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Is Systemic Risk Special?

Aaron James, The Distinctive Significance of Systemic Risk, 30 Ratio Juris 239 (2017), available at SSRN.

In one of his more famous aphorisms, Oliver Wendell Holmes remarked that “[o]ur law of torts comes from the old days of isolated, ungeneralized wrongs, assaults, slanders, and the like,” whereas “the torts with which our courts are kept busy to-day are mainly the incidents of certain well known businesses … railroads, factories, and the like.”1 In the 120 years since Holmes penned his remark, our social world has become ever more organized. Holmes wrote before the mass production of consumer products and before environmental harms on a global scale existed. Indeed, Holmes seems to have had in mind just one kind of systemic risk, namely, the repeat imposition of the same risk by an institution that repeats the same action over and over again. Railroads, for instance, run trains past the same intersections on a regular basis.

We are familiar with more advanced and diverse forms of systemic risk. Some products are characterized by risks that are present every time the product is used but that are responsible for physical harm only relatively rarely. Many product design defects are like this. The Ford Pinto gas tank is a case in point. The defective design was present in every Ford Pinto but its risks remained dormant until a car was involved in a collision. Other products impose unacceptable risks every time someone is exposed to them. Asbestos is the most notorious example. In still other cases, the independent actions of innumerable people coalesce into a critical mass and that critical mass imposes a major risk. Climate change is a case in point. It is surprising, then, that the distinctive issues raised by systemic risk imposition have received so little attention, and heartening to see that sophisticated political philosophers have now begun to pay them heed. In The Distinctive Significance of Systemic Risk, Aaron James, a political philosopher at the University of California at Irvine, zeros in on several of the thorniest moral issues presented by practices of systemic risk imposition. James is preoccupied with two questions.

(1) When persons, firms, or systems (e.g., the banking system) impose risk systemically, is risk imposition itself problematic, independent of any resulting harm?
(2) When institutions—not individual actors—systematically impose objectionable risks, who is responsible for the imposition of these risks, when are they responsible, and what are they responsible for not doing differently?

These important and fundamental questions are raised by systemic risk imposition, by virtue of its systematicity.

“Many of the great moral problems of our time—including the scourge of financial crises and the specter of global climate change—are,” James rightly observes, “problems of systemic risk. That is to say, what is problematic is not the risk-taking of any particular agent, but rather risk of harm created by large numbers of people acting together, in perhaps unwittingly coordinated ways.” When each of us drives or flies or boards a train or a bus, for example, we participate in a system of transportation that is contributing to an ever-increasing risk of devastating climate change. But my driving by itself—and your driving by itself, and everyone else’s driving by itself—is not a problem. There is no negative externality imposed by my particular acts of driving. It is the critical mass of human activity that creates more CO2 than the atmosphere can absorb, thereby threatening catastrophic climate change. Do we each nonetheless do wrong whenever we drive or fly, or air condition our houses, or turn on our appliances? And is the risk of climate change itself objectionable? Or is the systemic imposition of such risk objectionable only when it ripens into harm through climate change?

In answering these questions, James attends mostly to practices that impose a different kind of risk from those that preoccupy tort law and tort scholars. Tort law is preoccupied with physical risk leading to physical harm through physical cause. James is concerned primarily with the vast and often ruinous financial risks which increasingly loom over our economic landscape and endanger the livelihoods and financial security of millions. Because systemic risk has fundamental and common characteristics regardless of the type of harm it risks, much of what James says about financial risk has broader relevance to physical risk as well. James’ discussion of whether systemic risk imposition may be objectionable in itself is particularly provocative and relevant. Generally speaking, tort law cares about risk only when it results in harm. There is no tort liability for attempts. Wrongful risk imposition results in liability only when it results in injury, understood as physical impairment of normal bodily functioning. The Third Restatement, for example, defines “physical harm” as “the physical impairment of the human body (‘bodily harm’) or of real property or tangible personal property … [Such impairment] includes physical injury, illness, disease, impairment of bodily function, and death.”2 In exceptional cases, tort law allows recovery for subjective emotional distress, precipitated by the imposition of risk of physical harm. The ancient tort of assault, for example, allows recovery for the fright induced by almost being battered. But in general, harm, rather than risk, is required for tort liability.

Multiple reasons can no doubt be given for the traditional tort position. It seems likely, however, that one prominent justification for the position is rooted in the fact that traditional tort law is preoccupied with one-shot, episodic risk. If I step off the sidewalk at a crosswalk with the light in my favor and you speed by me—just missing my foot as you run the red light, utterly indifferent to my emotional tranquility—I will be furious and frightened but physically unharmed. My fury and fright will probably be transitory and I will go on my way intact if indignant. Episodic risk of this sort may not be objectionable enough to justify the imposition of civil liability. Continuous exposure to ongoing systemic risk, however, seems quite different. If I live in a “cancer alley” created by the regular discharge of some toxin or pollutant—and so go about my daily life under the cloud of higher than average risk of contracting a debilitating and often deadly disease—matters seem different. First, I am subject to a special psychic burden. A special sword of Damocles dangles over me. I know that I have escaped harm at its hands only when I die of something other than the cancer threatened by my daily exposure to risk. In addition, if I live with this threat because I am too poor to live somewhere safer, or because I am a member of a discriminated-against minority group, my fate seems especially objectionable because of the inequity. My life is being treated as less valuable than the life of someone wealthier, or than the life of a member of a dominant social group.

This intuition that systemic risk imposition can make risk imposition itself objectionable in a way that episodic risk imposition is not has, I suspect, struck many a tort scholar contemplating systemic risk imposition. To my knowledge, however, the intuition itself has not been systematically developed. Focusing on structurally similar cases of systemic financial risk concentrated on vulnerable populations, James argues persuasively that such risk imposition can be objectionable in itself, because it devalues those on whom it is imposed, whether or not it ever injures them. James’ argument is worth the attention of anyone interested in systemic risk imposition. Not only is the argument powerful and carefully thought through, it is philosophically sophisticated in a way in which too few analyses of risk imposition are.

In its philosophical posture, The Distinctive Significance of Systemic Risk argues persuasively that we can evaluate the moral significance of systemic risk adequately only if we move beyond the confines of consequentialist moral theory and the aggregative procedure of cost-benefit analysis. It is not the case that the only question to be asked about practices of risk imposition is whether their effects are net beneficial or not. When less privileged populations are asymmetrically exposed to practices of systemic risk imposition whose benefits redound disproportionately to those more advantaged, those exposed have good reason to complain that they are being treated unjustly by their fellow citizens. What we owe to each other as fellow citizens (and persons) is as important a question of political morality as whether the consequences of some practice are net beneficial or not. Professor James’ persuasive development of this point expands the moral resources available to tort scholars when we contemplate the distinctive risks of our time.

The Distinctive Significance of Systemic Risk also illuminates its second question—where and how to lodge responsibility for systemic practices in which many of us have no choice but to participate. Collective practices of risk imposition call for the creation of new forms of governance adequate to the practices of risk imposition at issue. For those of us whose bread and butter is liability, not governance, the thought that we should revive and extend enterprise liability comes to mind. For reasons of space, however, I must encourage readers to explore this part of James’ paper on their own. They will not regret doing so.

  1. Oliver Wendell Holmes, The Path of the Law, in Collected Legal Papers 167, 183 (1920). The paper itself was originally delivered in 1897.
  2. Restatement (Third) of Torts: Liability for Physical & Emotional Harm § 4 (Am. Law Inst. 2010). The Third Restatement extends the idea of harm as an impaired condition to include the impairment of property. The philosophical conception of harm is concerned only with harm to persons. The question of how to account for the importance of property damage to tort is peripheral to the concerns of this paper. Offhand, the easiest way to make the extension would appear to be to draw upon the fact that we have rights in property. Those rights give rise to claims against others that they not damage our property, and make impairment of our property a harm to us.
Cite as: Gregory Keating, Is Systemic Risk Special?, JOTWELL (October 5, 2017) (reviewing Aaron James, The Distinctive Significance of Systemic Risk, 30 Ratio Juris 239 (2017), available at SSRN), https://torts.jotwell.com/is-systemic-risk-special/.

How Much is Your Injury Worth? First Tell Me Your Race and Gender

Ronen Avraham and Kimberly Yuracko, Torts and Discrimination, Law and Economic Research Paper No. E570 (2017), available at SSRN.

When plaintiffs suffer actionable injury, courts in the United States attempt to repair the harm by awarding compensatory damages that put victims in the position they would have been in but for the wrongs that they have suffered. Courts calculate an individualized measure of compensatory damages for each plaintiff. The damage measure not only includes plaintiff’s actual past expenses, but also, a plaintiff’s lost earning capacity, future pain and suffering, and future medical costs.  As a starting point for juries’ projections, courts allow forensic economists to introduce three types of government-generated statistical tables—life expectancy tables, work-life expectancy tables and average-wage tables. (P. 17.) All of these tables come in blended and non-blended versions. The non-blended editions disaggregate data by race and gender. For example, a non-blended table might tell you that a “white” girl born in 2014 has a life expectancy of 81.2 years, while a “black or African American” boy has an expectancy of only 72.5 years.1 Similarly, a non-blended table might suggest that a 16-year old white male has a longer work-life expectancy than a black female. (P. 26.)

Courts frequently, perhaps “routinely,” permit the use of non-blended statistical tables as a foundation for damage awards in tort and other claims, including even Title VII discrimination cases. (Pp. 15, 59.) Furthermore, as Avraham and Yuracko document, legislatures have also adopted statutes or pattern jury instructions which permit gender-based, and sometimes race-based calculations. (P. 16.)

The problems with using race and gender in damage calculations are many. Building on the work of Martha Chamallas and Jennifer Wriggins in The Measure of Injury: Race, Gender and Tort Law (2010),  and earlier works, Avraham and Yuracko argue that using gender and race based tables may well result in disparate damage awards, and not only reflect historical inequities, but perpetuate them. (P. 106.) Furthermore, they argue that these race and gender disparities may themselves create discriminatory incentives for care. Moreover, they find the explicit distinctions based on gender and race to be an embarrassment, presumably along the line of expressive harm (that welfare maximization values some lives above others). They suggest that the use of differentiated tables might be inaccurate and inefficient to boot. (Pp. 74-93.) Ultimately, the authors argue that “Courts should immediately stop using non-blended tables.”

The conclusion seems sound and the issue both important and practical. Courts should repair victims within a framework that incorporates other important social values like gender equity. The authors’ engagement with norms of both equality and efficiency—an area in which few U.S. torts scholars dare to tread—is also admirable. Avraham and Yuracko are at their best when they provide real-world examples of systems that seem to function without differentiation. Apparently in projected future earnings of minors and young adults—cases in which individualized earnings histories are unavailable–Israel has decided not to differentiate earnings potential by race, gender, origin or religion. (P. 127.) Moreover, as the authors note, government regulation does not distinguish based on race and gender in regulatory models. (P. 108.) Nor do insurer rating formulas provide for such distinctions. (P. 109.) And of course some legislatures and judges have rejected the use of non-blended tables in civil cases. Other authorities could be added.2

For all of the strength of their thoughtful work, Tort and Discrimination never really goes for the jugular. Although Avraham and Yuracko suggest that using race- and gender-specific statistics raises constitutional concerns, they never fully articulate the constitutional argument that a court should consider. And while they label the use of race- and gender- based tables “discriminatory,” they don’t establish what is wrongful about these group-based distinctions, something they could perhaps do by reference to doctrines like redlining or stereotyping. In addition, while they raise many empirical reasons to suggest courts and legislatures should be concerned about non-blended statistical measures–“the damages black women receive for future losses caused by bodily injury or wrongful death are lower than the damages their white male counterparts would receive,” (P. 4) –they don’t fully develop empirical evidence to support their claims. Before the final ink is dry on their work, this distinguished pair might think more carefully about arguing to the judges and legislators who can enact the changes they seek, not primarily to law and economics scholars who, even if they agree, can do nothing to change the rules.

  1. See U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Health Statistics, Health, United States, 2015: With Special Feature on Racial and Ethnic Health Disparities 95 (2016) at Table 15.
  2. See Ellen Bublick, China’s New Tort Law: The Promise of Reasonable Care, 13 Asian-Pac. L. & Pol’y J. 36 (2011) (Chinese tort law generally awards the decedent’s beneficiaries twenty times the average earnings in the decedent’s locality).
Cite as: Ellen Bublick, How Much is Your Injury Worth? First Tell Me Your Race and Gender, JOTWELL (July 6, 2017) (reviewing Ronen Avraham and Kimberly Yuracko, Torts and Discrimination, Law and Economic Research Paper No. E570 (2017), available at SSRN), https://torts.jotwell.com/how-much-is-your-injury-worth-first-tell-me-your-race-and-gender/.

How Important is Community to Tort Law?

Christina Carmody Tilley, Tort Law Inside Out, 126 Yale L. J. 1321 (2017).

Christina Tilley’s new article on the purpose of tort law is audacious. It boldly claims that other tort theorists have got it wrong: tort law is not primarily concerned with efficiency or morality but instead (spoiler alert!) is all about constructing community. Aligning herself with a group of scholars called the New Doctrinalists, she purports to find this overarching community-constructing purpose embedded within tort doctrine itself and in the process contends that other theories, including civil recourse theory, are really external theories (hence the title, Tort Law [From the] Inside Out). She canvasses tort cases from the colonial period to the present in an attempt to demonstrate that “community” has always played a central role in tort law, even as communities in the U.S. have undergone dramatic changes.

Christina Tilley’s article is also very creative. To prove the centrality of “community” in tort law, she conducts a “rudimentary linguistic analysis” (p.1340) of the digital version of the Restatement (Second) of Torts and discovers that references to community (47 times) are more plentiful than utility (34), efficiency (3), morality (24), or justice (3). To unpack the meaning of “community” most relevant to tort law, she draws upon classic works in sociology and political theory to make intriguing distinctions between sociological and political communities and closed versus open communities. And she peppers her article with examples of contemporary controversies (parents opposed to vaccination, football concussion injuries, texting while driving) where outcomes in tort cases are likely to differ, depending on which community has its say. The sheer breadth and sophistication of the article gives readers much to admire and much to contest. At the end of 80 pages, I was not entirely persuaded, but I suspect that Tilley’s paean to community will have real staying power.

Paradoxically, Tilley contends that the concept of community in tort law is crucial in large part because it is ill-defined and indeterminate and operates as a “transom though which decision makers can import extralegal norms to determine liability for injuries.” (P.1343.) Elsewhere in the article, Tilley refers to community as a “placeholder,” or, as linguists call it, a “hedge,” i.e., an open-textured element that invites a reader to fill in the blanks. (P. 1332.) In the operation of tort law, it is most often the jury who fills the void and decides a case according to community values and norms.

Tilley reminds us that resort to community norms in tort law occurs repeatedly across each of the three main theories of liability. For example, in intentional torts, community norms are used to determine whether a touching is offensive, whether consent should be presumed or whether conduct is outrageous. In negligence law, community norms may be a reference point for deciding whether a defendant’s conduct poses an unreasonable risk. In strict liability, the appropriateness of the activity to a community and whether the activity is one of common usage helps determine whether it qualifies as abnormally dangerous.

Resort to “community” covers a lot of ground in Tilley’s analysis. It comes into play when a tort doctrine explicitly requires an assessment of the norms of a specified community, such as the “locality rule” in medical malpractice claims that requires proof that a physician breached professional standards in the local community. (P.1381.) But importantly, Tilley also regards “community” as coming into play in a wide range of cases, notably negligence claims, in which juries are asked to evaluate a party’s action by the reasonable person standard, presumably because juries will be guided by the standard “demanded by the community for the protection of others against unreasonable risk.” (P. 1345.) Thus, Tilley’s broad role for “community” in tort law encompasses explicit resort to custom in particular torts as well as discretionary judgments made by decision makers called upon to fill in the content of other abstract concepts such as reasonable care.

Tilley maintains that through these multiple doctrines “community” has become a privileged source of tort liability norms, even though she contends that the concept has been under-theorized in legal scholarship. Thus, when myriad decisions about liability are made by jurors in tort cases on the basis of community norms, over time they have the effect of “constructing” community, signaling what is acceptable and unacceptable behavior, creating mutual bonds and cohesion among community members, and attaching a price to deviant behavior. In this sociological account, tort litigation is valuable precisely because it gives a community what it needs: orderly confrontations over contested behavior. For Tilley, this process of community construction is the whole point of tort law, allowing the community to consider and re-consider its norms, without resort to “the cumbersome machinery of the state” that characterizes criminal and regulatory law. (P. 1355.)

A pivotal part of Tilley’s theory is the distinction she makes between closed and open communities, which roughly maps onto a difference between local and national communities. Going back to the classic distinction between Germeinschaft (traditional community) and Gesellschaft (modern community), Tilley explains that sometimes decision-makers decide cases according to local norms, while at other times, they reach for national norms. She regards this “toggle” between local and national norms as a good thing, primarily because it reflects her vision of the United States as “multiple traditional communities nested within a single modern community.” (P.1364.)

A crucial (if highly contestable) analytical move Tilley makes is to align local norms with “morality” and national norms with “efficiency.” She reasons that closed, traditional communities are most often premised on sameness and “multiplex relationships that typically share religious and moral orientations.” Modern, open communities, by way of contrast, are “premised on specialization of labor and relationships,” characterized by “a plurality of cultural and value orientations” and typically “coordinate through rational or efficient behavioral norms.” (P. 1357.) In Tilley’s dichotomy, there is not much room for national norms premised on morality or local communities marked by a diversity of viewpoints.

As a descriptive matter, Tilley asserts that tort doctrine has “implicitly encouraged” decision makers to shift between local or national norms depending on “where the disputed injury arose.” She finds the same injunction throughout the Restatement (Second) of Torts: “injuries inflicted within closed communities are to be assessed based on that community’s norm (typically moral in nature), while injuries inflicted within the open community are to be assessed based on that community’s norm (typically efficient).” (P.1365.) As a prescriptive matter, Tilley goes on to argue that contemporary courts should make this process explicit and that “tort should embrace its capacity to toggle between morality and efficiency.” (P.1385.) In Tilley’s mind, this account of tort law also reconciles the current standoff between economic theorists and corrective justice/morality theorists by showing that each has a place in tort law.

Applying Tilley’s local/national (morality/efficiency) distinction, however, can be tricky and might not be as intuitive as she suggests. For example, Tilley analyzes one 2013 Oregon case alleging that a teacher had sexually abused the plaintiffs when they were primary school students nearly thirty years ago. The issue in the case was whether the discovery rule ought to be applied to toll the statute of limitations because only recently did the plaintiffs fully appreciate the offensive nature of the defendant’s behavior. One might have thought that under Tilley’s scheme the case would be categorized as local and governed by morality norms, given that all the parties resided in the same local community and that sexual behavior and the care of children are often approached as issues of private morality. Yet Tilley explains that the court in that case identified the teacher’s behavior as “grooming” and noted that grooming is a tactic that has received widespread national recognition in recent years. She regards the ruling for the plaintiffs in that case as an example of a court “[i]ntuitively gravitating towards the expectations and knowledge of the national community with respect to the nature of child sex offenses.” (P.1374.) It is not clear, however, why the availability of expert knowledge on a subject should transform a local controversy into a national one or whether Tilley would be happy with classifying such as case as either local or national.

Added to the problem of boundary-drawing, application of the local/national distinction might yield results that are unjust simply because like injuries are treated so differently. Thus, Tilley discusses a poignant case involving a twenty-six-year old man who committed suicide after suffering from multiple concussions while playing youth and high school football. The legal claim in the case was whether the football league should be subject to strict liability because the activity was abnormally dangerous. As Tilley sees it, because “abnormality” results partly from community values, “the cultural resonance of amateur football within the relevant community must be assessed.” (P.1388.) She hypothesizes that if the case had taken place in West Texas where football “plays a crucial role in the social infrastructure,” denying recovery would be justified because it would reflect the preference of the local community. However, because the actual case took place in Wisconsin and involved a claim against Pop Warner football, a national corporate defendant, Tilley believes that it was appropriate for the court “to toggle to an efficiency approach, asking whether the benefit of Pop Warner and youth football nationally outweighed its capacity to harm.” (P.1389.) It is not clear to me why expert knowledge on concussion injuries, if offered into evidence by the hypothetical Texas plaintiffs, would not or should not push the case into the national category. More fundamentally, should such a case turn on the perceived social benefit of football to the community rather than on the science behind concussion injuries?

On a broader level, Tilley’s fascinating article left me wondering whether her account of community’s role in tort law, particularly her local/national distinction, might have been more accurate in 1975 than it is today. Unfortunately, Tilley decided not to use the Restatement (Third) as a basis for her linguistic analysis of the concept of community. She reasoned that because the project is still incomplete and has been broken up into separate parts (e.g., separate Restatements for Products Liability, Apportionment, etc.), any linguistic analysis would not show the relevance of the concept across multiple types of liability. She also expressed concern that the Restatement process has become politicized and dominated by an economic, instrumental orientation. (Pp.1338-39.) Regardless of the validity of her concerns, by relying on the Restatement (Second), Tilley may have painted a portrait of tort law that overstates the continuing relevance of community. A great number of courts, for example, have followed the course of the new Restatements and may have diminished the role of community in important areas of tort law, for example, rejecting the consumer expectation test in products liability, employing economic cost/benefit analyses to determine reasonable care in negligence cases, and placing less emphasis on locational appropriateness in abnormally dangerous activities cases. Since the 1980s, there has also been a decidedly neoliberal turn in U.S. public policy and discourse that has had the effect of infusing market values and market rationality into all institutions and social action, tort law included. Particularly when this transformation of values is added to the reality of vanishing juries, it’s really hard to say just how important community is to tort law.

Cite as: Martha Chamallas, How Important is Community to Tort Law?, JOTWELL (June 6, 2017) (reviewing Christina Carmody Tilley, Tort Law Inside Out, 126 Yale L. J. 1321 (2017)), https://torts.jotwell.com/how-important-is-community-to-tort-law/.

A Benefit Theory of Tort Law

Alex Stein, The Domain of Torts, 117 Colum. L. Rev. 535 (forthcoming 2017), available at SSRN.

Scholars seeking to interpret the common law of torts typically take a position on the merits of fairness or rights-based rationales for liability as contrasted to welfarist or efficiency-based rationales. Rejecting this fairness versus efficiency framework, Alex Stein defends an original thesis in his forthcoming article, The Domain of Torts: fair tort rules do not contradict or stand in tension with efficient tort rules; each type of rule instead “implement[s] different regulatory mechanisms—private and public—and appl[ies] to different kinds of accidents.” (P. 541.) Tort law is comprised of both fair and efficient tort rules that govern different domains, eliminating any conflict between them. Although I’m not persuaded, Stein’s article requires one to consider important issues from a fresh perspective and deserves to be widely read.

After arguing that the domain of tort law is distinctively defined by the problem of accidents caused by unwanted interactions, a position staked out long ago by Oliver Wendell Holmes, Stein then makes the more interesting claim that tort law further distinguishes between two types of accidents—those caused by the risky actor’s pursuit of only private benefits, and the remaining accidents caused by risky behavior that benefits the public. “Private benefits are ones that improve the well-being of a single person: the actor (and her private beneficiaries, such as family and friends). Public benefits, on the other hand, improve the welfare of society in general (while also generating private gains for their producers).” (P. 552.) These definitions are not standard within tort law nor otherwise elaborated upon by Stein, yet he argues that they largely determine the substantive content of liability rules.

For risky behavior that pursues only private benefits, tort law is a “private mechanism of accident regulation [that] interprets negligence, causation, and damage in terms of the victim’s entitlement to protection against disproportionate, or nonreciprocal, risks of harm and the actor’s correlative duty to avoid or mitigate those risks.” (P. 545.) For risky behavior that generates public benefits, tort law is a “public mechanism [that] interprets these pillars of liability through the lens of efficiency analysis that relies on economics and statistical information.” (Id.) Tort law distinguishes between these two types of benefits for reasons of deterrence. When a risky actor seeks only private gains, tort law need not worry about overdeterrence, enabling it to burden such behavior with the relatively more onerous compensatory obligations entailed by principles of equality and fairness. But when the risky behavior benefits society, then overdeterrence supplies a good reason for limiting liability, justifying allocatively efficient or cost-minimizing tort rules.

Regardless of what one might think about this deterrence argument, a benefit theory of tort law is independently plausible for another reason. Although Stein claims that the tort doctrines governing accidental harm are “universally believe[d to be]… driven by harms, not benefits” (P. 535), he oversells the originality of his emphasis on benefits. As Francis Bohlen sought to establish over a century ago, “all affirmative duties rest upon consideration: some benefit to him on whom they are imposed.”1 In addition to the affirmative tort obligations based on benefit, Bohlen recognized the general tort “obligation to refrain from injurious action.”2 Although Bohlen did not discuss the matter, the general duty can also be included within his benefit theory. Risky conduct is presumably motivated by an expected benefit (like transportation in the case of automobile accidents), and so the general tort duty is also based on the fact that the duty-holder is deriving a benefit from behavior that imposes a foreseeable risk of physical harm on another who has an equal right to physical security. This extension of Bohlen’s theory means that all tort duties are based on benefits. If so, the nature of the benefit could plausibly shape the form of the duty—its substantive requirements. Bohlen provided an impressive analysis of the case law to support his conclusion, and Stein in turn relies on further developments in the case law to extend that argument from the basis of duty (Bohlen’s inquiry) into the other elements of negligence liability—breach, causation, and damages.

What, then, to make of the argument?

Based on my prior analysis of the implications of reciprocity norms for tort law, I disagree with Stein’s claims about how the requirements of equality and reciprocity relate to the standard of reasonable care and to concerns about overdeterrence more generally.3 But regardless of one’s position on these matters, Stein’s argument is still intriguing because of its emphasis on benefits. Is negligence liability for harms fundamentally defined by the nature of the benefits generated by the risky behavior? If so, does that influence stem from the distinction between private and public benefits? And if so, what is the relevant conception of public and private benefits? These questions are largely understudied and merit extended analysis.

I do not think that these questions are adequately answered by Stein’s article. His definition of a “public benefit” is not based on externalities and accordingly encompasses all forms of market transactions, because the risky behavior in these contexts affects individuals other than the buyer and seller, their families, and friends. Incidental increases of employment or corporate profits, for example, fall within Stein’s definition of a “public benefit,” although they are not ordinarily externalities within economic analysis. Indeed, this type of “public benefit” can be generated without market transactions, as illustrated by the federal constitutional jurisprudence on the Interstate Commerce Clause. If tort law must minimize costs anytime it has some impact on markets, then Stein’s benefit theory apparently morphs into the subsidy thesis developed by Morton Horwitz: the fairness-based, early forms of accident law were replaced by the cost-minimizing negligence standard at the onset of the industrial revolution to subsidize economic development (or not overly deter economic growth).4 The problems with the subsidy thesis, therefore, also apply to Stein’s theory.5

For example, common carriers such as railroads—the engine of the industrial revolution in the U.S.—were traditionally subject to a demanding negligence standard such as utmost care, even though on Stein’s account, common carriers provide “public benefits” and should be governed by the ordinary, or cost-minimizing, standard of care. As the twentieth century progressed, numerous jurisdictions rejected the more demanding standard in favor of the ordinary standard, providing some support for Stein’s claim. But what explains why this change occurred long after industrialization? The distinction that Stein draws between private and public benefits does not adequately address this question. He does not persuasively answer the interesting questions posed by a benefit theory of tort law, but by provocatively posing them, Stein has made an original and valuable contribution.

  1. Francis H. Bohlen, The Basis of Affirmative Obligations in the Law of Torts (Parts I-III), 5 Am. Law. Reg. 209, 273, 337 (1905), at 273 n.1 (summarizing thesis of Part I).
  2. Id. at 273.
  3. Mark A. Geistfeld, Hidden in Plain Sight: The Normative Source of Modern Tort Law, 91 N.Y.U. L. Rev. 1517, 1572-81 (2016) (explaining why the reciprocity norm generates the cost-minimizing standard of reasonable care for risks that are no greater than the ordinary or background level of risk in the community); id. at 1588-92 (showing how a concern for overdeterrence—defined by reference to a substantive liberal egalitarian principle of equal opportunity—limits tort liability for nonreciprocal risks).
  4. Morton J. Horwitz, The Transformation of American Law, 1780-1860 (1977).
  5. Cf. Gary T. Schwartz, The Character of Early American Tort Law, 36 UCLA L. Rev. 641 (1989) (rejecting subsidy thesis based on extended study of nineteenth-century case law).
Cite as: Mark Geistfeld, A Benefit Theory of Tort Law, JOTWELL (May 12, 2017) (reviewing Alex Stein, The Domain of Torts, 117 Colum. L. Rev. 535 (forthcoming 2017), available at SSRN), https://torts.jotwell.com/a-benefit-theory-of-tort-law/.

ISO the Missing Plaintiff

David Engel’s recent book, The Myth of the Litigious Society, has its roots in a piece published over two decades ago, by UCLA’s Richard Abel. In that piece, Abel challenged conventional wisdom by declaring that the “real tort crisis” is an epidemic, not of overclaiming, but rather, the opposite. The tort system’s greatest defect, Abel asserted, is not its whimsical unpredictability or its excessive generosity. To the contrary, the tort system’s biggest shortcoming is that too few accident victims choose to enter the system at all.

In the years since Abel’s writing, numerous researchers have examined this underclaiming idea, from a variety of perspectives.

Empiricists have gotten into the act. Using a number of methodologies, these researchers have, again and again, confirmed Abel’s basic empirical premise. In most areas of the tort law ecosystem, only a small fraction of Americans seek compensation, even following negligently inflicted injury. So, for example, out of every one hundred Americans genuinely hurt by bona fide medical negligence, only two or three will ever attempt to claim compensation—and, of those, some will inevitably fall short.

Socio-legal scholars, meanwhile, have asked, not whether pervasive underclaiming characterizes our tort landscape—but instead, why popular perception is so at odds with reality. Why, in other words, do we fret about a “litigation explosion” and bemoan Americans’ “Sue-icidal Impulse” if, in fact, Abel is right?

This effort, too, has borne fruit. Most notably, William Haltom and Michael McCann’s excellent Distorting the Law: Politics, Media, and the Litigation Crisis (2004) attributes our warped perspective to the asymmetric visibility of claims that are, and are not, filed. When injury victims suffer in silence, without initiating claims, “compensation or atonement foregone is almost always a very private decision,” Haltom and McCann observe. On the other hand, “[s]ecuring a lawyer or filing suit is a … public action, about which the press and reformers are even more likely to hear.”

Still, despite all this valuable study, few researchers have asked what is, in some ways, a preliminary and more fundamental question: Why is the missing plaintiff AWOL in the first place? Why, that is, is “lumping it” the most common response, following even tortiously inflicted injury? It is this question David Engel tackles, in this readable, engaging, and important work.

Early on, Engel addresses—and partly rejects—two obvious culprits. First, he raises the possibility that victims forebear for economic reasons; victims recognize that the cost of claiming exceeds its benefits. (P. 15.) Engel, however, dismisses this “economic explanation” as doubtful as an empirical matter (given the widespread use of the contingency fee and most lawyers’ willingness to absorb costs when claims are unsuccessful), and he also notes that it assumes that most would-be plaintiffs are rational actors, which is, for several reasons, dubious.1 A second explanation is what Engel dubs the “cultural explanation”: victims don’t assert claims because culture “leads people to forgo claims they might otherwise assert.” (P. 16.) But while culture surely has something to do with it, Engel notes (rightly, I think), that blaming victims’ failure to claim on a cultural hostility to claiming is circular and ultimately unsatisfying.

What else explains victims’ observed behavior? A big problem stunting claim initiation is the problem of attribution—a problem that comes in two steps.2 At step one, many victims don’t realize that they are injured. This is particularly true when victims are exposed to toxic substances (e.g., cigarettes, asbestos, DES, lead, and the like), where, often, years elapse between exposure and the ultimate manifestation of injury. Then, at step two, even if a victim realizes she’s hurt, she may not realize that the injury was tortiously inflicted. Smokers may not realize that their cancer comes from cigarettes, a child dismissed as “slow” may not realize her trouble is traceable to chipped paint, and a DES daughter may not realize that her baby’s preterm delivery comes from her mom’s ingestion of a morning sickness drug, decades before. Indeed, medical malpractice victims are notorious in this regard, as most patients seek care because they are sick and it’s common for sick people’s health to deteriorate further—so those injuries stemming from medical mistakes are hard to identify, and, even if identified, will almost inevitably have competing causes, making it difficult for victims to draw the causal arrow with anything approaching certainty, even in their own minds.

Beyond that, as Engel points out, even when victims have the information they need to make sensible choices, many victims aren’t in a position to think sensibly. Often suffering from depression, disorientation, and anxiety—and sometimes overcome by guilt and self-blame—for some injury victims, “[d]ecisive action and follow-through may seem nearly impossible.” (P. 43.)

Finally, even if an injury victim navigates the various hurdles above and decides to claim, she still has to overcome several structural impediments to make that desire a reality. Most notably, she has to know how to find a decent lawyer—and as I’ve written at length, that is much easier said than done. Then, she has to convince the lawyer to take her case. And, that’s tough—as the majority of lawyers reject the vast majority of would-be claimants who come calling.3 Last but not least, the would-be claimant has to do all the above within a short period, lest the statute of limitations expire.

Stepping back, Engel’s investigation into the AWOL plaintiff makes a significant contribution. In explaining why more victims fail to enter the tort system, Engel illuminates various aspects of the system, and he does so with compassion and clarity. That said, the part of the book titled “Mystery Solved: Why Lumping It Is So Common,” to my mind, comes too soon.

By his own reckoning, Engel strives to understand “not the two-dimensional characters of social and legal theorists but the flesh-and-blood humans who suffer the pain and trauma of physical harm.” (P. 171.) In many respects, he does that, admirably. Yet, as Engel examines victims’ real-world experiences, he neglects to examine the flesh-and-blood experiences of that small cohort of victims who, Indiana Jones-like, dodge the above obstacles. My guess is, a careful examination of these claimants’ experiences would also shed light on the mystery—and would, in fact, enrich and complicate the “economic explanation” dismissed (in my view, somewhat prematurely) above.

In particular, if we looked into it, I bet we’d find that the process of claim initiation and litigation—with its probing, and sometimes humiliating, discovery into the most private facets of one’s life; its prolonged uncertainty; and its insistent demand that a claimant relive, repeatedly, publicly, and under oath, what she saw, thought, heard, and felt, on what may have been the most searing day of her life—is brutal. The act of claiming, for some, may be cathartic and empowering. But for at least some others, it stands to be positively dreadful—effectively inflicting a second serious injury.

If I’m right, this has a pair of provocative consequences. First, it means that, though it’s only partly susceptible to quantification, for many injury victims, the cost of claiming is large—and bigger than we typically think. This in turn means that, in weighing the cost and benefit of claiming and ultimately choosing to lump it, many injury victims may be behaving quite rationally. Second, and more hopefully, it means that claiming patterns aren’t necessarily set in stone. If we want to encourage claim initiation, one lever we could pull is to make the claiming process less onerous. If the cost of claiming (broadly construed) comes down (perhaps by making procedures less antagonistic, intrusive, and adversarial), more injury victims may come forward.

In sum, as we follow the clues in an attempt to solve the mystery of the missing plaintiff, I suggest there’s another place we might profitably look. And though Engel’s study ends, to my mind, before the riddle is solved, his admirable effort might be just what is needed to galvanize another scholar to pick up the torch and continue the inquiry.

  1. As Engel explains: “In hundreds of studies across many disciplines—cognitive science, behavioral economics, and psychology, to name a few—one finds very little support for the view that people engage in conscious deliberation and rational choice in the aftermath of traumatic injury.” (P. 16.)
  2. William L.F. Felstiner, Richard L. Abel, and Austin Sarat famously discussed the challenge of attribution—albeit while using different terminology and without limiting their analysis to tort claims— in their classic work, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming, 15 Law & Soc’y 631 (1980).
  3. Importantly, while prospective claimants are often turned down because their cases seem legally dubious, lawyers sometimes reject even those whose claims have legal merit. These meritorious claims may be rejected because of insufficient damages (which would translate into an inadequate fee), client characteristics (particularly if the client seems too demanding or difficult), or a mismatch between the client’s claim type and the lawyer’s particular specialty.
Cite as: Nora Freeman Engstrom, ISO the Missing Plaintiff, JOTWELL (April 12, 2017) (reviewing David M. Engel, The Myth of the Litigious Society: Why We Don't Sue (2016)), https://torts.jotwell.com/iso-the-missing-plaintiff/.

Tort Theory in Copyright Law: Thinking about Patrick Goold’s Unbundling the “Tort” of Copyright Infringement

Patrick R. Goold, Unbundling the “Tort” of Copyright Infringement 102 Va. L. Rev. 1833 (2016), available at SSRN

Patrick Goold’s Unbundling the “Tort” of Copyright Infringement (“Unbundling”) is an ambitious and remarkably illuminating article. Its central thesis is that “copyright infringement” is best understood as a cover term for five different “copytorts” ((Steven Hetcher, The Immorality of Strict Liability in Copyright, 17 Marq. Intell. Prop. L. Rev. 1, 4–5 (2013) (coining word “copytorts”).)) related to the plaintiff’s being a copyright owner. By way of comparison, “trespass” and “nuisance” in tort law are pleaded and articulated with different names even though they both pertain to wrongs related to a plaintiff’s ownership of realty; this is because they are, conceptually and practically, quite different wrongs. Copyright law has never separated out its five different legal wrongs, either through statute or through judicial elaboration, either formally or informally. It has used the one phrase “copyright infringement” indiscriminately for all. It turns out, Goold argues, that much of the confusion and conflict within copyright case law can be traced back to the failure to draw distinctions among the five copytorts. The task of the article is to outline the distinctions, thereby beginning the process of solving a number of doctrinal problems.

The three doctrinal problems Goold presents pertain to audience, harm, and analogy. As to “audience,” the question concerns the observer, or arbiter, or audience that courts should employ to determine whether allegedly infringing material is sufficiently similar to the copyrighted material: must it be such as to cause confusion to a reasonable person, an ordinary consumer, or an expert? As to “harm” (which arises in connection with a fair use defense) the question concerns “‘the effect of the [copyist’s] use upon the potential market for or value of the copyrighted work.’” (P. 1848 (quoting 17 U.S.C § 107 (2012)).) Courts have construed this factor to turn on “whether the copying caused the owner cognizable harm” (Id.); some courts in turn focus upon demand diversion, others on lost fees, and others on reputational, privacy, or other nonfinancial injuries. Finally, as to “analogy,” the question is how copyright infringement ought to be modeled as a legal wrong: is it like trespass, like conversion, like an economic tort or unfair competition, or like unjust enrichment?

The neatest way to depict Goold’s article is perhaps to start at the question of which common law wrong provides the best model for copyright infringement. Goold’s answer is that it depends on what kind of copyright infringement claim it is. He outlines five different kinds of infringement: (1) consumer copyright invasion (e.g., downloading an MP3 file without paying for it); (2) competitor copyright invasion (e.g., selling artistic works that are knock-offs of the copyright owner’s); (3) expressive disclosure claims (e.g., neglecting limitations on disclosure set by the owner in disclosing licensed materials); (4) artistic reputational injury (e.g., changing content or meaning or associations by editing); (5) breach of creative control (e.g., deviating from wishes of owner about how and when material is used). Goold contends that each of these five distinct wrongs has a distinct common-law analogue: for consumer copyright invasion the analogue is trespass; for competitor invasion it is unfair competition; for expressive disclosure it is public disclosure of private fact; for artistic reputational injury it is defamation or false light invasion of privacy; for breach of creative control it is conversion.

Goold’s analysis is more nuanced than my summary suggests, and it is helpfully sprinkled with examples from the case law. But these first-cut answers to the “analogy” problem, he argues, point us toward solutions to the “audience” and “harm” problems. For example, the reasonable person provides the proper standard for determining similarity in a consumer copyright invasion case, whereas in the competitor case, the standard is properly set by reference to the target consumer. On harm/fair use questions, certain dignitary or privacy or reputational interests might be the appropriate kinds of harm to consider for the latter three categories, but demand diversion is likely to be more appropriate for consumer copying claims. The final section of the article reasonably suggests that it would not be worth the candle to try to amend the copyright statute explicitly to incorporate these five subcategories, but that the taxonomy should nonetheless be illuminating to courts as they interpret and apply the statute.

I was drawn to Goold’s article in part because John Goldberg and I have consistently contended that IP law is really full of statutory torts, and Goold seems to pick up on this. Moreover, he is plainly taken by the metaphor “Gallery of Wrongs,” which Goldberg and I developed at some length in our book The Oxford Introductions to U.S. Law: Torts. ((John C.P. Goldberg & Benjamin C. Zipursky, The Oxford Introductions to U.S. Law: Torts (2010).)) In this sense, Goold is a fellow traveler in at least three respects: our contention that the common law is not essential to the idea of torts; our resistance to the idea that tort law is accident law or is essentially about the allocation of losses; and our belief that the legal system creates wrongs of a variety of different forms, relating to a variety of different kinds of injuries. Unbundling illustrates the fecundity of legal-wrongs-based analysis as a form of scholarship that will be illuminating to courts and scholars.

In particular, whether or not Goold has his taxonomy exactly right, it is hard to believe that he could be wrong in his basic, and very deep, point: there are different kinds of legal wrongs at the base of a variety of different copyright infringement claims, and key doctrinal issues will need to be resolved in a way that is sensitive to these very basic differences.

I rarely blog when I have nothing negative to say, however, and I would not want to shortchange Goold by making him the exception. Three concerns come to mind. The first is more of an observation than a criticism: it strikes me as odd to suppose that most torts that go under a single label – for example, “battery” – reliably denote a single type of wrong. As for battery, there is even in the Restatement (Second) of Torts a distinction between harmful-contact batteries and offensive-contact batteries (largely predicated on type of harm), and a third, quite distinctive form of battery occurs in many medical cases that involve physicians wrongly performing procedures outside of the scope of consent, or with consent not tethered in adequate informational disclosure (“informed consent”). Similarly, acts that qualify as the various crimes called “rape” or “sexual assault” and crimes called “homicides” are all batteries. Much the same can be said about the tort of negligence, which covers car accidents and landowner liability and (in some jurisdictions) forms of professional negligence and products liability and negligence per se and res ipsa loquitur. Some of these mark different kinds of wrongs and some do not. The line is unclear. Indeed, there is sometimes value in not forcing plaintiffs or defendants or courts to distinguish among them.

A second concern is related to the first, and it strikes me as important in the context of Unbundling to explain what one means by “different wrongs.” Do the differences reside in the character of the defendant’s conduct, the type of interest being protected and invaded, the type of loss suffered by the plaintiff, some combination of these (or further considerations)? It is difficult to evaluate the central claim of the paper unless one is clear on the criteria for individuating wrongs.

The third concern, which is linked to the second, is more substantive. The right of redress in tort cases typically includes a right to a judgment in damages, but the financial loss – even when ultimately a component of a compensatory damages award – is not always (or even typically) the injury claimed. For example, a judgment for a private plaintiff on a claim of misappropriation may well include disgorgement of profits or emotional harm damages for emotional distress as components of a judgment. But the wrongful injury aspect of this particular wrong is the deprivation of privacy or anonymity or reputation precipitated by an unconsented-to photograph, not the economic loss or emotional distress. Emotional harm or disgorgement would be appropriate remedies, perhaps.

With this in mind, I wonder whether Goold’s latter three categories are really one category. All pertain to an exercise of control over the copyrighted material that exceeds the scope of the owner’s actual or implied consent. There is a moral-right or abuse-of-right aspect to all three. The wrong, like that of trespass, is the interference with the right of exclusive control, even where (as with a hotel guest traipsing around the hotel’s “Restricted Area” kitchens and laundries) the plaintiff may have had partial access or a license of some form. No doubt there are different kinds of damage or harm done by different kinds of abuse or misuses of the right and different levels of interference with control. But all are abuses of a right or a license (or a privilege of fair use).

More generally, it is important to recognize that, while it is tempting to conceive of a tort as a wrongful interference with a particular kind of interest, classic common law torts simultaneously protect several different interests, at least in a functional sense of the term “protect.” The tort of libel, for example, plainly aims to protect reputation, but at the same time, it de facto deters conduct that damages emotional well-being and financial interests, and it certainly allows for recovery of damages in association with harm of those forms. The predicate injury, however – the one that is a component of the legal wrong of libel – is reputational injury.

The foregoing critical comments are meant to be constructive. No doubt, my ignorance of copyright law is providing me with blissful optimism about the soundness of my reconstruction of Goold’s account. Nonetheless, here it is: Straight-up (A) consumer copyright infringement is analogous to straight-up trespass to land or trespass to chattels. (B) Competitor copyright infringement is analogous to unfair competition (both types of infringement, when done in a form sufficiently extreme to destroy all the value of the copyright, would merge toward conversion). The remaining three categories (interference with control of expressive disclosure, artistic reputational injury, interference with creative control) are part of one family – (C) abuse of license or privilege (which in some ways is analogous to the privacy tort of public disclosure of a private fact, in some ways like defamation, and in some ways like the civil law wrongs of invasion of moral right and abuse of right). This effort to distinguish among the last three versions (disclosure, reputational injury, control) tends to distract one from a much more salient and striking set of distinctions that Goold has made; the distinction between (A) consumer copying outright and (C) abuse of license or privilege is extremely powerful; so too is the distinction between (B) competitor copying (unfair competition, passing off) and both (A) consumer copying and (C) abuse of license or privilege.

In the end, these categories probably generate strong prima facie answers to the questions about audience and harm raised by Goold, and, I believe, many will be exactly the answers that Goold offers and explains. Meanwhile, those who believe that law professors ought to be using their time and resources to study practical problems (rather than conceptualistic taxonomies) need not worry that analytic work like Goold’s is too academic. To the contrary – despite its great lure for taxonomists of wrongs, like myself – Goold’s creative and analytically sharp article is poised to provide great value to judges and lawyers with copyright cases. And to those of us who love torts, well, it makes for a refreshing visit to a newly curated wing of the gallery of wrongs.


Editor’s note: See also David Fagundes, The Plural Tort Structure of Copyright Law, JOTWELL (August 4, 2016) (reviewing Patrick Goold, Unbundling the ‘Tort’ of Copyright Infringement, 102 Va. L. Rev. (forthcoming 2016), available at SSRN).

Cite as: Benjamin C. Zipursky, Tort Theory in Copyright Law: Thinking about Patrick Goold’s Unbundling the “Tort” of Copyright Infringement, JOTWELL (March 15, 2017) (reviewing Patrick R. Goold, Unbundling the “Tort” of Copyright Infringement 102 Va. L. Rev. 1833 (2016), available at SSRN), https://torts.jotwell.com/tort-theory-in-copyright-law-thinking-about-patrick-goolds-unbundling-the-tort-of-copyright-infringement/.

What Is It Like to Think Like a Pre-Modern?

Kenneth S. Abraham & G. Edward White, The Transformation of the Civil Trial and the Emergence of American Tort Law, Ariz. L. Rev. (forthcoming), available at SSRN.

There are a number of ways to tell the story of the change in American tort law that occurred in the nineteenth and twentieth centuries. Some, like John Witt, Lawrence Friedman, and Mort Horwitz, focus on changes in material conditions. Others, like Richard Posner, Charles Gregory, and Robert Rabin, focus on changes in intellectual or doctrinal beliefs about the nature of tort law, and the best mix of rules to achieve its ends.

In The Transformation of the Civil Trial and the Emergence of American Tort Law Kenneth Abraham and Ted White offer a fascinating and, I think, unique explanation for the rise of modern negligence law and the development of doctrines that allowed victims of accidents to collect for their personal injuries.

Abraham and White’s thesis is subtle, and so I will present it in two parts. The first part of their thesis is that tort law before 1850 (what they call “premodern” period) was litigated in an evidence regime in which the discovery of “truth” (as we moderns know it) was not central to the civil trial. The second part of their thesis is that modern tort law came about, in part, because of the transformation of the civil trial into a “truth-seeking” process.

The argument for Part I of their thesis is based on a historical account about the law of evidence that may not be familiar to many tort scholars. Central to their historical account is that before 1850 “the plaintiff, the defendant, and other ‘interested’ witnesses were almost universally prohibited from testifying in civil trials.” (P. 4.) The reasons for the remarkable state of affairs are complex, but for the moment, it is important to recognize that Abraham and White have pointed out an important fact about tort litigation before 1850. As they observe, the absence of the testimony of interested parties and witnesses meant that it was not practical to bring certain cases. One class of cases in particular would be extremely difficult to prove in court: “accidental personal injury or property damage cases.” (P. 22.)

The argument for Part II of their thesis is based in part on inference and in part on an effort to examine court records from the nineteenth century. Abraham and White infer from the simultaneous change in the law of evidence in the United States— to allow testimony from parties and interested witnesses, as well as to permit cross examination and to limit hearsay— and the rise of modern tort law, with its emphasis on permitting redress for negligence, that the change in evidence law caused the change in tort law.

The article operates at two levels, one of which I find persuasive. I am persuaded by the historical and causal argument. Abraham and White draw attention to a causal factor that is significant. They must be right that changes in how trials were conducted had to affect how torts were heard and who was found liable. This, in turn, would have an effect on the development of the law. Their point is the material and doctrinal changes described by others would have been blunted, if not halted, by the absence of an adequate fact-finding mechanism at trial.

I am less persuaded by Abraham and White’s broader theoretical claim, that the rules they identify as negligence-inhibiting reflect a different understanding about the point of civil litigation and tort law. For example, throughout the article, Abraham and White refer to the “epistemology of the civil trial.” This concept, which tracks closely George Fisher’s 1997 article, The Jury’s Role as Lie Detector, challenges the idea that the purpose of trials was always to ascertain “objective truth.”

Fisher’s work is more modest about the reasons for the peculiar rules that characterized trials in England and the American states before the mid-nineteenth century. Fisher emphasized the potentially disruptive conclusions that might be drawn if judges allowed conflicting oaths to be presented to juries; given the claim that oaths were extensions of God’s voice, the specter of cacophony seemed to counsel devices to suppress conflict.

But Abraham and White take a rule such as the ban on testimony by an interested party to be more than a device to suppress uncomfortable conflicts that might embarrass those in authority. They take it as evidence of a shared “epistemology”: the purpose of a trial was to produce a conclusion that was “spiritually and socially appropriate,” and this goal was superior to finding out “what happened.” (P. 20.)

Abraham and White return to this theme throughout their article. For example, in explaining why the pre-modern tort trial might have excluded cross-examination and allowed hearsay, they argue that “if one considers the epistemological assumptions of the oath regime, limited cross-examination and the absence of a hearsay rule of evidence can be seen as logically entailed. … [B]oth [of] those evidentiary practices presuppose that the function of a civil trial is to reveal the truth about a dispute.” (P. 29.)

The purpose of the civil trial in the pre-modern “oath regime” was to construct a picture of what happened “filtered through spiritual and social lenses” (P. 29) so that the jury could “search for the ‘appropriate’ social and spiritual resolution of a legal dispute” (P. 70).

Abraham and White’s move from rules of evidence that seem wrong-headed to us today to the conclusion that they were a reflection of an “epistemology” that is radically foreign to us strikes me as a bit of an overreach. I have two reasons for being skeptical.

First, as Abraham and White themselves acknowledge, defenders of the witness rules that anchored the pre-modern civil trial sometimes defended them on the ground that they were more likely to produce truth. As Bentham argued at length, the pre-moderns defended these rules on the grounds that they were most likely to produce the truth (since the interested parties are most likely to commit perjury), and on their own terms the pre-moderns were wrong: the best way to get to the truth is not to exclude interested witnesses but to admit them and to allow cross-examination.

Second, it is hard to see how the purpose Abraham and White attribute to the pre-modern tort trial fits with the causes of action that we know existed before negligence allegedly arose in the nineteenth century. Battery, assault, false imprisonment, and trespass to land and chattel are claims by victims of wrongdoing, and it seems odd to think that a plaintiff in these cases would think that any conclusion that did not reflect what actually happened could be a correct resolution of his lawsuit. It is hard to understand how the plaintiff’s concern for redress contingent on his proof of wrongful intent and causation could be viewed as anything but a claim about the truth of what the defendant did to the plaintiff.

My criticisms should not be taken as more than a disagreement about the conclusions that can be drawn from Abraham and White’s historical argument, which I find persuasive. They have identified an important and overlooked feature of the history of tort law, and have made an important contribution to the field.

Cite as: Anthony Sebok, What Is It Like to Think Like a Pre-Modern?, JOTWELL (February 13, 2017) (reviewing Kenneth S. Abraham & G. Edward White, The Transformation of the Civil Trial and the Emergence of American Tort Law, Ariz. L. Rev. (forthcoming), available at SSRN), https://torts.jotwell.com/what-is-it-like-to-think-like-a-pre-modern/.

Wrongs Without Rights

Nicolas Cornell, Wrongs, Rights, and Third Parties, 43 Phil. & Pub. Aff. 109 (2015), available for purchase at Wiley Online Library.

The word “wrong” is the source of much confusion, in part because it does double duty. “You set the table wrong,” I might say, noting that you’ve misplaced the forks and knives. When I say that, I imply that there’s a standard against which place settings are properly judged, and that you’ve mucked things up by failing to match it. This use of the word “wrong” pops up all over the place: “You took a wrong turn.” “That’s the wrong answer.” “Why do I get everything wrong?”

But there’s another way to use the word “wrong”: “You wronged Tom,” I might say, “and you really ought to do something about it.” When I say that, I imply that Tom had a right that you not do what you did, and, moreover, that you owe him something for having breached his right. This usage is related to the first. Tom’s right sets a standard, against which your action is properly judged. What you did was wrong, relative to that standard. But since the source of the standard was Tom’s right, you didn’t just do something wrong, you also wronged Tom.

This second notion of “wrong” is central to tort law. Indeed, it figures in the most famous torts case, Palsgraf v. Long Island Railroad Co. An employee of the Long Island Railroad Company did something wrong: he pushed a passenger carelessly, and in doing so, dislodged the package that the passenger was holding. The package concealed fireworks. They exploded, injuring poor Helen Palsgraf, who was standing thirty feet down the platform. Palsgraf sued. Could she hold the railroad accountable for her injuries? No, said Justice Cardozo, because she could not show “‘a wrong’ to herself, i.e., a violation of her own right.” Why not? She was so far down the platform that no one would anticipate that the push would pose her any danger, so she wasn’t in a position to demand that it be done carefully. As Cardozo put it, “[t]he risk reasonably to be perceived defines the duty to be obeyed.”

Justice Andrews dissented. He argued that it shouldn’t matter whether Palsgraf could show that a right of hers was breached. It was enough, in his view, that the employee did something wrong, and that Palsgraf suffered as a result. Andrews has his defenders, especially among those who take an economic orientation to tort. But most philosophers sign up to Cardozo’s view, reasoning that Palsgraf is entitled to a remedy only if she was wronged, and that she was wronged only if some right of hers was breached.

Nico Cornell, however, thinks that the philosophers have got this all wrong.1 In Wrongs, Rights, and Third Parties, he argues that rights and wrongs come apart. You can be wronged, he says, even if you did not have a right that was breached. And one of his leading examples is Helen Palsgraf. Cornell agrees with Cardozo that Palsgraf did not have a right that the railroad employees take care for her safety when they pushed the passenger; after all, nothing about the situation signaled any risk to her. But he does not think Palsgraf’s lack of a right implies that she was not wronged. Indeed, he says that she was wronged, since she was injured by an act that was wrong (in the first sense noted above).

To start his argument, Cornell presents a series of cases—Palsgraf among them—in an effort to pump the intuition that rights and wrongs can come apart. One of his more compelling cases is Flanders v. Cooper, decided by the Maine Supreme Court. The plaintiff was a father, whose daughter was hypnotized by the defendant physical therapist, in a misguided effort to treat pain in her jaw. The father alleged that the hypnosis implanted fake memories, and as a result, he claimed, his daughter falsely accused him of sexual abuse. The father sued the physical therapist for negligence, but the court dismissed the complaint on the ground that duties regarding medical treatment are owed exclusively to the patient. This is the Palsgraf Principle in action: if no right of the father’s was breached by the defendant, then the father was not wronged, and he cannot maintain a suit, even though he was injured by the defendant’s negligent treatment of his daughter.

Cornell agrees that the therapist owed no duties to the father when selecting a medical treatment for his daughter. But he nevertheless argues that the father was wronged. It would make sense, Cornell suggests, for the father to resent the physical therapist and to demand an apology from him. And those are ways of responding to wrongdoing, so if we accept that the therapist might owe the father an apology—for what he did to the father, and not the daughter—then we must either find some right held by the father that the therapist breached, or back off the thought that wrongs just are rights violations.

Cornell argues for the latter view, and I cannot do justice to the scope or power of his argument here. He’s got lots and lots of cases, and theoretical arguments alongside. He argues, for instance, that rights and wrongs play different roles in our moral lives. Rights tell us who can demand what sorts of action in advance. Wrongs, in contrast, pick out the people who have special standing to complain about an action after the fact. And there is no reason to think, Cornell says, that the wronged must have been the rights holders. The mere fact that they were injured, he says, is sufficient to confer the special standing necessary to complain about conduct that was wrong.

There’s a lot more to Cornell’s argument, including an intriguing attempt to resolve the conflict between interest-based and will-based theories of rights. (Cornell says there’s a grain of truth in each, but that we should see the interest-based theory as an account of wrongs, and the will-based theory as an account of rights.) I think that everyone who has ever puzzled over the conflict between Cardozo and Andrews would do well to read Cornell. He offers a far more sophisticated defense of Andrews’s take on tort than Andrews himself. And his defense will speak to those who think tort aims to right wrongs, in a way that economic defenses of Andrews’s framework generally don’t.

That said, Cornell has not yet sold me on Team Andrews, for reasons that are latent in many of the cases he presents. Consider, for example, a riff on Flanders. When the daughter goes for treatment, the physical therapist tells her, “I’m out of sorts because the patient before you—the woman you just saw leaving—was sexually abused by her father, and her injuries are terrible.” The therapist goes on to provide competent care for the daughter (no hypnosis here), but that stray comment—which was a HIPAA violation, and hence a wrong to the previous patient—gets the daughter thinking about sexual abuse, and she later comes to think that she was sexually abused and falsely accuses her father. Cornell seems committed to thinking that the father was wronged by the HIPAA violation. That doesn’t sound right to me, but if it strikes you as plausible, just carry the chain out further—the father is on his way to meet his defense attorney, driving carefully, when he hits a young child who ran into the crosswalk just a bit too early. Was the child wronged by the HIPAA violation? At some point, you might be tempted to cut off the chain by denying proximate causation. But if you don’t think an antecedent right controls which consequences are attributable to the wrongdoer, then proximate causation is the dog’s breakfast on display in Andrews’s dissent.

Cornell flags the problem in a footnote, noting that legal systems might have reasons for “cutting off inquiry into circuitous causal chains at some point.” That’s just what Andrews took to be the point of proximate cause. But it’s a mistake to think that proximate cause is a solution to a peculiarly legal problem. Would it be fair, for instance, for the parents of the child just mentioned to blame the therapist for the death of their daughter? I don’t think so. There was nothing he should have done to guard against it; it’s just happenstance that his HIPAA violation set the stage for her death.

I’m inclined to think that rights and wrongs really do have the tight connection that Cornell denies. But he’s got me wondering whether that’s right. And if it’s wrong, then we need to rethink a lot about tort law.

  1. Full disclosure: Cornell is not yet my colleague, but he is joining the Michigan faculty next year.
Cite as: Scott Hershovitz, Wrongs Without Rights, JOTWELL (January 11, 2017) (reviewing Nicolas Cornell, Wrongs, Rights, and Third Parties, 43 Phil. & Pub. Aff. 109 (2015), available for purchase at Wiley Online Library), https://torts.jotwell.com/wrongs-without-rights/.

I Can Explain That

James Goudkamp & John Murphy, The Failure of Universal Theories of Tort Law, 21 Legal Theory 47 (2015), available at SSRN.

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.

Cite as: John C.P. Goldberg, I Can Explain That, JOTWELL (November 29, 2016) (reviewing James Goudkamp & John Murphy, The Failure of Universal Theories of Tort Law, 21 Legal Theory 47 (2015), available at SSRN), https://torts.jotwell.com/i-can-explain-that/.

A Duty To Sell Life-Saving Medicine?

William M. Janssen, A “Duty” To Continue Selling Medicines, 40 Am. J. of Law & Med. 330 (2014), available at SSRN.

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.

Cite as: Sheila Scheuerman, A Duty To Sell Life-Saving Medicine?, JOTWELL (October 28, 2016) (reviewing William M. Janssen, A “Duty” To Continue Selling Medicines, 40 Am. J. of Law & Med. 330 (2014), available at SSRN), https://torts.jotwell.com/a-duty-to-sell-life-saving-medicine/.