Yearly Archives: 2018
Jul 3, 2018 Martha Chamallas
Scott Skinner-Thompson,
Privacy’s Double Standards, 93
Wash. L. Rev., (forthcoming), available on
SSRNIn an age of growing income inequality and daily reminders of the privileged lives led by the rich and famous, it should come as no surprise that tort law might come to mimic the glaring disparities in the larger culture. The thesis of Scott Skinner-Thompson’s new article is that the courts have done just that in adjudicating privacy claims for the tort of public disclosure of private facts. Specifically, Skinner-Thompson argues that in applying the black letter law, courts have systematically favored privileged plaintiffs (often celebrities) without showing a similar regard for ordinary individuals, particularly plaintiffs from marginalized communities.
The article is rich in examples of disparate results linked to the identity of the plaintiff. There is the case of the gay man who loses his public disclosure lawsuit, despite being “outed” by the pastor of his church to other church members and a future in-law. Yet Hulk Hogan, the professional wrestler and reality show star, known for boasting about his sex life, wins a multi-million judgment when Gawker posts a sex tape of one of his sexual encounters. No recovery for a teenage victim of revenge porn when a website publishes a nude photo of the plaintiff she had privately sent to her boyfriend, but a sizable recovery for professional football player resulting from a tweet of his medical records indicating that he had to have a finger amputated. And on and on.
Skinner-Thompson’s impression of a double standard favoring the privileged and the famous is backed up by his persuasive empirical study of published public disclosure cases decided in the last decade (2006-2016). (P. 15.) His study of dispositive motions in 150 such cases reveals that a plaintiff’s privacy claim survived only 31 times (or roughly 20%), a notable statistic that demonstrates that “while privacy torts are not dead yet, they are on life support.” (P. 47.) Against this unfavorable backdrop, Skinner-Thompson concludes that “privacy doctrine often is applied in such a way that it is having a disparate negative impact on certain marginalized populations, and, in some instances, there is also evidence of disparate treatment.” (P. 6.)
Most significantly for purposes of his doctrinal analysis, Skinner-Thompson finds that most of the dismissals (61%) are traceable to two black letter requirements which he argues amount to a double standard in the operation of this tort: (1) proof that the defendant widely publicized the private information and (2) proof that the plaintiff held the information completely private or secret. As he reads the cases, courts are willing to relax the requirements in cases involving prominent people and celebrities, but apply them stringently in cases involving ordinary or marginalized plaintiffs. Thus, the outed gay man loses his case because the pastor’s disclosure is too limited to constitute “publicity” and the revenge porn victim’s claim fails because she shared her nude image with her boyfriend and did not keep it completely secret. However, in Hulk Hogan’s case, the court allows the claim to go to the jury, even though the plaintiff publicly revealed details about his sexual exploits and “stills” from the offending video had already been posted by a third party.
In addition to unearthing compelling stories from the cases and tracing the negative effects of the two requirements, Skinner-Thompson makes a normative and structural argument for providing more privacy protection for marginalized plaintiffs whose cases get swept away in the non-privileged pile unlikely to go to trial. Drawing on part of his prior work, he argues that “privacy rights are particularly important for marginalized communities,” who are disproportionately the object of surveillance and who are often unable to “absorb the social and economic costs that flow from the exposure of sensitive information.” (P. 3.) He also views privacy rights as serving as a “liminal or transitional right” until such time as the group, for example LGBT plaintiffs, “gain both formal anti-discrimination protection and lived equality.” Finally, Skinner-Thompson observes that for many living on the margins of society, keeping information completely secret may be a “practical impossibility,” given that sharing stigmatized information (such as medical information or sexual orientation) may be “necessary to mental health and identity exploration/play.” (P. 20.) For Skinner-Thompson, the teenage revenge porn plaintiff should have the right to expect her ex-boyfriend not to post compromising pictures of her in order to allow teenage girls to explore their sexuality without being publicly exposed.
Quite rightly, Skinner-Thompson criticizes the disparate pattern of recovery in public disclosure cases as contrary to what we should expect to see in this area of the law in which celebrities and public figures are supposed to receive fewer privacy rights because of the newsworthiness of their lives and their greater capacity to fight back in the press and other channels. He then uses the courts’ disparate application of the two requirements to make a broader theoretical point. He maintains that the courts’ uneven application of privacy rights is unsupportable because it violates a fundamental tenet of a body of common law, such as tort law, i.e., that like cases should be treated alike and that purportedly universal principles should apply to everyone.
To rectify what he sees as the “built-in inequality” in the requirements of the public disclosure tort, Skinner-Thompson urges the courts to take a page from constitutional law, particularly the equality guarantee of the equal protection clause. When Skinner-Thompson argues for importing constitutional principles into tort law, he makes it clear that he is not suggesting that plaintiffs mount a constitutional attack on the disclosure tort, similar to the successful cut back on defamation and privacy claims made in the name of the First Amendment since New York Times v. Sullivan. Instead, what he has in mind is using constitutional equality norms as “substantive guideposts as judges craft the common law of privacy torts.” (P. 4.) Using constitutional equality norms to shape tort law, he argues, will provide the “doctrinal foothold justifying reform” and offer courts a solid reason for expanding the “flimsy protections” of the disclosure tort.
Although Skinner-Thompson’s call for infusing constitutional principles into tort law is not novel, his analysis of the possible sources courts may look to for guidance is the most thorough I have encountered in the literature. He begins his argument by noting that courts have already allowed the federal constitution to shape the contours of tort law in a number of contexts. His argument re-positions New York Times v. Sullivan and its progeny as cases that actively reshaped the common law doctrine of privacy and defamation law, not simply as First Amendment attacks on state law. More importantly, Skinner-Thompson sees no warrant for limiting importation of constitutional principles to the First Amendment, citing the punitive damages cases that have relied on the due process clause to re-shape the remedial law of torts.
In a novel and creative part of the article, Skinner-Thompson argues that courts should look to the equality guarantees of state constitutions to influence the substance of privacy torts. He notes that many state equal protection clauses are more expansive than the federal constitutional guarantee, providing explicit protection to additional protected classes and dispensing with the state action requirement. Influenced by Helen Hirshkoff’s work on state common law, Skinner-Thompson asserts that there is evidence that state constitutional provisions “indirectly influence the substance of common law causes of action.” (P. 33.) In this way, constitutional norms, including equality norms, are “infused into the common law through ‘private law portals,’” as evidenced by cases in which state courts have held private employers accountable for employment discrimination, even when the employers were exempt from state statutory anti-discrimination provisions. (P. 34.) His analysis suggests that by grounding reforms in state constitutional norms and principles, common law courts can go beyond vague and open-ended appeals to “public policy.” This interplay between state constitutional norms and tort law seems natural and appropriate to Skinner-Thompson because “common law torts, after all, are a creature of state law.” (P. 33.)
In the end, Skinner-Thompson advocates for a contextual approach to the disclosure tort that would comply with constitutional equality principles by ensuring that “individuals in marginalized communities are able to bring claims on the same terms as privileged individuals.” (P. 41.) His solution is to “level up” by relaxing the widespread publicity and complete secrecy requirements for all plaintiffs, not just for the privileged few. Once the strict requirements are relaxed, he hopes that judges will be freed up to consider the specific facts of the case, such as the degree of harm caused by even a limited disclosure of sensitive information and the reasonableness of a plaintiff’s failure to keep the information completely secret. Presumably, such a reform would have the effect of taking the disclosure tort off life support by sending more cases to the jury.
Privacy’s Double Standards is the kind of article that speaks to torts scholars of different stripes. For the more doctrinal, Restatement-type scholars, Skinner-Thompson’s empirical study of the public disclosure tort is highly informative, indicating that the tort is under pressure and has taken a perverse turn, no longer serving its function of ensuring the privacy of intimate and sensitive matters except in cases in which disclosure is warranted by the newsworthiness of the plaintiff or the information. For critical torts scholars who hope to see tort law used to promote social equality and social justice, Skinner-Thompson’s article takes us in a new direction. He searches not only for gender, race, and other identity-based biases in the deep structures of the common law, but also for indications that the law as it operates on the ground offers redress mainly to the privileged, even if the black letter doctrine is stated in neutral and universal terms.
To be sure, many will not agree with Skinner-Thompson’s proposals for reform. Unless you share the normative view that privacy is good for everyone and particularly precious for marginalized people, you may just use the results of Skinner-Thompson’s empirical study to argue that courts should “level down” and apply the stringent requirements in every case without exception. At a minimum, however, his article should stimulate a re-examination of the value of the disclosure tort and prevent it from withering away without anybody noticing.
May 11, 2018 Sandy Steel
In ‘Causation and Opportunity in Tort’, Emmanuel Voyiakis offers a thought-provoking analysis of some of the field’s classic causation problems. His focus is upon situations where the crux of the causal difficulty is epistemic – for some reason or other, we don’t have enough evidence to attribute causality of a particular claimant’s damage to a particular defendant’s conduct according to the civil standard of proof.
To understand Voyiakis’ approach, it’ll be useful to consider his analysis of a case and contrast it with that of some other prominent theoretical frameworks. Consider, then, the decision of the House of Lords in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32. In Fairchild, D1, D2, D3, C’s employers, each successively, but independently, expose C negligently to asbestos dust. C contracts mesothelioma, an asbestos-induced cancer, but cannot prove on the balance of probabilities (more likely than not) which of D1, D2, D3 (or which combination) was a cause of C’s cancer. Scientific understanding of the aetiology of mesothelioma does not allow us to say whose exposure causally contributed to the mesothelioma. Applying the orthodox balance of probabilities approach, C will be unable to establish liability against any defendant, the probability of causation against each being only 1/3. The House of Lords, nonetheless, held each defendant liable in full.
The finding of liability in a case like Fairchild is not terribly difficult for those who believe that it is morally permissible to use tort law to achieve optimal deterrence. In situations where defendants can predict that claimants will be unable to attribute causation to defendants’ careless conduct, as in Fairchild, without the potential for liability, defendants would have no tort-law-given self-interested incentive to take reasonable care. For the optimal deterrence theorist, the question is then largely a technical one as to whether incentives to take proper care in situations of predictable causal uncertainty are best restored through a reversal of the burden of proof, liability in proportion to the probability of causation, or a liability rule based simply upon wrongful increase in risk.
But those who are not hard-nosed consequentialists tend to find these cases difficult. The reason is simple: the dominant non-consequentialist approach to tort liability insists that a defendant’s liability to compensate is grounded in that defendant’s violation of the claimant’s rights. On the facts of Fairchild, the claimant was unable to establish against any particular defendant that that defendant violated his rights (or at least, not his right not to be negligently harmed).
And yet there is a powerful intuition that it would be unjust to reject the claimant’s claim for compensation against the defendants entirely in cases like Fairchild. Rights-based theorists typically go to some lengths to show that their accounts can deliver such intuitive results in structurally similar cases of causal uncertainty. Thus Ernest Weinrib argues that Summers v Tice, 33 Cal 2d 80 (1948), where two negligent hunters fired simultaneously in the direction of the plaintiff, one bullet causing his primary injury, is correctly decided as a matter of corrective justice. By preventing the claim being established against the other defendant each defendant wrongfully injured either the plaintiff’s bodily integrity, or the plaintiff’s remedial right to his bodily integrity. ,. Therefore, both defendants wrongfully violated the plaintiff’s right to bodily integrity. This approach depends upon a controversial assimilation of the right to bodily integrity and the remedial right to compensation for invasion of that right.
Voyiakis is neither a hard-nosed consequentialist nor a hard-nosed rights theorist. Drawing on the work of HLA Hart and TM Scanlon, Voyiakis suggests that the central justificatory question for the imposition of a burden, tort liability included, is whether the burden flows from: ‘a principle that … allows those persons [subject to the burden] the opportunity to affect how things will go through their choices, and that opportunity is something that those persons have reason to value’ (P.31). For example, it may sometimes be justifiable for a person to bear a harm without compensation if they were provided with a perfectly adequate warning which gave them a valuable opportunity to avoid incurring the harm. He dubs this the ‘value-of-choice’ account. This idea, Voyiakis argues, explains the general rule that the burden of proof on causation is on the claimant: this burden can be justified to the claimant because the burden is contingent on the claimant having access to a valuable opportunity: civil recourse (P.35). By contrast, a general rule that the defendant had the burden of disproving causation would not be a burden that is contingent upon a valuable opportunity for defendants: generally, defendants do not have reason to value a change in the status quo.
Cases like Fairchild are ‘hard’ cases, according to Voyiakis, because the parties do not have reason to value the opportunity to establish the causal truth: the causal truth is impossible to obtain, even on a balance of probabilities. So the imposition of the burden of proof on the claimant in such cases cannot be justified on the ground that it affords the claimant this valuable opportunity: ‘A principle that required Fairchild claimants to prove causation on the balance of probabilities would not have put the outcome of the causal enquiry in the claimants’ hands in any way’ (P.37). The same is true of the defendants: the defendants also have no reason to value the opportunity to establish the causal truth in circumstances where it is impossible to do so.
But Voyiakis argues that the defendant is justifiably liable in Fairchild because it has a reason to value the opportunity to produce a situation where causation is impossible to prove. The defendant cannot reasonably object to an adverse finding on the causal issue where this finding is made contingent on the exercise of an opportunity that the defendant had reason to value. The defendant has a reason to value the opportunity to engage in an industry involving the use of asbestos dust, and set the conditions of safety for its employees, including the risks to which they are exposed. By contrast, from the claimant’s perspective, it is difficult to see the value in their having the ‘opportunity to decide whether or not to be exposed to the risk of harm of unclear aetiology’ (P.38). This line of reasoning would also generate liability in Summers v Tice, according to Voyiakis, because the members of a hunting party have reason to value how to co-ordinate their hunt, including the type of bullets used. But it would not generate liability in a Summers v Tice variant where the shots came from different hunting groups: here the imposition of liability could not justified as contingent upon the exercise of an opportunity to co-ordinate one’s conduct with hunt members (say, by using different bullets from each other). Hence, Voyiakis’ approach does not generate liability in every case where there is causal uncertainty. Indeed a central attraction of his view is that it does not wholly undermine the general rule that claimant bears the burden of proving causation.
I will make three comments. First, it is true that the defendants have reason to value the opportunity to expose their employees to risk and to set the terms of doing so (at least up to a point: defendants also have reason to value reliable authorities setting standards of safety), but do they have reason to value this because it creates a situation where causation is impossible to prove (cf p.39 where the idea that a person with asbestos expertise has reason to value the opportunity to work in the asbestos industry is rejected on the ground that the person does not value the opportunity for the reason that it creates causal uncertainty)? Certainly, defendants have a self-interested reason to value this opportunity where the general burden of proof applies: producing causal uncertainty will get them off the hook from tort liability. But it is not obvious that having this, morally valueless, opportunity to deprive others of the ability to enforce their rights is something that should play a normative role in determining the burden of proof (except in so far as we accept the deterrence arguments mentioned above).
Second, where the defendant is made liable without proof that they caused the claimant’s damage, upon what valuable opportunity is the imposition of this liability contingent? The opportunity to produce a situation of causal uncertainty was only valuable (as a matter of the defendant’s self-interest) where the law insists upon the general rule that proof of causation by the claimant is required. If the answer is that the defendant has reason to value the opportunity to engage in activities involving the exposure of employees to asbestos dust, this opportunity cannot be valuable for the reason that it allows the defendant to escape liability. The defendant does not escape liability. Perhaps the answer is that the defendant escapes moral responsibility for violating the claimant’s rights, but Voyiakis doesn’t go down this route. Or perhaps the idea that the opportunity must be valuable for the reason it allows the defendant to avoid responsibility should be dropped.
Third, the results reached by Voyiakis’ account may not be so different from those reached by Ernest Weinrib’s, at least once the latter’s analysis is extended. Voyiakis’ approach would find that the defendant is not liable in a hypothetical case where the employer provided employees with cheap and easy-to-use devices which detect when the employee was exposed to a risk of contracting cancer. In such circumstances, the absence of liability can be justified to the employee because he or she was provided with a valuable opportunity to provide causal proof. Here, by contrast, Weinrib could appeal to the idea that the invasion of the claimant’s remedial right, in such circumstances, is wholly the claimant’s own fault. On normal principles, this could lead to a break in the chain of causation between the defendant’s breach of duty and the invasion of the claimant’s remedial right.
These points notwithstanding, Voyiakis’ account seems to register, at a general level, a plausible intuition that rights-based accounts miss: this is the idea that, in distributing a compensatory burden, it is important to consider the value of a person’s opportunities to affect the incidence of that burden, even if these do not bear upon whether the person breached a duty. For those who think that the normative basis of liability in tort is not exhausted by rights-based considerations, nor considerations of optimal deterrence, the value of choice account offers an interesting alternative, or supplement, to these views.
Mar 16, 2018 Nora Freeman Engstrom
Joanna C. Schwartz’s 2016 article, The Cost of Suing Business, comes out of the Clifford Symposium on Tort Law and Social Policy at DePaul University College of Law—an annual gathering now in its twenty-fourth year that, under Professor Stephan Landsman’s singular stewardship, has been the site of so much valuable inquiry.
In the article, Schwartz questions a narrative that has succeeded in both Congress and the Court: that “class actions are the most significant scourge on business ever conjured up by man.” (P. 655.) In her words:
In brief after brief to the U.S. Supreme Court, the Chamber of Commerce and other business amici tell the same story: Meritless class actions, filed by rapacious plaintiffs’ attorneys for the ostensible benefit of consumers, employees, and shareholders, are so devastatingly expensive to defend against, and threaten such financial devastation if plaintiffs prevail, that corporate defendants cannot help but accept “blackmail settlements” that harm both businesses’ bottom lines and society at large.
(Id.)
It’s certainly familiar. And it’s undeniably arresting. But is it true?
To find out, Schwartz follows in the tradition of civil justice scholars such as Ted Eisenberg, Marc Galanter, Deborah Hensler, and Bert Kritzer, who have long sought to use empirics to supply an “antidote to the anecdote”—and she works systematically. She breaks the Chamber’s narrative down into its distinct, but related, components—that, for example, class actions force blackmail settlements and impose catastrophic costs on corporate defendants—and, using what Galanter has called a “bricolage strategy,” she gathers what scattered data exist and methodically lays these facts alongside the Chamber’s claims.
For example, what of the notion that class action certification coerces defendants into settling even meritless claims? This idea, first articulated by Milton Handler, has captured judges’ imagination, fueled the Court’s embrace of arbitration, and even driven the Committee on Rules of Practice and Procedure to authorize interlocutory review. But does class certification strong-arm defendants into settling dubious claims? Answer: Not so much. The idea that class actions generate more coercive settlements than non-class action cases has been frequently studied—yet never confirmed. Indeed, available evidence undercuts the Chamber’s claims. Schwartz cites research, for example, showing that about thirty percent of class actions are dismissed or otherwise judicially resolved without a settlement or trial, and that “when courts grant class certification and deny motions to dismiss in class actions, defendants do not immediately settle to avoid discovery and trial (as one would expect if fears of blackmail settlements were well founded).” (P. 664.)
Another frequent gripe with class actions is that they impose “catastrophic” costs on business. But again, Schwartz holds that contention up to the light and finds that its truth is hardly self-evident. Class actions surely can trigger substantial cash transfers: Brian Fitzpatrick has found that, during 2006 and 2007, businesses paid a total of $33 billion in federal class action settlements alone. But when viewed from another perspective, that $33 billion seems far less significant: “the federal class action settlement amounts reported by Fitzpatrick amount to less than .2% of the $20.5 trillion in revenues earned by Fortune 500 companies during the same period.” (P. 666.) Further, Schwartz amasses evidence suggesting that “corporations likely spend as much—or more—suing each other than they do on class actions.” (Id.) Indeed, while current data do not allow for a comparison of the total judgments and settlements in class actions versus non-class, intra-business disputes, Schwartz highlights the astoundingly high costs of the latter. She also points out that, while enormous securities settlements draw outsized attention, plenty of class actions—consumer, employee benefits, and labor and employment cases, for example—involve relatively modest sums.
To be sure, in the course of this study, Schwartz faces the same problem that afflicts all scholars of the contemporary civil justice system: a stunning dearth of reliable data. Two decades ago, Michael Saks famously declared: “Much of what we think we know about the behavior of the tort litigation system is untrue, unknown, or unknowable.” Even beyond the four corners of tort law, that dismal conclusion remains more or less true today. Most of the action in the civil justice system (and the vast majority of tort law) occurs in the states, and state court data are remarkably spotty and incomplete. And, even when we think we have good statistics—of the annual number of federal civil trials, for example—it turns out that various gaps and holes confound clear conclusions.
But rather than being a weakness in Schwartz’s argument, this paucity of hard and reliable evidence is kind of her point. Schwartz’s ultimate contention is not that the empirical record proves the value of class actions. Instead, it’s a more nuanced claim that the current record doesn’t support those assertions currently being used to restrict those actions, or to limit access to the civil justice system more generally. She, in fact, returns us to the old adage, familiar to carpenters, home decorators, and school children alike: “Measure twice, cut once.” Unless and until we know what we’ve got, how it works, and how procedural tinkering will alter the status quo, we should be far less eager to nip and tuck—and far more disciplined in taking out the ruler and making clear and precise measurements.
Feb 20, 2018 Benjamin C. Zipursky
Scott Hershovitz,
Treating Wrongs as Wrongs: An Expressive Argument for Tort Law, 10
J. Tort L. 1 (2017), available at
SSRN.
With clear examples, incisive and sweeping philosophical argumentation, and an engaging prosaic lilt, Scott Hershovitz writes about tort law the way his mentor Ronald Dworkin wrote about constitutional law. If this sounds like high praise, it is. Hershovitz’s Treating Wrongs as Wrongs: An Expressive Argument for Tort Law, 10 J. Tort L. 1 (2017) is a pleasure to read. Indeed, I regard Treating Wrongs as Wrongs as one of the most important torts articles published in many years. Its excellence of course motivates me to push hard against its central themes to see whether they stand up.
Hershovitz’s principal claim in this article is that “tort law is very much an expressive institution.” He explains what it means to say that an area of law is an expressive institution, why this is correctly said about tort law, what messages tort law expresses – “this person is entitled to be treated with dignity” and “the defendant wronged the plaintiff” – and why it is an important fact about tort law that it sends these messages.
The article concludes on two overtly normative observations – one practical and one theoretical. On the practical side, he suggests that tort reform measures are undermining the capacity of tort law to serve its important expressive function, and that such measures must therefore be squelched. On the theoretical side, he suggests that his expressivism is actually a form of corrective justice theory, and a better form than those that have been advanced by Ernest Weinrib and others, as descendants of Aristotelian corrective justice.
* * *
Criminal punishment is, for Hershovitz, the paradigm of an expressive institution. A central point (although not the only point) of incarcerating someone who has stabbed another person or swindled innocent investors is to send a message of condemnation. The state, on behalf of the public, is proclaiming that such behavior is disrespectful and unacceptable and the actor is to be recognized as deserving of negative judgment.
The imposition of tort liability is similar, but the message is somewhat different. Hershovitz presents the chestnut Alcorn v. Mitchell, in which a wealthy person spat on the lower-class plaintiff in order to express his contempt for him. The jury found for the plaintiff in his battery claim – the spit being the battery – and awarded him $2,000 in vindictive damages (reduced by the trial judge to $1,000). The point of the judgment entered against the defendant was to express or announce that the defendant had wronged the plaintiff. A finding of nominal damages or miniscule compensatory damages would not have done so; the significant financial award gives meaning to the court’s recognition of the wrong that was done. As in Anthony Sebok’s important 2007 article on punitive damages in the Iowa Law Review, Hershovitz links Jean Hampton and Jeffrie Murphy’s expressivist account of criminal punishment to punitive damages in tort law. Critically, the plaintiff’s verdict corrected the implicit message of the defendant that he was better than the plaintiff; it asserted the plaintiff’s equality and dignity.
Hershovitz defends his broader view that tort law is an expressive institution by adapting replies to standard objections to wrongs-based theories. One is the objection that, since many torts are not predicated on blameworthy conduct, it makes no sense to call torts “wrongs” and to see tort law as expressing the wrongfulness of the defendant’s conduct.
One particular example – Kresin v. Sears, Roebuck & Co. – captures both the power and the vulnerability of Hershovitz’s article. Seventy-three-year-old Rose Kresin was walking through a Sears parking lot when a Sears employee backed up a van and accidentally ran her over. Kresin lived, but suffered devastating injuries: she endured facial, rib, leg, and collarbone fractures, and a skull fracture that left her blind; she became permanently wheelchair bound and incontinent, and suffered numerous serious infections (including meningitis) during a two-month-long hospital stay after the accident. The jury found that the Sears employee, Alfredo Jijon, was negligent in backing up without looking behind him sufficiently, and the court entered a judgment against Sears for $16.5 million in compensatory damages – including compensation for past and future medical care and homecare, disfigurement, and pain and suffering. The appellate court affirmed.
Kresin is clearly not a case involving punitive damages, for the defendant employee’s conduct was neither willful nor wanton; it was simply negligent. Hershovitz agrees that this is a case of compensatory damages, but he plausibly rejects the idea that this is loss-shifting or indemnification or “making whole” in any satisfactorily clear sense. Compensatory damages may be meant to compensate, but that is quite different from saying they are there to reproduce the plaintiff’s prior physical condition. Rather, Jijon’s conduct sent the message, “I do not have to watch out for you.” The verdict, too, is expressive. It expresses that the plaintiff was wronged by the defendant – she was injured by the defendant’s failure to be sufficiently vigilant of her possible whereabouts or the possible presence of someone behind him. In awarding her a $16.5 million verdict, the court was apparently making the point that Kresin is to be treated with dignity too.
The damage award said to Jijon: This is what you did. This is your fault—the disability, the disfigurement, the pain and suffering. The damages did not make Kresin whole, not even close. But they did make clear that her injuries were Jijon’s responsibility. And they ensured that Kresin would be paid for her injuries, so that they would not stand as markers of mistreatment her community did not care to do anything about. If we did not offer that to Kresin—if we left in place injuries that might be repaired or sat silent about those that could not—then she would indeed have reason to doubt her social standing. Maybe she could be treated that way, she might think, because she was, and nobody cared to do anything about it. The compensatory damages stopped that train of thought cold. They made clear that Kresin could not be treated that way.
(P. 33-34; emphasis and footnote omitted.)
Hershovitz’s elegant expansion of the vindicative to beyond punitive damages is of course a crucially important part of his project of making expressivism a theory of tort law more generally. The next step in generalizing the account (in moving past intentional torts to negligence) concerns whether this must be a trial in which a verdict is actually announced. Does his expressivism turn on there being a trial and a verdict, or it is applicable to cases that have settled, perhaps confidentially? The settlement phenomenon would seem to present Hershovitz with a lesser-of-two-evils type of dilemma. If expressivism does extend to such settlements, the metaphor of “expression” seems to be vanishingly thin, because there is no audience (other than the parties) to whom the message of “plaintiff standing” is being expressed. Conversely, if it is only the trial verdict cases that count, then the account touches only a very small percentage of tort cases, and hence seems unable to bear the weight of a theory of tort law. Hershovitz tries to dull each horn of this dilemma: he concedes that in confidential settlements there is an audience of only the parties, but contends that is a significant audience, and he uses the pervasiveness of settlement in the shadow of the law as a ground for seeing the cases actually tried as especially important.
Critics will see tension between expressivism and the objectivity of the standard of care in negligence law, and Hershovitz anticipates this objection. His reply builds on the work of numerous recent tort theory scholars, explaining that a person who has committed a wrong might nevertheless not have been at fault in a manner that warrants blame. The key, however, is that whether or not the defendant was blameworthy, the plaintiff actually was wronged and suffered a rights invasion. On the expressivist account, the need for our system to send a message vindicating the rights of the person who was injured still exists. That is why expressivism is, according to Hershovitz, consistent with the objectivity of the standard of care in negligence law, and even with strict liability.
Finally, the normative payoffs, theoretical and practical. After providing a powerful argument that the material make-whole conception of corrective justice theory fails, he contends that expressivism is itself a form of corrective justice theory:
And corrective justice is not a form of justice because it governs the allocation of goods that shift as the result of wrongdoing. It is a form of justice because the way that we respond to wrongdoing is partly constitutive of the basic structure of our social relations. The distinctive demand of corrective justice is that we treat wrongs as wrongs, so that victims enjoy the social standing that wrongdoers threaten to deny them.
(P. 58.)
At a practical level, Hershovitz argues, expressivism provides reasons to push against recent tort reform measures: “Many recent changes to tort law serve mainly to muck up the messages that tort aims to send. In jurisdictions that have abandoned the collateral source rule, for example, damages no longer reliably convey the seriousness of the injuries inflicted.” (P. 62.) Hershovitz touches critically on other particular measures as well, but also reminds the reader that, since the institution of tort law is fundamentally meaning-conferring and thus in one sense constructive, it is in many respects a flexible and contingent matter how we decide to do it.
* * *
My principal concern arises when we push hard on a crucial ambiguity in Hershovitz’s account. Sometimes, “expressivism” is meant to connote that the body of law in question categorizes the conduct of various actors according to what the primary actor’s conduct expresses (intentionally or unintentionally). At other times “expressivism” stands for a view according to which what the court does when it imposes liability is to send a message. Recall that the discussion of Kresin alluded to both: Jijon’s conduct sent the message, “You [Kresin] do not matter,” and the jury verdict of over $16 million sent the message, “You, Kresin, do matter!”
Expressivism in torts has significant problems on either of these versions – defendant-conduct expressivism and court expressivism. We already know why the defendant-conduct expressivism will not work; Hershovitz told us when he conceded that a rights violation meriting redress in tort need not be accompanied by the sort of conduct that expresses a lack of respect for the dignity of the plaintiff. The objective standard of care and strict liability pertain to conduct that counts as wrongful and tortiously actionable, notwithstanding that it need not express anything about the victim.
Liability imposition in any case that reached a plaintiff’s verdict is arguably expressive, however, and in this respect, court expressivism is more promising. But now we must return to the concerns about settlement I described earlier. Given that the vast majority of cases settle, we must concede that the theory explains only a tiny piece of the area. While decided against a backdrop of possibilities, the whole point of settling cases is to skip the step in which a neutral party (judge or jury) actually decides whether the plaintiff was wronged. And unlike plea agreements in criminal law, the defendant never actually admits or acknowledges having committed a legal wrong at the core of the allegation by the adversary in litigation.
In his eagerness to see the legal system as a morality play, Hershovitz misstates the way that equality grounds tort law. Equality is fundamental to tort law, but not principally because of the shows of equality the state enacts through trials that end in victim vindication. Through tort law, the state respects equality by empowering each person to demand redress from someone who wronged her or him should she or he so choose. Physical power, wealth, connections, gender, and race are supposed to be irrelevant both to whether one will be subjected to wrongs of another, and, concomitantly, whether one will be able to hold another accountable for having done such a wrong (Hershovitz is certainly right that in light of the uncertain and unequal real-world availability of such power, today’s tort law needs reform). It is not so much what the verdict and the state’s entering of a judgment mean or express. More important is the power – one might even say “leverage” – that having a private right of action supplies to those who have been wronged. In this way, the capacity to extract compensation from defendants through confidential settlement is not an anomaly or a puzzle (as it appears to be on an expressivist theory); it is a vivid illustration of the equalizing and empowering force of tort law.
Expressivism, like civil recourse theory, shares much with corrective justice as developed by Weinrib, but in the end rejects it. Hershovitz nonetheless asserts that he adheres to a form of corrective justice theory – a better form than Weinrib’s. He retains the teleological aspect of corrective justice theory – tort involves seeing to it that justice, even rectification, is done through courts after someone has been wrongfully injured by another. What it contests is the nature of the rectification – the true message of the plaintiff’s dignity is being sent when a judge enters a judgment for the plaintiff based on a jury verdict.
Torts is more private than recognized by either Weinrib or Hershovitz. It is rooted in the private power to hold to account those who have violated one’s rights. As a Dworkinian, Hershovitz might argue that his more teleological account better justifies tort law. Leaving aside whether that is so (I am skeptical), I worry that Hershovitz’s expressivism does not qualify at the basic level of fit. Tort law respects dignity by giving power to those who have been wronged by others, not by expressing the moral truth about them.
Notwithstanding what I, as a civil recourse theorist, am able to depict as a fundamental difference between my views and Hershovitz’s – power allocation versus message-giving – Treating Wrongs as Wrongs is an important article for anyone in tort theory or torts to read. In one place, it neatly constructs a promising and previously underdeveloped approach to tort law and takes on the leading pragmatic and philosophical criticisms of morally inflected tort theories. In so doing it captures, in philosophically sophisticated but easily readable form, the strong intuition of law students and lawyers that torts is not just about money and harm, it is also about people and power.
