Yearly Archives: 2016
Jun 21, 2016 Martha Chamallas
The Stanford rape case has given new prominence to the role of bystanders in sexual assault cases. Many have heralded the actions of the two Swedish graduate students who intervened to stop the sexual assault of an unconscious woman and forcibly detain her attacker until police arrived. However, in the world of tort law, attitudes towards bystanders and bystander intervention are ambivalent, at best.
To begin with, one of the most enduring tort doctrines is the no-duty-to-rescue rule. Its protection is so broad that it shields the most callous persons who refuse to provide assistance, even if they could easily prevent a serious injury to another at little risk to themselves. Bystanders, we are told, are under no legal obligation to act and are allowed to remain passive in the face of suffering and simply go about their own business. As an expression of fundamental values of personal autonomy and individualism, letting bystanders off the hook can appear natural and appropriate. Even the term “bystander” itself suggests lack of involvement and lack of interest. In Bystander Interventions, Sarah Swan cuts against this narrative, exploring the new world of bystander intervention strategies and making the case for reforming tort doctrine and other bodies of law to encourage “active” bystanders.
Swan’s focus is not on the classic tort rescue scenarios involving drowning victims or children poised dangerously close to busy highways, but on recent efforts by the government and activists to curb the “deeply entrenched social problems” of bullying in schools, sexual misconduct on college campuses, and workplace harassment. Citing the new federal mandate requiring colleges to include bystander intervention in their sexual violence prevention programs, Swan believes that bystander strategies have quickly become “the most popular proposed prescription to address these wrongs.” (P. 977.) As Swan sees it: “The idea behind bystander intervention is simple: many of these harms or the precursors to them occur in the presence of other people, and these witnessing individuals thus have the ability to disrupt or mitigate these harms.” (P. 978.)
Contrary to conventional wisdom that imagines rape and other incidents of aggression taking place in private, Swan notes statistics estimating that nearly eighty-five percent of bullying incidents are witnessed by other students, nearly one third of reported sexual assaults take place in the presence of third parties, and almost seventy percent of employed women report that they have observed incidents of sexual harassment. In these contexts, bystander intervention need not involve heroic acts but can be as simple as a college student “creating a distraction” by spilling beer on a potential offender who is about to steer a heavily intoxicated woman student away from the group, or a high school student posting a comment supportive of a classmate who is the target of cyberbullying.
Bystander intervention programs of this sort are all about culture change, attempting to stimulate a shift from a norm of non-intervention to a norm of intervention. Swan acknowledges that, given the newness of these programs, there are not yet reliable empirical studies documenting the efficacy of bystander intervention strategies. Instead, she devotes most of her article to exploring the legal and other impediments that threaten to undermine such efforts before they can take hold.
Swan locates the theoretical foundation for the current bystander intervention programs in the findings of social psychologists who first became interested in studying bystander behavior following the murder of Kitty Genovese in New York City in 1964, in which thirty-eight bystanders reputedly witnessed Genovese’s brutal stabbing but failed to call the police. The studies theorized a “bystander effect” that comes into play in situations of multiple bystanders: not only are persons in such situations less likely to intervene, but they often interpret the inaction of others as a sign that “the situation must not be as dire as they originally perceived.” (P. 986.) Moreover, even when bystanders in such situations conclude that there is a need for intervention, the presence of others results in a “diffusion of responsibility,” allowing the bystander to remain passive yet not experience guilt. In this way, “passive bystanding sends a message of tacit approval” that tends to perpetuate the cycle of harm.
Compounding the bystander effect is a legal environment that largely discourages bystander intervention. A major contribution of Swan’s article is her canvassing of various legal doctrines that inhibit bystanders from taking action, even if the doctrines do not directly prohibit or sanction their interventions. Swan is mainly interested in the expressive function of tort and other laws and their impact on norms creation. The major contest, as she sees it, is between bystander intervention programs which seek “to create a norm of intervention and foster a social responsibility norm,” and the older legal doctrines with the opposite effect, setting up a “competing norms” or “contradictory prescription” problem. Swan believes that in such a competition the non-intervention camp will prevail, citing research indicating that when norms prescribe contradictory behaviors (action versus inaction), “individuals will be more likely to conform to the norm that liberates them from the more costly (or effortful) behavior with respect to their own self-interests.” (P. 997.) Although we might all be better off in a world full of Good Samaritans, Swan is convinced that the immediate burden of intervention discourages bystanders from acting, particularly when legal norms generally favor non-intervention.
Number one on Swan’s list of laws that prop up the competing norm of non-intervention is the no-duty-to-rescue-or-report rule that “reigns supreme” in the vast majority of states. Swan notes that only a small minority of states have legislatively imposed limited duties, such as a duty to report specified serious crimes or to rescue persons in danger of death or grievous bodily harm when the rescue can easily be accomplished without risk to the rescuer. Swan finds it telling that the catalysts for these rescuing and reporting laws have often been “horrendous high-profile events involving sexual assaults,” such as the murder of Sherrie Ivernice, in which a person witnessed the offender sexually assault a young child in a casino restroom. With these notable exceptions, people who witness gang rapes or other sexual assaults, however, face no legal duty to do anything, sending the strong message that “people can and should ‘stay out of other people’s business.’”
Swan pays particular attention to how the law treats actors other than individual bystanders who fail to intervene to avert harm to others. Number two on Swan’s list of legal impediments is the lack of a state duty to protect citizens, which “directly parallels the lack of duty individuals have to each other.” The public duty doctrine and various immunities apply to ensure that the state generally has no enforceable duty to prevent private violence, which Swan asserts discourages bystander intervention by causing individuals “to wonder why they, as mere private citizens, should be asked to shoulder this burden.” (P. 1004.) Swan reports that many of the notorious cases have involved police failure to protect women and girls from domestic violence and other gendered harms, culminating in the “defining case” of Town of Castle Rock v. Gonzales, in which the U.S. Supreme Court held that the police owed no duty to a woman for failing to enforce a restraining order against her ex-husband.
With respect to non-state actors, Swan asserts that the norm of non-intervention is supported by a general lack of legal accountability attaching to institutions and organizations with power or control over the offenders. For example, Swan is highly critical of the strict limitations on imposition of employer vicarious liability under Title VII and of Title IX’s high threshold of proof for holding schools liable for sexual harassment. Under prevailing Title IX law, for example, to obtain relief against a school, a student must prove that the institution had “actual knowledge” of the violation and responded with “deliberate indifference,” creating perverse incentives for schools to insulate themselves from knowledge of violations. Although the tide may now be turning with the Department of Education’s more “victim-centered” administrative enforcement of Title IX during the Obama years, Swan believes that there is still widespread “institutionalized acquiescence” to the harms she targets and that “law has done little to elicit more responsive behaviors.” (P. 1021.) In her lexicon, such institutional actors function as “silent bystanders,” reinforcing the inaction of individual bystanders.
Finally, Swan points to the existence of laws and doctrines that impose liability on bystanders when they do intervene and claims that “in the popular imagination, rescue is often associated with potential liability.” (P. 1023.) She asserts that the Good Samaritan statutes enacted in every state are so confusing and ambiguous that they have done little to reduce the perceived risks of intervention and cites the particular concern of college students who often decide not to report sexual assaults for fear of being charged with petty infractions such as underage drinking.
These numerous legal impediments to creating a climate conducive to bystander intervention lead Swan to recommend a number of legal reforms, some highly specific and others somewhat vague. On the specific side, Swan proposes that states adopt the same legal duty to rescue and report laws that now exist in a minority of states and that colleges adopt a Good Samaritan (or amnesty) policy to ensure that bystanders who intervene will not be penalized for underage drinking or other forms of minor misconduct. On the somewhat vague side, Swan urges that the state, as well as institutions such as schools, colleges, and workplaces, creatively explore ways to bring about a “community responsibility model of accountability,” without, however, pinpointing the changes to vicarious liability or other doctrines that courts should make.
What makes Bystander Interventions a highly imaginative piece is Swan’s ability to flip the frame and subtly place traditional tort law on the defensive. Importantly, her starting point is not the longstanding tort doctrines that generally resist imposing affirmative duties on individuals other than direct offenders, but the new bystander intervention strategies premised on a more communitarian philosophy that regards individuals as interdependent and as bearing some responsibility for the well-being of those in their physical proximity. Equally important to Swan’s analysis is her centering of pervasive harms – bullying, sexual assault, and harassment – that have long been at the margins of tort law and are rarely uppermost in people’s minds when they think about the no-duty-to-rescue rule. Swan is acutely aware that such harms not only inflict serious injuries on individual victims but also constitute “methods of creating and maintaining social hierarchies, including those of race and class, but in particular, those of gender.” (Pp. 989-90.) She sees these three harms not only as serious invasions of personal rights, but as functioning “to set the norms of gender and sexuality in society,” inflicting suffering on those who fail to conform. I read her article as an unapologetic progressive critique of tort and other bodies of law with the aim of curbing these serious problems, even if it entails changing some longstanding legal doctrines.
Despite her confident tone in Bystander Interventions, Swan is not always a proponent of the trend toward “third-party policing” by which “the state tries to deter unlawful conduct by persuading or coercing a third-party individual or organization to perform activities that may discourage a potential primary wrongdoer.” (P. 996.) In an earlier article, Swan was highly critical of ordinances that hold individuals responsible for the criminal acts of their family members or friends, such as “crime-free” ordinances that impose mandatory terms in rental housing leases requiring the eviction of tenants when their friends or family commit criminal acts on the premises. In these contexts, Swan is opposed to what she sees as neoliberal measures that exact punishment beyond the immediate offender, in large part because of their disproportionately harmful effects on poor and minority communities. To quote from Swan’s website description of her scholarship, she studies the complexity of “how third-party responsibility is leveraged in competing ways to promote social control on the one hand and social change on the other.” Of course, when it comes to the politically controversial measures Swan writes about, one person’s (harmful) social control may be another’s (positive) social change.
Swan’s support for bystander intervention for the harms she targets makes sense precisely because there is often a group element to the offenses themselves. For example, masculinities scholarship has demonstrated that men often harass women and other “outsiders” in the workplace to prove their masculinity to their male co-workers. Disturbing recent incidents such as the Steubenville rape case in which bystanders videotaped the sexual assault of an unconscious teenage girl, as well as countless instances of cyberbullying, suggest that the presence of bystanders may be a crucial motivating factor driving the commission of the offense. At least with respect to these targeted harms, Swan makes a compelling case for modifying the no-duty-to-rescue rule and rethinking our common understanding of bystanders.
Jun 8, 2016 Keith N. Hylton
James R. Hackney, Jr.,
Judge Jack Weinstein and the Construction of Tort Law in America: An Intellectual History, 64
DePaul L. R. 2 (2014), available at
SSRN.
Professor James Hackney’s recent review of Judge Jack Weinstein’s work on the bench, Judge Jack Weinstein and the Construction of Tort Law in America: An Intellectual History, is well worth reading. He draws interesting parallels between Weinstein’s approach to resolving mass tort disputes, described in his book Individual Justice in Mass Tort Litigation and reflected in several of his opinions, and Guido Calabresi’s theories of tort law, set out most prominently in The Costs of Accidents. Hackney makes a compelling case that their views are more similar than most scholars recognize.
At first the connection between Calabresi and Weinstein seemed a bit of a stretch to me. I’ve read Calabresi’s The Costs of Accidents many times and it has always struck me to be a primarily normative vision of the tort system, full of considerations that have proved to be enormously influential to tort theorists, but of somewhat limited value to judges. For example, the argument that negligence doctrine should be abolished and replaced by strict liability is a theory that most judges would have difficulty putting into practice. This is also confirmed by Judge Friendly’s reluctance to rely on a normative theory based entirely on Calabresi, and put forward by the plaintiff, as a justification for expanding vicarious liability in Ira S. Bushy & Sons, Inc. v. United States, 398 F.2d 167 (2d Cir. 1968).
But Hackney shows that Calabresi’s ideas, melded with Weinstein’s own ideas, can yield a set of practical guidelines for managing and resolving mass tort litigation. My initial skepticism was swept away when I read Hackney’s description of Weinstein’s views on mass torts.
In discussing what he refers to as “modern innovations” in tort law that deal with the issues related to mass torts, Judge Weinstein argues that deterrence, punishment of wrongdoers, foreseeability, and a search for fault can no longer be touchstones of our tort law system. Instead, judges and juries should concentrate on (1) who should pay for the greater risk associated with an increasingly complicated and technological society; (2) the size of damage awards; (3) who should be compensated; and (4) how compensation should be distributed. It is all about deterrence, compensation, and loss spreading. Judge Weinstein notes that the irrelevance of fault in the mass torts context has its historical antecedent in the move to strict liability in products liability cases. He also attributes the historical shift to strict products liability to the need to reduce the administrative cost of trials. (P. 505.)
This is an approach to mass torts cases that is entirely in line with Calabresi’s vision of the tort system. Hackney’s citations connected to this passage are all to Weinstein’s book, not to Calabresi, yet the passage sounds as if it could have been based entirely on Calabresi.
My initial view that Calabresi’s vision could not be applied to real torts cases was wrong. The case management issues presented to judges by mass torts appear to be quite amenable to Calabresi’s influence. Hackney’s review offers both a theoretical framework for Weinstein and a practical application of Calabresi.
May 24, 2016 Mark Geistfeld
Theodore Eisenberg and Christoph Engel,
Unpacking Negligence Liability: Experimentally Testing the Governance Effect, 13
J. Empirical Legal Stud. 116 (2016), available at
SSRN.
Empirical study of the law is important, particularly for tort law. Fundamental components of the tort system are a “black box,” which largely explains why the field is riven by theoretical disagreement over the purpose of tort law. The claim that tort law efficiently reduces accident costs, for example, critically depends on the extent to which the threat of tort liability deters risky actors from behaving inefficiently. The available data on accidents, however, do not directly measure the relationship, no doubt because the injury rate is affected by a large number of other interrelated factors such as changes in wealth and technology that are extraordinarily hard to disentangle, making it extremely difficult to identify the impact that tort liability has had on actual accident rates. To isolate the influence of particular factors such as the threat of tort liability, empirical study must instead turn to the laboratory, where researchers can conduct experiments that are designed to tease out the role of the varied factors that plausibly explain the accident rate—an excellent example of which is provided by Theodore Eisenberg and Christoph Engel in their article, Unpacking Negligence Liability: Experimentally Testing the Governance Effect.
As persuasively argued by Frederic Schauer in The Force of Law (2015), important jurisprudential questions depend on the particular reasons why individuals comply with the law. In particular, individuals often have independent normative reasons for acting in the manner otherwise required by the law, in which case the law itself is not motivating the behavior. “Until we can understand the different ways in which law intersects with its subjects’ law-independent preferences, we cannot begin to understand the role of incentives and coercion in motivating legal compliance.” (P. 100.) The experiment conducted by Eisenberg and Engel was designed to address exactly this type of problem.
The experiment tries to disentangle four different motivations that could affect an individual’s decision of how much risk to impose on another. First, empirical studies have found that individuals may have an intrinsic moral inhibition to harm a passive bystander, in which case an individual could act safely for moral reasons that she has adopted independently of tort law. A related motivation involves the desire to avoid being blamed for another’s injury, which can again (though not necessarily) be independent of tort law. The remaining two motivations directly implicate tort law. Individuals may adopt a point of view that is internal to the law and simply desire to conform their behavior to the normative requirements of tort law, even if the law is never enforced. Finally, individuals may instead be motivated only by the concern for avoiding liability, acting like the Holmesian “bad man” posited by the economic analysis of tort law. In an attempt to isolate these varied motivations, the experiment involved four different stages that each added new information relevant to a decision by an active participant of how much to engage in a risky activity threatening injury to an otherwise passive participant in the experiment.
In the baseline treatment, announced as a one-shot experiment, the active participant chooses the amount of risky activity based on a specified profit function and is also informed about the corresponding loss function faced by the passive party. The instructions also tell the active participant about the amount of the risky activity that will maximize his or her profit. After a surprise restart, the two participants are told that the experiment will be repeated 50 times and are informed both of the (inefficiently high) level of risky activity that maximizes the risky actor’s payoff and the (efficient) lower level of risky activity that maximizes the expected joint income of the two parties. In the next stage, if the active participant has engaged in excessively high risky activity and the passive participant suffered injury as a result, the injurer faces a 50% probability of being “audited” and then blamed for having exceeded “the socially desirable level of investment.” (P. 150.) The final stage adds a liability component, requiring such an audited injurer to pay compensation to the injured party. The same experiment was then conducted with the passive victim being a computer, in which case the moral inhibition not to harm others presumably would be eliminated.
In an impressively nuanced discussion of the experimental findings, the authors conclude that the only individual motivation without any significance involves the intrinsic morality of not harming a passive bystander. Risky activity was instead reduced in each stage by the additive triggering of three different motivations. In the first or baseline stage only involving the profit and loss functions, 86% of the active participants invested in the profit-maximizing amount. In the second stage announcing the socially desirable level of activity, a significant number of participants were motivated to comply with the law without any threat of sanction (the fraction of participants investing in the profit-maximizing amount dropped to 65%). In the third stage that blamed but did not sanction those who were “audited” and found to be in violation of the announced standard, a fewer but still significant number of participants were motivated by the desire to avoid blame alone (the fraction of participants investing in the profit-maximizing amount was reduced to 58%). In the fourth stage that subjected these excessively risky decisions to liability for compensatory damages, a significant number of participants were motivated by the desire to avoid liability (the fraction of participants investing in the profit-maximizing amount dropped to 33%). The different levels of the risky activity at each stage provide a measure of the influence of each type of individual motivation, leading Eisenberg and Engel to conclude that negligence liability deters risky behavior through a “governance effect” involving the public announcement of a normative expectation coupled with blame and sanctions for violation of the legal norm.
And what should one make of these findings? Consider in this regard their empirical finding that the risky activity was significantly reduced simply because of a public announcement regarding the socially desirable level of activity, a normative expectation not backed up by sanctions (which only entered into the final stage of the experiment). This finding most readily lends itself to the interpretation that a significant proportion of the population has adopted the internal point of view that motivates them to comply with the law, regardless of sanctions. Tort law can deter merely by publicly announcing its normative expectations of safe behavior.
This finding, though important, becomes more puzzling when considered in relation to the actual practice of tort law. The standard case of negligence liability turns on the jury’s determination of whether the defendant exercised reasonable care. Jury instructions do not define the requirements of reasonable care, so the jury presumably makes some type of normative judgment about reasonably acceptable behavior that is not defined by conventional safety practices (like jaywalking in New York City). If so, then the publicly announced normative expectation of tort law is that risky actors should comply with the relevant social norms. The “governance effect” identified Eisenberg and Engel, therefore, must somehow depend on the intrinsic morality of social norms, yet they found that intrinsic morality has no independently significant effect on risky behavior. The experimental design has missed something.
The problem in my view stems from the baseline specification of the safety decision, which relied on mathematically complex profit and loss functions. The instructions were formulated to help the participants avoid making decisions based on mathematical errors, but the logic of the decision was not intuitive. (I found it easiest to perform some simple calculus to clarify matters.) This type of decision making could easily have misframed the normative problem for those who were actively participating in the study, particularly as they were only expressly told about the amount of risky activity that would maximize their own profit and were not given any other motivations for the decision. The decision was framed as one of rational prudence without any salient moral dimensions. The active participant could easily have assumed that he or she merely faced a complex investment decision involving profits that threatened some stranger with a probabilistic monetary loss, a decision with important attributes of ordinary market behavior that is normatively different from risky behavior threatening bodily injury or premature death to a passive bystander. The subsequent announcement of the socially desired behavior in the next stage of the experiment would then cause some individuals to change their decisions by inducing them to reframe the normative problem. Tort law, therefore, can deter by helping individuals to frame properly the normative problem, but this “governance effect” may be an artifact of the experimental design that would yield different results if it had properly framed the normative problem in the first instance.
Tort law in the laboratory does not necessarily generalize to the real world, but this article reveals the substantial potential of this empirical approach. For decades now, researchers from a wide range of disciplines have been conducting studies of this type to determine how social norms influence behavior. Important results have been replicated across different experimental settings, yielding insights about normative behavior that are not identifiable with armchair observation. The empirical study of tort law has not yet reached this point. As Eisenberg and Engel point out, “[t]here is no more than a handful of pertinent experimental papers” that have tried to isolate the different types of reasons that motivate risky behavior threatening injuries to others. (P. 120.) Their article has not fully identified the contents of this “black box” within tort law, but their experimental design provides valuable guidance for what one hopes will be a quickly growing body of scholarship.
Cite as: Mark Geistfeld,
Tort Law in the Laboratory, JOTWELL
(May 24, 2016) (reviewing Theodore Eisenberg and Christoph Engel,
Unpacking Negligence Liability: Experimentally Testing the Governance Effect, 13
J. Empirical Legal Stud. 116 (2016), available at SSRN),
https://torts.jotwell.com/tort-law-in-the-laboratory/.
Apr 22, 2016 Nora Freeman Engstrom
Margaret Jane Radin’s latest work, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law and a companion article and book chapter interrogate how now-ubiquitous fine print buried deep in consumer contracts affects the rights of ordinary Americans. This boilerplate can take many forms. It includes “extravagant exculpatory clauses,” choice-of-law provisions, and waivers of consequential damages. Frequently, and perhaps most importantly, it also includes agreements to arbitrate—and, in so doing, entails consent to eliminate the background protections we take for granted, including juries, reasonable filing fees, rights of appeal, rules of evidence, the ability to join with similarly aggrieved individuals, and stare decisis. Radin finds this fine print deeply troubling. She argues that, considered in tandem, these contractual terms make certain remedies for transgressions practically unavailable and thereby undermine individual autonomy, degrade democratic principles, and, ultimately, subvert the rule of law.
Because Radin is a contracts scholar—and her recent work is, on the face of it, about contract law—it would be easy for those of us who traffic in tort to miss the scholarship’s significance. That would be a mistake.
It would be a mistake, most notably, because the shifts that animate Boilerplate are taking place squarely on our turf. This is seen most clearly in compelled arbitration. NPR reports that arbitration agreements are now “common throughout the health care industry—in hospitals, surgery centers and doctors’ offices.” According to the New York Times, hundreds of cases involving elder abuse, neglect, and wrongful death have ended up in arbitration, where the clauses have been “consistently upheld.” And, many remember how, in 2014, General Mills tried to get its consumers to agree to route even garden-variety product liability claims to binding arbitration (with consent obtained whenever a customer downloaded online coupons or “liked” the company on Facebook), though that effort was ultimately abandoned in the face of widespread criticism. True, arbitration agreements will never overtake all of tort because certain parties who come into accidental contact with one another won’t have preexisting relationships. But, if allowed to continue on the current track, arbitral contracts do threaten to gobble up a large swath of the tort law ecosystem.
Further, though some have argued that forced arbitrations don’t alter legal rights, but merely simplify the procedures by which those same rights are vindicated, recent studies cast doubt on that claim. Arbitration clauses do not merely relocate the playing field, these studies suggest; they slant the field on which the ballgame is played. A Public Citizen study of arbitration proceedings in California found that businesses won nearly 94 percent of cases. The federal Consumer Financial Protection Bureau (CFPB) recently concluded that financial corporations prevailed in 93 percent of claims they asserted against consumers in arbitration, whereas consumers prevailed in only a tiny fraction of the claims they lodged against financial institutions. And, a recent study of 25,000 arbitrations conducted by the New York Times, found that roughly two-thirds of consumers contesting credit card fees failed in their arbitration attempts.
So, too, the very existence of an arbitration clause appears to dissuade plaintiffs from taking remedial action. According to an investigation by the New York Times, between 2010 and 2014, only 505 consumers—nationwide—went to arbitration over a dispute of $2,500 or less. The same review found that Verizon, which has more than 125 million subscribers, faced sixty-five consumer arbitrations in those five years; Time Warner Cable, with 15 million customers, faced seven; and Sprint, which boasts 57 million subscribers, faced six. Now, as far as I know, there are no data on how many tort victims abandon their injury claims in the face of arbitration agreements. But, the above information indicates that, when it comes to claim initiation, arbitration clauses can act as a powerful deterrent.
Radin’s recent work brings overdue attention to this problem of rights deletion in general and compelled arbitration in particular, and tort scholars ought to read it on that basis alone. But it goes beyond that, in that Radin’s work also adds a provocative new chapter to the long story of the intermingled but uneasy relationship between contract and tort.
Of course, contract law and tort law have never been totally separate or discrete. Many situations (including claims involving legal malpractice, medical malpractice, and products liability), fall on what Radin calls the “shifting, malleable, fuzzy line” between the two causes of action. Yet, it is tort law 101 that, ever since MacPherson v. Buick, decided by Justice Cardozo exactly one century ago, tort has bested contract in the competing doctrines’ long struggle. In the words of Professor Gregory Keating: “Tort law has triumphed over contract . . . and tort law—not contract . . .—generally determines the duties that people owe to each other with respect to the reasonably foreseeable risks of physical harm that their acts and activities create.”
Yet, what Radin points to is a quiet counterrevolution. In this new world, contracts may not formally redefine “the duties that people owe to each other.” But particularly forced arbitration agreements, drafted by sophisticated parties and agreed to by rushed and distracted individuals, may just as well, for they dramatically alter the practical consequences that flow from the sophisticated party’s breach. A bedrock tenet of tort law, in other words, is now in some doubt.
Radin’s suggestion of a path forward similarly blurs doctrinal divides. For here, Radin suggests that the solution to our current trouble won’t be found within contract. Instead, for the worst corporate offenders, it is tort law that holds the key.
Specifically, Radin calls for judges to evaluate contractual provisions along three dimensions: (1) the nature of the right that’s been truncated, (2) the quality of consent ostensibly obtained, and (3) the extent of social dissemination of the boilerplate scheme. Then, if the court finds that a firm has engaged in a mass deletion of market-inalienable rights with inadequate consent, not only must the court reverse the deletion. The court also ought to allow affected individuals to assert a new cause of action against the corporate entity. Similar to defamation and intentional infliction of emotional distress, this new cause of action is to be called the “intentional deprivation of basic legal rights” and come with sizable penalties.
Thus, there is a fascinating feedback loop: The current problem with (some of) tort law lies in contract law; it lies in the fine print that is eroding individuals’ legal protections. And, in Radin’s telling, the solution to the problem with contract law can be found, with a dash of ingenuity, in common law tort.
Mar 24, 2016 Benjamin C. Zipursky
Avihay Dorfman,
Assumption of Risk, After All, 15 Theoretical Inquiries in Law 293 (2014), available at
SSRN.
Avihay Dorfman has written an excellent law review article that ably defends claims about junk-food-and-obesity law, the nature of primary assumption of risk, and the validity of anti-libertarian critiques of assumption of risk doctrine.
Dorfman’s own words (with markers I have added) provide the best synopsis of the three objections he raises to assumption of risk doctrine:
First, it is a conclusory doctrine in the sense that (1) its prescriptions are reached by reference to either other tort doctrines, such as (a) duty analysis, or (b) contract law . . . Second, . . .(2) choosing to be exposed to a risk created by others cannot absolve these others of liability, since such consent is not an analytical feature of liability waiver . . . Third, on a philosophical level, (3) the assumption of risk doctrine is none other than a surface manifestation of a laissez-faire vision of labor markets (and probably of other spheres of action).
(P. 295)
Here, briefly, are Dorfman’s responses to each:
(1)(a) AOR is simply no-duty: Dorfman accepts that AOR is indeed a form of no-duty argument, but rejects the proposition that it is misleading to retain a special category for it. His view is that AOR involves saying in particular that because of the plaintiff’s own autonomous choice to participate in the risky activity in question, the defendant is not obligated to refrain from conducting the activity in question; respect for the plaintiff’s choice entails not regarding defendant as having acted wrongfully by generating this risk.
(1)(b) AOR is simply contractual waiver. This objection has things backwards, on Dorfman’s view. Contractual agreement is but one way a person can affect what level of risk a defendant would be entitled to generate toward plaintiff; manifested choice to confront the risk is another way. It does not involve contracting out of liability as such, but rendering it nonwrongful for the defendant to generate the risk.
(2) Waiving a right against such risks is analytically distinct from waiving a right to redress. In tort law, Dorfman observes, the right to redress is predicated on a right against such defendant conduct. If there is not a right against such conduct, there cannot be liability based on the violation of a right.
(3) AOR is simply a holdover from a regressive regime of laissez faire. Individuals who make significant, free, and well-informed choices concerning which risks to confront are entitled to be respected. Many of the concerns of the laissez-faire critique are more deeply characterized in terms of the conditions of choice: well informed consumer/plaintiff, lack of need or duress, outside options, etc.
The final part of the paper argues that the analysis of the idea of assumption of risk in torts is continuous with its analysis in thinking about some putatively paternalistic measures in public law. Thus, for example, Dorfman wants to be able to judge how much importance we should give to individual choice in debating whether government qua public health protector should ban junk foods. Should government be out of the business of regulating junk food, given that consumers voluntarily choose it?
Dorfman rightly contends that thinkers ought to be able to get beyond a paternalism versus laissez-faire version of the food policy debate and he plausibly suggests that the depth of analysis needed on assumption of risk in tort law can illuminate the debate in this area of public law. His own analytical framework for a liberal egalitarian conception of fair allocation of responsibility looks a lot like California’s Tunkl factors for assessing when to strike down a contractual exculpatory clause (utilizing express assumption of risk doctrine).
The principal thesis is that, in determining “whether it is appropriate to hold responsible one whose injury is a result of encountering a known risk” we must identify and answer the questions that “ought to be raised about the connection between a voluntary act of encountering a risk and the attribution of personal responsibility for so acting.” (P. 318). Four such questions (or categories of questions are identified: (i) the degree to which the plaintiff had the confronting of the risk as such as one of her actual purposes; (ii) whether the plaintiff was genuinely well-informed as to the nature and magnitude of the risk; (iii) the degree to which the activity in question is an essential one; (iv) the availability of alternate options.
The latter part of Dorfman’s article displays insight, cross-disciplinary research, and thoughtful analysis in applying this framework to the junk food public policy debate. Food consumers (unlike skydivers) are typically not seeking risk as such; they are typically underinformed on nutritional value and potential health risks; food is clearly an essential matter; and many urban areas are virtual deserts for healthy and nutritional food.
There is much to say about many aspects of the article, but for the purposes of this jot, I will identify only one thread of possible critical commentary. In tort law, the defense of assumption of risk bears only a strong family resemblance to the defense of consent; they are not identical. One of the many differences is that, under the defense of consent to an intentional tort, one consents to what would otherwise be a wrongful interference or injuring of oneself. In the defense of assumption of risk, one accepts that the other person will engage in certain conduct, but one does not otherwise have a legal right against that conduct. One has a legal right against being injured by that conduct, but one does not consent to being so injured; one assumes the risk of being so injured. Note that this distinction allows one to be agnostic on the issue of whether the risk in question is an unreasonable, excessive, or wrongful risk. As Calabresi and others have pointed out, assumption of risk is a valuable legal tool in part for this very reason. It permits our legal system to finesse the often difficult question of whether the risk is wrongful by making it clear in advance that the plaintiff will not be able to hold the defendant accountable for the ripening of the risk into an injury.
On this account, primary assumption of risk is not always (and perhaps not even primarily) a tool for no-duty rulings (which, in any case, is a misnomer; it should be no-breach-as-a-matter-of law). It applies where the presence of a knowing acceptance of the terms of interaction allows courts to bracket the heart of the breach question. We do not have to decide if the risk of running a sky-diving operation is excessive, for the plaintiff’s understanding that she was taking the risk is sufficient to undercut the claim that there is liability; she is, by her conduct, accepting that the behavior of the defendant shall not be treated as a wrong to her.
Although I mention this line of thinking in part to enrich Dorfman’s account (for I believe that there is more than one function that the doctrine plays), it also raises a red flag with respect to Dorfman’s treatment of liberalism. Even if one shares (as I do), Dorfman’s view that liberalism in law is committed to enforcing fair and equal terms of interaction, that is plainly not all liberalism is about. One of its key commitments, from Mill through Rawls, plainly involves a sort of anti-paternalistic instinct that strives to keep the state out of the business of making controversial value judgments in areas where people hold widely different opinions. Most New Yorkers bridled at Mayor Bloomberg’s efforts to control sugary beverages. Regardless of whether many of these New Yorkers were under-informed and under-supplied with good alternatives, there is no question that an authentically liberal conviction was among their reasons for opposition: contempt for government’s judgmentalism about how one should eat. Dorfman’s own example – junk food regulation – ironically provides a vivid illustration of the tension between two aspects of liberalism in the doctrine of assumption of risk.
