when it is imposed upon corporate rather than human persons.” (Id.) The central insight of Professor Ewing’s paper is that a particular form of responsibility— namely, “attributive responsibility”— is fundamental to accountability in both law and morals, and that corporations are attributively accountable agents.

Revisiting the Structure of Tort Law

In the 1980s and 90s, corrective justice theorists, particularly Jules Coleman and Ernest Weinrib, developed both a powerful critique of the economic theory of torts and a strong case for the corrective justice conception of the subject by calling attention to the bipolar structure of tort adjudication. Tort law unites plaintiffs with the defendants who have injured them, making the defendant’s liability symmetric with the plaintiff’s recovery. Weinrib explained the significance of this feature of tort adjudication by saying that tort law “treats the wrong, and transfer of resources that undoes it, as a single nexus of activity and passivity where actor and victim are defined in relation to each other.”¹ Tort adjudication embodies “the correlativity of doing and suffering harm.”² It institutes “[c]orrective justice [because it] joins the parties directly, through the harm that one of them inflicts on the other.”³ This unification of doing and suffering both expresses corrective justice and poses problems for instrumental accounts of tort, because bipolarity works to limit the pursuit of instrumental ends by tort means.

Economic theorists of tort have argued that tort law pursues two basic, valuable objectives— deterrence and insurance. Some accidents should be deterred; the social cost of their avoidance is less than the social cost inflicted by their occurrence. Other accidents should be allowed to happen; it is socially less costly to let them happen than to prevent them. Yet even accidents that should not be avoided should be insured against—and their concentrated costs dispersed—because concentrated losses generally diminish social welfare more than dispersed losses do. Precisely because it links injurer and victim through the wrong done by the former and suffered by the latter, the structure of tort law limits the pursuit of both deterrence and insurance. “When formulating forward-looking regulations designed to deter” risky behavior, “we seldom condition the applicability of regulation on the actual occurrence of harm.” (P. 5.) Tort law, however, “generally abides by the adage ‘no harm, no foul.’” (Id.) As a way of deterring harm, abiding by this adage is not especially attractive. Tort’s bipolar structure similarly impairs the pursuit of loss-spreading as an objective. “[I]n tort law, the only people who can be made to compensate a victim are individuals who bear a fairly close causal nexus to a victim’s losses. Such people are generally few in number…. The idea that tort law is designed to spread losses stands in tension with the fact that potential defendants in tort law are limited to the specific agents who have caused each plaintiff’s injuries.” (Id.)

Ewing’s rehearsal of Coleman and Weinrib’s arguments is expert, concise, and fluent. Even so, most law and economics scholars would contest the charge that economic considerations cannot justify the structure of tort law. Economic analysis is more sophisticated and fine-grained than Ewing’s faithful exposition of corrective justice theory suggests. For example, victims are sometimes better insurers than injurers. The insurance rationale for tort liability may therefore not imply extensive loss-spreading by defendants. The proper extent of tort liability depends on the relative advantages of first- and third- party insurance. That may vary from context to context, and be a deeply empirical matter. So, too, under-deterrence is a threat to the efficiency of tort liability, but tort law’s toolbox includes punitive damages, which can be deployed to address this very issue. Moreover, over-deterrence may be as much of a threat as under-deterrence. Striking the balance correctly may require fine-tuning damages in various ways (e.g., restricting or expanding pain and suffering damages). Consequently, it is far from obvious that tort law strikes an implausible balance among the instrumental policies that legal economists take it to serve.

Ewing would likely respond that these refinements still fail to explain and justify tort’s deeply relational character, or the centrality of responsibility to tort. Tort law is concerned with who did what to whom. The intrinsic relation that it takes to exist between tortfeasor and victim poses a problem for instrumentalist explanations. They struggle mightily to explain why the backward-looking fact that A wronged (and harmed) B is a reason for the forward-looking conclusion that A should repair B’s injury. Such a reframing of the matter would be fruitful, because Ewing’s real contribution to this debate is to point out that corrective justice theory has shown that a particular form of responsibility—namely, “responsibility as attributability”—is fundamental to tort law. The importance of this point is overlooked, Ewing thinks, because the fact that this form of responsibility is an important ground of corporate responsibility is itself overlooked.

Responsibility as Attributability

Ewing’s contribution, then, lies in characterizing the basic importance of bipolarity by saying that tort cares enormously about whether a harm is rightly attributed to someone. When wrongful harm is properly attributed to someone, tort law is strongly disposed to treat that person as liable. This aspect of tort tracks a distinction drawn in slightly different ways by two eminent moral philosophers—Gary Watson and Tim Scanlon. Watson distinguishes between “two faces of responsibility,” namely “‘attributability’ (what reflects on a person), and ‘accountability’ (what demands can be appropriately placed on a person).” (P. 10.) Scanlon draws a similar distinction between “responsibility as attributability” and “substantive responsibility.” (Id.) For both Scanlon and Watson, attributive responsibility flags the fact that some action or outcome is appropriately taken as a basis of moral appraisal of some agent. Strictly speaking, attributive responsibility says nothing about what the appraisal should be—whether or not an action is creditworthy, blameworthy, or neither.

Our tendency is to think that “substantive responsibility”—what we may reasonably hold people fully accountable for, all things considered— is the only important kind of responsibility. The lesson of Scanlon and Watson’s work, however, is that “attributive responsibility” is also a fundamental form of responsibility. We may hold people accountable for outcomes that are attributable to them even when we would hesitate to say that those people are, all things considered, substantively responsible for those outcomes.⁴

Indeed, tort law is notorious for assigning credit and blame in ways which do not track moral blameworthiness. Vaughan v. Menlove is a classic case in point.⁵ Menlove stacked his hay in a way that he was told was dangerous; it ignited and set fire to Vaughan’s property. In the ensuing lawsuit, Menlove defended himself by saying that he had used his own best judgment; that he had no choice but to use his own judgment; and that he was not at fault because he could not have exercised the better judgment of a more competent person. The court imposed liability because the standard of care is fixed objectively (by what we may reasonably expect from a person of normal competence), not subjectively (by what we may reasonably expect from someone with the defendant’s particular capacities). Negligence law is prepared to hold Menlove responsible for the destruction of Vaughan’s property even though he may have lacked the cognitive capacity to appreciate the dangerousness of his own conduct. Morally, if we accept Menlove’s account of his own limited capacities, we may wish to excuse him for stacking his hay in an objectively unreasonable way. Legally, we are wholly prepared to hold Menlove “outcome responsible” for the harm that he has done. Negligence law holds Menlove accountable just because the harm that he did was done by him and his conduct was objectively unreasonable. It doesn’t care if he lacked the mental capacity necessary to appreciate the objective unreasonableness of his conduct; his moral culpability is not tort law’s concern.

The lesson of Scanlon and Watson’s work is that this kind “attributive responsibility” is a fundamental and defensible form of moral responsibility. Our moral judgments, attitudes and practices commit us to evaluating people in important part on the basis of the outcomes legitimately attributed to them.⁶ Morally speaking, attributive responsibility is a precondition of substantive responsibility. People can be held substantively responsible only for actions that are properly attributed to them. If I kick you in the face because my evil colleague surprised me by hitting me with a rubber mallet, causing an involuntary muscle contraction, I am not attributively responsible for harming you. If, on the other hand, I kick you playfully in the shin as class is called to order, I am attributively responsible for the harm you suffer. When that harm turns out to be your leg falling off two days later, just how blameworthy I am is a matter of debate. Tort law often strikes moral philosophers as an odd duck precisely because a defendant’s attributive responsibility for a bad outcome is typically taken to settle the question of the defendant’s substantive responsibility for that outcome. Blameworthiness matters in criminal law and to punishment, but not in tort and to liability. Negligence is concerned with fault as defective conduct, not with fault as moral culpability. Attributive responsibility dominates substantive responsibility.

Corporate Responsibility and Tort

The tort norms governing the liability of organizations in tort are very much about the attribution of bad outcomes to actors. The heart of vicarious liability doctrine, for example, is the set of rules for attributing the torts of agents to the principals who employ them. Defect rules lie at the heart of product liability law, and they settle which product-related harms will be attributed to the firms responsible for manufacturing and marketing the products in question. Attributive responsibility is thus fundamental to corporate liability in tort. By bringing Scanlon’s and Watson’s important work on attributive responsibility into the conversation, Ewing makes the point that the attribution of an outcome to an agent is itself often a judgment that the agent is responsible for the outcome.

Simply reminding us that attributive responsibility is genuine responsibility is not enough, however. It is one thing to show that attributive responsibility for an outcome is an important form of moral responsibility; it’s quite another to show that the agent to whom the responsibility is imputed is a moral agent. For perfectly good reason, we attribute many harms to natural forces. Earthquakes, fires, floods, and other natural disasters wreak havoc with people’s lives. When we attribute harms to natural forces, however, we are asserting these harms do not have responsible causes. In morality and in law, an “act of God” negates human responsibility. Mother Nature is not accountable. Artificial persons such as corporations are neither forces of nature nor natural persons. We can manipulate them in pursuit of our ends—as economic theories attempt to do when they shape liability rules to give firms appropriate incentives to minimize the combined costs of accidents and their prevention—but it is not clear that they count as moral agents to whom intrinsic principles of accountability apply.

To meet this challenge, Ewing turns to recent works by Philip Pettit and Christian List. (P. 20 n.1 (citing, e.g., Christian List & Philip Pettit, Group Agency: The Possibility, Design, and Status of Corporate Agents (2011).) Pettit and List argue that organizations commonly develop forms of collective rationality that are partially autonomous from the persons who people and constitute them. Even an institution as simple as a multi-member judicial panel issues decisions that no single judge necessarily endorses as his or her own. The decision may be endorsed only by the collectivity—only by the panel. Both because individual persons tend to disagree with one another and because institutions are charged with specialized responsibilities, institutions tend to develop forms of practical rationality that characterize the institutions as such. Absent perfect and persistent consensus, institutions adopt and act upon decisions, policies, and norms that are distinctively the institutions’. Over time, and often by explicit design, collective decision accretes into what Pettit calls “programs.” For instance, corporations devise divisions of labor and put in place job responsibilities, protocols, and procedures in order to manufacture and market products, and then see to it that these cohere to actually do so.

Petit and List’s account shows that and why many outcomes may properly be attributed to corporations. That attribution is an attribution of moral responsibility because the entities to which it is attributed exhibit the practical rationality essential to agency and responsibility. Or so Ewing argues.

The Substance of Tort Law

The Structure of Tort Law, Revisited does a remarkable amount in a relatively short space. Tantalizingly, the paper stops at the doorstep of legal conceptions. Readers are left wondering whether and how far the conception of group responsibility deployed by Ewing can be mapped onto the legal conceptions that inform corporate tort liability. Product liability law, for example, relies explicitly on a mix of instrumental policies (deterrence and loss-spreading) and what the philosopher Joel Feinberg called “the benefit principle [of commutative justice] that accidental losses should be borne according to the degree to which people benefit from an enterprise or form of activity.”⁷ People have a prima facie responsibility to shoulder the harms that are a price of the benefits they are voluntarily reaping. Therefore, those who benefit from the imposition of product-related risks should shoulder responsibility for product-related harms. This principle takes the corporate form to be a vessel through which the responsibilities of natural persons flow. Employees, shareholders, suppliers, and consumers are responsible because they must take the bitter with the sweet. Ewing’s arguments, I think, are wholly compatible with this principle of commutative justice, because Ewing’s arguments bear on the attribution of harm in the first instance. But one wants to hear Ewing’s thoughts on just how his account of group responsibility relates to the grounds that tort law itself gives for imposing corporate liability.

On their face, ideas of corporate control in vicarious liability law resonate more directly with Pettit and List’s ideas. Scope of employment in vicarious liability law lends itself to explication in terms of “outcomes” that employers “program for” by virtue of the ways in which employers allocate authority and articulate job responsibilities. Can the idea of programming for outcomes illuminate ongoing debates about the scope of vicarious liability for such wrongs as sexual harassment, battery, and abuse? Institutional positions often enable the commission of such wrongs. Does that count as programming for them? If not, what more might be needed?

Still, it would be more than uncharitable to fault The Structure of Tort Law, Revisited for failing to delve deeper into the details of doctrines and cases. The paper’s project is to show that instrumental manipulation is not the only possibility when corporate wrongdoing is at issue. It succeeds admirably in building a sophisticated and compelling case that corporations are, in fact, strong candidates for the form of responsibility most characteristic of tort liability in general. This paper’s end point is a fruitful starting point for both Professor Ewing and the rest of us.

When Physical Harm Is Threatened but Not Realized: Who Should Pay?

Aug 19, 2016 Ellen BublickAdd a Comment

The recent Restatement Third of Torts divides U.S. tort law into separate categories of harm. Liability for physical injury is governed, on the one hand, by the Restatement Third of Torts: Liability for Physical and Emotional Harm. Liability for economic loss, on the other hand, is governed by the Restatement Third of Torts: Liability for Economic Harm. In the case of physical harm, default rules permit generous liability and recovery. In the case of economic losses, liability is quite limited. So it is no surprise that issues arise at the border of these two subjects. Specifically, what happens when the defendant’s conduct creates not actual physical harm, but a risk of physical harm that occasions the need for the plaintiff to incur economic expenses that will prevent it? Should the more liberal rules of physical harm recovery apply because the defendant’s conduct created a risk of physical harm? Or should the more restrictive rules of economic loss recovery apply because the actual damage is, after all, purely economic?

In his recent article, Preventive Damages, Professor Donal Nolan of Oxford University confronts this thorny issue, which, as he notes, “has been the subject of surprisingly little analysis by common law scholars.” Professor Nolan begins his article with the general principle of preventative damage recovery outlined in the Principles of European Tort Law. Specifically, Article 2.104 provides that “Expenses incurred to prevent threatened damage amount to recoverable damage in so far as reasonably incurred.” This general principle apparently captures the preventative damage rules of a number of civil jurisdictions, including Germany and France. But Nolan suggests that “most common lawyers would struggle to answer” whether this principle represents the law in their jurisdictions. The cases Nolan highlights seem to warrant that legal uncertainty as they pull in both directions.

Professor Nolan’s goal is not necessarily to put forth a firmly held position, but to identify problems in the area and begin to sketch some “tentative” solutions. His illustrations alone make the article worth the read. What if B negligently starts a fire and A pays firefighters to prevent the spread of fire to A’s land? What if B’s workers cut through a power company’s cable and A, who owns a frozen food facility, has to transfer food to another facility at considerable expense? What if B manufactures a crane that collapses and kills the operator, and the owner of a similar crane finds structural defects and has to repair them? What if B negligently builds an apartment with an inadequate foundation, and A, who bought an apartment in the building from a third party, has to undertake expensive repairs?

Professor Nolan reveals how commonwealth courts have resolved these and similar cases, and expresses his own opinions about their resolution. Although he does not propose a firm rule, Professor Nolan suggests that preventative damages should be allowed at least some of the time. He would adopt reasonableness as one general limit. However, he acknowledges that there are further issues “that a test of reasonableness may not resolve.” For example, if the general threat of burglary warrants A’s purchase of security locks, A may not be able to tag a particular burglar B with the expenses for prevention.

Professor Nolan’s article begins a crucial conversation. But as he acknowledges, this piece marks the beginning and not the end of the analysis. In many places a reader would welcome further analysis of principle and policy concerns. For example, Professor Nolan suggests that liability of a defendant for preventative damages is a “logical corollary of the law of contributory negligence and causation. After all, if a person who complains that they are the victim of a wrong can have their damages reduced because they failed to take reasonable steps to avert the wrongful interference, then it seems only right that if they do in fact take such steps, they should be able to recover the cost of doing so from the person responsible for the danger.” But there are problems with this argument. First, there seems to be a significant legal difference between being “the victim of a wrong” and being put at risk by a “person responsible for the danger.” As Nolan himself recognizes, the wrong underlying negligence law has not been “unreasonable risk creation,” but rather “negligently causing injury.” In the preventative damages hypotheticals there has been no negligently caused injury—no tortious wrong. Although Nolan discusses a number of possible ways to address this concern, he admits that “none of the potential solutions is straightforward.” For example, suppose B is an actor who created a risk of harm to another. Suppose also that A, the actor who was put at risk of harm by B, pays for preventive measures to avoid the risk. B cannot be seen as unjustly enriched by A’s expenditures for preventative measures because A’s actions were not undertaken with the predominant intention of benefitting B. Indeed, A undertook those actions to benefit A. Moreover, B— who put A at risk but did not harm her—would not traditionally have a duty of repair to A, so A’s repair would not discharge a liability owed by B.

Even if the plaintiff must take steps to reduce the possibility of injury in order to recover in tort, this does not necessarily imply that those steps must be paid for by the defendant. For example, if my neighbor builds a pool that could pose a danger to my toddler and I decide to fence my backyard or hire a babysitter, whether those precautions are reasonable, or not taking them unreasonable to the point a jury could tag me with partial comparative fault, seems a separate matter from whether my neighbor must build the fence or pay the sitter. The latter issue would invoke concepts of duty as well as those of negligence.

In favor of preventative damages recoveries, Professor Nolan also notes the policy of making such awards “serves to encourage those threatened with wrongful injury to take reasonable steps to reduce or eliminate the danger when best placed to do so… whereas refusing such claims creates an incentive for them to sit back and wait for the injury to occur.” However, he does not address the policy interests in tort redress for only actual injuries rather than threats of injury. For example, perhaps plaintiffs need no further encouragement to take protective measures. Many, if not most, threatened injuries will never become actual physical injuries. A fire on B’s property may not spread to A’s property, with or without reasonable preventative action by A. Providing A with recovery for preventative damages may give A too great an interest in taking steps to eliminate the danger. Moreover, it could be said that tort recovery in every case of negligence without physical harm would encourage defendants to create fewer threats of danger. Why allow recovery in this subset of negligence cases and not simply abolish the actual harm requirement entirely? If courts blur the line between recovery for actual physical harm and threatened physical harm, what will be the burden on courts (and in the U.S., juries) of legal process in every case to decide how imminent or likely and severe each threatened harm was?

An equally important issue to explore would be available alternatives to tort recovery for preventative damages. Could it be more efficient to leave these economic costs to first-party insurance or contract law rather than third-party tort liability? For instance, one can easily imagine that the owner of a freezer facility could insure against power outages either by purchasing business interruption insurance or providing backup generators. Similarly, the defective crane might be covered by some type of warranty, whether negotiated or implied.

This is not to say that any particular issue of principle and policy should decide the rule, but only that readers should take seriously Professor Nolan’s invitation to common law scholars to add to the analysis in this important area.

You as a Brand: A Legal History

Jul 20, 2016 Lyrissa B. LidskyAdd a Comment

Dr. Samantha Barbas’ book, Laws of Image: Privacy and Publicity in America, makes an original, important, and engaging contribution to the history of the privacy law in the United States. In the process, the book illuminates how we became a culture obsessed with image management and how the law developed and continues to evolve to protect our rights to become our own personal brands.

In Laws of Image, Barbas analyzes a disparate body of law—mostly tort law—that protects individuals’ rights to control how they are portrayed by others. Barbas dubs this body of law the “laws of public image.” Through careful historical analyses of social, cultural and legal developments, she explains the origins of our culture of personal branding and gracefully charts the transition from Victorian-era sensibilities that condemned those who made spectacles of themselves to modern sensibilities that reward such behavior.

Barbas’ account of the development of the laws of image starts in the late nineteenth century. The book documents the growth of image-consciousness in the US and demonstrates that image-consciousness expands contemporaneously with industrialization, immigration, and urbanization. This occurs presumably because the more one interacts with strangers, the more one needs to manage first impressions to succeed. (P. 29.) The growth of mass media and photojournalism in the nineteenth century also contributed to a desire to control negative “presentations of self.” Meanwhile, the contemporaneous development of the contingency fee gave more people access to the means to repair damaged images through litigation, a factor that perhaps deserves even more prominence than Barbas gives it. (Pp. 18-19; 106.)

Overall, Barbas’ account of the growth of image-consciousness in the nineteenth century is fascinating and highly persuasive. She deserves especially high praise for her treatment of the origins of the privacy torts. Frankly, it is so common for privacy scholars to begin with nods to Samuel Warren and Louis Brandeis’ famous 1890 article, The Right to Privacy, that I always dread reading yet another analysis. But Barbas brings something new to the table. Although Warren and Brandeis are commonly portrayed as creating a right to be let alone, Barbas describes them as creating a “legal right to control one’s public image” (P. 26). This broader framing encompasses a right “to keep one’s personal affairs out of the public eye, and more broadly, to determine one’s own public image without undue interference from the media of mass communication.” (P. 38.) More succinctly, it is a “right to selective publicity” (P. 44) (emphasis added). I have always found The Right to Privacy to be elitist and self-serving, but Barbas convincingly argues that the article’s sentiments would have been common across the social spectrum. Warren and Brandeis were reacting “to a new sensitivity to personal image” that afflicted both the prominent and the obscure. (P. 27.) This sensitivity, as Barbas recounts, “grew from the demands of social life in an increasingly urban, commercial, mass-mediated society, where appearances, first impressions, and superficial images were becoming important foundations of social evaluation and judgement.” (P. 27.) Her use of historical evidence to support this thesis is masterful, and I must admit that I had to reevaluate my reading of The Right to Privacy after almost a quarter of a century in the field.

Venturing into the early twentieth century, Barbas illustrates how image-consciousness intensified in response to the increased “urbanization, innovations in communication and transport, [and] social and geographic mobility.” (P. 81.) She identifies a number of threads in this complex story. She associates growing image-consciousness with a changed perception of identity as fluid and malleable rather than fixed, demonstrating the connection between the psychological conception of the self and the commodification of the self. She also shows how the advertising and film industries fuel individuals’ desires to sell their “selves” to others. In the early twentieth century, the growing advertising industry touted “personal fulfillment through the purchase and use of the right products.” (P. 91.) Consumer choices at the time were not just about image management; rather, they created the potential for “inner transformation” based on then-current understandings of the self as capable of being “continuously rehabilitated, perfected, and worked pure over time.” (P. 94.) Meanwhile, the growing film industry and the celebrities it spawned were, for audiences, paragons of image creation and management to emulate.

Many states responded to these changes by adopting tort causes of action designed to protect citizens from “unwarranted publicity.” (P. 102.) In the 1930s and 1940s, more citizens pursued libel actions, and courts extended the parameters of libel to cover the emotional harms associated with interference with image. In addition, courts began to recognize claims such as intentional infliction of emotional distress, which further expanded legal protections for an individual’s personal brand. (Id.)

Contemporaneously, however, courts began to expand the rights of the media to report on matters of public interest. Barbas documents this countertrend in a chapter about the famous case involving a former child prodigy profiled in the New Yorker. This chapter adds nuance to a well-known case, Sidis v. F-R Publishing Corp. (1940), and shows how it portended a legal shift away from privacy protection. Other competing trend lines were evident after World War II: As the culture became preoccupied with self-expression, attacks on one’s “public image were being cast as serious assaults not only to dignity, but to the psyche itself.” (P. 160.) In other words, an attack on one’s public image by the media threatened the very foundation of one’s self. Meanwhile, a more aggressive press, preoccupied with understanding the hidden sides of public personalities, increased these very attacks. By the 1970s, with the continued growth of libel and privacy litigation, “image law” had matured. Then, as now, it protects not only the individual’s “ability to control his image” but also “his feelings about his image.” (P. 199.)

Given that Laws of Image spans more than 100 years of legal and cultural developments, it is remarkable how readable this book is: It is well-written, and the flow and pacing are excellent. At its core the book is about the fact that “people want to expose themselves to the public—to create a public image, a visible public persona and presence—yet at the same time to manage and control those images.” (P. 210.) As Barbas notes, we often call the desire to manage our image a desire for privacy, but it is not synonymous with the right to be let alone. What the two rights share, however, is a desire for control over what aspects of the self the individual reveals to the public or doesn’t. Laws of Image sheds necessary light for anyone hoping to understand the law’s conflicted embrace of these complex rights.