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Getting Reacquainted with Constitutional Torts

Richard Fallon, Jr., Bidding Farewell to Constitutional Torts, 107 Cal. L. Rev. 933 (2019)).

Richard H. Fallon, Jr.’s Bidding Farewell to Constitutional Torts is an important article at many levels. The provision by a leading constitutional scholar of a thoughtful and rigorous overview of the field, recent Supreme Court decisions within it, and new trains of scholarship criticizing those decisions is itself of great value. But there is much more here, and some of it is surprising. One might have expected a robust defender of the rule of law such as Fallon1 to excoriate the Supreme Court’s repeated expressions of skepticism about the principle that “where there’s a right, there is a remedy.” Instead, Fallon shares much of the Court’s skepticism and, in principle, shares its view that, in a range of scenarios, it is sensible to permit anticipated social costs to defeat the ability of victims of constitutional rights violations to hold those who have victimized them accountable. While the article ultimately defends the landmark Bivens decision itself, and a certain notion of state accountability to victims before courts of law, this too is something of a surprise in a piece purporting to “bid farewell” to the entire field.

In a manner consistent with his sensitivity to a range of constraints on legal interpretation, Fallon subdivides his article into three parts: (1) a doctrinal descriptive section; (2) the articulation of normative considerations relevant to the establishment of an attractive framework of liability rules for government actors and a proposal for such a framework; and (3) an analysis of which institutions are well-suited to adopt and implement that framework. Each of these inquiries is thoughtful, defensible, and important.

On the doctrinal descriptive section, Fallon makes several points. First, he emphasizes the Court’s increasingly adamant yet not quite complete rejection of the possibility of new Bivens claims in Ziglar v. Abbasi (following on the heels of Ashcroft v. Iqbal). Second, he describes the remarkable breadth of qualified immunity under Harlow v. Fitzgerald and its progeny, and the still-greater breadth of official immunity for judicial and legislative acts. Third, he recognizes the Court’s efforts to restrict plaintiffs’ remedies further by procedural requirements such as those laid down in Iqbal. Similarly, he notes the weakening of Ex Parte Young and rights to injunctive relief as laid out in Armstrong v. Exceptional Child Care Center.

While the descriptive section of the article ends by condemning the Rehnquist and Roberts Courts for its “methodologically untethered activism in service of the apparent cause of limiting suits to enforce the Constitution,” Fallon is also highly critical of recent scholars advocating a reinvigoration of constitutional torts by a common law tort mindset. Instead, he puts forth a framework that treats individual rights as interests and candidly recognizes both the value of private rights of action to vindicate rights and the value of pragmatic judicial crafting that balances those interests against the needs of the state, the costs of liability, and the practicalities of litigation. Bivens and 1983 doctrine, he argues, should be adjusted in light of all of these considerations. Neither qualified immunity nor absolute immunity should be regarded as “regrettable” necessities but as “valuable, adaptive device[s] for achieving the best overall regime of substantive rights, rights to sue for tort remedies, and immunity defenses.” Recognizing the incompatibility of his view with the common-law mindset advocated by other scholars, he writes:

However serviceable a tort-law-based mode of controlling official misconduct may have been in the Founding era, a framework built on common law concepts and categories is outdated, misleading, and potentially dangerous as a guide to thinking about constitutional and rule-of-law issues in the current day. Since the collapse of the Lochner era, it has been widely recognized that modern legislatures should have broad authority to displace common law assignments of private rights and duties. And just as the common law fails to provide a reliable baseline for identifying constitutionally protected rights, a tort-law-based conceptual scheme fails to mark the categories of legal norms that most urgently require judicial enforcement against public officials for the rule of law to thrive in the modern era.

When we view rights and remedies as part of a package, moreover, it may sometimes be better to have more broadly defined rights with a set of partially incomplete remedies than to have individually effective remedies for every constitutional violation. To give a pair of concrete examples, if the costs of the Supreme Court rulings in cases such as Brown v. Board of Education and Miranda v. Arizona had included damages remedies against school officials who had maintained racially segregated classrooms or against judges who had allowed the admission of confessions obtained without Miranda warnings, the Court might have felt unable to decide Brown and Miranda as it did.

Once engaged in crafting a theoretical framework from an instrumentalist point of view,2 Fallon identifies three important functions of constitutional remedies: compensation to the victims of official misconduct, empowerment of victims to hold accountable those who have injured them, and deterrence (and enforcement of the law as against the government itself) in recognition of the importance of rule-of-law values. A crucial point of the article is that the existence of rights of action for injunctions or damages – which would putatively (and sometimes, actually) help to achieve the aforementioned goals – must be weighed against the offsetting social costs not only to the state, but also to the individuals whose substantive rights might not be recognized by courts were their recognition necessarily connected to an expansion of liability.

The last part of Fallon’s article offers reasons for thinking that a place remains for judicially created remedies for official wrongdoing, and that the Supreme Court’s restriction of Bivens is unjustifiable not only from an instrumentalist point of view, but from the point of view of constitutional theory and in light of the institutional competence concerns that have been offered in defense of the Court’s current position. When he finally does weigh in on various substantive issues in this field, he argues (among other things) that: (a) the FTCA and the Westfall Act actually provide reasons for the Court to be more open to Bivens claims than it has been, not less open; (b) some forms of official immunity and qualified immunity are indeed justifiable, but the sharply pro-defendant form that has developed since Harlow v. Fitzgerald is unjustifiably restrictive; (c) the conception of municipal liability in Monell v. Department of Social Services is too narrow; there should be substantial constitutional tort liability for state and municipal entities.

There are at least three paradoxical features of Fallon’s article. The first is at one level semantic, but at another substantive. The article is titled “Bidding Farewell to Constitutional Torts,” but it is in fact a reacquaintance with the field and an argument for a more robust return (hence, the title of this jot). A second is that what Fallon recommends as a replacement for a common law tort approach to official liability is in fact what the Supreme Court and a range of legal scholars have long regarded as the very core of common law tort thinking, namely, an approach that favors crafting liability rules based on a pluralistic instrumentalism that calls for the weighing of various social consequences that seem likely to follow from the presence of more or less liability. Third, it is a central tenet of rule-of-law scholars like Fallon that no one is above the law and that government actors must know that they will be held accountable for their misuses of office, yet Fallon seems to be advocating for free-form judicial policymaking as to when there is and when there is not accountability for the government’s infringement of individual rights.

I will take these points in order. Fallon must mean by “constitutional torts” a particular conceptualization of Bivens and 1983 actions that has attracted significant scholarly attention in recent years – roughly speaking, an overlap of the views defended by James Pfander and William Baude (respectively) in recent articles.3 Pfander points to a broad period in American legal history when it was widely understood that government actors are straightforwardly liable in their individual capacity for torts they commit against private citizens, unless what they did was in fact proper under the Constitution. On this view, constitutional torts are just common law torts (like trespass or battery or negligence), committed by governmental actors. Pfander and others have sharply criticized the Supreme Court of the past quarter century not only for eviscerating liability in Bivens and 1983 more generally, but also for undercutting this common law conception of what a constitutional tort claim really is. Fallon is with them on the first point, but not on the second. He thinks the Court is closer to having the right conception of constitutional torts than Pfander or others. For any number of reasons he elaborates in the paper, he believes that the common law conception cannot really work. That is why he wants to bid it farewell. It would have been less catchy but more perspicuous if he had named the article “Bidding Farewell to the common law conception of constitutional torts,” or, more precisely, “Bidding Farewell to the Nineteenth Century common law conception of constitutional torts.”

For scholars like myself and my collaborator John Goldberg (Fallon’s colleague), it is ironic that Fallon contrasts common law tort thinking with pluralistic and instrumentalist reasoning that takes seriously compensation, deterrence, and social costs. That is what a great deal of common law thinking has been since roughly 1960s when William Prosser was the country’s preeminent tort scholar and the California Supreme Court became the nation’s leading expositor of tort law. Fallon seems to be under the impression – perhaps from recent constitutional tort commentators like Pfander, Baude, and Wells – that common law torts is widely understood as a rights-based, non-instrumentalist domain of legal reasoning. For better or worse, neither courts nor the majority of law professors look at common law torts this way today. Indeed, the pragmatic instrumentalist mindset Fallon ultimately prescribes to courts for thinking about Bivens and 1983 is quite close to the way most law professors think about common law torts today.

The most striking feature of Fallon’s article is his willingness to say that the social costs of providing redress to individuals whose constitutional rights were violated  will sometimes count as a decisive reason to decline to hold those state actors accountable. This is one of the reasons he believes official immunity of various forms must be maintained.  And it is the principal reason he rejects the outright attack on the results reached by the Roberts’ Court in constitutional tort cases. On the face of it, this recognition of costs defeating rights – put forward not simply as a law professor telling a hard truth but as an approval of judicial cautiousness in recognizing rights of action – is at odds with a strong commitment to the rule of law in its classic, Diceyan form, and, relatedly, to a Dworkinian conception of rights as trumps.

Ironies have two sides, of course, and my own principal takeaway is that Fallon, in the end, is a great advocate for further elaboration of constitutional rights and rights of action. Indeed, I commend this article because, in its deliberately down-to-earth quality, it both educates torts professors as to where we are in this complex field and indicates the availability of many middle paths in these times of extremism. Coming from a leading figure in constitutional law and theory, this is a lot to ask for, and we get it.

My problem, of course is more in marketing than in substance. Why did Fallon have to pitch the discussion as a critique of rights, when he is indeed a rights-based thinker? It appears to me that Fallon has fallen into the trap that also caught Prosser and mid-Twentieth Century common law scholars. They believed there were two choices in the judicial crafting of doctrine – ‘traditional’ common law, which (in their minds) carried with it an inherent bent toward laissez faire, or a flexible form of instrumentalism that would allow for progressive law reform. In response to the worry that, even today, contemporary advocates of a common-law approach are intentionally or unintentionally arguing for the restoration of a narrow, classical liberal conception of government, Fallon advocates for instrumentalism. As John Goldberg and I have argued, however, it is fallacious to align common law with laissez-faire and instrumentalism with progressivism – these were merely contingent associations characteristic of a certain phase of our history.4 Fallon is on solid ground when he rejects rights-based formalism for constitutional torts,5 but a rights-sensitive form of pragmatism will be needed if we are serious about preserving government accountability and the rule of law.

  1. Richard H. Fallon, Jr., Judicial Supremacy, Departmentalism, and the Rule of Law in a Populist Age, 96 Texas L. Rev. 487 (2018).
  2. Fallon expressly refers to the importance “instrumental reasoning” on page 163. It is possible that his view would be more accurately described as “functionalist” than “instrumentalist,” but his own endorsement of interest-based and “instrumental” reasoning provides reasons to think that “instrumentalism” is fairly applied to his view.
  3. James E. Pfander, Dicey’s Nightmare: An Essay on the Rule of Law, 107 Calif. L. Rev. 737 (2019); William Baude, Is Qualified Immunity Unlawful?, 106 Calif. L. Rev. 45 (2018). See also Michael L. Wells, Civil Recourse, Damages-as-Redress, and Constitutional Torts, 46 Ga. L. Rev. 1003 (2012).
  4. John C.P. Goldberg & Benjamin C. Zipursky, The Moral of MacPherson, 146 U. Pa. L. Rev. 1733 (1998).
  5. Notably, however, even if Pfander and Baude display great reliance on history in the interpretation of the law, it is far from clear that either ought to be counted as a formalist.
Cite as: Benjamin C. Zipursky, Getting Reacquainted with Constitutional Torts, JOTWELL (February 4, 2020) (reviewing Richard Fallon, Jr., Bidding Farewell to Constitutional Torts, 107 Cal. L. Rev. 933 (2019))),

I Pity The Fool: Ori Herstein’s Defense of the Klutz

Ori J. Herstein, Nobody’s Perfect: Moral Responsibility in Negligence, Canadian Journal of Law & Jurisprudence, Vol. XXXII, No.1 (Feb. 2019), Pp. 109-125.

The sad story of Menlove, the defendant in the English case Vaughn v. Menlove is well known to all first-year torts students. Menlove was born, according to his lawyer, with the “misfortune of not possessing the highest order of intelligence,” and, as a result did something quite imprudent with flammable material that no person of average or typical intelligence (or judgment) would have done, resulting in a fire that damaged the plaintiff, his neighbor.

Menlove’s defense on appeal was that he had acted “to the best of his judgment,” and it was unfair to call him a wrongdoer, given that he had acted prudently, given the cognitive and behavioral handicaps under which he operated. Of course, his defense was rejected and, as Holmes said memorably in The Common Law, while “the courts of Heaven” might forgive Menlove, the common law courts would not, since “his neighbors . . . require him . . . to come up to their standard,” not his. This is what is now known as the reasonable person standard, which holds that negligence in the law is measured against an objective standard of care under the relevant circumstances.

Ori Herstein offers a nuanced defense for why the court of Heaven would be right to hold Menlove harmless. Herstein’s argument is worth the attention of torts scholars because it indirectly strengthens the objective standard and Holmes’ approach, although it also makes more complicated the Restatement Third’s further embrace of the idea that “if an actor has skills or knowledge that exceed those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful person.”1

Herstein begins with the classic question of why the pejorative “fault” is even attributed to unintentional injurious conduct. For intentional conduct, the action fulfills the actor’s subjective purpose, and hence is easily attributable to the will of the “witting actor”. But “all negligence is unwitting” since it produces a result at variance with the actor’s purpose. More specifically, it is not so much that the result is at variance with one’s purpose, since that can be true of intentional acts that go awry. Negligence occurs when one’s conduct is at variance with one’s purpose, and one’s purpose was to perform the act in a conformity with a standard of care drawn either from an external source or from one’s picture of what conduct is desirable. (Pp. 4 – 6.)

Herstein argues that the commonsense argument that fault is attributable whenever an actor had the capacity to cause her conduct to meet the purpose she desired is too harsh, and fails because is unfair to fault someone for failing to succeed at something where success depended on factors outside their agency. Herstein notes that it obviously would be unjust to find fault with an actor whose purpose – to act in a way that everyone agrees is careful – was thwarted by external conditions that the actor could not know about. (P. 7.) For the same reason, argues Herstein, it would be unfair to find fault with an actor whose purpose – to act in a way that everyone agrees is careful – was thwarted by internal conditions “regarding the actor herself,” as in Menlove. (P. 7.) Herstein offer the following illustration of an internal condition which is not attributable to the actor – a doctor, never trained in a certain type of diagnosis, is no more responsible for missing a disease than a doctor trained in the right kind of diagnosis treating a patient whose symptoms have not yet presented. (P. 7). Where an actor’s purpose is frustrated by external and internal conditions, her agency is frustrated and she cannot be held blameworthy or morally responsible.

Herstein’s argument for the blamelessness of the internally frustrated but diligent actor is crucial to his argument. He makes the following point. In an activity that is hard to do, we evaluate an actor’s performance of the activity based on a baseline of competency. (P. 9.) His example is playing basketball. For someone who is competent at basketball, certain actions are part of the basic repertoire of actions that anyone who plays basketball knows how to do. For example, the “lay-up” is a basic shot that every competent basketball player knows how to do. It can be done competently or incompetently, and given the vagaries of external conditions, not every layup attempt will be successful, even if competently done. But, when a competent basketball player fails at a layup, it makes sense to find fault with the player’s actions, even if she intended to make a competent layup, if, in retrospect the layup she executed failed to meet the minimum standard of conduct that constitutes competent play. (P. 9)

One the other hand, were I to attempt a layup, I would almost certainly fail, in terms of success (the ball would not go in the hoop) and action (my execution would fail to meet the minimum standard of conduct that constitutes competent play). That is because I played basketball a few times in my childhood and not once since then. Herstein would say that it would not be accurate to say that my layup is “faulty.” The fault label would be inapt because my failure to perform a competent layup was not a reflection of my agency but of my lack of competency. (P. 10.) My lack of prior training in basketball means that I cannot be evaluated as someone for whom the practice of “playing basketball” is “reliably, regularly, readily, and relatively easily, and confidently available to” me. I am capable of playing basketball as well as a competent basketball player, but my failure to perform a lay-up is not something for which I should be held responsible, because I am not competent at basketball. For Herstein, my failure to make a lay-up in an empty court under ideal conditions is no more my responsibility than were I blocked by a falling piece of the roof as I attempted the shot. Not so for a competent player – her failure to achieve something she is capable of doing is excused only if her shot was blocked by an external event – something like the falling piece of roof.

An important consequence of Herstein’s argument is that negligence is a result of two variables: competency and agency. Herstein offers the following observation. Two surgeons, Ed and Ned, may be equally competent – equally dexterous and equally trained with equal grades and board scores and equal years on practice – but instantiate different degrees of “quality of agency” in surgery. “Quality of agency” means “how good [Ed and Ned] are at meeting their individual competency of doctoring.” (P. 12.) In the hypothetical Herstein offers, Ed and Ned’s competency is ex hypothesi the same (let’s stipulate that is 1.0) but Ed is “better” at applying his 1.0 unit of competency every time he cuts into a patient – he’s not perfect, but he is close, so let’s stipulate that he performs the act competently 999 times out of 1000. Ned applies his 1.0 unit of competency less well, so let’s stipulate that he performs the act competently 980 times out of 1000. Despite being equally competent, Ed is an excellent surgeon – 1/10 of 1% error rate – while Ned is merely an average surgeon, with a 2% failure rate. (Pp. 11 – 12.)

According to Herstein, if on the same day, in neighboring operating rooms, Ed and Ned fail the same way, we would react differently to the news that they had failed. In Ned’s case, per standard medical malpractice doctrine, we would say that his failure was blameworthy. It is no defense to say that Ned tried his best, or that there is no such thing as perfect surgery. As Mark Grady observed, “when a surgeon forgets to count the sponges before she sews up a patient, she may not present a claim of innocent mistake to the jury” even if she can show that she took every precaution and had a good history of care.2 A deviation from the standard of care is attributed to Ned’s agency, and we fault him. But, curiously, according to Herstein, we should not fault Ed. Even if Ed is held legally liable (for the reasons Grady noted), we should not say that he is at fault. (“Ed is not responsible for his malpractice or, at least . . . he is far less responsible than Ned.”) (P. 14.) Why?

Herstein’s argues that the error – which is one in a thousand that will occur in Ed’s life – is not the result of his agency, but the result of his humanity. (P. 13.) To err is human, and so some errors must be a result of our humanity, not a part of our personality. Herstein puts it this way: “[I]n the case of negligence, responsibility grows the more the failure of one’s agency is due to shortcomings in one’s facility – as an individual agent – to live up to one’s competency.” This produces a series of curious results. For example, according to Herstein’s logic, although at least one of Ned’s patients will be harmed by an error for which he is not at fault (the same must be true of Ned as Ed – his humanity causes one error), we will blame him for that error too, since we have no way of distinguishing between the one error cause of Ned’s humanity and the none caused by his agency. That doesn’t seem fair.

Also, as Herstein observes, if we can distinguish between degrees of competency, then it may be the case that certain less-competent surgeons, even when they are as diligent as Ed, will be held blameless for all erroneous surgeries, despite Ned being blamed for all of his. Imagine Meg, whose competency is 10% less than Ed and Ned’s (perhaps she comes from a less – advantaged medical community, or is just a little more “hasty and awkward”, etc.) – but she compensates for this by being as diligent as Ed. So, she comes to each surgery with less competency than Ed and Ned and, because of her Ed-like ability to make the most of her reduced competency, she performs the surgical act competently 980 times out of 1000. According to Herstein, it makes sense to blame Meg for zero errors, even though we would blame Ed for twenty. (P. 22.)

Tort theorists should pay attention to Herstein’s argument for two reasons. First, regardless of whether it is ultimately persuasive, it illustrates the wisdom of the reasonable person test and the rejection of Menlove’s defense. Herstein concedes in a footnote that “legal negligence is not conditioned on competency,” (P. 7, n. 9.) but I think he understates the degree to which the objective standard endorsed by Holmes rejects not only competency but what Herstein calls agency. Both, after all, are variables that must be weighed in the moral judgment of negligence. Chief Judge Tindal, who ruled against Menlove, anticipated the practical difficulty of processing a defense based on these two variables. He noted that it would be impossible for a jury to make a judgment about fault if the question was whether “the Defendant had acted honestly and bona fide to the best of his own judgment”. The reference to “honest and bona fide” action recalls Herstein’s concept of agency and the reference to “the best of his own judgment” recalls Herstein’s concept of competency.

Second, as my observations about Ned’s situation relative to Ed and Meg illustrate, the argument for the objective standard is not just practical (although that may be sufficient). While Herstein concedes that conventional tort law would hold Ed, Ned, and Meg liable for each of their medical misadventures, the logic of his argument entails that if the legal system could ascertain, from a “God’s Eye” vantage point, the facts as Herstein asserted them in his hypotheticals, the rationale for holding Ed and Meg liable sound in strict liability, but in negligence for Ned (in 19 out of 20 of his misadventures). Herstein’s logic entails that holding Ed and Meg responsible for their misadventures is like blaming a competent basketball player for failing to complete a lay-up because a piece of the roof fell onto the ball in flight. A troubling by-product of Herstein’s theory is that it forces tort law to embrace a theory of liability in cases like Ed and Meg’s that, both rhetorically and normatively, goes further than necessary.

It is not clear why Ned is more blameworthy than either Ed or Meg. The implication is that Ned’s conduct instantiates a normatively significant fact that grounds personal responsibility (as opposed to Ed and Meg, whose failures merely implicates their “humanity”). But it is quite mysterious (a) what mental states correspond to the “quality of agency” to which Herstein refers and (b) why agency is normatively significant in a way that competency is not.

Herstein is emphatic that the “quality of agency” is not a subjective state in relation to the purpose of the actor – that is clear from the description, consistent throughout the article, of negligence as unwitting agency. (P. 16.) But the “quality” of agency also presents in differing degrees in different unwitting actors (Ed and Meg have more of it than Ned). The problem is not with Herstein’s claim that different actors produce similar outcomes for different reasons (although, as noted above, it may be very hard to discern the underlying cause of an identical error), the problem is that there seems to be little argument offered by Herstein as to why the different etiology of an error should matter. His one effort to explain why lower “quality of agency” is a ground for attributing fault is where he considers the objection that person’s “quality of agency” may be immutable, like their competency. His response:

Moreover, even if to an extent our capability to meet our competency is set at birth . . . ascribing responsibility to an individual person based on her agency’s innate shortcomings may still in some sense involve personal responsibility. Because responsibility here is attributed based on features that make one the individual person one is, rather than merely a member of a species. (P. 18.)

It is not clear in what way this is a justification. The argument could run in reverse – for the same reason that Herstein doesn’t think that attributing responsibility to Ed based just on his humanity is fair, neither should responsibility be attributed to Ned based on his innate “Ned-ness”.

Herstein’s analysis sheds light on a confusion suffered by Section 12 of Restatement (Third). Under the Restatement, Menloves are not treated more generously but the extra-competent are treated more harshly than the merely competent actor. Comment A of Section 12 says, “[O]n balance it is best to take persons’ actual knowledge and skills into account when the level of their knowledge or skills exceeds the average.” Under Herstein’s logic, the Restatement would be right to treat Ed more harshly than Ned were he fail to “meet” his above-average competency and produce (for the sake of argument) 10 misadventures out of 1000. Despite doing better than both Ned and Meg, Ed js, according to Herstein, either equally or more blameworthy then they. For the same reason I cannot accept Herstein’s differential treatment of Ed and Ned based on his agency analysis, I cannot accept Section 12’s reverse analysis—that we should depart from the objective standard adopted by negligence law after Menlove in order to impose more liability on the actor with greater competency because their agency was somehow lacking. Perhaps the inadvertent lesson from Herstein’s effort is that the objective standard should be preserved across the spectrum of competency in tort law—not more and not less.

Herstein’s article is not about tort law, but it is instructive for tort lawyers because it illustrates how not to justify why we impose liability on the Menloves of the world. Barring a declaration that all tort law is either intentional torts or strict liability, the answer to Menlove, or Ed, Ned, or Meg, of why they are deemed faulty has to do with their what is reasonable for others to endure. Herstein’s analysis shows why it is a fool’s errand to try and ground judgments about personal fault on counterfactual outcomes that rooted in a fixed aspect of the character of the defendant that went ‘awry’. The putative distinction Herstein draws between competency and agency is not only spurious, it is normatively banal, since, as Herstein is the first to admit, neither are sensitive to the conscious choices of the actor. To paraphrase Shakespeare, Herstein’s mistake is to think that when it comes to negligence, fault must lay either in “our stars” or in “ourselves” – but that false dichotomy leads to confusion, not understanding.

  1. See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 12.
  2. See Mark F. Grady, Res Ipsa Loquitor and Compliance Error, 142 U. Pa. L. Rev. 887 (1994).
Cite as: Anthony Sebok, I Pity The Fool: Ori Herstein’s Defense of the Klutz, JOTWELL (December 19, 2019) (reviewing Ori J. Herstein, Nobody’s Perfect: Moral Responsibility in Negligence, Canadian Journal of Law & Jurisprudence, Vol. XXXII, No.1 (Feb. 2019), Pp. 109-125),

Compensating Distress With A Stiff Upper Lip

Eric Descheemaeker, Rationalising Recovery for Emotional Harm in Tort Law, 134 L.Q. Rev. 602 (2018).

Tort compensation is often said to be governed by the make-whole principle – damages should compensate the successful plaintiff for all the losses she suffered as a result of the tort. Even if there is such a principle, it seems to have exceptions. In Rationalising Recovery for Emotional Harm in Tort Law, Eric Descheemaeker focuses on an apparent exception that applies to suits for interferences with possessory rights. For example, in standard cases of conversion, the plaintiff is not entitled to recover compensation for emotional distress caused by the wrongful interference with her property rights. Examining English authorities, Descheemaeker offers a surprising result. Although courts purport to disallow distress damages in these cases, they actually do allow them. English tort law is more principled in hewing to the make-whole ideal than it appears to be.

Rationalising Recovery is not in the first instance concerned with the question of when emotional distress serves as a “predicate injury” – i.e., the injury that the defendant was duty-bound to avoid causing.1 Nor is it concerned with cases in which the plaintiff sues for having been made to suffer the sort of psychiatric injury that, under English law, is treated as a personal injury on par with a broken leg. Rather, it focuses on the availability of “parasitic” emotional distress damages – compensation for fear, horror, grief, anger, frustration, worry, or other negative emotions arising out of a distinct injury that grounds the victim’s tort claim.

No one disputes that such damages are sometimes available. A plaintiff who suffers bodily harm in a car accident proximately caused by the defendant’s negligence is entitled to recover compensation for anxiety or misery over her injury. So too are successful battery and libel claimants. However, many courts and commentators deny that emotional distress damages are always available to tort victims.

For example, courts in the U.S. maintain that, absent special circumstances, victims of conversion are not entitled to recover emotional distress damages.2 Imagine that Jasper returns home to discover that the young dogwood tree in his front yard has vanished. He investigates and determines that it was uprooted by the landscaping company that he had hired to maintain his yard – a company employee somehow misunderstood Jasper’s instruction to prune a different tree as an instruction to remove the dogwood. For the landscaper’s mistaken but intentional taking of his property, Jasper stands to prevail on a conversion claim. However, Jasper is not entitled to compensation for his distress over the loss of the tree.

Descheemaeker’s thesis is that, even though English jurists, like their American counterparts, tend to insist that property torts such as these don’t give rise to claims for emotional distress damages, such damages are recoverable under other guises. Thus, courts sometimes permit “aggravated damages” for conduct that is not merely tortious but insulting, humiliating, or malicious.3 Aggravated damages, Descheemaeker claims, compensate for the psychic wounds generated by particularly nasty torts. Courts also award compensation for certain abstractly defined losses, including the “loss of use” of a damaged item of personal property, even if the plaintiff had not previously used the item to earn revenue. Here, he says, compensation is actually being paid for the annoyance that comes with not having access to one’s stuff. Finally, judges sometimes permit claimants to recover more than would be awarded under a diminution-in-value measure. Suppose some trees in Jennifer’s backyard are trampled by her neighbor’s trespassing cattle. Even if their destruction barely affects the value of her land, if the evidence shows that she took great pleasure in viewing the trees from her living room, a judge might order the defendant to pay higher, replacement-value damages. By these subterfuges, Descheemaeker argues, English judges have helped see to it that the make-whole measure is realized even in areas of tort law supposedly not faithful to it.

Others better qualified than I can speak to Descheemaeker’s reading of the relevant English decisions. I will instead approach his very interesting article from a more theoretical perspective. There is real ingenuity to his analysis.  My question is whether and why such ingenuity is required. The reasoning of the courts in the relevant cases does not cry out for second-guessing – while hardly unassailable, these decisions are by no means exemplars of “transcendental nonsense.” Moreover, they seem to reach perfectly palatable results. Rulings that provides the Jennifers of the world with a bit more compensation strike me as unlikely to generate outcry from the bar or the public. Why, then, should we suppose, with Descheemaeker, that there is a hidden logic to these cases?  Why not just take them at face value?

Descheemaeker has an explanation of sorts. English judges, he claims, have long been discomfited by the thought of treating emotional distress as a compensable setback.  Stiff upper lip and all that. Thus, when we see property tort cases in which English courts award damages under headings such as aggravated damages, we can surmise that they are surreptitiously compensating emotional distress.

This explanation strikes me as wanting. The article acknowledges all the different torts for which English courts have long allowed parasitic distress damages – everything from negligence to false imprisonment to defamation. Where’s the discomfiture? Even Victorian-era jurists (Pollock, CB, we’re looking at you) deemed the award of distress damages appropriate in physical injury cases. Given that these jurists also tended to embrace robust notions of property rights, why would they have felt sheepish about compensating owners for miseries associated with dispossession? It is one thing to argue – as, famously, has Martha Chamallas – that common law judges’ sexism led them to reject claims for ‘pure’ emotional distress that struck them as unmanly. It is quite another to suggest that the Pollocks of the world would be put out by a rule that provides compensation for the anguish of men deprived of their land or things. (Note that, on this side of the Atlantic, even the Anglophilic and hard-headed Holmes paused his cynical musings in The Path of the Law to wax poetic about how a long-held possession “takes root in your being, and cannot be torn away without your resenting the act . . . .”)4

I am led to wonder if Descheemaeker’s analysis ultimately belies an implicit acceptance of a brand of empiricism that arbitrarily limits the class of compensable setbacks to those with a physical and hence potentially observable dimension.5 Some such thinking seems to fuel his otherwise under-motivated effort to recast aggravated damages as emotional distress damages. My casebook co-author Anthony Sebok expertly exposed the fallacy underlying a comparable effort by the U.S. Supreme Court to treat punitive damages as “compensatory” of distress over having been treated in a high-handed manner.6 In fact, there seems little reason not to take aggravated damages at face value. They are redress for having been insulted, humiliated, or otherwise trashed, independent of one’s emotional reaction to the trashing, just as damages for loss of reputation or privacy compensate in the first instance for being held in lower esteem by others or because others know things about one’s private life they shouldn’t know, not for one’s anxiety or fear over such things. If one supposes – as one should – that there is nothing philosophically problematic about the idea of a wrongdoer compensating a victim for the very fact of having subjected her to gross maltreatment, there is no pressure to recast aggravated damages for malicious property torts as a sneaky way of compensating a ‘real’ setback such as distress.

Finally, to return to where I started, it is worth highlighting the teleological (Whiggish?) flavor of Descheemaeker’s doctrinal exposition. He seems to assert that “make whole” – by virtue of being a basic principle of tort justice – exercises a gravitational force that has been pulling courts unwillingly and perhaps unwittingly toward its full realization in case law. One might question whether “make whole” really is a principle of this sort. I have argued that it is instead a default rule for tort cases fashioned by modern judges in an effort to render more predictable the application of a deeper but also more indeterminate principle of “fair compensation.” On this view, a practice of denying parasitic emotional distress damages in plain-vanilla conversion cases need not constitute a departure from principle. It could be instead that courts have simply decided, quite reasonably, that compensation for the value of the damaged or destroyed property just is fair compensation in cases of this sort.

Assuming, however, make-whole is the core principle of tort damages, one wants to hear more about how it influences judicial decisionmaking. When, in property tort cases, courts have awarded aggravated damages, or use- or replacement-value damages, have they done so out of a sense that it would be unjust to deprive the plaintiff of full compensation for his losses? How would we know that this particular sentiment is driving their decisions?

Jotwell Torts contributor Sandy Steel previously published a Jot reviewing Professor Descheemaeker’s article. I hope it will prove interesting for Jotwell readers to see a second take on the same piece.

  1. For example, an undertaker’s liability for carelessly inflicting distress on family members by mishandling their decedent’s body rests on the duty to take care against causing distress to such persons; their distress is the injury that ‘completes’ the tort.
  2. So says Section 73 of the reliable Dobbs, Hayden, and Bublick Torts treatise.
  3. Imagine that Jasper planted the tree in memory of his deceased spouse, and Jasper’s neighbor, knowing this, dug it up out of sheer malice.
  4. Of course other grounds might be invoked to explain judicial reluctance to allow for the award of emotional distress damages.  For example, the late, great John Gardner seems to have been of the view that, as a conceptual matter, emotional distress is not something for which a person can actually be compensated. Yet he also thought that the payment of such awards could be understood (and hence presumably justified) as a quasi-apology – i.e., as an acknowledgement by the defendant to the plaintiff of the defendant’s failure to comport with the reasons she had not to injure the plaintiff. See John Gardner, From Personal Life to Private Law (2018).
  5. This class, I suppose, could include measurable physical sensations such as pain.
  6. Anthony J. Sebok, What Did Punitive Damages Do? Why Misunderstanding the History of Punitive Damages Matters Today, 78 Chi.-Kent L. Rev. 163 (2003).
Cite as: John C.P. Goldberg, Compensating Distress With A Stiff Upper Lip, JOTWELL (November 21, 2019) (reviewing Eric Descheemaeker, Rationalising Recovery for Emotional Harm in Tort Law, 134 L.Q. Rev. 602 (2018)),

What Tort Law Is

Gregory C. Keating, Is Tort Law “Private”?, in Civil Wrongs and Justice in Private Law (Paul B. Miller & John Oberdiek, eds.) (forthcoming Oxford University Press), available at SSRN.

Tort law is no stranger to controversy. What duty does an employer owe to children sickened by workplace carcinogens brought home on parents’ clothing? What damages appropriately punish actors for willful and malicious conduct, or for non-economic harm? How far should liability extend when actors make dangerous products available to others who, in turn, choose to use or abuse them? But all of these freighted disputes pale in comparison to the larger question—what is tort law, or perhaps, what is tort law for? Although the questions seem intractable, Greg Keating’s recent article, Is Tort Law “Private”?, methodically guides readers through the theoretical claims.

The dividing lines have been staked out for some time. The instrumentalist camp sees tort law as one of many means for achieving optimal deterrence. Meanwhile a “contemporary revival” of traditional views sees tort as private law. Professor Keating wastes no time dismantling both assessments. Private law theorists miss the extent to which “modern tort law emerged as a response to the law having accidental injury thrust upon it as a pressing problem.” (P. 2.) Moreover, tort law’s “core domain is not optional,” but instead “protects persons against various forms of impairment and interference by others as they go about their lives as members of civil society.” (Id.)

According to Keating’s criticism of the private law camp, tort law is neither voluntary, nor wrongful, in any robust sense. Legal fault for tortious wrongs bears only slight relation to moral fault. Negligence liability is conduct that fails to meet an objective standard of care with respect to risks of harm to others, even when the conduct is not blameworthy. Moreover, tort law imposes liability not based on wrongful conduct alone, but only when fate has coupled that wrongful conduct with harm. (P. 3, n. 7) (invoking a thoughtful example of Jeremy Waldron’s regarding two identical wrongful acts, only one of which produced harm). In Keating’s view, accidental harms “command the attention of the legal system . . . not because they are characteristically very wrongful but because they are characteristically seriously harmful,” causing injury and death. (Id.)

But Keating’s private law critique does not lead to his full-scale endorsement of an instrumentalist program. The economic account of tort liability proposes that “the role of tort adjudication is to deter the squandering of social resources going forward.” (P. 5.) However, “[l]ooking backwards is instrumentally irrational” as a method of future risk-reduction. (Id.) In addition, the parties are not merely “vessels through which the socially desirable end of wealth-maximization is served.” (Id.) Instead, “harm’s distinctive moral significance can be grasped only within a deontological framework that takes persons and their lives as fundamental objects of concern, and the relations among persons as the fundamental subject of morality.” (P. 6.)

Despite this dual critique, the majority of Keating’s criticism is aimed at the failings of private law theory. Keating writes that a taxonomy that differentiates private law and public law misses the constant historical dialectic between the two. In tort law, private actions have often been considered alongside administrative alternatives—workers compensation and vaccine injury funds for example. They have also been compared to direct regulation of risk, as through environmental law. (P. 12.) Neither can tort law disentangle the interests of the parties to a suit from larger questions of social justice altogether. (P. 11.)

Amidst the criticism, a reader senses the mixed theory that animates Professor Keating’s own views. “The law of torts protects persons against various forms of impairment and interference by others as they go about their lives as members of civil society. The obligations that it imposes and the rights that it recognizes, play central roles in establishing people’s freedom to realize diverse conceptions of the good and lead independent and equal lives.” (P. 16.) This view treats the parties to the action as important objects of concern and yet simultaneously invokes questions of social justice—for example, what interests of the parties ought to be protected against interference by others? It also views tort law as an important player on the team, but not without possible stand-ins.

If I have a quarrel with Professor Keating’s work, it is not so much dispute as request. The appeal is to show the way in which Keating’s own mixed theory of tort law drives, and should drive, outcomes in particular cases and doctrines. In other words, If tort law is social and instrumental but simultaneously concerned with interests of the parties, how does that view shape what tort law does and should do? Professor Keating’s lucid criticism makes me look forward to his own endeavor to build and explain a guiding principle for the field.

Editor’s note: Gregory Keating had no role in selecting this article to be reviewed.

Cite as: Ellen Bublick, What Tort Law Is, JOTWELL (October 15, 2019) (reviewing Gregory C. Keating, Is Tort Law “Private”?, in Civil Wrongs and Justice in Private Law (Paul B. Miller & John Oberdiek, eds.) (forthcoming Oxford University Press), available at SSRN),

Why Reparation?

Sandy Steel, Compensation and Continuity, Oxford Legal Studies Research Paper (July 20, 2019), available at SSRN.

“Wrongdoers may incur duties to compensate the victims of their wrongs.” This, the opening sentence of Sandy Steel’s Compensation and Continuity, sounds like a truism. Who would deny it? It’s hard to imagine the defendant in a normal tort lawsuit conceding liability but insisting that her concession in no way implied responsibility for repairing that wrongfully inflicted harm. In tort law, the obligation to repair harm tortiously inflicted seems to tumble out of the breach of the primary duty to avoid tortiously wronging someone. Moreover, the continuity here seems both reasonable and rooted in basic morality.

Suppose I am cycling past a grove of peach trees. I stop, sample a peach, and decide to fill my pockets and bag with as many peaches as I can. I take them home and make peach pies out of them. Unsurprisingly, it turns out that the peaches weren’t just there for the taking. They were the property of a farmer who was growing them for sale. After reviewing her security tapes and deploying face recognition technology, the farmer shows up at my door demanding compensation. Surely, her demand is justified. I was wrong to have taken the peaches. I committed the tort of conversion, even if my assumption that the peaches were just there for the taking was an innocent mistake. Having baked the peaches into pies I am now unable to return them. So I must compensate the farmer for the peaches. This is what Aristotle called corrective justice and what John Locke called the obligation of reparation. 1 The obligation of reparation seems to be a basic principle of morality, picked up in the law of torts.

Professor Steele’s paper investigates whether the fundamental logic of reparation is persuasively explained by what the late John Gardner called the “continuity thesis”. That thesis explains remedial responsibility to repair in the following way. Failure to perform a primary obligation—to, say, exercise reasonable care to protect the plaintiff from avoidable harm—leaves that primary obligation undischarged. Yet, when that failure leads to avoidable, negligent harm, it also prevents “first-best” conformity with that obligation. It is no longer possible to exercise reasonable care and avoid harming the plaintiff. That impossibility does not, however, extinguish the defendant’s obligation to the plaintiff tout court. Instead, it requires the defendant to do the “next-best” thing and repair the harm that it should have avoided in the first place. That remedial obligation is the rational residue of the undischarged primary obligation. Factually, matters have changed. It is no longer possible to exercise reasonable care and avoid harming the plaintiff. This factual impossibility is not the end of the normative obligation, however. The defendant’s breach of her primary obligation does not discharge that obligation. On the contrary, the failure to perform the obligation leaves it unsatisfied. Indeed, a special responsibility tumbles out of that breach. The defendant’s failure to perform her obligation makes her uniquely responsible for repair the harm that she has wrongly done.The fact that the obligation has been breached is the reason why the defendant must now do what she can to repair the harm that she has wrongly inflicted. As Steele puts it, “[i]f an agent fails to conform to a reason, and that reason persists, the person has a reason to come as close to conformity to the reason as possible.” (P. 4.)

The thought that the normative continuity coupled with factual impossibility explains and justifies reparation in tort (and elsewhere) is intuitively attractive but it presents its own puzzles. For one thing, although it is true that breaching an obligation is not a way of discharging that obligation it does not follow that an undischarged obligation must continue to constrain the person who breached it in some legally enforceable way, as scholars like Arthur Ripstein are plausibly read to assert. Breach of an obligation might extinguish that obligation without discharging it; breach might simply make it impossible to perform the obligation. In fact, we know that some primary obligations in tort do not survive their breach. In the nineteenth century, tort law did not recognize any recovery for wrongful death. Even now, the vast majority of jurisdictions do not attempt to award damages for the value to the victim of the life the victim has lost. In the circumstance where the primary obligation to exercise reasonable care to avoid inflicting harm on the plaintiff is breached and the ensuing harm is death, the law of torts effectively concludes that the failure to discharge a primary obligation brings that obligation to an end. Why should we think that other cases are different? Why should we think that the primary obligation persists when an arm, or a leg, or a table, or a chair is destroyed? As Steele says, “there is no duty not to kill the killed, to keep in confidence information that is no longer confidential, [and] there is no duty not to damage an irreparably damaged arm (in the precise respect in which it was irreparably damaged).” (P. 4.)

For another, upon reflection, there are salient respects in which the obligation of reparation in tort seems to rest on reasons that arise from the failure to comply with the primary obligation. These reasons do not exist prior to the breach of the primary obligation and are not continuous with the reasons which justify the primary obligation in any obvious way. For example, it seems that obligations of reparation grounded on breach of primary obligations to, say, exercise reasonable care are grounded in new reasons created by the breach. It is the defendant’s failure to discharge the primary duty of care which, along with various facts such as causation of harm to the plaintiff, subjects the defendant to an obligation of reparation. Breach of the duty makes the defendant responsible for the plaintiff’s harm and it is that responsibility which explains and justifies the defendant’s obligation of reparation. The tortious wrongdoer singles herself out as uniquely responsible for repairing the harm to the victim because she is uniquely responsible for wrongly inflicting that harm. The wrong, not the original duty, is the ground of responsibility. When, for example, I appropriate the farmer’s peaches without her permission, through that wrongdoing I bring unique responsibilities upon myself. Everyone in the world was under an obligation not to take the peaches, but only I breached that obligation. By doing so, I subjected myself to a special obligation of reparation owed specifically to the farmer.

Third, it is unclear how to characterize the normativity that “continues”. The existence of multiple “continuity theses” evidences the problem. Some scholars assert that continuity of reasons is the key (e.g., John Gardner); other scholars insist that continuity of duty is (e.g., Ernest Weinrib); and still others cast their lot with continuity of right (e.g., Arthur Ripstein). To an outsider, all of this can look like the proliferation of distinctions without differences or, worse, a circumstance where we don’t even know what would make one of these competing versions of the continuity thesis more illuminating than the others, much less which formulation of the thesis is better. Is it, for example, an objection to “duty continuity” that the specific duty not to carelessly break someone’s arm cannot be conformed to once the arm has been carelessly broken? Or does that just show that we must conceive of the relevant continuing duty more abstractly? Perhaps the relevant duty is not a duty to avoid breaking the victim’s arm carelessly but “a ‘duty to respect the victim’s right to the physical integrity of their person.’” When we move to a higher level of abstraction it is unclear why that highly abstract duty calls for the particular action of reparation by the defendant. In some contexts, respecting a person’s right to their body may require recognizing their right to have an abortion. Why does it now call for compensation?

Compensation and Continuity wrestles with these and other questions with subtlety, precision, and insight. It’s a rich and clear paper which advances our understanding it at least three important ways. First, the paper clarifies respects in which claims of reasons continuity, rights continuity, and duty continuity are saying the same thing and respects in which they are disagreeing. Second, the paper argues persuasively that continuity explains some things about reparation but not everything. Breach of a primary obligation, and the responsibility that it brings upon the breaching party, plays a role in justifying many instances of reparation in tort. Other kinds of reasons may also be relevant. In a case like Vincent v. Lake Erie, for instance, reasons relating to the fair allocation or distribution of harm may play a role in explaining the obligation of reparation. Reasons of fair allocation are different from reasons rooted in the commission of a wrong and they may come to bear only after the fact—only when the squall has passed and the loss has landed on the plaintiff. These reasons may interact with reasons rooted in the plaintiff’s pre-existing property rights and the continuing respect those rights demand.

Third, and most originally, in an all too modest way, Compensation and Continuity advances the hypothesis that the normative notion at the bottom of the “continuity thesis” may be value, not reason, duty or right. (Pp. 4, 9, 19-20.) The same value(s) may ground both a duty of non-interference and a duty of compensation. Steele’s arguments here are, in some respects, quite technical. They turn on how we should understand the relations among values, reasons, rights, and duties. But they are also intuitively attractive and restore direction to a debate which was in danger of becoming aimless. For example: the value of individual autonomy might ground the right not to be battered (and the correlative duty not to batter) and also the duty of reparation that a batterer has. Unrepaired physical harm impairs autonomy. Its repair is necessary to restore autonomy. The right not to be battered differs from the right to reparation; they impose different constraints. But the same value underpins them.

Among other things, this line of argument provides a satisfying explanation of why it is that the breach of a primary obligation sometimes ends all relevant obligation and why it sometimes does not. In some cases—when the plaintiff is killed, for instance—there may no way of continuing to serve the value that justified the prohibition on her killing. In other cases—when a table is totally demolished, say—it may still be possible to serve the relevant values by making compensation to the owner of the table sufficient to replace the value destroyed.

There is a still more general lesson, too. Primary and secondary obligations in tort (and elsewhere) form a unity and it pays to put that unity front and center in our thinking about the subject. There are much worse questions to ask than “what value is the law of torts serving here?” Indeed, few, if any, questions are better.

  1. Aristotle, Nicomachean Ethics 85-86 (Roger Crisp ed., Cambridge Univ. Press 2000); John Locke, Second Treatise on Government 11 (C.B. Macpherson ed., Hackett 1980 (1690)).
Cite as: Gregory Keating, Why Reparation?, JOTWELL (September 5, 2019) (reviewing Sandy Steel, Compensation and Continuity, Oxford Legal Studies Research Paper (July 20, 2019), available at SSRN),

Computer Code as Law: A New Frontier?

As distributed ledger or “blockchain” technology continues to offer decentralised and distributed decision-making, Yeung considers the way in which those automated processes (code as law) are likely to interact with conventional means of governance (code of law). This technology is based on peer-to-peer verification of transactions: it takes various forms, but the common theme is that the record of transactions is shared with all users of a given system, and transactions only make it on to that record after a fierce process of mathematical ratification. As a result, the intermediaries on which transactions have for so long depended, such as banks, clearing houses and property registries, are no longer required. Altruism and self-interest are aligned because all users have a vested interest in the continued integrity and success of the closed system, and third party intervention is neither required nor (for many users, at least in principle), desired.

Distribution and decentralisation are the crucial components of distributed ledger technology, and are the principle features which distinguish them from those forms of electronic payments which use intermediaries and electronic bank money, such as Paypal, WorldPay and BACS, for example. These characteristics also explain why cybercurrencies are often described as “trustless”, meaning that transacting parties need not have any trust for one another in the real world, so long as they trust the payment protocol (which, for reasons which will soon become apparent, they probably should). Decentralisation in this context simply means that everyone who might want to use the currency, and so has a copy of the relevant software, also has a copy of the ledger. The ledger is a record of every transaction made using that currency, and each computer operating the software (known as a node) has a copy of the entire thing: from the beginning (the “Genesis Block”) to today’s latest block. This is where the term Distributed Ledger Technology (DLT) comes from: Blockchain, which was created to underpin Bitcoin, was the first distributed ledger, but there are now distributed ledgers of several different forms. Common to every one, however, is the idea that all participants have access to the full history of transactions made using that protocol. This is a novel way of dealing with the ages-old double spend problem. Historically, the challenge of how to prevent double spending has been met in two ways: the first is by using physical tokens, whose corporeal form physically prevents their being spent more than once, and the second is by employing an independent third party, such as a bank, to keep a record of transactions and their effects on the subsequent spending power of the parties involved. Cybercurrencies achieve the same thing by sharing information with every user and by ensuring that the information so shared is perfectly synchronised. This way, “coins” cannot be spent twice because everyone would know that this is what was being attempted, and the consensus necessary for validation and recording would not be reached. Security is thus achieved through complete transparency, and distributed ledgers have no need for any centralised record-keeping, nor for any third party intermediary to verify the integrity of transactions.

Such transparency is achieved through what is known as distributed consensus protocol, and this is characterised by two features:

  1. All computers on the network (referred to as nodes) must agree on which transaction data is ultimately recorded on the ledger
  2. The transaction data must have been generated by an honest node

The question remains how any of this can be achieved. One method, used by Bitcoin, is known as proof-of-work, and this allows nodes to reach a consensus on which transactions to record and in which order to do so. (The order is of course all-important, as it is with any spending pattern, since what you have already spent determines how much you can spend in the future.) Proof-of-work is the means by which nodes persuade other nodes that the block of transactions that they wish to add to the chain is legitimate and should be trusted. The work involved here is the cryptography: the solving of a mathematical puzzle, and this puzzle is of a very specific type: the optimum way of solving it is simply to work through very large numbers of trial and error iterations. In other words, lawyers might say that it is a difficult case, but not a hard one. It is clear what needs to be done, but doing it takes an immense amount of computational power simply to work through the many repetitions of the same calculation, each time trying a different input. Once this happens, the proposed block gets added to the chain and the transactions in it get confirmed. This, however, is not the only thing which happens when the block gets verified. Another of Bitcoin’s revolutionary qualities is its alignment of self-interest with altruism. Verifying blocks is hard grind and very expensive in computational terms, and yet it is essential to the continuation and security of the system. So, when a node successfully adds a block to the chain, it gets rewarded with bitcoin. In the Bitcoin protocol, the verification process is known as mining, and is simultaneously the means by which new coin is minted. This is a system, therefore, in which self-interest works in favour of the collective interest, and the two are mutually reinforcing.

The ethos underlying these technological developments (particularly that of Bitcoin) is that peer-to-peer transactions should be able to avoid the intervention of intermediaries or external regulators. In Yeung’s view, the belief that blockchain systems are capable of operating outside of conventional law rests on two assumptions: first, that conventional state legal systems are rendered redundant by the alternative governance frameworks offered by distributed ledger technology and, second, that the state will not intervene in these alternative modes of governance because it has no interest in doing so. Yeung makes it clear from the outset that the notion of a self-contained cybertopia in which national laws hold no sway is not likely to be realised: whilst the genius of blockchain technology allows for exceptionally high transactional security, it can do nothing to guarantee the wraparound rights that conventional law protects and upholds, such as security of personal integrity, property and dignity.

Yeung sets out three models of potential interaction between conventional law and blockchain systems, which she labels “cat and mouse”, “the joys of marriage” and “uneasy coexistence and mutual suspicion”. The first of these arises in a context in which blockchain systems are used deliberately to try and evade the reach of conventional law; a form of cyber-anarchy which provokes the state into asserting its sovereignty in some substantive way. Yeung’s prediction is that this will not take the form of wide-ranging, high-level regulation, but will instead occur on a more localised, ad hoc basis as individual “mice” are identified and reined in. So, for instance, a state is unlikely to allow the formation and enforcement of private contracts which exploit inequalities of bargaining power between commercial entities and consumers. Once attention is brought to any such arrangements, national law is very likely to step in and subject such transactions to some form of regulation, as it commonly does with conventional contracts.

The “joys of (patriarchal) marriage” model describes a situation in which the supremacy of conventional law is ultimately recognised, and in which there is a mutual commitment to co-operation between the two available modes of governance and decision-making. This refers to a situation in which parties transacting by means of distributed ledger technology do so in order to take advantage of the efficiencies of that medium, rather than with any desire to evade regulation and accountability. In such circumstances, their agreements will recognise and accommodate the restrictions imposed by national laws. For example, parties making a contract on a blockchain platform for software development services might code into their agreement a means of granting one party a compensatory amount of cryptocurrency in the event of a breach by the other party. This recognises the authority of national law, but does not require the intervention of a judge or court.

Finally, Yeung’s “uneasy coexistence” refers to a situation in which there is mutual suspicion from both sides, but in which intervention from national law enforcement will only occur where there is a threatened or perceived harm to third parties. This account reads like something of a hybrid of the previous two models: there is no express avoidance of national law by contracting parties, but neither is there an open or willing accommodation of its authority. Instead, both parties and national authorities warily keep tabs on each other, interacting only when is necessary for the prevention of unacceptable risk or loss.

Underlying the uncertainty of regulation and dispute resolution in this context is the constantly-evolving technological foundation on which it all sits, and the challenges this presents to established “bright line” boundaries between the private and public legal spheres. Should blockchains be regulated? Or should individual private disputes be resolved on an ad hoc basis? Yeung predicts that, ultimately, both code of law and code as law will have to provide some form of combined solution by finding an equilibrium which, like any other legal construct, balances the creation of value with the prevention of harm. Brave new technology invites brave new ideas.

There is a certain inevitability in this combined outcome: the impetus behind the development of autonomous code was the desire to achieve pure peer-to-peer interaction, but it is naïve to think that anyone, however technologically literate, can unilaterally contract out of states’ legal jurisdiction. The ability of parties to design their own dispute resolution processes could be a very welcome means of reducing transaction costs, judicial time and what can sometimes be a long wait for an appropriate remedy. It must, however, be a process within a process; reflecting the objectives, constraints and policies of the wider legal landscape of which it forms part. The efficiencies and advantages of coded agreements should, in other words, enhance individuals’ rights but not to bypass them.

Cite as: Sarah Green, Computer Code as Law: A New Frontier?, JOTWELL (August 5, 2019) (reviewing Karen Yeung, Regulation by Blockchain: the Emerging Battle for Supremacy between the Code of Law and Code as Law, 82 Mod. L. Rev. 207 (2019)),

Recovery for Emotional Distress in Tort

Eric Descheemaeker, Rationalising Recovery for Emotional Harm in Tort Law, 134 Law Q. Rev. 602 (2018).

In English law, there is no general duty not to cause reasonably foreseeable mental distress, even if the distress-causing conduct is culpable. Indeed, the same is true in respect of psychiatric harm. What, however, is the recoverability of damages for mental distress that occurs as a result of a tortious wrong to the person who suffers the distress? Suppose, for instance, that A negligently damages B’s property with the result that B suffers foreseeable mental distress. Here, B’s claim is not that A owed a duty of care not to cause reasonably foreseeable mental distress by A’s act. It is that B is entitled to damages for loss consequential upon a violation of B’s right that A not negligently damage B’s property. This is the question skilfully examined in Descheemaeker’s article. He explores the extent to which damages are recoverable for emotional harm, defined as “any unpleasant emotional reaction” (P. 603), suffered as a consequence of rights violation. Interestingly, he concludes that the law is largely consistent with a simple principle: damages for consequential (or “parasitic”) emotional harm are, in principle, recoverable, within the usual limits of causation and remoteness, for the violation of any tort law right.

Descheemaeker begins by considering why this simple principle is not generally explicitly recognised by the law. Compare damages for economic loss. It is approaching trite law that damages may be recovered for economic loss that is consequential upon the violation of a right, even if a person’s economic interest does not serve to generate wide-ranging freestanding rights that others not set back that interest. Yet it seems true, as Descheemaeker says, that most (English) tort lawyers would be considerably more doubtful of the proposition that any reasonably foreseeable emotional harm that results from the violation of right is recoverable in damages.

The article gives two specific explanations for the absence of explicit recognition amongst doctrinal writers. First, Descheemaeker describes a general attitude of suspicion about whether emotional harm is truly “harm” or “loss.” There is a tendency to think that “the concept of loss…[is] restricted…to concrete detriments that are pecuniary, i.e. directly valuable in money (damnum in the historical sense of economic or financial loss).” (P. 605.) He rightly notes the tension between this notion of loss and other well-accepted forms of recoverable loss, such as pain and suffering, and loss of amenity. If the law accepts that pain and suffering can constitute “loss”, is it not required as matter of consistency to accept that the currency of loss extends beyond the pecuniary? It is plausible to think so. One might object that emotional harm is different from pain. Pain is not an emotion. Emotions are belief-mediated, and often judgment-mediated: one’s emotions are directly responsive to one’s beliefs about and evaluations of the world. This seems true, but the point still stands that the law is already deeply committed to extending the concept of loss to comparisons between non-pecuniary states of affairs. Perhaps, however, the belief and judgment-mediated quality of emotional harm has also played a role in emotional harm being viewed with greater suspicion than other forms of harm.

The second explanation is that courts have gone some way to cloaking recovery for consequential emotional harm in terminology that obscures the true nature of the harm in respect of which damages are granted. For example, courts award aggravated damages” in circumstances where the defendant had committed the tort in a high-handed way. The focus here on the defendant’s conduct obscures the fact (reasonably well accepted now) that the loss in respect of which aggravated damages are awarded is the additional mental distress occasioned by the humiliating way in which the wrong was committed. Another example discussed is the Court of Appeal decision in Bryant1 where trespass by the defendant’s cattle had damaged trees on the claimant’s land. The diminution in value was minimal. The claimants were nonetheless awarded the much greater cost of replacing the trees, the reasonableness of this measure being justified by reference to the claimant’s non-pecuniary interest in the amenity value of their land.

Descheemaeker also claims that awards made for “abstractly-defined loss” indirectly compensate for emotional harm. An abstract definition of loss is adopted where the law switches “from the usual perspective of loss as a concrete detriment flowing from the wrong to the abstract definition of loss as the wrong itself.” (P. 608.) So, for Descheemaeker, damages for loss of privacy, loss of liberty, and loss of autonomy all involve indirect compensation for emotional harm.

This seems open to question, however. In some cases, courts make separate awards for the mere fact of the violation of the right in addition to an award of distress. Furthermore, it is clear that sometimes damages may be awarded in this category of case independently of any distress being suffered at all. If B wrongfully uses A’s property for a certain period, B is liable to pay user damages generally representing the reasonable rent for the use. This is also particularly clear in cases where B wrongfully damages A’s property and A is entitled to damages for the loss of use of the property, in addition to the cost of repair, even if the destruction has occasioned no financial loss, because A already had a replacement ready to stand in for the damaged object. Descheemaeker writes of such cases: “if a chattel is immobilised while being repaired, damages can be claimed for the period of immobilisation even when it is not profit-earning. What detriment is being compensated for here? Clearly it is not a pecuniary loss. This must mean that the relevant concrete detriment is emotional: damages for loss of use are in effect damages for mental distress.” (P. 609.)

This analysis faces two problems. First, it is not clear how Descheemaeker would reconcile this proposition with his later acceptance that de lege lata damages for non-pecuniary loss are not available in cases of juridical persons. (P. 625.) Second, why think that the only options are pecuniary loss or mental distress? On the face of it, a person can suffer a loss which consists neither in their being financially worse off nor being distressed. A person who is deprived of consciousness for a continued period, and is thereby unable to enjoy their life, is worse off than they would be if they were not so deprived. English law recognises this in granting damages for lost amenity to the comatose. It may be that Descheemaeker endorses a kind of hedonism about loss: on this view, one suffers a loss only if one suffers a conscious negative experience. But the law already accepts a non-hedonistic concept of loss. The clearest example is vanilla pecuniary loss: a person can suffer a financial loss while being entirely unaware of it.

Descheemaeker briefly develops an intriguing reply to this sort of objection. He writes that: “damages for emotional harm are not normally for what the specific claimant has suffered: they are standard awards for what an ordinary claimant would have suffered in similar circumstances.” (P. 624.) In the case of an unconscious person, Descheemaeker claims that the law can treat their being unconscious as an “idiosyncrasy” which is discounted from consideration in determining whether they suffered loss. This reasoning, he suggests, could even be extended to juridical persons. It is true that we see evidence of standardisation in the law in determining the loss a person has suffered. If A wrongfully damages B’s car, the fact that C, B’s friend, has repaired the car gratuitously will be ignored in determining B’s damages. C will be entitled to the diminution in value of the object, measured normally by the market rate for cost of repair. Yet there is a sense in which standardisation calls for justification. If the claimant herself is not any worse off, then why is she awarded compensation? In the case of A, B, C, we might say it is because B will feel obligated to compensate C in some way for C’s doing this work. But it is not clear what justification can be given for extending the standardisation of loss to the circumstances Descheemaeker describes (unconsciousness, juridical personality). There is nothing “idiosyncratic” about being a juridical person.

Although we might dispute the idea that the various phenomena adduced to establish the thesis are all reducible to the single notion of emotional harm, Descheemaeker’s analysis, overall, is highly persuasive. He succeeds in making out the case for the existence of an implicit general principle permitting recovery for emotional harm consequential upon a violation of a tortious right in English law. More generally, his article makes a number of interesting observations about the general idea of loss in tort law, in particular concerning the currency of loss, and the standardisation involved in applying the concept of loss. As yet, these issues remain relatively underexplored.

  1. Bryant v. Macklin [2005] EWCA (Civ) 762, [2005] All ER (D) 261 (Jun).
Cite as: Sandy Steel, Recovery for Emotional Distress in Tort, JOTWELL (July 3, 2019) (reviewing Eric Descheemaeker, Rationalising Recovery for Emotional Harm in Tort Law, 134 Law Q. Rev. 602 (2018)),

Letting Some Light In: Resolving a Key Question Regarding Communication-and-Resolution Programs

Allen Kachalia, Kenneth Sands, Melinda Van Niel, Suzanne Dodson, Stephanie Roche, Victor Novack, Maayan Yitshak-Sade, Patricia Folcarelli, Evan M. Benjamin, Alan C. Woodward & Michelle M. Mello, Effects of A Communication-And-Resolution Program on Hospitals' Malpractice Claims and Costs. 37 Health Aff. 1836 (2018).

Allen Kachalia and ten co-authors’ new piece, entitled Effects of a Communication-and-Resolution Program on Hospitals’ Malpractice Claims and Costs, offers an insight to address one of the most daunting challenges that looms over the field of tort law—and, indeed, one of the most daunting challenges that confronts the “sister professions” of law and medicine more generally. The question is how to address the problem of preventable medical injury. In human terms, the problem is enormous. Roughly 35 million Americans are hospitalized annually, and the best evidence suggests that approximately 1% of those individuals will be victims of bona fide medical malpractice, while perhaps another 1.3% will be “preventably,” though not necessarily negligently, hurt by the care they receive. That adds up to some 800,000 individuals. Further, while many of these injuries are minor or transient, others are serious. Each year, 44,000 to 98,000 Americans die because of medical mistakes, which means that medical errors may cause more deaths per year than all other accident types, combined.

The medical malpractice system—the civil justice system’s attempt to address the above injuries—also takes a significant toll. The system’s direct cost is substantial: Administrative costs alone (in legal fees and insurer overhead) reportedly top $6 billion annually. Its indirect costs are considerable, as an abiding fear of liability reportedly impacts the tests physicians perform, the medication they prescribe, and the referrals they make, which contributes to “defensive medicine” (which is, itself, costly). And, the physicians who are sued are, by all accounts, deeply, and negatively, affected.

Nor is the situation particularly satisfactory from the injured patients’ perspective. For a host of reasons, only a miniscule fraction of those hurt by medical error (2% to 3%) ever seek compensation, even informally. When injured patients do initiate claims, many fall short: Doctors prevail in roughly three-quarters of medical malpractice jury trials, and, overall, approximately 40% of patients who retain counsel fail to recover a cent. And, even when compensation does come, it comes slowly and is often inadequate, particularly for the grievously hurt.1

Understandably, unsatisfied with all the above, the past four decades have witnessed a flurry of med-mal-related reform activity. Some reforms—damage caps and contingency fee restrictions, most prominently—have been enacted. Yet, these reforms only tinker at the margins, and their social utility is dubious. Other reform ideas—such calls to adopt enterprise liability, a move to base liability on contract, rather than tort, principles, and proposals to jettison the traditional tort system in favor of no-fault regimes or specialized “health courts”—are bolder. But some of these reform ideas have been subject to harsh criticism, and, so far, none has taken root. Indeed, the med mal landscape is so bleak that one scholar has likened it to the “law’s Vietnam—an unpleasant quagmire of unending skirmishes and full-scale engagements” with, I would add, uncertain objectives, raised voices, and pointed fingers, all while the casualties mount.2

Into this quagmire, enters a promising new study undertaken by a large team of many of the field’s most esteemed researchers. Recently published in Health Affairs and entitled Effects of a Communication-and-Resolution Program On Hospitals’ Malpractice Claims and Costs, the study offers a glimmer of good news. It finds that hospitals can disclose certain medical mishaps to patients and even apologize for the harm they inflict, without causing liability costs to skyrocket.

In the study, Allen Kachalia and ten co-authors examine the effect of four Massachusetts hospitals’ communication-and-resolution programs, CRPs for short.3 To understand the study, a brief primer on CRPs is necessary.

Fueled by swirling ethical concerns and buttressed by a desire for greater transparency and accountability, over 200 hospitals and health care organizations have adopted CRPs. Programs vary on the specifics, but the general idea is that, if a hospital adopts a CRP, it commits to “communicate with patients about adverse events; investigate and explain what happened; and, when appropriate, apologize, take responsibility, and proactively offer compensation” (P. 1836). The attraction of CRPs is obvious. At least in theory, the programs foster candid dialog between physicians and patients, promote timely investigations into the causes of injury (which might reveal golden opportunities for quality improvement), and, when warranted, offer a streamlined system to ensure fair, efficient, and prompt compensation.

Adoption of CRPs has been stunted, however, by liability concerns. Hospital administrators are well aware of the statistics above—and particularly the fact that, currently, a tiny fraction of those hurt ever seek compensation, even informally. Administrators are understandably concerned that, if their doctors start to confess their mistakes, and particularly if doctors or hospitals proactively offer compensation to those hurt, liability costs will rise, as a higher proportion of injured patients will seek recompense, and those who do will demand ever-higher amounts. But, while this liability concern has loomed large and has dampened some institutions’ interest in adopting CRPs, no one has really known whether the concern was theoretical or real. That’s where Kachalia et al.’s Health Affairs study comes in.

Starting in late 2012, four Massachusetts hospitals implemented a communication-and-resolution program specifically known as CARe (Communication, Apology, and Resolution). Consistent with the general CRP script, under CARe, evidence that a patient has sustained significant harm triggers an internal investigation. If the investigation reveals that the harm was caused by caregiver negligence, the matter is referred to the hospital’s insurer.4 Following the insurer’s review, the hospital then convenes a meeting with the patient and his or her family (and their attorney, if desired) to discuss next steps, which may include an explanation or apology, a waiver of medical bills, an offer of compensation, or some combination of the above.

By comparing the liability experience of four hospitals that implemented CARe against control hospitals that didn’t, and also comparing the four hospitals’ pre-CARe liability experience against their experience once CARe was in effect, Kachalia and co-authors assess CARe’s impact. Most prominently, they discover:

Although in theory, routinely offering compensation where negligence causes serious harm should mean that more injuries are compensated, and although the hospitals in our study adhered to the CRP protocol faithfully, total liability cost trends did not worsen, and trends in defense costs and rates of new claims improved.

(P. 1843).

The study is ambitious and rigorous, and its methodology is technologically sophisticated. Its finding, therefore, sheds welcome light on CRPs’ utility. Still, as the researchers forthrightly acknowledge, questions remain.

For starters, Kachalia and co-authors examine—and help to debunk fears regarding—the “cost” side of CRP’s cost-benefit coin. The study suggests that, contrary to the fears of some, the adoption and implementation of a CRP probably won’t cause a hospital’s liability costs to spike. But reforms are, and should be, evaluated based on both costs and benefits, and the benefit side of the ledger needs further elaboration. Some of the questions that must be answered include: Are the benefits believed to be associated with CRPs real? Or are they understated or, alternatively, exaggerated? Further, do these benefits actually accompany CRPs, even when the programs are implemented in messy real-world conditions? This question is important as some research suggests that, once researchers aren’t looking, some organizations’ commitment to CRP may become selective or halfhearted. Some organizations may follow the CRP script some of the time but not all of the time, or they may offer “transparency” but actually, in a given scenario, shade what is or is not revealed. Any lack of fidelity will affect the program’s utility.5

In addition to the fidelity question, future researchers must also address what I’ll call the durability question. In particular, researchers must assess whether perceived improvements are lasting or merely ephemeral, and they must also investigate whether, as years go by (and the initial zeal that spurred the reform ebbs), the cost side of the ledger swells. This question is crucial, as Kachalia and co-authors understandably examined only the first four-and-a-half years of CARe’s implementation. Yet, past research evaluating other (admittedly different) tort reform efforts suggests that initial benefits tend to diminish as years go by, while certain costs trend upward.6 Only time will tell whether we will see such reversion here, but researchers must be alert to the risk.

Finally, when evaluating both costs and benefits, researchers should examine questions from the perspectives of all who may be affected by the reform effort, including but not limited to past and future patients.  Three categories of questions must be addressed.  First, do injured patients and their families believe the programs are fair, and how does satisfaction compare to claimant satisfaction within the traditional tort system?7 Second, are CRP compensation offers prompt, adequate, predictable, consistent, and equitable?8  Third and most crucially:  Do CRPs promote or inhibit quality improvement?9 Do those medical errors that currently injure some 800,000 patients each year tick upward or downward when a CRP is in effect?

Still, the questions above and work that lies ahead do nothing to diminish the importance of Kachalia et al.’s analysis.  In a battlefield that’s long been marked by more heat than light, in their sustained and sober analysis, Kachalia and co-authors are beginning to let some sunlight in.

  1. See Nora Freeman Engstrom, A Dose of Reality for Specialized Courts: Lessons from the VICP, 163 U. Pa. L. Rev. 1631, 1644-68 (2015) (collecting data to support the above claims).
  2. Thomas B. Metzloff, Understanding the Malpractice Wars, 106 Harv. L. Rev. 1169, 1169 (1993).
  3. The entire team includes Allen Kachalla, Kenneth Sands, Melinda Van Niel, Suzanne Dodson, Stephanie Roche, Victor Novack, Maayan Yitshak-Sade, Patricia Folcarelli, Evan M. Benjamin, Alan C. Woodward, and Michelle M. Mello.
  4. There is also a referral if the hospital learns that the patient intends to file a lawsuit.
  5. See Thomas H. Gallagher et al., Can Communication-And-Resolution Programs Achieve Their Potential? Five Key Questions, Health Affairs, Nov. 2018, at 1845–48.
  6. See generally Nora Freeman Engstrom, Exit, Adversarialism, and the Stubborn Persistence of Tort, 6 J. Tort L. 75 (2015); Nora Freeman Engstrom, An Alternative Explanation for No-Fault’s Demise, 61 DePaul L. Rev. 303 (2012).
  7. One study has investigated the question; it found that patient experience was mixed.  See Jennifer Moore et al., Patients’ Experiences with Communication-and-Resolution Programs After Medical Injury, JAMA Internal Medicine, Nov. 2017.
  8. Gallagher et al., supra note 5, 1847–48 (discussing the limited information, so far, addressing whether CRP-generated compensation offers are fair and adequate).
  9. Gallagher et al.,supra note 5, 1847 (explaining that, so far, the connection between CRPs and patient safety “is largely theoretical”).
Cite as: Nora Freeman Engstrom, Letting Some Light In: Resolving a Key Question Regarding Communication-and-Resolution Programs, JOTWELL (May 24, 2019) (reviewing Allen Kachalia, Kenneth Sands, Melinda Van Niel, Suzanne Dodson, Stephanie Roche, Victor Novack, Maayan Yitshak-Sade, Patricia Folcarelli, Evan M. Benjamin, Alan C. Woodward & Michelle M. Mello, Effects of A Communication-And-Resolution Program on Hospitals' Malpractice Claims and Costs. 37 Health Aff. 1836 (2018)),

Rethinking Tort Liability for Suicides

Alex B. Long, Abolishing the Suicide Rule, 113 N. W. U. L.Rev.767 (2019).

Suicide has become an important public-health problem, leading Alex Long to revisit the unduly neglected question of whether tort law should recognize wrongful-death actions for cases in which the defendant’s tortious conduct caused the victim to commit suicide. After describing the increasingly worrisome trends—suicide is now the tenth leading cause of death in the country—Long insightfully constructs the historical, religious, and sociological motivations embedded in the tort doctrines, labeled the “suicide rule” by one jurisdiction, that ordinarily bar recovery for suicides. “Tort law’s historical treatment of cases involving suicide represents a combination of society’s traditionally negative views regarding suicide and tort law’s traditional concerns with foreseeability and expanding liability in cases involving emotional injury” (P. 16).

Long identifies “a slight trend among court decisions away from singling out suicide cases for special treatment and toward an analytical framework that more closely follows traditional tort law principles” (P. 6). Long defends this approach, drawing on the principles that courts use to formulate the tort duty in cases of pure emotional distress. “Ordinarily, suicide will be outside the foreseeable scope of the defendant’s negligence” and therefore not subject to liability as per the traditional approach (P. 49). But if the plaintiff can prove “that the negligent conduct is especially likely to result in suicide,” courts should permit recovery for the wrongful death. (Id.) Long correctly diagnoses the problem—tort principles do not justify the suicide rule—although these wrongful-death recoveries will be more common than he concludes. The increased liability is fully justified in my view.

Relying on doctrines that originated in English law from the Middle Ages, courts ordinarily dismiss these wrongful-death claims as a matter of law. In nearly every jurisdiction, courts hold that suicide—subject to limited exceptions discussed below—is an unforeseeable consequence of negligence that absolves a defendant of liability for the wrongful death (though not necessarily for the predicate physical or emotional harms that caused the decedent to commit suicide) (P. 17). In addition, “[n]egligence defendants have had some success in asserting that suicide is an immoral or unlawful act and thus bars recovery” (P. 20). Some courts deny recovery for comparative-fault reasons, concluding that suicide “is more than mere contributory negligence and is of a higher culpability level than the defendant’s negligence.”1

Courts recognize exceptions to the suicide rule if “the defendant’s negligence causes injury that results in insanity or delirium in a form that prevents an individual from understanding the nature of his act or that creates an irresistible suicidal impulse” (P. 22). In addition, some defendants (like schools and psychiatrists) may have the very duty to prevent the decedent from committing suicide, in which case the suicide could be foreseeable (Pp. 26-27). Finally, for liabilities based on an intentional tort (typically the intentional infliction of emotional distress), most courts permit recovery if the plaintiff can prove that the tortious conduct was a substantial factor in causing the suicide (P. 32).

Long’s article surfaces a host of interesting issues that cannot be adequately addressed here. I will instead focus on his primary proposal that courts should reject the suicide rule in favor of an approach that only asks whether the defendant’s tortious conduct was especially likely to cause the decedent to commit suicide.

In defending this approach, Long concludes that liability will still be exceptional because “experts with superior knowledge regarding suicide have been unable to develop a reliable method for determining those at high risk of suicide,” and so “the hypothetical reasonable person will ordinarily not be able to do better” (P. 37). The question, however, is not whether one can reliably identify whether a particular person will commit suicide. A negligent actor is liable for the foreseeable risks that cause compensable injury, and a foreseeable risk does not require knowledge of whether it will actually materialize in a particular case. A defendant, for example, can incur liability to cancer victims for having negligently exposed them to carcinogens, but at the time of the tortious behavior there ordinarily is no way to reliably determine which exposures will ultimately cause cancer.

The prevalence of suicide today often makes that type of harm foreseeable for reasons fully established by Long. By causing chronically severe pain or emotional distress, the defendant’s tortious conduct substantially increases the likelihood of suicide. “The reality is that the most common description of the mental state of those who have committed suicide is that they did not want to die; they just wanted the pain they were experiencing to stop, a seemingly rational decision to a person who otherwise sees no realistic end to the pain he or she is suffering” (Pp. 45-46). To be sure, the decedent’s reasoning may have been impaired, but under the majority rule “the plaintiff’s contributory negligence must be evaluated by using a subjective standard that takes into account the plaintiff’s own mental state, including any mental impairments” (P. 56, n. 368). Insofar as a victim’s chronic pain and the associated mental state significantly increase the likelihood of suicide, those factors make the suicide a foreseeable consequence of the defendant’s negligence.

To recover, the plaintiff must also prove that the defendant’s negligent conduct actually caused the decedent to commit suicide—the same inquiry that courts employ for determining the liability of intentional tortfeasors. “In practice, the substantial factor standard [for establishing causation] has not proven to be a particularly onerous requirement for plaintiffs” (P. 32). The same should be true for negligent tortfeasors.

Consider cases in which the proof already shows that the defendant’s negligence caused the decedent to suffer severe bodily injury with the associated pain and emotional distress that then allegedly caused the decedent to commit suicide. At this point, the plaintiff has established liability and an entitlement to compensatory damages for the predicate bodily injury. The causal problem accordingly reduces to the question of whether the negligence caused the full extent of the injuries alleged by the plaintiff—the wrongful-death damages for the suicideallegedly caused by the predicate (compensable) bodily injury. The evidentiary standard for establishing causation in the damages phase of the case is less demanding than in the liability phase. Instead of having to prove causation by a preponderance of the evidence, the plaintiff is only required to prove “the extent of the [tortiously caused] harm with as much certainty as the nature of the tort and the circumstances permit.”2 After the fact, we will not ordinarily know why someone took his or her life. That inherent uncertainty, however, should not bar recovery when the reasonably available evidence shows that the defendant’s negligence substantially increased the risk of suicide. For these reasons, the substantial factor standard has not been particularly onerous for plaintiffs seeking to recover from intentional tortfeasors; those reasons apply with equal force to negligent actors.3

The foregoing analysis does not imply that the decedent necessarily bears no responsibility for taking his or her life. Such a determination is relevant to the apportionment of liability under comparative responsibility; it is not a sufficient reason to deny liability altogetherunder the suicide rule.

Established tort principles, therefore, support Long’s conclusion that courts should abolish the antiquated doctrines that limit liability for suicides. By demonstrating that the persistence of the suicide rule stems from the stigma and immorality that traditional conventions ascribe to these desperate acts, Long has made a valuable contribution to our understanding of tort law.

  1. Gilmore v. Shell Oil Co., 613 So.2d 1272, 1275 (Ala. 1993).
  2. Restatement (Second) of Torts § 912.
  3. A defendant completes an intentional tort by intentionally causing some compensable damage, and so the causal rule in those cases necessarily involves the extent of damages as in the negligence case discussed above.
Cite as: Mark Geistfeld, Rethinking Tort Liability for Suicides, JOTWELL (April 25, 2019) (reviewing Alex B. Long, Abolishing the Suicide Rule, 113 N. W. U. L.Rev.767 (2019)),

Cardozo’s Great Proximate Cause Decision?

Kenneth S. Abraham & G. Edward White, Recovering Wagner v. International Railway Company, 34 Tuoro L. Rev. 21 (2018).

Featuring the memorable phrase “Danger invites rescue,” Cardozo’s opinion in Wagner v. International Railway Co. is engaging and beautifully written. The same can be said of Recovering Wagner v. International Railway Company (hereinafter “Recovering Wagner”)─the recent study of Wagner by Ken Abraham and Ted White (hereinafter “AW”). Through historical research principally into the litigation of the case, they generate an important new interpretation of Wagner. According to AW, Wagner forced Cardozo to confront what lawyers then and now would call a “proximate cause” question. Yet his opinion does not explicitly mention proximate cause (or duty, for that matter). Instead, it employs a notion of relationality of risk. Indeed, AW powerfully argue, the whole point of Wagner is that relationality of risk is far more important than the idea of a “natural and probable” sequence from breach to injury, or any kind of remoteness criterion, in determining whether a defendant should be held responsible in negligence for a plaintiff’s injury. Their larger point is that Wagner can be seen to encapsulate Cardozo’s powerful influence on American negligence law.

Abraham and White’s research confirms that Cardozo’s depiction of the facts in Wagner is largely accurate. I follow their judgment that quoting Cardozo’s account is the best way to re-acquaint readers with the facts of the case:

The defendant operates an electric railway between Buffalo and Niagara Falls. There is a point on its line where an overhead crossing carries its tracks above those of the New York Central and the Erie. A gradual incline upwards over a trestle raises the tracks to a height of twenty-five feet . . . Then comes a turn to the right at about the same angle down the same kind of an incline to grade. Above the trestles, the tracks are laid on ties, unguarded at the ends . . . On the bridge, a narrow footpath runs between the tracks . . . .

Plaintiff [Arthur Wagner] and his cousin Herbert [Wagner] boarded a car at a station near the bottom of one of the trestles . . . The platform was provided with doors, but the conductor did not close them. Moving at from six to eight miles an hour, the car, without slackening, turned the curve. There was a violent lurch, and Herbert Wagner was thrown out, near the point where the trestle changes to a bridge . . . Plaintiff walked along the trestle, a distance of four hundred and forty-five feet, until he arrived at the bridge, where he thought to find his cousin’s body . . . Reaching the bridge, he had found upon a beam his cousin’s hat, but nothing else. About him, there was darkness. He missed his footing, and fell (P. 437).

Wagner holds that a person injured while trying to rescue a person who was imperiled by the defendant’s negligence may himself recover from the negligent defendant. “Danger invites rescue” is widely understood to express the rule that, because it is foreseeable that someone will try to rescue another engulfed in a danger that the defendant negligently created, the defendant is liable to the rescuer if he is injured during the rescue attempt. AW are not especially concerned to contest this reading. Their thesis is that when we understand how the case was litigated at trial, and the precedents on which the case was decided, we learn a great deal about how Cardozo understood the basis of the defendant’s responsibility.

On first blush, Wagner actually looked easy for the plaintiff on the law but difficult on the facts. On the law, it looked easy because the New York Court of Appeals had already prominently decided that a rescuer had a claim against the source of the unreasonable risk imperiling the original victim. A key case was Eckert v. Long Island R.R., but there were other applicable precedents too, both from New York and elsewhere. The actual facts of this case made it more difficult for the plaintiff. First, the plaintiff Arthur Wagner may well have been drunk. Second, his cousin was rescued by others, and the plaintiff was not even looking in the right place when he was injured. Third, and in many ways most importantly, the act of going to rescue his cousin was not an impulsive leaping to aid (as in Eckert), but a deliberate decision about how and where to look. Relatedly, there was a controversy at trial regarding whether Arthur was accompanied by (or perhaps led by) an employee of the defendant.

The Railroad was understandably eager not to depend exclusively on the (then-complete) defense of contributory negligence, as it was simply unclear what a jury would find on that front. AW show how the Railroad’s lawyer, Edward Franchot, managed to use the aforementioned peculiarities of the fact pattern to generate another argument against liability (Pp. 36-39). Specifically, he persuaded the trial judge to instruct the jury that the alleged negligence of the Railroad in going around the bend and overpacking its train – the alleged negligence that caused Arthur’s cousin Herbert to fall in the first place – could not be the basis of Arthur’s action. Rather, the judge instructed the jury that Arthur could recover only a finding that the conductor had negligently instructed Arthur going on the trestle. This left the jury to weigh the conductor’s testimony and Arthur’s testimony with regard to what was said and done during the panicky moments following Herbert’s fall. Arthur’s testimony was evidently less credible to the jury than the conductor’s, so the Railroad won the case.

On appeal, Arthur’s lawyer, argued quite plausibly that the New York Court of Appeals’ own leading precedent – Gibney v. State – permitted liability to be predicated on the negligence of the railroad that led to Herbert’s need for rescue. Franchot distinguished Gibney by arguing that that the rescuer’s conduct in that case was an instinctive reaction, whereas in Wagner the attempted rescue was a deliberate act. The instinctiveness of the rescue in Gibney permitted the continuity between breach and injury that allowed a finding of proximate cause. Given the absence of comparable continuity in Wagner, Franchot argued that the railroad’s original negligence was not the proximate cause of Herbert’s rescue attempt. The judge’s instructions to the jury were therefore correct.

In his opinion for the Court of Appeals, Cardozo confronted this argument head on, pointedly rejecting it:

The defendant says that we must stop, in following the chain of causes, when action ceases to be ‘instinctive.’ By this is meant, it seems, that rescue is at the peril of the rescuer, unless spontaneous and immediate. If there has been time to deliberate, if impulse has given way to judgment, one cause, it is said, has spent its force, and another has intervened . . . We find no warrant for thus shortening the chain of jural causes. We may assume, though we are not required to decide, that peril and rescue must be in substance one transaction; that the sight of the one must have aroused the impulse to the other; in short, that there must be unbroken continuity between the commission of the wrong and the effort to avert its consequences. If all this be assumed, the defendant is not aided. Continuity in such circumstances is not broken by the exercise of volition . . . The law does not discriminate between the rescuer oblivious of peril and the one who counts the cost. It is enough that the act, whether impulsive or deliberate, is the child of the occasion (P. 438).

Cardozo’s opinion thus abandons the notion that a deliberate act inserted into the causal chain destroys the possibility of liability. Notably, while he does not use the phrase “proximate cause” or “legal cause,” he does indeed use the phrase “the chain of jural causes,” and he rejects the idea of shortening this chain because of intervening volitional action.

More generally, Cardozo embraces a risk-based notion of the connection between the injury and the underlying risk-creating action:

The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer. The state that leaves an opening in a bridge is liable to the child that falls into the stream, but liable also to the parent who plunges to its aid (citing Gibney). The railroad company whose train approaches without signal is a wrongdoer toward the traveler surprised between the rails, but a wrongdoer also to the bystander who drags him from the path . . . The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man (Pp. 437-38).

AW’s article explains that Cardozo was, in effect, supplanting what was at the time the dominant way in which New York courts (and other courts) had formulated the proximate cause requirement: namely, whether the defendant’s carelessness had led to the plaintiff’s injury through a “natural and probable” sequence. Now the question is whether the injury complained of by the plaintiff was an actualization or realization of the risk negligently taken by the defendant (P. 57).

Abraham and White’s reading of Wagner as having effected a tacit change in proximate cause law also supports a longstanding Twentieth Century reading of another Cardozo opinion – that of Harvard Professor Warren Seavey1 in Palsgraf v. Long Island R.R. Seavey saw Palsgraf as a proximate cause case that hinged on Cardozo’s quiet substitution of a risk-rule conception of proximate cause for the prevailing natural-and-probable-sequence conception. What rendered “negligent” the LIRR guard’s pushing of the passenger was the risk of destroying the passenger’s package, not the risk of physically injuring a woman down the platform, Seavey observed. Liability in negligence requires a match between the risk and the injury. In Wagner, the risk of a rescuer’s injury is part of what made the Railroad negligent, so a plaintiff who suffered the realization of that risk has  a claim based on the Railroad’s negligent conduct in rounding the bend with open doors.

Once they have drawn the connection with Seavey’s Palsgraf reading, AW arrive at their most striking scholarly claim: “We think the decision in Wagner contains virtually everything necessary to its more celebrated offspring, Palsgraf” (P. 56). They proceed to list these necessary ingredients: “the centrality of risk-analysis to questions involving what others had analyzed in terms of proximate cause”; “the causal-chain analysis that Judge Andrews would later employ in his Palsgraf dissent”; and the willingness to classify as a “matter of law” the question of which risks are associated with a defendant’s negligence. “In a very real sense,” they conclude, “it isWagner, not Palsgraf that is Cardozo’s seminal decision in this area of tort law” (P. 58). AW will not be surprised that I (a self-described Palsgraf maven) would wholeheartedly reject this particular conclusion, but that is a matter for another time; I concede that their case for Wagner as a Palsgraf preview is nicely laid out.

There are numerous reasons to regard AW’s article as essential reading for Torts professors. Among these are the article’s erudition and its reminder of the importance of detail in the analysis of canonical cases. There is also its recognition that relationality of risk can be (as it was in Wagner) a sword, and not just a shield (as it was in Palsgraf). Most importantly, AW’s “recovery” of Wagner flags for all of us the important historical truth that proximate cause analyses were once very different than they are today. Foreseeability and relationality of risk played a lesser role, while “natural and probable” and “directness” played a greater role. In this vein, we should remember that courts were not always comfortable including within causal chains the voluntary conduct of the plaintiff or of third parties. Unforeseeable wrongful conduct today may sever liability via the doctrine of superseding cause, but for a large part of the 20th century, a far broader range of voluntary conduct would have severed liability via proximate cause. In this former world, we would not have seen Tarasoff v. Regents of the University of California, or Kline v. 1500 Mass. Ave. Those progressive duty cases were arguably only possible because a relationality if risk conception of “jural cause” replaced a more mechanistic and naturalistic one. Seen through the prism of AW’s analysis, it was partly Cardozo’s achievement in Wagner that made this possible.

  1. Warren A. Seavey, Mr. Justice Cardozo and the Law of Torts, 48 Yale L. J. 390 (1939).
Cite as: Benjamin C. Zipursky, Cardozo’s Great Proximate Cause Decision?, JOTWELL (March 28, 2019) (reviewing Kenneth S. Abraham & G. Edward White, Recovering Wagner v. International Railway Company, 34 Tuoro L. Rev. 21 (2018)),