Jul 21, 2025 Anita Bernstein
Writers who study torts tend to engage with liability as a force or vector that imposes consequences on parties accused of injuring others. For most of us in this field, liability means accountability or reckoning. This occupational interest in what tort does in action, or can do when it’s enlisted, can obscure the impacts of shelters from accountability.
Removing Torts marks Betsy Grey’s return to a source of tort nonaccountability that Professor Grey knows backwards and forwards, the statutory kind. This refuge has ample company in the land of shelters. Fortuitousness, for example, also fends off reckoning: Prospective defendants get lucky when prospective plaintiffs don’t know what hit them, run out of time or money, fail to clear the intake criteria of a contingent-fee attorney, on and on. Judge-made immunities of the common law—especially the intrafamily and charitable kind—are more orderly, though they’ve dwindled into something of a quaint oddball relic.
The shelter of immunity provisioned by statute is not fortuitous or in decline. It’s formal, official, categorical, out in the open for anyone to look up. It enlists judges as enforcers—and does so in a hierarchical way, sharing little power with them. Statutes of limitation provide an affirmative defense to liability that delivers immunity with almost no room for judicial discretion. Preemption, though a judge-made doctrine, can immunize a defendant only with a pertinent statute on the books. In short, legislatures hold unique strengths to crush tort reckoning.
Grey has been sounding an alarm about this power for at least 28 years. Published in February 2025 (though with a 2024 citation date), Removing Torts revisits themes broached in her 1997 warning Make Congress Speak Clearly: Federal Preemption of State Tort Remedies. In Removing Torts, Grey both widens and sharpens her long-held worry about the danger of shelter by statute.
The new wider lens in Removing Torts looks beyond preemption as a statutory source of tort immunity, paying more direct attention to five other instances of the phenomenon. Grey gathers (1) state and federal legislation enacted to protect a range of businesses in response to Covid, a topic that received prompt commentary from Grey in 2021; (2) immunity for airlines for 9/11 claims; (3) gun manufacturer immunity; (4) the workers’ compensation barrier to tort claims; and (5) Section 230 immunity as a protector of online platforms. (P.136.)
What’s sharper in addition to wider about Grey’s agenda in Removing Torts is the uptick in her current demand. Make Congress Speak Clearly had pushed for disclosure and transparency about consequences; it told legislators what to say about their actions. Removing Torts tells legislators what to do, a task list that includes but is not limited to providing information.
“Legislatures,” Grey writes, “should make a consistent set of evidence-based findings and apply the principle of balancing before ousting tort remedies” (P. 154). If legislators follow what Grey tells them to do, they will take “four transparent steps” before they codify statutory immunity: identify the public interest that their immunity enhances, determine the impact that liability now has on the sector they seek to protect, consider how immunity could diminish “the accountability, deterrence, and compensation functions traditionally provided by torts,” and tailor the immunity they provide “to minimize interference with tort policies.” (P. 137).
The latter half of this undertaking would remind lawmakers that tort law is worth celebrating. Professor Grey reviews (Pp. 156-61) several good things that go away when immunity thwarts tort. Back in Make Congress Speak Clearly, Grey spoke about states as holders of a “right” to offer “a compensatory remedy for their injured citizens.” (Make Congress Speak Clearly, P. 565) Rights discourse tends to depict the state as threatening (and sometimes safeguarding) rights rather than holding a right for their own benefit. Grey upends this convention to good effect. Tort liability imposes force on a public that must obey, yes, but liability itself is a vulnerable political condition. The accountability it delivers has powerful enemies.
“Legislatures … should.” “Make Congress speak clearly.” “[E]xceptional circumstances” might be necessary to justify a legislature’s choice “to alter or eliminate access to tort redress.” (P. 178). Grey says so, but how many divisions does she have? Skeptical readers might wonder when and how Grey will extract the cooperation that her proposals need to get off the ground.
The proposer herself seems of two minds on the question of whether legislators will heed her call. On one hand, Grey’s conclusion back in Make Congress Speak Clearly sounded confident: “Congress gains little from writing ambiguous statutes.” (Make Congress Speak Clearly, P. 627) This powerful legislature knows what it wants, and the American public can expect it to act in its own interest. On the other hand, just a few pages earlier in that same article Grey took a different stance: “If Congress is not required to speak clearly,” then “it is likely to avoid its responsibility.” (Id.; P. 618). The latter posture sounds right to me; I’m inclined to agree with pessimistic Grey.
Yet plenty of potential remains in Grey’s exhortation that legislators fulfill occupational and constitutional obligations rooted in democratic federalism. Removing Torts sends a directive to state actors that combines high ideals and a clear path forward. Grey cannot compel any legislature to follow her “four transparent steps,” but individuals who serve in these bodies can learn what’s in her recommendations and make choices.
I’d like to see what might be dubbed “the Grey Principles” emerge as a banner that legislators and candidates for legislative office could embrace. Interlocutors in turn can ask these individuals where they stand on Grey’s insistence that legislation be read with reference to the work of other constitutional actors, especially courts.
“Tort liability exists,” a Grey Principles exponent can begin when addressing a candidate for legislative office. “After you’re elected you may learn about a bill that codifies immunity from that liability. Will you identify the public interest at stake, work to learn the impact of liability on the sector affected, consider the effects immunity will have on the policies that tort honors, and tailor whatever immunity you and your colleagues enact to minimize the interference with the good things tort does?” Candidates who are incumbents will have made choices that can be scrutinized through a Grey Principles lens.
Political conditions facilitate that scrutiny. An onlooker who wants to apply the Grey Principles has access to the (relative) transparency and accessibility of campaign platforms, durable statements that candidates for office make about themselves, on-the-record questioning of candidates by journalists, legislative deliberations on the floor, logs of legislators’ votes, and legislatures’ punishment-and-reward schemes, some of which are intelligible from the outside.
There’s more. I’ve remarked that tort immunity as installed by legislatures shares little power with judges: but it does share some. Judges have occasions to assess, and sometimes invalidate, statutes that dole out this benefit. Tort immunity rendered by preemption, for example, has occupied multiple U.S. Supreme Court decisions. Reviewing courts can examine the legislative record for information about its adherence (or, perhaps more likely, its nonadherence) to the Grey Principles.
Lawyers who defend immunizing statutes can use documents like memoranda in support of summary judgment to tell judges about the regard that legislatures had for the benefits of keeping liability alive. Opponents of immunity in the same litigation might have contrary facts to present. Going back to the stages of legislation before enactment, activists can seed a source of immunity with Grey Principles content. Well before a president or governor signs a bill, its legislative history can be populated with references to the importance of tort liability.
Warning has a long heritage in tort. This measure often fails to deliver safety, but it can spur useful conduct. Professor Grey has warned her audience to beware the unseen dangers of shelter and then, at least to this reader, goes further: I find in Removing Torts a timely plan for action.
Jun 23, 2025 Nora Freeman Engstrom
Jonathan Cardi, Ashton Jenne, & Chance Villarreal,
The Paradox of Continuing Risk, available at
SSRN (May 5, 2025).
In The Paradox of Continuing Risk, W. Jonathan Cardi, Ashton Jenne, and Chance Villarreal surface and incisively explore a consequential puzzle. Across the United States, 32 jurisdictions have adopted the continuing-risk rule, which imposes an affirmative duty to warn, protect, or rescue others from continuing risks created by one’s conduct. But despite the multitude of courts that have endorsed the rule—and the rule’s unbroken acceptance in various Torts Restatements—few actual cases apply this principle.
To start, it’s important to understand what exactly the continuing-risk rule does and why it matters.
The rule is well-summarized in the Restatement Third of Torts: Liability for Physical and Emotional Harm § 39. Published in 2012, § 39 provides: “When an actor’s prior conduct, even though not tortious, creates a continuing risk of physical harm of a type characteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or minimize the harm.”
The idea, then, is that a doctor who implanted a Dalkon Shield in a patient before the IUD’s dangers came to light has an affirmative duty to warn the patient once those risks become apparent. If it weren’t for the rule, a doctor who breached no duty to the patient at the time of the IUD’s implantation—and took no action thereafter—would presumably face no liability.
Or think of a driver whose car suddenly stalls, creating a dangerous condition for fellow motorists. Under the continuing-risk rule, the driver has a duty reasonably to mitigate the hazard.
Or suppose a manufacturer sells a product that initially seems safe, but the risk of the product gradually becomes apparent. Under the ALI’s Product Liability Restatement, assuming the risk is significant, the seller has a limited duty to warn.
Or finally, consider this scenario, adapted from an Illustration in the First Restatement:
Reasonably believing his car is in good repair, one Friday afternoon, Mel lends his vehicle to his next-door neighbor, Fielding. Later that evening, Mel’s wife mentions to him that, when she was driving the car earlier in the day, the vehicle’s brakes were sluggish and unresponsive. Mel doesn’t pass this information along. Unaware that the brakes are on the fritz, on Saturday morning, Fielding drives the car as he had planned. The brakes fail, and Fielding is injured in the ensuing collision.
The First Restatement explains that, pursuant to the continuing-risk rule, Mel is subject to liability to Fielding, even though, at the moment he acted (on Friday afternoon, when he handed off his keys to Mel), he was personally free of blame.
Essentially then, the continuing-risk rule reverses the classic no-duty-to-rescue rule. But critically, it does so only in a discrete and narrowly defined set of circumstances. One narrowing mechanism involves characteristic risk. The rule does not impose liability whenever the defendant sets in motion a chain of events that eventually culminates in any conceivable injury to the plaintiff. Instead, per the Third Restatement, the continuing-risk rule applies only when the harm that befalls the plaintiff is “of a type characteristic of the [defendant’s] conduct.” Elaborating on this restriction, an Illustration provides:
Bill, who has two tickets to a basketball game between Wake Forest University and the University of Texas, takes his friend Mike, a Wake Forest fan, along. At the end of the game, Mike, distracted by the trouncing his team suffered, slips and falls down several rows of stairs and seriously injures himself. Bill, who is nearby at the time of the fall, has no duty of care to Mike to assist him pursuant to this Section, even though Bill, by taking Mike to the game, is a factual cause of Mike’s harm. Merely taking a friend to a sports event does not create a characteristic risk of slipping and falling.
Another limitation is also critical (and easily overlooked): Like other affirmative-duty rules, the continuing-risk rule—even when it applies—merely opens the door to liability. It doesn’t establish it. In the stalled motorist scenario set forth above, for instance, the driver might take no precaution and still (appropriately!) face no liability. Perhaps given the road conditions, it is entirely reasonable for a stranded motorist to simply sit tight.
But, even with both these key caveats, it’s clear that the continuing-risk rule is a useful resource for many plaintiffs. Without it, given the defendant’s (at least recent) nonfeasance, it’ll be hard to establish a duty. With it, the duty element (at least) is satisfied.
It is surprising, then, as Professor Cardi and co-authors show: Although the continuing-risk rule is on the books in a strong majority of states, its actual application is exceptional. According to the authors, only in Texas and West Virginia is the rule cited frequently. In all other jurisdictions, fewer than ten cases have relied on it.
Adding to the mystery: This limited reliance can’t be chalked up to a lack of cases with congenial fact patterns. To the contrary, Cardi and co-authors identify numerous cases involving facts where the application of the continuing-risk rule would have given rise to a clear-cut defendant-side duty. Yet, in many of these cases, even while the duty question was exhaustively debated, the rule was never so much as mentioned.
So, Cardi and co-authors ask: Why has the continuing-risk rule continually fallen under the radar?
One potential culprit is simple ignorance. Judges and lawyers might not be aware of the rule—and this lack of awareness can create a negative feedback loop. “Courts fail to apply the rule, so attorneys fail to argue it, which in turn makes courts even less likely to apply it.” (P. 19.)
Or, it could be that judges and lawyers believe that the rule is too amorphous or open-ended, not realizing that, in fact, the Third Restatement’s version of the Rule (as explained above) contains clear and workable limits.
But, for current purposes, the why is much less important than the simple fact. The continuing-risk rule is a broadly accepted doctrine that elegantly addresses factual scenarios that at least sometimes arise. By shining a light on this long-overlooked doctrine, Cardi, Jenne, and Villarreal perform a valuable service, assisting both litigants and courts.
May 23, 2025 Sarah Swan
Deborah N. Archer & Joseph Schottenfeld,
Defending Home: Toward a Theory of Community Equity, __
U. Chi. L. Rev. __ (forthcoming, 2025), available at
SSRN (Sept. 30, 2024).
For communities suffering the harms of long-standing neglect and callous infrastructure decisions that dump highways, landfills, and the like in the middle of them, legal remedies have been few and far between. In their illuminating article, Defending Home: Toward a Theory of Community Equity, Deborah Archer and Joseph R. Schottenfeld offer a new framework to render such community-based harms legally cognizable, and call on tort law as an important conceptual piece of this project.
Archer and Schottenfeld begin by telling the story of Sandridge, a small, unincorporated, historically Black community in South Carolina. When the surrounding county decided it was time for a new four-lane road project to connect two pre-existing highways and make it easier for vacationers to travel to the beach, numerous road placement options were proposed. The county determined that the best path forward would be to lay the highway down right in the middle of Sandridge, even though the road would functionally destroy the community, devouring multiple homes, businesses, and the community park, and isolating the heart and soul of the community, the church, from its many attendees.
This, unfortunately, is an all-too-familiar local government story. As Archer and Schottenfeld describe, the burdens of infrastructure and industry often “fall disproportionately on Black communities that rarely receive the full benefits of these investments.” From Louisiana’s infamous cancer alley, to the raw sewage seeping into the homes of residents of Centreville, Illinois, many majority-Black communities across the nation are chronically neglected by their state and local governments and left to bear the heavy burdens of infrastructure changes, with little recourse for the damage done.
Archer and Schottenfeld argue that law can and should do more to remedy these harms. First, they articulate and clarify that the harm at issue in these scenarios is distinctively community-based. It is not just about loss and damage on an individual level, but on a collective one: there is a “loss of access to shared community assets, both formal and informal, as occurs when its members are no longer able to enjoy the home and community they built together.”
Here, the article helpfully resonates with the burgeoning scholarship on place-making. In recent work, scholars have been exploring how the everyday acts of dwelling in a place and cultivating a social and collective life within it give meaning to places and transform them into communities. These scholars argue that such efforts should receive more recognition when it comes to place governance, and are exploring new, inclusive governance mechanisms and techniques that could provide more meaningful decision-making processes to communities like Sandridge when new highways need development.
In the meantime, though, the people who once called Sandridge home had little say in the infrastructure decision that eventually decimated it and are left with few options once the damage is done. Archer and Schottenfeld meticulously survey the menu of potential legal remedies, surfacing the awkward fit between existing legal frameworks and the collective, community-based harm that has occurred. Existing legal frameworks, as Archer and Schottenfeld describe, poorly account for harms to collectivities and for a loss of community: most align with only individual rights-based conceptions of injury, which fail to capture the nature and totality of the loss. The compensation offered through takings law, for instance, does not encompass the value of the loss of the community, and rarely applies to those who remain in their property but have now lost the social connections that once flourished there.
Archer and Schottenfeld propose a new “community equity framework” that would “recognize the weight and worth of community as an asset deserving respect and legal protection.” In their words, this framework “recognizes the collective investments that community residents make over time to build a sense of security, well-being, and belonging; addresses the harms that accrue to the community from improvident public works projects and neglect;” “advances the equitable distribution of benefits and harms across communities;” and “provides a platform for collective action to defend community interests.”
To develop this framework, Archer and Schottenfeld draw on one of the few existing legal arenas where community rights have been acknowledged: the tort of public nuisance. Public nuisance law goes beyond the typical individualized assessment of harm that tends to dominate modes of legal redress, and recognizes harms experienced by a collective public. Specifically, public nuisance has traditionally offered compensation for unreasonable interferences with public health, safety, morals, peace, comfort or convenience. Public nuisance law, then, demonstrates that law can “recognize public rights and public benefits,” and community deprivation of a collective resource can constitute a legal wrong.
In fact, as Archer and Schottenfeld explain, public nuisance has previously been used in ways that resemble the framework they are proposing. Black survivors of the Tulsa Race Massacre, for example, notably sued the city of Tulsa and the county in public nuisance. But as is all-too often the case when plaintiffs encourage a robust and flexible application of public nuisance, that suit was ultimately unsuccessful, and Archer and Schottenfeld are careful to not overdraw the comparison. Their point is less that public nuisance will be a successful path for these communities and more that the conceptual underpinnings of public nuisance, with its roots in a community-based harm, suggest a realistic anchoring point for the novel community-based framework they are advancing.
The move to public nuisance law here is an adroit one, and there may be additional strands in public nuisance law and scholarship that further support their argument and framework. As one example, a recent wave of public nuisance lawsuits brought by microlocal entities like school districts and tiny towns emphasizes collective harms to discrete publics and communities. Additionally, a line of law and economics scholarship arguing that community is in fact a “special kind of asset” which should be explicitly factored into judicial assessments of loss and value in contexts like public nuisance also accords with this new community equity framework. Some local government zoning cases, too, at least implicitly recognize a claim to maintaining a particular type of community (though it is typically white, suburban neighborhoods that tend to receive such protections).
Ultimately, communities like Sandridge face an uphill battle in their fight for community-based rights and a more equitable distribution of public burdens and benefits. But the community equity framework that Archer and Schottenfeld offer, rooted in the conception of community-based harm already present in public nuisance law, serves as a viable starting point from which to begin this necessary work.
Apr 24, 2025 Anthony Sebok
Recent events offer a grim picture of the future of public law. In particular, President Trump’s assault on the administrative state seems destined to hamper the ability of agencies to protect the public in familiar areas such as drug safety, auto safety, environmental protection, and consumer protection.
It is for this reason that a recent paper by Yotam Kaplan, Adi Libson, and Gideon Parchomovsky, entitled The Renaissance of Private Law, is especially timely. Their thesis is that private law can partially substitute for some of the functions performed by public law, namely the regulation, supervision, and sanctioning of private actors—especially large corporations which typically escape control by the state, and, even when they do not, ignore civil fines and penalties.
Kaplan, Libson, and Parchomovsky (“KLP”) begin their article at a familiar place. They observe that public law, for a variety of reasons, is less effective than ever before in handling serious public risks. They do not begin with a list of failures, perhaps because these are so obvious, but throughout the article they mention various examples of private sector activity left unchecked by regulators: the opioid epidemic, gun violence, electronic cigarettes (P. 4), climate change (P. 19), the rise of cryptocurrency and AI (P. 32), and social media’s production of disinformation (P. 34).
KLP identify multiple forces—some familiar and some new—that prevent public law, in America at least, from addressing activities posing risks of large-scale harm: (1) Government legal action is sometimes hard to initiate, not because the state lacks resources, but because it lacks the will to challenge and annoy powerful constituents (P. 9). (2) Decisionmakers in government are relatively easy for powerful constituents to access and influence (P. 13), in part (3) because these powerful constituents themselves were once regulators or the regulators hope for employment in the private sector (P. 15). (4) Specialization leads to myopia (P. 16), and (5) centralization leads to vulnerability to focused attacks by highly motivated private sector actors. (6) Although the state has fearsome investigative powers, it can miss important information that is held by private actors who are not motivated to volunteer it (P. 19). (7) In contrast to private law, regulation requires a large ex ante investment (P. 21). (8) The Constitution of the United States may specifically restrict the power of public law to interfere with risky behavior in the marketplace (P. 29). KLP illustrate this point by noting that the Second Amendment has hamstrung public law efforts to address gun violence.
In contrast, KLP claim that private law has proven nimble where public law has been weak and ineffective. Private law is, well, private, and so it is not vulnerable to pressures from powerful constituents, or lobbying efforts, or the allure of the revolving door. Similarly, KLP make a virtue of decentralization, which is a hallmark of private law practice. They argue that focused attacks are less likely to paralyze the plaintiffs’ bar, and that its networked nature increases the likelihood that useful information can be cheaply accessed from a variety of far-flung sources.
KLP argue that two key changes have recently occurred that provide private law with a distinct advantage over public law. First, compared to the past, there is a “proliferation of information” that alters the balance of power between public and private law. Second, several successive administrations, in conjunction with important Supreme Court rulings and political polarization, have significantly rolled back the regulatory state. In other words, compared to the situation decades ago, private law in 2025 looks good by comparison to public law.
The article is guardedly optimistic. It suggests that there are some green shoots of life in the garden of the public interest, but they are growing in an unexpected place—tort law. Given the consensus that tort reformers triumphed in the last few decades in significantly limiting tort liability, the article gets its impact from making the following counterintuitive claim: tort reform in the 1980’s and ’90s did not finish off the plaintiffs’ bar, and in fact, if anything, the plaintiffs’ bar has come roaring back.
My main concern about KLP’s article is what it does not acknowledge: that the putative “renaissance” of private law has only come about through a rearrangement of private law. KLP report, but do not reflect, on the fact that almost all of the private law campaigns they put forward as a substitute for public law involve a very unusual type of private law claim, namely public nuisance claims brought by state and municipal plaintiffs, often with the assistance of plaintiffs’ attorneys working on a contingent fee.
While every private law cause of action is distinctive, public nuisance is very different from the rest of tort law in significant ways. First of all, the wrong alleged is suffered not by a private plaintiff, but by a legal fiction dubbed “the public.” Second, the wrong is not the interference with an interest recognized anywhere else as a protected interest in private law, such as bodily integrity, chattel, land, economic interest, emotional tranquility, or reputation. Rather, it is an interference with something called “public right.” Third, and finally, the remedy is technically not damages (either compensatory or punitive) but an injunction or compensation to offset the costs of abating the nuisance.
Even if public nuisance can secure, through its remedies, the same outputs that public law once could (but now fails to) produce, it will do so only by reproducing many of the same features of public law that led to the dire situation in which we now find ourselves.
KLP frequently emphasize the role of the private plaintiff in private law. Private law, they observe, is directly accessible to “unorganized citizens in ways that critically distinguish it from regulation” (P. 13). Public nuisance suits may be many things, but they are not the product of “unorganized citizens.” In response to mass harms, they are almost always brought by public actors.
To be sure, the decision-making process that leads to a state or municipality filing a public nuisance lawsuit is different from the decision-making process that leads to a regulator issuing a regulation or even filing a lawsuit to enforce a regulation. But the proximity of both types of legal action to the state as the focal point of the litigation should put us on notice that public nuisance may have more in common with public law than with private law. And that only leads to more fundamental questions, such as, why aren’t the public-law actors who bring public nuisance suits subject to the same disadvantages so powerfully illustrated by KLP in the first part of their article.
KLP might respond that public nuisance litigation shares two important features with classical private law litigation. First, the standards of conduct to which the litigants (whoever they are) seek to hold businesses depend ultimately on the legal judgment of judges, and not on the policy choices of political actors, such as regulators and legislators. Second, the litigants are not only the public law actors in whose name the lawsuits are brought, but also the professional private sector lawyers who develop the legal theories upon which the suits are brought and who fund the lawsuits.
As to the first point, it is true that KLP assert that adjudication is different from regulation because it is addressed to “generalist courts” (P. 17) staffed by personnel “insulated” from the influence of business interests (P. 15). This view of judges as engaged in the principled elaboration of common law doctrine is attractive, but it feels slightly anachronistic in light of the political polarization KLP describe later in the article (Pp. 37-38).
The second point is valid as a descriptive matter, but I think it leaves open more questions than it answers. It is true that the lawyers who brought the major public nuisance lawsuits celebrated by KLP are state actors who are not captured by the business interests that KLP fear have captured other state actors. But they are not the party-in-interest, either. Plaintiffs’ lawyers who promote the ends of plaintiffs are agents of parties-in-interest, whether those parties be injured individuals, class members, or a governmental unit. Can we be sure that these agents, in their pursuit of the ends of their clients, will always pursue the public interest? After all, the argument in the article was not simply that private law is capable of incentivizing lawyers to bring lawsuits. That point needs no proof. The argument is that new forms of private law have emerged which have the effect of producing the same public goods as regulation, and that in a time of regulatory failure, these new forms of private law should be embraced and celebrated.
KLP have produced a very rich article that deserves careful attention. Their argument—that there are green shoots of private law in the midst of public law’s winter of retreat—is both hopeful and intriguing. Time will tell as to whether they are correct.
Mar 27, 2025 John C.P. Goldberg
Matteo Godi,
Section 1983: A Strict Liability Statutory Tort, 113
Cal. L. Rev. __ (forthcoming, 2025), available at
SSRN (Aug. 13, 2024).
The federal civil rights law known as 42 U.S.C. § 1983 has garnered vast attention from the legal academy, including recent wide-ranging discussions of its qualified immunity defense. In his interesting article, Section 1983: A Strict Liability Statutory Tort, Matteo Godi addresses a more basic question, namely: what are the elements of a Section 1983 claim? Intriguingly, he maintains that the statute is best interpreted to hold officials strictly liable.
Section 1983 empowers individuals to seek redress from state officials (and certain others) for violating their federal constitutional rights. Under prevailing Supreme Court precedent, the statute does not specify a uniform liability standard. Instead, different standards apply depending on the right allegedly violated. For example, to prove an Equal Protection violation, the plaintiff must demonstrate intentional discrimination. Meanwhile, an inmate alleging an Eighth Amendment violation might have to prove maliciousness (for claims of excessive force) or deliberate indifference (for claims of unsafe conditions of confinement). Notably, in all applications the statute is understood to require conduct falling below some standard of conduct, i.e., legal fault.
According to Godi, this reading of the statute is fundamentally mistaken. As a matter of sound interpretation and normative theory, he claims, Section 1983 should be read to impose a single rule of strict liability. Thus, on his account, an inmate denied adequate medical treatment should be able to establish a constitutional tort simply by proving harm attributable to the denial, irrespective of whether the harm was intentionally or carelessly inflicted.
In its interpretive dimension, Godi’s argument relies primarily on a textualist analysis of Section’s 1983 legislative progenitor, the Civil Rights Act of 1871 (“CRA”), as well as its 1874 successor, known as “Section 1979.” In relevant part, the CRA stated:
any person who, under color of any law … of any State, shall subject … any person … to the deprivation of any rights … secured by the Constitution of the United States, shall … be liable to the party injured in any action at law….
Section 1979 similarly allows for the imposition of liability on all persons who under color of law cause a U.S. citizen to be subjected to “the deprivation of any rights, privileges or immunities secured by the Constitution…” According to Godi, the unqualified phrases “deprivation of any rights,” and “shall … be liable” specify a rule of strict liability. This textual analysis is then bolstered by, among other things, some nineteenth-century lower-court decisions rejecting defendants’ efforts to establish that liability under Section 1979 required proof of malicious conduct.
After recounting how, starting in the 1940s, the Supreme Court interposed various fault requirements onto Section 1983, the article concludes with a discussion of tort theory that aims to explain why a strict liability reading of Section 1983 is normatively plausible. Here, Godi maintains that it would make sense to employ strict liability as an antidote to the rash of civil rights violations perpetrated by state actors, particularly in former confederate states. This in turn suggests to him that Section 1983 should not be understood as embodying a private-law (interpersonal-wrong-based) approach to tort law, but instead as adopting a public-law model of tort as law that empowers citizens to act as private attorneys general.
Godi’s paper invites welcome reconsideration of the liability standard(s) set by Section 1983. It also elegantly weaves together history, doctrine, and theory to offer a coherent account of that standard.
In my view, some of the evidence offered for his thesis is less persuasive than he supposes. For example, one of the main nineteenth-century cases on which he relies rejected the defendants’ contention that liability under Section 1979 required proof of “willfulness” or “maliciousness” in denying Black citizens the right to vote. Godi interprets the defendants’ contention as an argument against liability “unless [they] were culpable or at fault in some way.” (P. 24.) In turn, he treats the court’s rejection of this argument as an embrace of strict liability. Yet this is not the most plausible reading of the defendants’ contention or the court’s rejection of it.
Willfulness and maliciousness are special forms of culpability; plenty of conduct that involves neither is still wrongful. By the same token, the court’s opinion nowhere states or implies that liability would attach for an entirely faultless interference with the right to vote. Indeed, the ‘deprivation’ in the case itself appears to have been intentional even if not malicious (in the sense of inspired by racial animus): the officials in question purposely refused to register the plaintiff voters.
In short, the court’s willingness to hold these officials liable by no means establishes that it would also have imposed strict liability. Imagine an election official who, despite using due care in storing the ballots in his custody, failed to prevent them from being ruined by an unpreventable water leak, such that voters in his district, including Black voters, could not vote. Liability?
Meanwhile, Godi’s textualist analysis proceeds on a not-fully-defended assumption: namely, that, the phrase “deprivation of any right” necessarily contemplates liability without regard to the nature of the conduct that interfered with the right. Implicit in this analysis is a ‘monadic’ conception of the legal rights protected by Section 1983—one that is sometimes referenced in phrases like “the right to bodily integrity.” In such usage, the right to bodily integrity is understood as the interest each person has in physical intactness, an interest that is interfered with whenever a person experiences physical harm, regardless of how the harm comes about.
The problem is that, in tort law and related fields, references to “rights” are typically not references to monadically defined interests but instead to one side of a ‘dyadically’ defined right-duty pairing. Consider battery and negligence. Battery recognizes a legal a right against being intentionally touched by another in a harmful or offensive manner, along with a corresponding duty not to touch others in that way. Negligence recognizes a right not to be physically harmed by the careless actions of another, along with a corresponding duty not to so harm others. These dyadically defined legal rights may well protect each person’s interest in bodily integrity, monadically defined. They nonetheless clearly stand apart from that interest because, by definition, they cannot be violated except through conduct that falls below a legal standard (e.g. conduct that is careless). If, as Godi suggests, Section 1983 should be understood as instantiating core tort principles, then—in keeping with the structure of other torts—it should be read to create legal wrongs that consist of one person suffering a certain kind of setback as a result of another person’s sub-standard conduct.
Of course, “strict liability” can mean different things, and there are other senses of this phrase that would also push against what many, including Godi, consider to be unduly stingy readings of the statute, including those favored by the current Supreme Court. Indeed, the predominant form of strict liability in tort law is not liability irrespective of the violation of a standard of conduct, but liability based on the violation of demanding or unforgiving (“strict”) standards. Tort law frequently imposes liability absent significant blameworthiness or culpability—for example in cases where the defendant acted with no intention to harm or no subjective appreciation of committing a rights-violation.
The foregoing observation, combined with Godi’s sound insistence that Section 1983 is statutory tort, lends support to the idea that it imposes strict liability in this alternative sense—i.e., requires wrongful conduct (contra Godi), yet does not recognize excuses that apply in other domains, such as criminal law. So construed, his analysis adds an important dimension to critiques of the Supreme Court’s qualified immunity doctrine, which is predicated in part on a misplaced concern to ensure that only highly culpable actors (those who violate “clearly established” rights) are subject to liability.
A final note on tort theory. Godi argues that his reading of the CRA gibes with that law’s being understood as adopting a public-law conception of tort law. His thought seems to be that a strict liability reading of the CRA follows naturally from the idea that the statute has always been meant to deter rights violations instead of ‘merely’ providing after-the-fact compensation.
As longstanding debates among legal economists have demonstrated, a focus on deterrence hardly entails a commitment to strict liability. In any event, Godi’s reading of the CRA as a private-attorney-general-statute rests on an oversimplified picture of the tort theory landscape, according to which private-law tort theories are equated with compensation-driven accounts of tort law, whereas public-law tort theories focus on deterrence.
In fact, the dominant understanding of tort law at the time the CRA was enacted conceived of it as law for the redress of private wrongs. On this understanding, tort law identifies and condemns as wrongful (and therefore not-to-be-done) certain kinds of interpersonal interactions. These norms or legal directives identify genuine, conduct-guiding obligations, not merely preconditions for a compensatory payment. Given this background, it seems more plausible that the CRA was not understood as a strict liability, private-attorney-general statute, but instead as a law setting standards of right and wrong conduct for the twin purposes of discouraging such conduct and providing persons victimized by such conduct redress against their victimizers.
A Strict Liability Statutory Tort offers much food for thought about constitutional tort law and tort law generally. Regardless of whether one agrees with its conclusions, it reminds us that the “tort” side of constitutional tort law has been unduly neglected and needs careful attention if this foundational civil rights law is to be applied in a manner consistent with its origins and aspirations.
Feb 21, 2025 Gregory Keating
Adam Slavny’s Wrongs, Harms, and Compensation: Paying for Our Mistakes rejects a basic premise of most contemporary tort theory. It renounces all aspiration to interpretive adequacy and holds contemporary tort law up to rigorous philosophical scrutiny. The results are invariably stimulating, usually illuminating, and often persuasive.
Most contemporary tort theory tries to show that the theory being propounded makes sense of tort law. Economic analysis, for example, can be, and sometimes is, presented as merely a positive account of the law of torts—as a demonstration that “common law legal rules are, in fact, efficient.” This positive claim can be distinguished from the normative claim “that common law legal rules ought to be efficient.” Sometimes economic theorists of tort do renounce all claims to normativity and insist that their views are purely positive. And sometimes they do the reverse: they renounce all interest in making sense of the law that we have and declare themselves interested only in the law as it should be. More often than not, though, economic theorists of tort are read to claim that tort law both is and should be efficient.
Corrective justice theorists, for their part, usually claim that economic analysis does not capture what tort law is about—namely, wrongs and their repair—whereas corrective justice theory does. That tort is a law of wrongs and repair is, for corrective justice theory, both a vindication of the theory and a vindication of the legal institution. Civil recourse theorists, in turn, are usually read to assert that their thesis that the commission of a tortious wrong gives rise to a liability to recourse—and not to a duty of repair—is both positively and normatively superior to the corrective justice account. Tort theory is hardly unique in this respect. Much bread-and-butter scholarly commentary is similarly inclined to interpret the law as best it can and improve the law as much as seems possible.
Professor Slavny’s book finds the practice of proving a normative theory’s value by showing that it matches extant law troubling in an obvious but important way. So practiced, tort theory “tends to have an apologistic bias.” (P. 2.) Slavny therefore declares tort theory’s fealty to tort practice to be unwarranted and unwise. It begs the question to assume, at the outset, that contemporary tort law must be, on the whole, justified or justifiable. Theories of justice, after all, don’t normally begin by assuming that our existing political institutions are, on the whole, basically just. Theories of justice normally stand in critical, not apologetic, relation to present institutions. They are open to the possibility that our institutions might be unjust and unjustified. A theory of justice that set out to vindicate itself by showing its congruence with our present practices and institutions would open itself up to the charge that it was more apologetic ideology than critical philosophy. When contemporary tort theory is judged by the standards of serious philosophy, it appears indefensibly Whiggish.
Wrongs, Harms, and Compensation therefore “begins with a moral conception of corrective duties and builds towards questions of legal enforcement and institutional design.”
Its approach pays off in unconventional claims and arguments. For example, the book argues that tort law tends to assign insufficient weight to the claims of tortious wrongdoers. The famed objectivity of negligence law is one case in point. Another is the basic remedial responsibility of tortious wrongdoers to repair the harm that they have wrongly inflicted. Standard negligence doctrine says that the subpar must exhibit the competence of the normal and that the momentarily careless are liable for massive loss. Mainstream tort theorists are aware that these responsibilities are demanding and stringent, but the interpretive bent of mainstream theory tends to rule out the possibility that these basic features of tort doctrine may be morally unjustifiable, full stop.
Wrongs, Harms, and Compensation, by contrast, argues that the legal wrong of negligence may simply fail to track any “coherent form of wrongdoing.” (P. 76.) Wronging itself—not just blameworthiness—is capacity-sensitive, Slavny argues. Ought, after all, implies can. As a matter of morality, we can’t have duties that we are incapable of discharging. Therefore, the “moral wrong of negligence is sensitive to capacity and cost . . . it is fully individualized. It is defined by what can be reasonably expected of a given individual in a given situation, not what can be reasonably expected of some other individual in that situation . . .” (P. 76.)
Secondary duties of repair, for their part, “should not be completely out of proportion to the seriousness of the wrong.” Consequently, tort law’s basic remedial responsibilities are justifiable only insofar as tort is backed by insurance. Only the cushioning effect of insurance makes tort law’s demands on tortfeasors reasonable and proportionate. While it is conventional wisdom that tort law in action is very much about liability insurance, only very rarely is the availability of insurance considered a condition of the moral justifiability of tort liability. Wrongs , Harms, and Compensation, however, argues that “the [tort] system as a whole could not be justified without [liability insurance].” (P. 180.) Its arguments stand the conventional wisdom among corrective justice theorists on its head. Corrective justice theorists usually regard insurance merely as a permissible means of discharging obligations imposed by the law of torts.
Slavny argues both that insurance makes tort liability bearable by tortfeasors and that purchasing liability insurance is an obligatory extension of the duties of care that we all owe to one another. “We should not be permitted to imperil our future victims by failing to take reasonable precautions against the possibility that we will be unable to fulfil our duties towards them. This would itself be a wrong, a form of unreasonable risk imposition not unlike the kind involved in negligence.” (P. 185.) From here, Slavny goes on to reject the corrective justice conviction that tort liability and compensation schemes are wholly different, and independent, institutions. If taking reasonable precaution to avoid wrongly harming other people requires purchasing insurance so that we can discharge the obligations of repair that we will incur in the event that we do inflict wrongful injury, then mandatory compensation schemes are at the very least permissible ways of discharging our tort duties.
Wrongs, Harms, and Compensation ranges widely. It analyzes tort’s relation to administrative alternatives incisively, and its discussion of the relations between tort, corrective justice, and distributive justice, is excellent, original, and of general relevance. Anyone interested in contemporary tort law would benefit from studying Slavny’s arguments.
To be sure, Slavny’s “foundationalist” methodology is not without its problems. For one thing, the choice of a starting point outside of tort is anything but obvious. Slavny is a partisan and a practitioner of a particular philosophical approach. He is reductive. He builds from the ground up by asking what individuals owe each other as a matter of morality. Legal institutions are upshots. But it seems equally plausible to think that theorizing about legal institutions must place institutions front and center. Starting from this assumption is likely to lead to a different endpoint. For another, to criticize legal doctrines and institutions persuasively, normative arguments, counter-factual thought experiments, and hypotheticals must pick out the moral considerations relevant to the law that one is assessing. This is a difficult and delicate matter. Sometimes, the book’s arguments and the law to which they purport to speak pass like ships in the night.
Nevertheless, this is original, courageous, important scholarship. Even in comparison with criminal law theory, contemporary tort theory is peculiarly preoccupied with proving its validity by vindicating tort law. This risks blindness. By kicking interpretive aspirations to the curb, Wrongs, Harms, and Compensation delivers fresh insights.
Jan 24, 2025 Ronen Avraham
Roy Baharad, Stuart Minor Benjamin, & Ehud Guttel,
Anti-Patents, 91
Univ. Chi. L. Rev. 239 (2024).
What Do Blitz, Bic, and DuPont have in common? Blitz U.S.A. declined to add flame arrestors to its gasoline cans, despite severe injuries from explosions. Bic led the lighter market but withheld childproof designs. DuPont identified health risks in its PFOA products but opted against safer disposal methods. The reason these injurers failed to implement socially desirable safety innovations in their products was allegedly to avoid the liability risks associated with these changes. By not implementing them, they were able to evade liability, either because the harm to consumers remained unknown outside the company or because, in the absence of knowledge about the innovative safety device they chose not to develop, the product was considered legally not defective.
The problem exemplified in all these cases is that, at times, tort law provides tortfeasors with incentives to hide innovation, because implementing a safety measure can reveal a safety problem that would otherwise remain hidden.
The solution is, of course, simple: introduce patent law, enabling injurer-innovators to patent their innovations and charge everyone, including their competitors!, royalties. After all, isn’t that the point of patent law? Isn’t it a straightforward solution to the problem?
Indeed, it seems simple, but it is wrong.
In Anti-Patents, Roy Baharad, Stuart Minor Benjamin, and Ehud Guttel (BBG) persuasively demonstrate that even when tortfeasors can benefit from the innovation by patenting it and charging royalties to their competitors, they will not necessarily innovate. This is because innovating safety measures will require them to implement this innovation themselves, and sometimes the cost of developing and implementing the safety measure outweighs the benefits from royalties.
In this article, recently published in the University of Chicago Law Review, BBG tackle the often-overlooked relationship between patent and tort law, illuminating what they call the “injurer-innovator problem.” Patent law rewards innovation, enabling inventors—who are often responsible for potential harms—to profit through exclusive rights. Tort law, however, compels these same “injurers” to bear the cost of implementing innovations for harm prevention. This dynamic creates a paradox: companies, wary of liability costs, sometimes avoid socially beneficial innovations that other innovators (who are not also injurers) would have pursued and profited from.
BBG propose the anti-patent as a groundbreaking solution. Unlike a traditional patent, which grants exclusive rights to use or license an invention, an anti-patent status exempts the inventor from mandatory implementation. This framework allows the inventor, but only the inventor, to profit through licensing without facing the cost and legal obligation of self-implementation and without the risk of liability from not adopting the invention. As a result, anti-patents could encourage companies to disclose innovations rather than hide them due to potential liability costs, fostering safer, progressive technology in fields such as pharmaceuticals, manufacturing, and environmental safety.
BBG support their proposal by comparing the anti-patent mechanism to alternatives like government subsidies, grants, or tax incentives for the development of innovative safety measures. They argue that these approaches often lack the precision and effectiveness that an anti-patent framework can provide. To address concerns about alleged unfairness—particularly that victims of the injurer-innovator will not be compensated and that the industry will operate under two different standards—BBG compare anti-patents to whistleblower protections and grandfathering rules. These rules create exemptions from ordinary legal standards for the socially valuable purpose of driving the disclosure of valuable information to the public.
By exempting whistleblowers from retaliation, the law encourages the revelation of critical information, just as anti-patents would encourage injurers to disclose and license new safety technologies without incurring the cost of implementing them personally. Similarly, grandfathering rules allow entities to continue operating under old standards after new regulations are imposed, provided that such exemptions serve public welfare. Anti-patents would function similarly by allowing injurer-innovators to retain for their own products the prior standards, thus reducing the financial burden of innovation while promoting societal benefits through licensing.
Still, even though whistleblower rules sometimes allow wrongdoers to profit and grandfathering laws permit the industry to operate under multiple standards, isn’t it especially undesirable that victims of the injurer-innovator are the only ones who do not receive compensation for their harm? In reply BBG could say that it is not entirely clear how significant the problem is because, once competitors start offering safer products, many consumers will switch to them. This could lead our injurer-innovator to implement its own safety innovation to avoid losing customers.
However, to be on the safe side, BBG suggest that the government reward injurers who adopt safety innovations, offsetting the costs of implementing these changes and, crucially, alleviating the liability burden. This subsidy approach would, in theory, make it more financially feasible for injurer-innovators to adopt and apply safety technologies without incurring the burden of significant liability expenses. If this works well, we should see more socially desirable safety innovations come to fruition, without placing the burden on the victims.
However, if consumers would switch to the safer products offered by competitors, perhaps our own injurer-innovator will refrain from developing the safety measure after all, especially if government subsidies are not guaranteed. Indeed, the paper could benefit from further exploration of market dynamics. For instance, wouldn’t “forcing” competitors to implement costly safety measures (by developing safety measures that only the competitors have to implement) increase rivals’ costs and raise antitrust concerns?
Overall, BBG’s proposal is thought-provoking and addresses a significant issue at the intersection of patent and tort law. It presents a compelling approach that encourages advancements contributing to public safety and welfare. By rethinking how these legal frameworks interact, the proposal holds promise for fostering innovation while also protecting the interests of consumers.
Dec 6, 2024 Cristina Tilley
As an early-career beneficiary of Jotwell, I often use my annual platform to spotlight the work of emerging or underappreciated scholars. Robert Rabin is emphatically not a member of that group. Why, then, is Stand Alone Emotional Harm: Old Wine in New Bottles the thing I like lots right now? The piece elegantly observes – and joins – an incipient movement to recenter in tort non-physical injuries that tarnish American social life. These claims have long been ridiculed by mainstream tort, so they need a prominent champion like Rabin.
Rabin’s contribution to the 2023 Clifford Symposium on Tort Law and Social Justice is compact but undeniable. In eleven short pages, he makes the case that much maligned non-physical injuries actually have a centuries-long pedigree in tort. The drunken hatcheteer in I de S. v. W de S. (P. 733 (citing I de S. v. W de S., Y.B. Lib. As. Folio 99, placitum 60 (Assizes 1348)) for example, was made to pay the tavernkeeper who escaped the blade because assault doctrine recognized a personality interest extending beyond the body. The same expansive notion of personality, he observes, has been driving judges since the nineteenth century to order compensation for those suffering “serious emotional distress” at the hands of others. (P. 734.) Over time, he suggests, these exceptions have come to look a lot like a new rule, one willing to stigmatize one-on-one behavior that inflicts non-physical social harm.
He begins with the nineteenth century expansion of consortium claims to cover not just a husband’s loss of a wife’s services but any spousal loss of companionship. (P. 735.) From there, he identifies turn-of-the-century forerunners to the intentional infliction of emotional distress tort (IIED), including the chestnuts Wilkinson v. Downton (P. 736 (citing Wilkinson v. Downton, 2 Q.B. 57 (1897)) and Nickerson v. Hodges (P. 736 (citing Nickerson v. Hodges, 146 La. 735 (1920)) in which women ridiculed by community jokes won compensation for their long-term trauma. He sees the tort of negligent infliction of emotional distress as a cousin to IIED in its willingness to forego a physical injury requirement and instead compel compensation for “pure unadulterated distress and grief” experienced by those who narrowly escape harm or watch loved ones suffer it. (P. 738.)
Rabin next documents how even torts that do not allude to emotional distress legitimate it as an interest. For example, twentieth century privacy law treats as worthy of legal recognition a personal interest in dignity and control over one’s physical surroundings and intimate information. (P. 738-40.) And twenty-first century privacy law has attempted to deter revenge pornography and sexualized deepfake imagery. (P. 738-40 (citing, inter alia, Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).) Finally, given his expertise in health care and compensation systems, it is unsurprising that Rabin finds tributaries of emotional harm protection emerging in both arenas, via intensified informed consent requirements and the introduction of emotional distress as a component of workers compensation awards. (P. 741-43.)
This history shows the length and breadth of tort’s concern for non-physical injury; it neatly refutes the canard that tort has limited itself to body and property. That alone, coming from Rabin, should afflict the comfortable. But he is not content to simply offer an alternate history of psychic harms in tort. He also aims to offer a theoretical justification for placing these harms in the modern mainstream. Here, too, his voice is critical and welcome. Body and property are physical artifacts, knowable to all and bearing objective properties, so there is general agreement on the equity of holding actors liable for injuring them. In contrast, non-physical injury does not take up space in the observable world. Thought to reside exclusively in a plaintiff’s psyche, it is often condemned as too “subjective” and “untethered” to deserve tort recognition.
Rabin takes this objection seriously. He responds by offering an unusually precise taxonomy of tort’s non-physical interests, extracted from both doctrine and caselaw. So, for example, loss of consortium and bystander NIED awards treat, as real tort injuries, “grief and despair” at the loss of expressive family relationships. (P. 736.) The various privacy actions treat as real tort injuries invasions of “personal inviolability” and “dignity.” (P. 738.) Informed consent, too, protects patient dignity and individual autonomy. (P. 741.) Workers’ compensation awards for non-physical harm reflect a legal interest in avoiding the depression, fear, and occasional guilt that may arise from accidents and injuries in the modern workplace. (P. 742-43.) Finally, Rabin tackles the least bounded tort of all, IIED. He acknowledges that tort is wary of declaring an interest in deterring “rude” or “uncivil” behavior but suggests that in the twenty-first century, the tort expresses the law’s rejection of the “abuse” that is too often visited on women and people of color. (P. 736-37.)
Will this sincere attempt to concretize tort’s interests in non-physical harm satisfy the emotional injury naysayers? Plaudits to Rabin aside, I’m not sure. It is true that a new generation of tort scholars, myself included, are entirely sympathetic to the idea that non-physical injury is real and that tort duties are not limited to the physical world. But we, and Rabin, too often draw from a menu of soft, aspirational words like “dignity,” to describe the preferred interest; and equally soft condemnatory words like “distress” or “abuse,” to describe the wrongs at issue. Once tort ventures into the intangible, skeptics pounce.
Luckily, these words do have meaning. A right to “dignity” can be understood as an expectation of equal worth, while “abuse” is arguably a wrong because it connotes a “using up” of someone else’s worth. Of course, in life generally, and American capitalist life specifically, we use others with some regularity. When does the “implied license of the playground” exhaust itself? Hard to know. Perhaps, contra Rabin, the concept of “insult” does have a useful role to play in identifying the line between rightful gumption and wrongful aggression. Insult originally meant to “trample on,” and, later, identified behavior that was considered “exulting” or “arrogant.” It conjures an actor who assumes he is “up here,” while others – often by virtue of socially constructed hierarchies – are “down there.”
Notably, this concept aligns almost precisely with the cases Rabin uses to illustrate the past, present, and future law of non-physical wronging. The barkeep expected to open her tavern at the whim of a tippler? (P. 733.) A woman. A spit-upon battery plaintiff? (P. 734 (citng Alcorn v. Mitchell, 63 Ill. 553 (1872).) A man whose net worth was one percent of his assailant’s. The proto-IIED plaintiffs? (P. 736 (citing Wilkinson v. Downton, 2 Q.B. 57 (1897); Nickerson v. Hodges, 146 La. 735 (1920).) A would-be widow, and a mentally fragile spinster. The NIED plaintiffs? (P. 737-38 (citing Dillon v. Legg, 441 P.2d 912, 914 (Cal. 1968); Porter v. Jaffee, 417 A.2d 521 (N.J. 1908).) A frightened child and two mothers grieving offspring killed by malfunctioning machinery. The privacy plaintiffs? (P. 738-40 (citing Shulman v. Group W. Prods, Inc., 955 P.2d 469 (Cal. 1998); Robertson v. Rochester Folding Box Co., 64 N.E. 442 (1902).) A quadriplegic woman filmed for a reality television show and a teenaged girl whose portrait was used unbeknownst to her to advertise flour. In virtually every case, the plaintiff belonged to a gender, class, or race identity group with limited access to economic or social capital, while the defendant belonged to a corresponding identity group with generous access to those resources. And in almost every case, the defendant seemed to assume this status gap justified the intentional or careless treatment of the plaintiff as unworthy in relation to him. Thus, the dignitary injuries in each case are grounded in status hierarchies and might more plausibly be called tortious insults than tortious indignities or abuses.
Friendly amendments notwithstanding, Rabin’s typically incisive commentary comes at a crucial time. The American Law Institute is deep into work on the Remedies and the Defamation and Privacy sections of the Restatement (Third) of Torts, and if they pay attention to it, Rabin’s powerful work of history and theory has the potential to modernize tort’s approach to interpersonal wrongs and remedies for the current age.
Nov 12, 2024 Sandy Steel
In his excellent book, Egalitarian Digital Privacy: Image-Based Abuse and Beyond, Tsachi Keren-Paz defends a number of interesting and provocative claims about the liability of persons in relation to the distribution and viewing of intimate images whose dissemination and in some cases, production, is non-consensual, such as revenge porn. As with Keren-Paz’s other work, the book is characterised by an engagement with foundational issues in tort law – causation, fault v strict liability, positive duties – and a detailed tracing through of the implications of theoretical positions on those issues for an important social problem.
The book’s primary concern is the liability of internet intermediaries – mainly, hosts and search engines – and viewers in relation to wrongful image-based content. I focus here (to the exclusion of the book’s rich discussion of several other issues) on the book’s treatment of three foundational matters raised by such cases: (1) the extent to which intermediaries ought to have positive duties to remove content that amounts to a violation of the victim’s privacy rights, (2) the causal problems that arise in relation to claims for image-based harm that is massively overdetermined, (3) the standard of liability for claims against viewers and others.
The book responds as follows: (1) The absence of a positive duty to remove content after notice is inconsistent with general tort principles. (2) It is possible to establish causation against viewers even when their contribution to the victim’s harm is not a necessary, but-for, cause and sometimes even in relation to abuse suffered by a victim on the basis that viewing such images contributed to demand. However, this may justify apportionment. (3) Viewers ought to be strictly liable.
Positive duties. Chapter 3 aims to show that an “immunity” from tort liability on the part of an internet intermediary once they have received notice is inconsistent with the general tort principles regulating the imposition of liability for the actions of another (compare US courts’ interpretation of s.230 of the Communications Decency Act 1996, criticised by Keren-Paz in Ch 3, and at Pp. 25-27). While tort law generally imposes no liability for pure omission or nonfeasance, it does so in limited situations. Keren-Paz analogises the position of an internet host site to that of a land occupier. The justification of the situations in which one comes under a positive duty in tort, according to Keren-Paz, are all to do with “control”: “all the established exceptions to [the nonfeasance] rule have to do with the defendant’s control over the situation” (P. 30). Thus, an occupier, having the legal right to remove dangers on the land, has effective control, and this justifies their being under a duty to take reasonable steps to protect others from the danger.
Virtual spaces, the book argues, are like physical ones in the relevant respects. Hosts, such as Twitter and Facebook, have materially similar control over these virtual spaces as occupiers’ have over the occupied land in relation to invitees. Indeed, Keren-Paz claims that, in two respects, the duties of commercial hosts should be more stringent, and more demanding, than the relatively minimal duties owed by ordinary occupiers of private land.
First, economic megaliths like Facebook and Twitter have substantial means, so the concern expressed in the negligence and nuisance cases about overburdening occupiers relative to their economic means has to take this into account. Second, Keren-Paz emphasises that uploaders are invitees, and since the occupier stands to benefit from an invitee’s acts more than a trespasser’s, fairness supports a more demanding duty. He writes: “Increased liability for invitees’ acts is just the flip side of the enhanced duty towards them: the closer relationship with invitees is a reason both for enhanced responsibility towards the invitee, but also towards injured third parties from the acts of the invitee” (P. 37).
Although the costs of monitoring content, even after notice, may be substantial, the book points out that they are likely to be a relatively small proportion of, say, Facebook’s profits – salary costs for moderators are around 2% of Facebook’s profits. Given the irreparable harm that the book plausibly argues results from sharing of intimate images without consent, and the frequency of such harm through these hosts, it is likely that these costs can fairly be required of the host (Pp. 40-41).
On the question of what constitutes a reasonable burden to impose on hosts, Keren-Paz goes so far as to suggest that, if hosts are understood as active participants in the breach, the extent of the burden to remove should be ignored. He notes that in relation to the intentional torts, unlike in negligence, a cost-benefit balancing is “irrelevant,” and claims that the breach of privacy underlying a claim in relation to intimate images is an intentional tort (P. 42).
Overall, the book’s argument that there ought to be positive duties post-notice to take down offending content, based on basic tort principles, is persuasive. However, there are a few aspects of his analysis in Chapter 3 that seemed more disputable.
First, it doesn’t seem true that all of the situations in which a positive duty arises to protect a person from a third party are based on control, as the book claims. Second, in truth, “control” is not a free-standing basis of positive duties. Being well-placed to deal with a problem is surely only part of the justification of a legal duty. Notably the book also emphasises the benefit obtained from control of virtual spaces, and the fact that the host is implicated, albeit indirectly, in the harm-causing by their invitation to use the space.
Causation. Mass invasions of privacy raise causal problems. Each viewer of a wrongful image is unlikely to be a necessary condition of the victim’s harm (for instance, emotional distress), given the enormous number of other viewers. Further, each viewer is unlikely to be individually sufficient for the entirety of a severe indivisible emotional harm, which may be due to the fact of mass viewing of the image.
Drawing on his earlier work with Richard Wright on the US Supreme Court’s Paroline decision on compensatory liability in relation to possession of child pornography, Keren-Paz argues that a viewer’s liability in such cases ought not to be for the entirety of a victim’s loss nor, as the majority in Paroline held, based on the viewer’s relative causal contribution. The argument against full liability is essentially that this fails to register that the viewer was neither necessary nor sufficient for the entirety of the harm, but only causally contributed to its occurrence alongside thousands or millions of others (P. 133).
On the other hand, proportional liability based on relative causal contribution is “incompatible with the overdetermined character of the injury” and results in minimal awards of compensation for victims (P. 133). This fails to do justice to the fact that the viewer is likely to have been individually sufficient for some of the emotional harm, and sufficient together with only a small number of others, for its entirety or a substantial amount. So Keren-Paz favours some kind of intermediate position whereby the defendant viewer is liable to compensate “at least for the emotional distress and related pecuniary costs that would have been suffered by the victim solely as a result of the defendant’s offence or, preferably, the defendant’s offence combined with only a few other offenders’ similar offences” (P. 133).
This is plausible, though one might think that full liability could be appropriate in cases in which the wrongdoer has a high level of culpability, even if their causal contribution is relatively diminished. So a person who deliberately seeks out revenge porn might justifiably be treated differently in this regard from a person who is held liable regardless of fault.
Strict liability. The book goes much farther than defending fault-based liability for failure to remove wrongful images or for unreasonable risk-taking in accessing images. Perhaps its most striking claim is that strict liability can be justified both against hosts and viewers. It proposes that the right to privacy in relation to intimate images is a form of property, or should be treated as subject to property-like rules, including strict liability against innocent recipients (chapters 4, 5, 10). For internet intermediaries, this makes their liability akin to that of an auctioneer who innocently sells stolen goods.
Essentially, the book’s central argument is one of consistency: if one has strict liability in conversion for less important interests over which one should have exclusionary powers of control, one ought to have it for non-consensually distributed intimate images. Framed in this way, I suspect many would intuitively agree: if we each had an equal probability of having our tangible property taken without permission (say, one’s car) versus intimate images, we would prefer strict liability in relation to the latter than the former (and likely even if the intimate image invasion was lower probability).
Though acknowledging that the strictness of liability in conversion has been criticised, the book does not deal head-on with this objection, and instead rests on the consistency argument. The apparent harshness of strict liability is softened in various ways in Keren-Paz’s account, however. First, as we have seen, the viewer’s liability is likely to be subject to apportionment given the overdetermined nature of the harm. Second, Keren-Paz argues against liability of the innocent recipient of an image if they delete it within a reasonable time.
This brief conspectus of the treatment of three basic issues – positive duties, causation, and strict liability – hopefully gives a sense of the provocative, searching analysis that characterises the book.
Oct 9, 2024 Kenneth W. Simons
Leo Boonzaier,
Is a tort a failure to do what one ought?,
in New Directions in Private Law Theory 165 (Fabiana Bettini, Martin Fischer, Charles Mitchell, Prince Saprai eds., 2023).
“Is a tort a failure to do what one ought?,” asks the South African scholar Leo Boonzaier. In this book chapter, Boonzaier provides an insightful analysis of the question, which he frames as follows. A distinguishing feature of many non-instrumentalist theories of tort law is how they conceive of a tort—as a wrong, not merely as a cost or loss that the law has an interest in efficiently deterring through a compensatory remedy. But what does it mean to characterize negligent conduct or an intentional battery or a defamatory statement as a wrong?
Here is a very appealing answer: “The commission of a tort is a failure by the tortfeasor to do what, in the law’s view, he ought to do, all things considered.” (P. 169.) This answer helps explain why negligence is defined as unreasonable conduct, and why tort law sometimes awards injunctions to prevent the commission of torts and sometimes awards punitive damages. Note that the failure in question is the unjustifiability of the actor’s conduct, not the culpability of the actor. After all, tort law employs objective tests and does not recognize excuses: “one may blamelessly fail to do what one ought.” (P. 170.)
Yet this answer, Boonzaier points out, confronts significant counterexamples. In necessity cases such as Vincent v. Lake Erie Transportation Co., the ship’s captain trespassed on the plaintiff’s property during a storm and was justified in doing so, yet he had to compensate the plaintiff. And in some nuisance cases, courts award compensatory damages yet refuse to enjoin the conduct. For example, in the British case Miller v. Jackson, a British court upheld nuisance liability based on numerous balls from a cricket field striking plaintiff’s adjoining property, but the court refused to award an injunction because of the substantial recreational value of cricket; only a damage remedy was warranted. It seems impossible to explain such examples if a tort is defined as conduct that the actor should not have engaged in. Although the trespasser and the creator of the nuisance do not satisfy that definition, tort law requires them to pay compensation.
How to explain these counterexamples? One solution proposed by some scholars is to characterize tort law as having two tracks. One track embraces the definition, but a second track explains the counterexamples on entirely different grounds. The first track includes most torts, while the second track offers a potpourri of quite different rationales for the small number of torts that the first track cannot explain. Thus, some would categorize Vincent as an instance of unjust enrichment, or the nuisance cases as reflecting property law rather than tort law principles.
Having nicely framed the problem, Boonzaier critiques the twin-track solution. The suggested explanations for the counterexamples are, he claims, ad hoc and inadequate. A theoretically satisfactory account of tort law should, he claims, find a unifying logic that embraces both the standard cases and the counterexamples. Boonzaier argues that another cricket case, Bolton v. Stone, reveals that logic. In Bolton, plaintiff was struck on the head by a cricket ball driven out of the cricket ground. The court rejected negligence liability due to the very low risk of injury, but one judge believed that compensation was morally required even in the absence of negligence, and many commentators criticized the no-liability result. Here is Boonzaier’s analysis:
[T]he prevailing doctrine, to which the Lords ultimately acceded, coupled tort liability with unreasonable conduct. But if the Lords had uncoupled it [and imposed liability], they would have made an equally viable choice, and quite possibly one that would have been less controversial.
(P. 186.) In Boonzaier’s view, it would be “rationally intelligible,” even if not the best rule, to impose liability in Bolton, especially in light of the imposition of nuisance liability in the first cricket case. Boonzaier then tentatively concludes that the “failure to do what one ought” standard is a sufficient ground of liability that can nevertheless be defeated by other values, especially the value of the defendant’s liberty. (P. 190.)
There is much to admire in Boonzaier’s well-written, carefully argued chapter, which offers a fresh perspective on well-trod issues. Let me now suggest some questions and additional thoughts about his analysis.
First, I commend Boonzaier for emphasizing the contrast between the liability result in the nuisance cricket case and the no liability result in the negligence cricket case, but more could be said. The contrast illustrates a doctrinal difference between nuisance and negligence, and between trespass and negligence, that is worthy of further study. When an actor knows or should know that her conduct is highly likely to cause repeated invasions of the property rights of a neighbor, she is potentially liable for nuisance; and when she knows that a single act will damage another’s property, she is potentially liable for trespass. But when she lacks such actual or constructive knowledge, and merely poses a small risk of property damage, at worst she is negligent. And in the former case but not the latter, a court is likely to require compensation even though her conduct was justifiable.
Why the difference? Principles of fairness (e.g. based on imposing a nonreciprocal risk or obtaining a nonreciprocal benefit) arguably support liability in both cases. Perhaps the answer can be found in Boonzaier’s brief reference to the liberty of defendants. The lower-risk activities that negligence law governs are much more prevalent than the higher-risk activities that nuisance and trespass govern. Thus, expanding strict liability beyond the latter to the former might substantially burden the liberty of actors whose activities create risk.
Second, the doctrinal schizophrenia that Boonzaier identifies is arguably more widespread than he suggests. Boonzaier decides not to categorize traditional strict liability categories (such as the Rylands v. Fletcher rule) as counterexamples to the “failure to do what one ought” conception of tort wrongs. (P. 176.) But this choice depends on a controversial conception of “ought.” Invoking Derek Parfit, Boonzaier relies on the “fact-relative” conception—that is, whether the actor’s conduct was justifiable given the facts about what actually transpired. But it is problematic to employ this sense throughout tort law. A determination that an actor is negligent, for example, relies on an ex ante perspective, not an “actual facts” perspective. Suppose I flip a switch in a room that, as it turns out, has poor wiring, resulting in harm to a neighbor. If I do not know and should not reasonably know about the wiring, I am unjustified in flipping the switch in the fact-relative sense, but I am not negligent. On an ex-ante understanding of “ought,” traditional strict liability categories such as abnormally dangerous activities, liability for dangerous animals, and product manufacturing flaws are indeed counterexamples to the “ought” conception of tort law.
To be sure, there is a difference between these traditional strict liability categories and liability under the Vincent necessity rule. In the former cases, but not the latter, the actor’s conduct on the particular occasion that caused harm is unjustifiable and regrettable ex post. If defendant knew that the dynamite blast would kill the victim, or that the soda bottle with the flaw would explode, defendant should not have set that blast or sold that bottle. But in Vincent, there is nothing unjustifiable, even ex post, in damaging a dock in order to save a ship. If the same fact pattern were to arise again, it would again be justifiable to cause the damage. Whether this distinction requires that different principles be invoked to justify strict liability is a fertile question for inquiry.
Consider also a third, related issue: the problem of reasonable mistakes. Sometimes, even if a mistake about an element of a tort is reasonable, tort law ignores the mistake and imposes liability. For example, when a property owner makes a reasonable mistake in determining the boundary between their property and their neighbor’s, the owner is still liable for trespass. But sometimes a reasonable mistake precludes liability, as when X using defensive force makes a reasonable mistake in concluding that the plaintiff was threatening force, or when Y makes a reasonable mistake in concluding that the plaintiff consented to a physical touching. Yet Boonzaier, like many scholars, treats reasonable mistakes as excuses, not justifications. On this understanding, it would seem that X and Y should be liable, for they ought to have acted differently. By contrast, some scholars treat (many) reasonable mistakes as justified, not merely excused, thus supporting a no-liability outcome. Once again, the fact-relevant conception of “ought” is more controversial than the chapter suggests.
I hope that Boonzaier explores some of these questions in future work. In the meantime, this illuminating chapter is an impressive exploration of fundamental questions about the nature and scope of tort liability.
Cite as: Kenneth W. Simons,
Why The Law Of Tort Ought Not Be Limited To What We Ought Not Do, JOTWELL
(October 9, 2024) (reviewing Leo Boonzaier,
Is a tort a failure to do what one ought?,
in New Directions in Private Law Theory 165 (Fabiana Bettini, Martin Fischer, Charles Mitchell, Prince Saprai eds., 2023)),
https://torts.jotwell.com/why-the-law-of-tort-ought-not-be-limited-to-what-we-ought-not-do/.
