William M. Janssen, A “Duty” To Continue Selling Medicines
, 40 Am. J. of Law & Med.
330 (2014), available at SSRN
Imagine that you have a rare, life-threatening medical condition. You are prescribed a drug that is critical to your survival. You thrive on the prescribed drug and your health improves significantly. However, only one company manufacturers this drug. Unfortunately, due to contamination during the production process, the manufacturer experiences inventory shortages. As a result, you cannot get prescriptions filled as ordered by your doctor, and your health deteriorates rapidly. Does the drug company have a legal duty to continue selling you the prescribed medicine? And, if the manufacturer’s negligence caused the inventory shortage, can you sue the company for tort-based damages? Professor William M. Janssen tackles these intriguing questions in his recent article, A “Duty” To Continue Selling Medicines.
I was fascinated by the dilemma that Janssen lays out in his article. He begins his exploration of the legal duty question with a compelling and heart-wrenching tale. In 2004, a Salt Lake City man was diagnosed with a rare, life-threatening disease, but he thrived after receiving a biological enzyme replacement therapy. In 2010, however, the biologic manufacturer reduced its inventory in order to make space available to produce a different therapy. At around the same time, a virus struck the manufacturing facility, contaminating the product, and in addition, the biologic was somehow contaminated during the production process with tiny pieces of steel, rubber, and fiber. These events led to a shortage of the drug, and the Utah patient received only 70% of his prescribed dosage. When he died, his widow brought suit alleging that the manufacturer failed to use reasonable care to ensure an adequate supply of the biologic. Her claim failed in court based on the finding that the manufacturer had no legal duty to continue to supply the drug. Specifically, the Utah court rejected the widow’s argument that the manufacturer engaged in affirmative wrongdoing by allowing the biologic to become contaminated by the virus, and thereby creating a drug shortage. Rather, the court found that the alleged medicine shortage was merely a failure to act (nonfeasance), and therefore, tort law did not provide a remedy.
After presenting a few of these case scenarios, the article surveys a wide range of theories—from statutory pharmaceutical laws to federal constitutional law—that could be considered potential sources for legal claims. Of particular interest, Janssen considers a variety of tort principles including the no-duty-to-rescue doctrine. An exception to the no-duty-to-rescue rule provides, however, that a person responsible for an instrumentality must render aid if the instrumentality causes harm, even if there’s no fault. Janssen situates this hornbook doctrine in the medicine shortage context: Arguably, the drug manufacturer’s inadequate supply is an instrumentality of harm, regardless of any fault. Janssen, however, concludes that this exception does not apply because the patient’s harm is not caused by the drug shortfall, but rather by the underlying medical condition.
Janssen next considers the corollary rescue principle that one who undertakes a rescue must do so non-negligently. Liability may attach if the rescuer abandons his attempt in a manner detrimental to the injured party. But Janssen rejects this theory on the ground that the drug shortfall did not place the plaintiff in a worse position than where he was before beginning treatment. Still, perhaps the loss-of-chance doctrine could apply here, and compensate the plaintiff for his reduced chance of survival without the drug. Although Janssen does not directly address this theory, his analysis implicitly rejects it. In examining the common law duty to avoid interfering with a rescue, Janssen concludes that the manufacturer’s failure to supply adequate amounts of the drug should be considered passive inaction, not the “active intervention” required by the no-duty-to-rescue doctrine (P. 378), or presumably, the affirmative misconduct required under the loss-of-chance doctrine.
Given the lack of a viable legal theory under current doctrine, Janssen explores whether tort law should be extended to provide a remedy for these patients. On the one hand, imposing a duty to supply life-saving drugs on drug manufacturers could encourage them to take risk-reduction precautions. Perhaps supply interruptions could be avoided or minimized if drug manufacturers faced tort liability. Likewise, it would seem that drug manufacturers are in the best position to absorb the costs of injury. Yet on the other hand, such liability could stifle research and development, especially where, as in the cases discussed, the drugs serve a very small population.
Trying to balance these competing policy concerns, Janssen recommends a regulatory solution that would avoid the drug shortfall in the first place. The first step of this solution would place responsibility on the manufacturer to submit a “realistic proposal” to the FDA, “supported by appropriate commitments and resources,” to resolve the shortage. (P. 390.) Alternatively, the manufacturer could enter into a license agreement with a substitute manufacturer to resolve the shortage. Where the original manufacturer fails to “satisfy [the FDA] that a reasonable proposal is in place to resolve the shortage,” Janssen proposes empowering the FDA to license an alternative drug manufacturer. (Id.) The goal, then, would be to fix the supply interruption and also to incentivize the original manufacturer to remedy the shortfall as quickly as possible.
Janssen’s article is well worth reading. He calls attention to an important social problem and his conclusion highlights the inability of tort law to address all of society’s injuries. One hopes to see more work on this topic.
In The Structure of Tort Law, Revisited: The Problem of Corporate Responsibility, Benjamin Ewing, a visiting assistant professor at Duke Law School, breaks fresh ground by stitching together contemporary tort theory and recent philosophical work on responsibility. By knitting these threads together, Ewing’s fluent, sophisticated paper shows that imputing moral responsibility to artificial legal persons is an eminently plausible enterprise. The Structure of Tort Law, Revisited shows us that it makes eminently good sense to think about corporations not merely as institutions that we may manipulate to pursue valuable social objectives, but as institutions that bring responsibility upon themselves by their actions. In doing so, the paper broadens the horizons of normative non-instrumental tort theory.
As Ewing notes at the outset of his article, “moralized accounts of tort law” seem “particularly impotent” (whereas economic approaches to tort “seem especially powerful”) in tort cases in which corporate defendants are either held vicariously liable for the torts of their employees, or are themselves held directly liable for the marketing of defective products. (P. 2.) “It is obvious that tort law may affect corporations’ incentives but it is not self-evident that tort liability can be meaningfully understood as a form of moral accountability when it is imposed upon corporate rather than human persons.” (Id.) The central insight of Professor Ewing’s paper is that a particular form of responsibility— namely, “attributive responsibility”— is fundamental to accountability in both law and morals, and that corporations are attributively accountable agents.
Revisiting the Structure of Tort Law
In the 1980s and 90s, corrective justice theorists, particularly Jules Coleman and Ernest Weinrib, developed both a powerful critique of the economic theory of torts and a strong case for the corrective justice conception of the subject by calling attention to the bipolar structure of tort adjudication. Tort law unites plaintiffs with the defendants who have injured them, making the defendant’s liability symmetric with the plaintiff’s recovery. Weinrib explained the significance of this feature of tort adjudication by saying that tort law “treats the wrong, and transfer of resources that undoes it, as a single nexus of activity and passivity where actor and victim are defined in relation to each other.” Tort adjudication embodies “the correlativity of doing and suffering harm.” It institutes “[c]orrective justice [because it] joins the parties directly, through the harm that one of them inflicts on the other.” This unification of doing and suffering both expresses corrective justice and poses problems for instrumental accounts of tort, because bipolarity works to limit the pursuit of instrumental ends by tort means.
Economic theorists of tort have argued that tort law pursues two basic, valuable objectives— deterrence and insurance. Some accidents should be deterred; the social cost of their avoidance is less than the social cost inflicted by their occurrence. Other accidents should be allowed to happen; it is socially less costly to let them happen than to prevent them. Yet even accidents that should not be avoided should be insured against—and their concentrated costs dispersed—because concentrated losses generally diminish social welfare more than dispersed losses do. Precisely because it links injurer and victim through the wrong done by the former and suffered by the latter, the structure of tort law limits the pursuit of both deterrence and insurance. “When formulating forward-looking regulations designed to deter” risky behavior, “we seldom condition the applicability of regulation on the actual occurrence of harm.” (P. 5.) Tort law, however, “generally abides by the adage ‘no harm, no foul.’” (Id.) As a way of deterring harm, abiding by this adage is not especially attractive. Tort’s bipolar structure similarly impairs the pursuit of loss-spreading as an objective. “[I]n tort law, the only people who can be made to compensate a victim are individuals who bear a fairly close causal nexus to a victim’s losses. Such people are generally few in number…. The idea that tort law is designed to spread losses stands in tension with the fact that potential defendants in tort law are limited to the specific agents who have caused each plaintiff’s injuries.” (Id.)
Ewing’s rehearsal of Coleman and Weinrib’s arguments is expert, concise, and fluent. Even so, most law and economics scholars would contest the charge that economic considerations cannot justify the structure of tort law. Economic analysis is more sophisticated and fine-grained than Ewing’s faithful exposition of corrective justice theory suggests. For example, victims are sometimes better insurers than injurers. The insurance rationale for tort liability may therefore not imply extensive loss-spreading by defendants. The proper extent of tort liability depends on the relative advantages of first- and third- party insurance. That may vary from context to context, and be a deeply empirical matter. So, too, under-deterrence is a threat to the efficiency of tort liability, but tort law’s toolbox includes punitive damages, which can be deployed to address this very issue. Moreover, over-deterrence may be as much of a threat as under-deterrence. Striking the balance correctly may require fine-tuning damages in various ways (e.g., restricting or expanding pain and suffering damages). Consequently, it is far from obvious that tort law strikes an implausible balance among the instrumental policies that legal economists take it to serve.
Ewing would likely respond that these refinements still fail to explain and justify tort’s deeply relational character, or the centrality of responsibility to tort. Tort law is concerned with who did what to whom. The intrinsic relation that it takes to exist between tortfeasor and victim poses a problem for instrumentalist explanations. They struggle mightily to explain why the backward-looking fact that A wronged (and harmed) B is a reason for the forward-looking conclusion that A should repair B’s injury. Such a reframing of the matter would be fruitful, because Ewing’s real contribution to this debate is to point out that corrective justice theory has shown that a particular form of responsibility—namely, “responsibility as attributability”—is fundamental to tort law. The importance of this point is overlooked, Ewing thinks, because the fact that this form of responsibility is an important ground of corporate responsibility is itself overlooked.
Responsibility as Attributability
Ewing’s contribution, then, lies in characterizing the basic importance of bipolarity by saying that tort cares enormously about whether a harm is rightly attributed to someone. When wrongful harm is properly attributed to someone, tort law is strongly disposed to treat that person as liable. This aspect of tort tracks a distinction drawn in slightly different ways by two eminent moral philosophers—Gary Watson and Tim Scanlon. Watson distinguishes between “two faces of responsibility,” namely “‘attributability’ (what reflects on a person), and ‘accountability’ (what demands can be appropriately placed on a person).” (P. 10.) Scanlon draws a similar distinction between “responsibility as attributability” and “substantive responsibility.” (Id.) For both Scanlon and Watson, attributive responsibility flags the fact that some action or outcome is appropriately taken as a basis of moral appraisal of some agent. Strictly speaking, attributive responsibility says nothing about what the appraisal should be—whether or not an action is creditworthy, blameworthy, or neither.
Our tendency is to think that “substantive responsibility”—what we may reasonably hold people fully accountable for, all things considered— is the only important kind of responsibility. The lesson of Scanlon and Watson’s work, however, is that “attributive responsibility” is also a fundamental form of responsibility. We may hold people accountable for outcomes that are attributable to them even when we would hesitate to say that those people are, all things considered, substantively responsible for those outcomes.
Indeed, tort law is notorious for assigning credit and blame in ways which do not track moral blameworthiness. Vaughan v. Menlove is a classic case in point. Menlove stacked his hay in a way that he was told was dangerous; it ignited and set fire to Vaughan’s property. In the ensuing lawsuit, Menlove defended himself by saying that he had used his own best judgment; that he had no choice but to use his own judgment; and that he was not at fault because he could not have exercised the better judgment of a more competent person. The court imposed liability because the standard of care is fixed objectively (by what we may reasonably expect from a person of normal competence), not subjectively (by what we may reasonably expect from someone with the defendant’s particular capacities). Negligence law is prepared to hold Menlove responsible for the destruction of Vaughan’s property even though he may have lacked the cognitive capacity to appreciate the dangerousness of his own conduct. Morally, if we accept Menlove’s account of his own limited capacities, we may wish to excuse him for stacking his hay in an objectively unreasonable way. Legally, we are wholly prepared to hold Menlove “outcome responsible” for the harm that he has done. Negligence law holds Menlove accountable just because the harm that he did was done by him and his conduct was objectively unreasonable. It doesn’t care if he lacked the mental capacity necessary to appreciate the objective unreasonableness of his conduct; his moral culpability is not tort law’s concern.
The lesson of Scanlon and Watson’s work is that this kind “attributive responsibility” is a fundamental and defensible form of moral responsibility. Our moral judgments, attitudes and practices commit us to evaluating people in important part on the basis of the outcomes legitimately attributed to them. Morally speaking, attributive responsibility is a precondition of substantive responsibility. People can be held substantively responsible only for actions that are properly attributed to them. If I kick you in the face because my evil colleague surprised me by hitting me with a rubber mallet, causing an involuntary muscle contraction, I am not attributively responsible for harming you. If, on the other hand, I kick you playfully in the shin as class is called to order, I am attributively responsible for the harm you suffer. When that harm turns out to be your leg falling off two days later, just how blameworthy I am is a matter of debate. Tort law often strikes moral philosophers as an odd duck precisely because a defendant’s attributive responsibility for a bad outcome is typically taken to settle the question of the defendant’s substantive responsibility for that outcome. Blameworthiness matters in criminal law and to punishment, but not in tort and to liability. Negligence is concerned with fault as defective conduct, not with fault as moral culpability. Attributive responsibility dominates substantive responsibility.
Corporate Responsibility and Tort
The tort norms governing the liability of organizations in tort are very much about the attribution of bad outcomes to actors. The heart of vicarious liability doctrine, for example, is the set of rules for attributing the torts of agents to the principals who employ them. Defect rules lie at the heart of product liability law, and they settle which product-related harms will be attributed to the firms responsible for manufacturing and marketing the products in question. Attributive responsibility is thus fundamental to corporate liability in tort. By bringing Scanlon’s and Watson’s important work on attributive responsibility into the conversation, Ewing makes the point that the attribution of an outcome to an agent is itself often a judgment that the agent is responsible for the outcome.
Simply reminding us that attributive responsibility is genuine responsibility is not enough, however. It is one thing to show that attributive responsibility for an outcome is an important form of moral responsibility; it’s quite another to show that the agent to whom the responsibility is imputed is a moral agent. For perfectly good reason, we attribute many harms to natural forces. Earthquakes, fires, floods, and other natural disasters wreak havoc with people’s lives. When we attribute harms to natural forces, however, we are asserting these harms do not have responsible causes. In morality and in law, an “act of God” negates human responsibility. Mother Nature is not accountable. Artificial persons such as corporations are neither forces of nature nor natural persons. We can manipulate them in pursuit of our ends—as economic theories attempt to do when they shape liability rules to give firms appropriate incentives to minimize the combined costs of accidents and their prevention—but it is not clear that they count as moral agents to whom intrinsic principles of accountability apply.
To meet this challenge, Ewing turns to recent works by Philip Pettit and Christian List. (P. 20 n.1 (citing, e.g., Christian List & Philip Pettit, Group Agency: The Possibility, Design, and Status of Corporate Agents (2011).) Pettit and List argue that organizations commonly develop forms of collective rationality that are partially autonomous from the persons who people and constitute them. Even an institution as simple as a multi-member judicial panel issues decisions that no single judge necessarily endorses as his or her own. The decision may be endorsed only by the collectivity—only by the panel. Both because individual persons tend to disagree with one another and because institutions are charged with specialized responsibilities, institutions tend to develop forms of practical rationality that characterize the institutions as such. Absent perfect and persistent consensus, institutions adopt and act upon decisions, policies, and norms that are distinctively the institutions’. Over time, and often by explicit design, collective decision accretes into what Pettit calls “programs.” For instance, corporations devise divisions of labor and put in place job responsibilities, protocols, and procedures in order to manufacture and market products, and then see to it that these cohere to actually do so.
Petit and List’s account shows that and why many outcomes may properly be attributed to corporations. That attribution is an attribution of moral responsibility because the entities to which it is attributed exhibit the practical rationality essential to agency and responsibility. Or so Ewing argues.
The Substance of Tort Law
The Structure of Tort Law, Revisited does a remarkable amount in a relatively short space. Tantalizingly, the paper stops at the doorstep of legal conceptions. Readers are left wondering whether and how far the conception of group responsibility deployed by Ewing can be mapped onto the legal conceptions that inform corporate tort liability. Product liability law, for example, relies explicitly on a mix of instrumental policies (deterrence and loss-spreading) and what the philosopher Joel Feinberg called “the benefit principle [of commutative justice] that accidental losses should be borne according to the degree to which people benefit from an enterprise or form of activity.” People have a prima facie responsibility to shoulder the harms that are a price of the benefits they are voluntarily reaping. Therefore, those who benefit from the imposition of product-related risks should shoulder responsibility for product-related harms. This principle takes the corporate form to be a vessel through which the responsibilities of natural persons flow. Employees, shareholders, suppliers, and consumers are responsible because they must take the bitter with the sweet. Ewing’s arguments, I think, are wholly compatible with this principle of commutative justice, because Ewing’s arguments bear on the attribution of harm in the first instance. But one wants to hear Ewing’s thoughts on just how his account of group responsibility relates to the grounds that tort law itself gives for imposing corporate liability.
On their face, ideas of corporate control in vicarious liability law resonate more directly with Pettit and List’s ideas. Scope of employment in vicarious liability law lends itself to explication in terms of “outcomes” that employers “program for” by virtue of the ways in which employers allocate authority and articulate job responsibilities. Can the idea of programming for outcomes illuminate ongoing debates about the scope of vicarious liability for such wrongs as sexual harassment, battery, and abuse? Institutional positions often enable the commission of such wrongs. Does that count as programming for them? If not, what more might be needed?
Still, it would be more than uncharitable to fault The Structure of Tort Law, Revisited for failing to delve deeper into the details of doctrines and cases. The paper’s project is to show that instrumental manipulation is not the only possibility when corporate wrongdoing is at issue. It succeeds admirably in building a sophisticated and compelling case that corporations are, in fact, strong candidates for the form of responsibility most characteristic of tort liability in general. This paper’s end point is a fruitful starting point for both Professor Ewing and the rest of us.
Donal Nolan, Preventive Damages
, 132 Law Q. Rev.
68 (2016), available by subscription at Westlaw
The recent Restatement Third of Torts divides U.S. tort law into separate categories of harm. Liability for physical injury is governed, on the one hand, by the Restatement Third of Torts: Liability for Physical and Emotional Harm. Liability for economic loss, on the other hand, is governed by the Restatement Third of Torts: Liability for Economic Harm. In the case of physical harm, default rules permit generous liability and recovery. In the case of economic losses, liability is quite limited. So it is no surprise that issues arise at the border of these two subjects. Specifically, what happens when the defendant’s conduct creates not actual physical harm, but a risk of physical harm that occasions the need for the plaintiff to incur economic expenses that will prevent it? Should the more liberal rules of physical harm recovery apply because the defendant’s conduct created a risk of physical harm? Or should the more restrictive rules of economic loss recovery apply because the actual damage is, after all, purely economic?
In his recent article, Preventive Damages, Professor Donal Nolan of Oxford University confronts this thorny issue, which, as he notes, “has been the subject of surprisingly little analysis by common law scholars.” Professor Nolan begins his article with the general principle of preventative damage recovery outlined in the Principles of European Tort Law. Specifically, Article 2.104 provides that “Expenses incurred to prevent threatened damage amount to recoverable damage in so far as reasonably incurred.” This general principle apparently captures the preventative damage rules of a number of civil jurisdictions, including Germany and France. But Nolan suggests that “most common lawyers would struggle to answer” whether this principle represents the law in their jurisdictions. The cases Nolan highlights seem to warrant that legal uncertainty as they pull in both directions.
Professor Nolan’s goal is not necessarily to put forth a firmly held position, but to identify problems in the area and begin to sketch some “tentative” solutions. His illustrations alone make the article worth the read. What if B negligently starts a fire and A pays firefighters to prevent the spread of fire to A’s land? What if B’s workers cut through a power company’s cable and A, who owns a frozen food facility, has to transfer food to another facility at considerable expense? What if B manufactures a crane that collapses and kills the operator, and the owner of a similar crane finds structural defects and has to repair them? What if B negligently builds an apartment with an inadequate foundation, and A, who bought an apartment in the building from a third party, has to undertake expensive repairs?
Professor Nolan reveals how commonwealth courts have resolved these and similar cases, and expresses his own opinions about their resolution. Although he does not propose a firm rule, Professor Nolan suggests that preventative damages should be allowed at least some of the time. He would adopt reasonableness as one general limit. However, he acknowledges that there are further issues “that a test of reasonableness may not resolve.” For example, if the general threat of burglary warrants A’s purchase of security locks, A may not be able to tag a particular burglar B with the expenses for prevention.
Professor Nolan’s article begins a crucial conversation. But as he acknowledges, this piece marks the beginning and not the end of the analysis. In many places a reader would welcome further analysis of principle and policy concerns. For example, Professor Nolan suggests that liability of a defendant for preventative damages is a “logical corollary of the law of contributory negligence and causation. After all, if a person who complains that they are the victim of a wrong can have their damages reduced because they failed to take reasonable steps to avert the wrongful interference, then it seems only right that if they do in fact take such steps, they should be able to recover the cost of doing so from the person responsible for the danger.” But there are problems with this argument. First, there seems to be a significant legal difference between being “the victim of a wrong” and being put at risk by a “person responsible for the danger.” As Nolan himself recognizes, the wrong underlying negligence law has not been “unreasonable risk creation,” but rather “negligently causing injury.” In the preventative damages hypotheticals there has been no negligently caused injury—no tortious wrong. Although Nolan discusses a number of possible ways to address this concern, he admits that “none of the potential solutions is straightforward.” For example, suppose B is an actor who created a risk of harm to another. Suppose also that A, the actor who was put at risk of harm by B, pays for preventive measures to avoid the risk. B cannot be seen as unjustly enriched by A’s expenditures for preventative measures because A’s actions were not undertaken with the predominant intention of benefitting B. Indeed, A undertook those actions to benefit A. Moreover, B— who put A at risk but did not harm her—would not traditionally have a duty of repair to A, so A’s repair would not discharge a liability owed by B.
Even if the plaintiff must take steps to reduce the possibility of injury in order to recover in tort, this does not necessarily imply that those steps must be paid for by the defendant. For example, if my neighbor builds a pool that could pose a danger to my toddler and I decide to fence my backyard or hire a babysitter, whether those precautions are reasonable, or not taking them unreasonable to the point a jury could tag me with partial comparative fault, seems a separate matter from whether my neighbor must build the fence or pay the sitter. The latter issue would invoke concepts of duty as well as those of negligence.
In favor of preventative damages recoveries, Professor Nolan also notes the policy of making such awards “serves to encourage those threatened with wrongful injury to take reasonable steps to reduce or eliminate the danger when best placed to do so… whereas refusing such claims creates an incentive for them to sit back and wait for the injury to occur.” However, he does not address the policy interests in tort redress for only actual injuries rather than threats of injury. For example, perhaps plaintiffs need no further encouragement to take protective measures. Many, if not most, threatened injuries will never become actual physical injuries. A fire on B’s property may not spread to A’s property, with or without reasonable preventative action by A. Providing A with recovery for preventative damages may give A too great an interest in taking steps to eliminate the danger. Moreover, it could be said that tort recovery in every case of negligence without physical harm would encourage defendants to create fewer threats of danger. Why allow recovery in this subset of negligence cases and not simply abolish the actual harm requirement entirely? If courts blur the line between recovery for actual physical harm and threatened physical harm, what will be the burden on courts (and in the U.S., juries) of legal process in every case to decide how imminent or likely and severe each threatened harm was?
An equally important issue to explore would be available alternatives to tort recovery for preventative damages. Could it be more efficient to leave these economic costs to first-party insurance or contract law rather than third-party tort liability? For instance, one can easily imagine that the owner of a freezer facility could insure against power outages either by purchasing business interruption insurance or providing backup generators. Similarly, the defective crane might be covered by some type of warranty, whether negotiated or implied.
This is not to say that any particular issue of principle and policy should decide the rule, but only that readers should take seriously Professor Nolan’s invitation to common law scholars to add to the analysis in this important area.
Dr. Samantha Barbas’ book, Laws of Image: Privacy and Publicity in America, makes an original, important, and engaging contribution to the history of the privacy law in the United States. In the process, the book illuminates how we became a culture obsessed with image management and how the law developed and continues to evolve to protect our rights to become our own personal brands.
In Laws of Image, Barbas analyzes a disparate body of law—mostly tort law—that protects individuals’ rights to control how they are portrayed by others. Barbas dubs this body of law the “laws of public image.” Through careful historical analyses of social, cultural and legal developments, she explains the origins of our culture of personal branding and gracefully charts the transition from Victorian-era sensibilities that condemned those who made spectacles of themselves to modern sensibilities that reward such behavior.
Barbas’ account of the development of the laws of image starts in the late nineteenth century. The book documents the growth of image-consciousness in the US and demonstrates that image-consciousness expands contemporaneously with industrialization, immigration, and urbanization. This occurs presumably because the more one interacts with strangers, the more one needs to manage first impressions to succeed. (P. 29.) The growth of mass media and photojournalism in the nineteenth century also contributed to a desire to control negative “presentations of self.” Meanwhile, the contemporaneous development of the contingency fee gave more people access to the means to repair damaged images through litigation, a factor that perhaps deserves even more prominence than Barbas gives it. (Pp. 18-19; 106.)
Overall, Barbas’ account of the growth of image-consciousness in the nineteenth century is fascinating and highly persuasive. She deserves especially high praise for her treatment of the origins of the privacy torts. Frankly, it is so common for privacy scholars to begin with nods to Samuel Warren and Louis Brandeis’ famous 1890 article, The Right to Privacy, that I always dread reading yet another analysis. But Barbas brings something new to the table. Although Warren and Brandeis are commonly portrayed as creating a right to be let alone, Barbas describes them as creating a “legal right to control one’s public image” (P. 26). This broader framing encompasses a right “to keep one’s personal affairs out of the public eye, and more broadly, to determine one’s own public image without undue interference from the media of mass communication.” (P. 38.) More succinctly, it is a “right to selective publicity” (P. 44) (emphasis added). I have always found The Right to Privacy to be elitist and self-serving, but Barbas convincingly argues that the article’s sentiments would have been common across the social spectrum. Warren and Brandeis were reacting “to a new sensitivity to personal image” that afflicted both the prominent and the obscure. (P. 27.) This sensitivity, as Barbas recounts, “grew from the demands of social life in an increasingly urban, commercial, mass-mediated society, where appearances, first impressions, and superficial images were becoming important foundations of social evaluation and judgement.” (P. 27.) Her use of historical evidence to support this thesis is masterful, and I must admit that I had to reevaluate my reading of The Right to Privacy after almost a quarter of a century in the field.
Venturing into the early twentieth century, Barbas illustrates how image-consciousness intensified in response to the increased “urbanization, innovations in communication and transport, [and] social and geographic mobility.” (P. 81.) She identifies a number of threads in this complex story. She associates growing image-consciousness with a changed perception of identity as fluid and malleable rather than fixed, demonstrating the connection between the psychological conception of the self and the commodification of the self. She also shows how the advertising and film industries fuel individuals’ desires to sell their “selves” to others. In the early twentieth century, the growing advertising industry touted “personal fulfillment through the purchase and use of the right products.” (P. 91.) Consumer choices at the time were not just about image management; rather, they created the potential for “inner transformation” based on then-current understandings of the self as capable of being “continuously rehabilitated, perfected, and worked pure over time.” (P. 94.) Meanwhile, the growing film industry and the celebrities it spawned were, for audiences, paragons of image creation and management to emulate.
Many states responded to these changes by adopting tort causes of action designed to protect citizens from “unwarranted publicity.” (P. 102.) In the 1930s and 1940s, more citizens pursued libel actions, and courts extended the parameters of libel to cover the emotional harms associated with interference with image. In addition, courts began to recognize claims such as intentional infliction of emotional distress, which further expanded legal protections for an individual’s personal brand. (Id.)
Contemporaneously, however, courts began to expand the rights of the media to report on matters of public interest. Barbas documents this countertrend in a chapter about the famous case involving a former child prodigy profiled in the New Yorker. This chapter adds nuance to a well-known case, Sidis v. F-R Publishing Corp. (1940), and shows how it portended a legal shift away from privacy protection. Other competing trend lines were evident after World War II: As the culture became preoccupied with self-expression, attacks on one’s “public image were being cast as serious assaults not only to dignity, but to the psyche itself.” (P. 160.) In other words, an attack on one’s public image by the media threatened the very foundation of one’s self. Meanwhile, a more aggressive press, preoccupied with understanding the hidden sides of public personalities, increased these very attacks. By the 1970s, with the continued growth of libel and privacy litigation, “image law” had matured. Then, as now, it protects not only the individual’s “ability to control his image” but also “his feelings about his image.” (P. 199.)
Given that Laws of Image spans more than 100 years of legal and cultural developments, it is remarkable how readable this book is: It is well-written, and the flow and pacing are excellent. At its core the book is about the fact that “people want to expose themselves to the public—to create a public image, a visible public persona and presence—yet at the same time to manage and control those images.” (P. 210.) As Barbas notes, we often call the desire to manage our image a desire for privacy, but it is not synonymous with the right to be let alone. What the two rights share, however, is a desire for control over what aspects of the self the individual reveals to the public or doesn’t. Laws of Image sheds necessary light for anyone hoping to understand the law’s conflicted embrace of these complex rights.
The Stanford rape case has given new prominence to the role of bystanders in sexual assault cases. Many have heralded the actions of the two Swedish graduate students who intervened to stop the sexual assault of an unconscious woman and forcibly detain her attacker until police arrived. However, in the world of tort law, attitudes towards bystanders and bystander intervention are ambivalent, at best.
To begin with, one of the most enduring tort doctrines is the no-duty-to-rescue rule. Its protection is so broad that it shields the most callous persons who refuse to provide assistance, even if they could easily prevent a serious injury to another at little risk to themselves. Bystanders, we are told, are under no legal obligation to act and are allowed to remain passive in the face of suffering and simply go about their own business. As an expression of fundamental values of personal autonomy and individualism, letting bystanders off the hook can appear natural and appropriate. Even the term “bystander” itself suggests lack of involvement and lack of interest. In Bystander Interventions, Sarah Swan cuts against this narrative, exploring the new world of bystander intervention strategies and making the case for reforming tort doctrine and other bodies of law to encourage “active” bystanders.
Swan’s focus is not on the classic tort rescue scenarios involving drowning victims or children poised dangerously close to busy highways, but on recent efforts by the government and activists to curb the “deeply entrenched social problems” of bullying in schools, sexual misconduct on college campuses, and workplace harassment. Citing the new federal mandate requiring colleges to include bystander intervention in their sexual violence prevention programs, Swan believes that bystander strategies have quickly become “the most popular proposed prescription to address these wrongs.” (P. 977.) As Swan sees it: “The idea behind bystander intervention is simple: many of these harms or the precursors to them occur in the presence of other people, and these witnessing individuals thus have the ability to disrupt or mitigate these harms.” (P. 978.)
Contrary to conventional wisdom that imagines rape and other incidents of aggression taking place in private, Swan notes statistics estimating that nearly eighty-five percent of bullying incidents are witnessed by other students, nearly one third of reported sexual assaults take place in the presence of third parties, and almost seventy percent of employed women report that they have observed incidents of sexual harassment. In these contexts, bystander intervention need not involve heroic acts but can be as simple as a college student “creating a distraction” by spilling beer on a potential offender who is about to steer a heavily intoxicated woman student away from the group, or a high school student posting a comment supportive of a classmate who is the target of cyberbullying.
Bystander intervention programs of this sort are all about culture change, attempting to stimulate a shift from a norm of non-intervention to a norm of intervention. Swan acknowledges that, given the newness of these programs, there are not yet reliable empirical studies documenting the efficacy of bystander intervention strategies. Instead, she devotes most of her article to exploring the legal and other impediments that threaten to undermine such efforts before they can take hold.
Swan locates the theoretical foundation for the current bystander intervention programs in the findings of social psychologists who first became interested in studying bystander behavior following the murder of Kitty Genovese in New York City in 1964, in which thirty-eight bystanders reputedly witnessed Genovese’s brutal stabbing but failed to call the police. The studies theorized a “bystander effect” that comes into play in situations of multiple bystanders: not only are persons in such situations less likely to intervene, but they often interpret the inaction of others as a sign that “the situation must not be as dire as they originally perceived.” (P. 986.) Moreover, even when bystanders in such situations conclude that there is a need for intervention, the presence of others results in a “diffusion of responsibility,” allowing the bystander to remain passive yet not experience guilt. In this way, “passive bystanding sends a message of tacit approval” that tends to perpetuate the cycle of harm.
Compounding the bystander effect is a legal environment that largely discourages bystander intervention. A major contribution of Swan’s article is her canvassing of various legal doctrines that inhibit bystanders from taking action, even if the doctrines do not directly prohibit or sanction their interventions. Swan is mainly interested in the expressive function of tort and other laws and their impact on norms creation. The major contest, as she sees it, is between bystander intervention programs which seek “to create a norm of intervention and foster a social responsibility norm,” and the older legal doctrines with the opposite effect, setting up a “competing norms” or “contradictory prescription” problem. Swan believes that in such a competition the non-intervention camp will prevail, citing research indicating that when norms prescribe contradictory behaviors (action versus inaction), “individuals will be more likely to conform to the norm that liberates them from the more costly (or effortful) behavior with respect to their own self-interests.” (P. 997.) Although we might all be better off in a world full of Good Samaritans, Swan is convinced that the immediate burden of intervention discourages bystanders from acting, particularly when legal norms generally favor non-intervention.
Number one on Swan’s list of laws that prop up the competing norm of non-intervention is the no-duty-to-rescue-or-report rule that “reigns supreme” in the vast majority of states. Swan notes that only a small minority of states have legislatively imposed limited duties, such as a duty to report specified serious crimes or to rescue persons in danger of death or grievous bodily harm when the rescue can easily be accomplished without risk to the rescuer. Swan finds it telling that the catalysts for these rescuing and reporting laws have often been “horrendous high-profile events involving sexual assaults,” such as the murder of Sherrie Ivernice, in which a person witnessed the offender sexually assault a young child in a casino restroom. With these notable exceptions, people who witness gang rapes or other sexual assaults, however, face no legal duty to do anything, sending the strong message that “people can and should ‘stay out of other people’s business.’”
Swan pays particular attention to how the law treats actors other than individual bystanders who fail to intervene to avert harm to others. Number two on Swan’s list of legal impediments is the lack of a state duty to protect citizens, which “directly parallels the lack of duty individuals have to each other.” The public duty doctrine and various immunities apply to ensure that the state generally has no enforceable duty to prevent private violence, which Swan asserts discourages bystander intervention by causing individuals “to wonder why they, as mere private citizens, should be asked to shoulder this burden.” (P. 1004.) Swan reports that many of the notorious cases have involved police failure to protect women and girls from domestic violence and other gendered harms, culminating in the “defining case” of Town of Castle Rock v. Gonzales, in which the U.S. Supreme Court held that the police owed no duty to a woman for failing to enforce a restraining order against her ex-husband.
With respect to non-state actors, Swan asserts that the norm of non-intervention is supported by a general lack of legal accountability attaching to institutions and organizations with power or control over the offenders. For example, Swan is highly critical of the strict limitations on imposition of employer vicarious liability under Title VII and of Title IX’s high threshold of proof for holding schools liable for sexual harassment. Under prevailing Title IX law, for example, to obtain relief against a school, a student must prove that the institution had “actual knowledge” of the violation and responded with “deliberate indifference,” creating perverse incentives for schools to insulate themselves from knowledge of violations. Although the tide may now be turning with the Department of Education’s more “victim-centered” administrative enforcement of Title IX during the Obama years, Swan believes that there is still widespread “institutionalized acquiescence” to the harms she targets and that “law has done little to elicit more responsive behaviors.” (P. 1021.) In her lexicon, such institutional actors function as “silent bystanders,” reinforcing the inaction of individual bystanders.
Finally, Swan points to the existence of laws and doctrines that impose liability on bystanders when they do intervene and claims that “in the popular imagination, rescue is often associated with potential liability.” (P. 1023.) She asserts that the Good Samaritan statutes enacted in every state are so confusing and ambiguous that they have done little to reduce the perceived risks of intervention and cites the particular concern of college students who often decide not to report sexual assaults for fear of being charged with petty infractions such as underage drinking.
These numerous legal impediments to creating a climate conducive to bystander intervention lead Swan to recommend a number of legal reforms, some highly specific and others somewhat vague. On the specific side, Swan proposes that states adopt the same legal duty to rescue and report laws that now exist in a minority of states and that colleges adopt a Good Samaritan (or amnesty) policy to ensure that bystanders who intervene will not be penalized for underage drinking or other forms of minor misconduct. On the somewhat vague side, Swan urges that the state, as well as institutions such as schools, colleges, and workplaces, creatively explore ways to bring about a “community responsibility model of accountability,” without, however, pinpointing the changes to vicarious liability or other doctrines that courts should make.
What makes Bystander Interventions a highly imaginative piece is Swan’s ability to flip the frame and subtly place traditional tort law on the defensive. Importantly, her starting point is not the longstanding tort doctrines that generally resist imposing affirmative duties on individuals other than direct offenders, but the new bystander intervention strategies premised on a more communitarian philosophy that regards individuals as interdependent and as bearing some responsibility for the well-being of those in their physical proximity. Equally important to Swan’s analysis is her centering of pervasive harms – bullying, sexual assault, and harassment – that have long been at the margins of tort law and are rarely uppermost in people’s minds when they think about the no-duty-to-rescue rule. Swan is acutely aware that such harms not only inflict serious injuries on individual victims but also constitute “methods of creating and maintaining social hierarchies, including those of race and class, but in particular, those of gender.” (Pp. 989-90.) She sees these three harms not only as serious invasions of personal rights, but as functioning “to set the norms of gender and sexuality in society,” inflicting suffering on those who fail to conform. I read her article as an unapologetic progressive critique of tort and other bodies of law with the aim of curbing these serious problems, even if it entails changing some longstanding legal doctrines.
Despite her confident tone in Bystander Interventions, Swan is not always a proponent of the trend toward “third-party policing” by which “the state tries to deter unlawful conduct by persuading or coercing a third-party individual or organization to perform activities that may discourage a potential primary wrongdoer.” (P. 996.) In an earlier article, Swan was highly critical of ordinances that hold individuals responsible for the criminal acts of their family members or friends, such as “crime-free” ordinances that impose mandatory terms in rental housing leases requiring the eviction of tenants when their friends or family commit criminal acts on the premises. In these contexts, Swan is opposed to what she sees as neoliberal measures that exact punishment beyond the immediate offender, in large part because of their disproportionately harmful effects on poor and minority communities. To quote from Swan’s website description of her scholarship, she studies the complexity of “how third-party responsibility is leveraged in competing ways to promote social control on the one hand and social change on the other.” Of course, when it comes to the politically controversial measures Swan writes about, one person’s (harmful) social control may be another’s (positive) social change.
Swan’s support for bystander intervention for the harms she targets makes sense precisely because there is often a group element to the offenses themselves. For example, masculinities scholarship has demonstrated that men often harass women and other “outsiders” in the workplace to prove their masculinity to their male co-workers. Disturbing recent incidents such as the Steubenville rape case in which bystanders videotaped the sexual assault of an unconscious teenage girl, as well as countless instances of cyberbullying, suggest that the presence of bystanders may be a crucial motivating factor driving the commission of the offense. At least with respect to these targeted harms, Swan makes a compelling case for modifying the no-duty-to-rescue rule and rethinking our common understanding of bystanders.
James R. Hackney, Jr., Judge Jack Weinstein and the Construction of Tort Law in America: An Intellectual History
, 64 DePaul L. R.
2 (2014), available at SSRN
Professor James Hackney’s recent review of Judge Jack Weinstein’s work on the bench, Judge Jack Weinstein and the Construction of Tort Law in America: An Intellectual History, is well worth reading. He draws interesting parallels between Weinstein’s approach to resolving mass tort disputes, described in his book Individual Justice in Mass Tort Litigation and reflected in several of his opinions, and Guido Calabresi’s theories of tort law, set out most prominently in The Costs of Accidents. Hackney makes a compelling case that their views are more similar than most scholars recognize.
At first the connection between Calabresi and Weinstein seemed a bit of a stretch to me. I’ve read Calabresi’s The Costs of Accidents many times and it has always struck me to be a primarily normative vision of the tort system, full of considerations that have proved to be enormously influential to tort theorists, but of somewhat limited value to judges. For example, the argument that negligence doctrine should be abolished and replaced by strict liability is a theory that most judges would have difficulty putting into practice. This is also confirmed by Judge Friendly’s reluctance to rely on a normative theory based entirely on Calabresi, and put forward by the plaintiff, as a justification for expanding vicarious liability in Ira S. Bushy & Sons, Inc. v. United States, 398 F.2d 167 (2d Cir. 1968).
But Hackney shows that Calabresi’s ideas, melded with Weinstein’s own ideas, can yield a set of practical guidelines for managing and resolving mass tort litigation. My initial skepticism was swept away when I read Hackney’s description of Weinstein’s views on mass torts.
In discussing what he refers to as “modern innovations” in tort law that deal with the issues related to mass torts, Judge Weinstein argues that deterrence, punishment of wrongdoers, foreseeability, and a search for fault can no longer be touchstones of our tort law system. Instead, judges and juries should concentrate on (1) who should pay for the greater risk associated with an increasingly complicated and technological society; (2) the size of damage awards; (3) who should be compensated; and (4) how compensation should be distributed. It is all about deterrence, compensation, and loss spreading. Judge Weinstein notes that the irrelevance of fault in the mass torts context has its historical antecedent in the move to strict liability in products liability cases. He also attributes the historical shift to strict products liability to the need to reduce the administrative cost of trials. (P. 505.)
This is an approach to mass torts cases that is entirely in line with Calabresi’s vision of the tort system. Hackney’s citations connected to this passage are all to Weinstein’s book, not to Calabresi, yet the passage sounds as if it could have been based entirely on Calabresi.
My initial view that Calabresi’s vision could not be applied to real torts cases was wrong. The case management issues presented to judges by mass torts appear to be quite amenable to Calabresi’s influence. Hackney’s review offers both a theoretical framework for Weinstein and a practical application of Calabresi.
Theodore Eisenberg and Christoph Engel, Unpacking Negligence Liability: Experimentally Testing the Governance Effect
, 13 J. Empirical Legal Stud.
116 (2016), available at SSRN
Empirical study of the law is important, particularly for tort law. Fundamental components of the tort system are a “black box,” which largely explains why the field is riven by theoretical disagreement over the purpose of tort law. The claim that tort law efficiently reduces accident costs, for example, critically depends on the extent to which the threat of tort liability deters risky actors from behaving inefficiently. The available data on accidents, however, do not directly measure the relationship, no doubt because the injury rate is affected by a large number of other interrelated factors such as changes in wealth and technology that are extraordinarily hard to disentangle, making it extremely difficult to identify the impact that tort liability has had on actual accident rates. To isolate the influence of particular factors such as the threat of tort liability, empirical study must instead turn to the laboratory, where researchers can conduct experiments that are designed to tease out the role of the varied factors that plausibly explain the accident rate—an excellent example of which is provided by Theodore Eisenberg and Christoph Engel in their article, Unpacking Negligence Liability: Experimentally Testing the Governance Effect.
As persuasively argued by Frederic Schauer in The Force of Law (2015), important jurisprudential questions depend on the particular reasons why individuals comply with the law. In particular, individuals often have independent normative reasons for acting in the manner otherwise required by the law, in which case the law itself is not motivating the behavior. “Until we can understand the different ways in which law intersects with its subjects’ law-independent preferences, we cannot begin to understand the role of incentives and coercion in motivating legal compliance.” (P. 100.) The experiment conducted by Eisenberg and Engel was designed to address exactly this type of problem.
The experiment tries to disentangle four different motivations that could affect an individual’s decision of how much risk to impose on another. First, empirical studies have found that individuals may have an intrinsic moral inhibition to harm a passive bystander, in which case an individual could act safely for moral reasons that she has adopted independently of tort law. A related motivation involves the desire to avoid being blamed for another’s injury, which can again (though not necessarily) be independent of tort law. The remaining two motivations directly implicate tort law. Individuals may adopt a point of view that is internal to the law and simply desire to conform their behavior to the normative requirements of tort law, even if the law is never enforced. Finally, individuals may instead be motivated only by the concern for avoiding liability, acting like the Holmesian “bad man” posited by the economic analysis of tort law. In an attempt to isolate these varied motivations, the experiment involved four different stages that each added new information relevant to a decision by an active participant of how much to engage in a risky activity threatening injury to an otherwise passive participant in the experiment.
In the baseline treatment, announced as a one-shot experiment, the active participant chooses the amount of risky activity based on a specified profit function and is also informed about the corresponding loss function faced by the passive party. The instructions also tell the active participant about the amount of the risky activity that will maximize his or her profit. After a surprise restart, the two participants are told that the experiment will be repeated 50 times and are informed both of the (inefficiently high) level of risky activity that maximizes the risky actor’s payoff and the (efficient) lower level of risky activity that maximizes the expected joint income of the two parties. In the next stage, if the active participant has engaged in excessively high risky activity and the passive participant suffered injury as a result, the injurer faces a 50% probability of being “audited” and then blamed for having exceeded “the socially desirable level of investment.” (P. 150.) The final stage adds a liability component, requiring such an audited injurer to pay compensation to the injured party. The same experiment was then conducted with the passive victim being a computer, in which case the moral inhibition not to harm others presumably would be eliminated.
In an impressively nuanced discussion of the experimental findings, the authors conclude that the only individual motivation without any significance involves the intrinsic morality of not harming a passive bystander. Risky activity was instead reduced in each stage by the additive triggering of three different motivations. In the first or baseline stage only involving the profit and loss functions, 86% of the active participants invested in the profit-maximizing amount. In the second stage announcing the socially desirable level of activity, a significant number of participants were motivated to comply with the law without any threat of sanction (the fraction of participants investing in the profit-maximizing amount dropped to 65%). In the third stage that blamed but did not sanction those who were “audited” and found to be in violation of the announced standard, a fewer but still significant number of participants were motivated by the desire to avoid blame alone (the fraction of participants investing in the profit-maximizing amount was reduced to 58%). In the fourth stage that subjected these excessively risky decisions to liability for compensatory damages, a significant number of participants were motivated by the desire to avoid liability (the fraction of participants investing in the profit-maximizing amount dropped to 33%). The different levels of the risky activity at each stage provide a measure of the influence of each type of individual motivation, leading Eisenberg and Engel to conclude that negligence liability deters risky behavior through a “governance effect” involving the public announcement of a normative expectation coupled with blame and sanctions for violation of the legal norm.
And what should one make of these findings? Consider in this regard their empirical finding that the risky activity was significantly reduced simply because of a public announcement regarding the socially desirable level of activity, a normative expectation not backed up by sanctions (which only entered into the final stage of the experiment). This finding most readily lends itself to the interpretation that a significant proportion of the population has adopted the internal point of view that motivates them to comply with the law, regardless of sanctions. Tort law can deter merely by publicly announcing its normative expectations of safe behavior.
This finding, though important, becomes more puzzling when considered in relation to the actual practice of tort law. The standard case of negligence liability turns on the jury’s determination of whether the defendant exercised reasonable care. Jury instructions do not define the requirements of reasonable care, so the jury presumably makes some type of normative judgment about reasonably acceptable behavior that is not defined by conventional safety practices (like jaywalking in New York City). If so, then the publicly announced normative expectation of tort law is that risky actors should comply with the relevant social norms. The “governance effect” identified Eisenberg and Engel, therefore, must somehow depend on the intrinsic morality of social norms, yet they found that intrinsic morality has no independently significant effect on risky behavior. The experimental design has missed something.
The problem in my view stems from the baseline specification of the safety decision, which relied on mathematically complex profit and loss functions. The instructions were formulated to help the participants avoid making decisions based on mathematical errors, but the logic of the decision was not intuitive. (I found it easiest to perform some simple calculus to clarify matters.) This type of decision making could easily have misframed the normative problem for those who were actively participating in the study, particularly as they were only expressly told about the amount of risky activity that would maximize their own profit and were not given any other motivations for the decision. The decision was framed as one of rational prudence without any salient moral dimensions. The active participant could easily have assumed that he or she merely faced a complex investment decision involving profits that threatened some stranger with a probabilistic monetary loss, a decision with important attributes of ordinary market behavior that is normatively different from risky behavior threatening bodily injury or premature death to a passive bystander. The subsequent announcement of the socially desired behavior in the next stage of the experiment would then cause some individuals to change their decisions by inducing them to reframe the normative problem. Tort law, therefore, can deter by helping individuals to frame properly the normative problem, but this “governance effect” may be an artifact of the experimental design that would yield different results if it had properly framed the normative problem in the first instance.
Tort law in the laboratory does not necessarily generalize to the real world, but this article reveals the substantial potential of this empirical approach. For decades now, researchers from a wide range of disciplines have been conducting studies of this type to determine how social norms influence behavior. Important results have been replicated across different experimental settings, yielding insights about normative behavior that are not identifiable with armchair observation. The empirical study of tort law has not yet reached this point. As Eisenberg and Engel point out, “[t]here is no more than a handful of pertinent experimental papers” that have tried to isolate the different types of reasons that motivate risky behavior threatening injuries to others. (P. 120.) Their article has not fully identified the contents of this “black box” within tort law, but their experimental design provides valuable guidance for what one hopes will be a quickly growing body of scholarship.
Cite as: Mark Geistfeld, Tort Law in the Laboratory
(May 24, 2016) (reviewing Theodore Eisenberg and Christoph Engel, Unpacking Negligence Liability: Experimentally Testing the Governance Effect
, 13 J. Empirical Legal Stud.
116 (2016), available at SSRN), https://torts.jotwell.com/tort-law-in-the-laboratory/
Margaret Jane Radin’s latest work, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law and a companion article and book chapter interrogate how now-ubiquitous fine print buried deep in consumer contracts affects the rights of ordinary Americans. This boilerplate can take many forms. It includes “extravagant exculpatory clauses,” choice-of-law provisions, and waivers of consequential damages. Frequently, and perhaps most importantly, it also includes agreements to arbitrate—and, in so doing, entails consent to eliminate the background protections we take for granted, including juries, reasonable filing fees, rights of appeal, rules of evidence, the ability to join with similarly aggrieved individuals, and stare decisis. Radin finds this fine print deeply troubling. She argues that, considered in tandem, these contractual terms make certain remedies for transgressions practically unavailable and thereby undermine individual autonomy, degrade democratic principles, and, ultimately, subvert the rule of law.
Because Radin is a contracts scholar—and her recent work is, on the face of it, about contract law—it would be easy for those of us who traffic in tort to miss the scholarship’s significance. That would be a mistake.
It would be a mistake, most notably, because the shifts that animate Boilerplate are taking place squarely on our turf. This is seen most clearly in compelled arbitration. NPR reports that arbitration agreements are now “common throughout the health care industry—in hospitals, surgery centers and doctors’ offices.” According to the New York Times, hundreds of cases involving elder abuse, neglect, and wrongful death have ended up in arbitration, where the clauses have been “consistently upheld.” And, many remember how, in 2014, General Mills tried to get its consumers to agree to route even garden-variety product liability claims to binding arbitration (with consent obtained whenever a customer downloaded online coupons or “liked” the company on Facebook), though that effort was ultimately abandoned in the face of widespread criticism. True, arbitration agreements will never overtake all of tort because certain parties who come into accidental contact with one another won’t have preexisting relationships. But, if allowed to continue on the current track, arbitral contracts do threaten to gobble up a large swath of the tort law ecosystem.
Further, though some have argued that forced arbitrations don’t alter legal rights, but merely simplify the procedures by which those same rights are vindicated, recent studies cast doubt on that claim. Arbitration clauses do not merely relocate the playing field, these studies suggest; they slant the field on which the ballgame is played. A Public Citizen study of arbitration proceedings in California found that businesses won nearly 94 percent of cases. The federal Consumer Financial Protection Bureau (CFPB) recently concluded that financial corporations prevailed in 93 percent of claims they asserted against consumers in arbitration, whereas consumers prevailed in only a tiny fraction of the claims they lodged against financial institutions. And, a recent study of 25,000 arbitrations conducted by the New York Times, found that roughly two-thirds of consumers contesting credit card fees failed in their arbitration attempts.
So, too, the very existence of an arbitration clause appears to dissuade plaintiffs from taking remedial action. According to an investigation by the New York Times, between 2010 and 2014, only 505 consumers—nationwide—went to arbitration over a dispute of $2,500 or less. The same review found that Verizon, which has more than 125 million subscribers, faced sixty-five consumer arbitrations in those five years; Time Warner Cable, with 15 million customers, faced seven; and Sprint, which boasts 57 million subscribers, faced six. Now, as far as I know, there are no data on how many tort victims abandon their injury claims in the face of arbitration agreements. But, the above information indicates that, when it comes to claim initiation, arbitration clauses can act as a powerful deterrent.
Radin’s recent work brings overdue attention to this problem of rights deletion in general and compelled arbitration in particular, and tort scholars ought to read it on that basis alone. But it goes beyond that, in that Radin’s work also adds a provocative new chapter to the long story of the intermingled but uneasy relationship between contract and tort.
Of course, contract law and tort law have never been totally separate or discrete. Many situations (including claims involving legal malpractice, medical malpractice, and products liability), fall on what Radin calls the “shifting, malleable, fuzzy line” between the two causes of action. Yet, it is tort law 101 that, ever since MacPherson v. Buick, decided by Justice Cardozo exactly one century ago, tort has bested contract in the competing doctrines’ long struggle. In the words of Professor Gregory Keating: “Tort law has triumphed over contract . . . and tort law—not contract . . .—generally determines the duties that people owe to each other with respect to the reasonably foreseeable risks of physical harm that their acts and activities create.”
Yet, what Radin points to is a quiet counterrevolution. In this new world, contracts may not formally redefine “the duties that people owe to each other.” But particularly forced arbitration agreements, drafted by sophisticated parties and agreed to by rushed and distracted individuals, may just as well, for they dramatically alter the practical consequences that flow from the sophisticated party’s breach. A bedrock tenet of tort law, in other words, is now in some doubt.
Radin’s suggestion of a path forward similarly blurs doctrinal divides. For here, Radin suggests that the solution to our current trouble won’t be found within contract. Instead, for the worst corporate offenders, it is tort law that holds the key.
Specifically, Radin calls for judges to evaluate contractual provisions along three dimensions: (1) the nature of the right that’s been truncated, (2) the quality of consent ostensibly obtained, and (3) the extent of social dissemination of the boilerplate scheme. Then, if the court finds that a firm has engaged in a mass deletion of market-inalienable rights with inadequate consent, not only must the court reverse the deletion. The court also ought to allow affected individuals to assert a new cause of action against the corporate entity. Similar to defamation and intentional infliction of emotional distress, this new cause of action is to be called the “intentional deprivation of basic legal rights” and come with sizable penalties.
Thus, there is a fascinating feedback loop: The current problem with (some of) tort law lies in contract law; it lies in the fine print that is eroding individuals’ legal protections. And, in Radin’s telling, the solution to the problem with contract law can be found, with a dash of ingenuity, in common law tort.
Avihay Dorfman, Assumption of Risk, After All
, 15 Theoretical Inquiries in Law 293 (2014), available at SSRN
Avihay Dorfman has written an excellent law review article that ably defends claims about junk-food-and-obesity law, the nature of primary assumption of risk, and the validity of anti-libertarian critiques of assumption of risk doctrine.
Dorfman’s own words (with markers I have added) provide the best synopsis of the three objections he raises to assumption of risk doctrine:
First, it is a conclusory doctrine in the sense that (1) its prescriptions are reached by reference to either other tort doctrines, such as (a) duty analysis, or (b) contract law . . . Second, . . .(2) choosing to be exposed to a risk created by others cannot absolve these others of liability, since such consent is not an analytical feature of liability waiver . . . Third, on a philosophical level, (3) the assumption of risk doctrine is none other than a surface manifestation of a laissez-faire vision of labor markets (and probably of other spheres of action).
Here, briefly, are Dorfman’s responses to each:
(1)(a) AOR is simply no-duty: Dorfman accepts that AOR is indeed a form of no-duty argument, but rejects the proposition that it is misleading to retain a special category for it. His view is that AOR involves saying in particular that because of the plaintiff’s own autonomous choice to participate in the risky activity in question, the defendant is not obligated to refrain from conducting the activity in question; respect for the plaintiff’s choice entails not regarding defendant as having acted wrongfully by generating this risk.
(1)(b) AOR is simply contractual waiver. This objection has things backwards, on Dorfman’s view. Contractual agreement is but one way a person can affect what level of risk a defendant would be entitled to generate toward plaintiff; manifested choice to confront the risk is another way. It does not involve contracting out of liability as such, but rendering it nonwrongful for the defendant to generate the risk.
(2) Waiving a right against such risks is analytically distinct from waiving a right to redress. In tort law, Dorfman observes, the right to redress is predicated on a right against such defendant conduct. If there is not a right against such conduct, there cannot be liability based on the violation of a right.
(3) AOR is simply a holdover from a regressive regime of laissez faire. Individuals who make significant, free, and well-informed choices concerning which risks to confront are entitled to be respected. Many of the concerns of the laissez-faire critique are more deeply characterized in terms of the conditions of choice: well informed consumer/plaintiff, lack of need or duress, outside options, etc.
The final part of the paper argues that the analysis of the idea of assumption of risk in torts is continuous with its analysis in thinking about some putatively paternalistic measures in public law. Thus, for example, Dorfman wants to be able to judge how much importance we should give to individual choice in debating whether government qua public health protector should ban junk foods. Should government be out of the business of regulating junk food, given that consumers voluntarily choose it?
Dorfman rightly contends that thinkers ought to be able to get beyond a paternalism versus laissez-faire version of the food policy debate and he plausibly suggests that the depth of analysis needed on assumption of risk in tort law can illuminate the debate in this area of public law. His own analytical framework for a liberal egalitarian conception of fair allocation of responsibility looks a lot like California’s Tunkl factors for assessing when to strike down a contractual exculpatory clause (utilizing express assumption of risk doctrine).
The principal thesis is that, in determining “whether it is appropriate to hold responsible one whose injury is a result of encountering a known risk” we must identify and answer the questions that “ought to be raised about the connection between a voluntary act of encountering a risk and the attribution of personal responsibility for so acting.” (P. 318). Four such questions (or categories of questions are identified: (i) the degree to which the plaintiff had the confronting of the risk as such as one of her actual purposes; (ii) whether the plaintiff was genuinely well-informed as to the nature and magnitude of the risk; (iii) the degree to which the activity in question is an essential one; (iv) the availability of alternate options.
The latter part of Dorfman’s article displays insight, cross-disciplinary research, and thoughtful analysis in applying this framework to the junk food public policy debate. Food consumers (unlike skydivers) are typically not seeking risk as such; they are typically underinformed on nutritional value and potential health risks; food is clearly an essential matter; and many urban areas are virtual deserts for healthy and nutritional food.
There is much to say about many aspects of the article, but for the purposes of this jot, I will identify only one thread of possible critical commentary. In tort law, the defense of assumption of risk bears only a strong family resemblance to the defense of consent; they are not identical. One of the many differences is that, under the defense of consent to an intentional tort, one consents to what would otherwise be a wrongful interference or injuring of oneself. In the defense of assumption of risk, one accepts that the other person will engage in certain conduct, but one does not otherwise have a legal right against that conduct. One has a legal right against being injured by that conduct, but one does not consent to being so injured; one assumes the risk of being so injured. Note that this distinction allows one to be agnostic on the issue of whether the risk in question is an unreasonable, excessive, or wrongful risk. As Calabresi and others have pointed out, assumption of risk is a valuable legal tool in part for this very reason. It permits our legal system to finesse the often difficult question of whether the risk is wrongful by making it clear in advance that the plaintiff will not be able to hold the defendant accountable for the ripening of the risk into an injury.
On this account, primary assumption of risk is not always (and perhaps not even primarily) a tool for no-duty rulings (which, in any case, is a misnomer; it should be no-breach-as-a-matter-of law). It applies where the presence of a knowing acceptance of the terms of interaction allows courts to bracket the heart of the breach question. We do not have to decide if the risk of running a sky-diving operation is excessive, for the plaintiff’s understanding that she was taking the risk is sufficient to undercut the claim that there is liability; she is, by her conduct, accepting that the behavior of the defendant shall not be treated as a wrong to her.
Although I mention this line of thinking in part to enrich Dorfman’s account (for I believe that there is more than one function that the doctrine plays), it also raises a red flag with respect to Dorfman’s treatment of liberalism. Even if one shares (as I do), Dorfman’s view that liberalism in law is committed to enforcing fair and equal terms of interaction, that is plainly not all liberalism is about. One of its key commitments, from Mill through Rawls, plainly involves a sort of anti-paternalistic instinct that strives to keep the state out of the business of making controversial value judgments in areas where people hold widely different opinions. Most New Yorkers bridled at Mayor Bloomberg’s efforts to control sugary beverages. Regardless of whether many of these New Yorkers were under-informed and under-supplied with good alternatives, there is no question that an authentically liberal conviction was among their reasons for opposition: contempt for government’s judgmentalism about how one should eat. Dorfman’s own example – junk food regulation – ironically provides a vivid illustration of the tension between two aspects of liberalism in the doctrine of assumption of risk.
- Christopher Robinette, The Prosser Letters: 1919-1948, 101 Iowa L. Rev. __ (forthcoming 2016), available at SSRN.
- Kenneth S. Abraham & G. Edward White, Prosser and His Influence, 6 J. Tort Law 27 (2015), available at SSRN.
United States courts cited Dean Prosser’s hornbook on Torts more than 200 times over the course of 2015. In that year, courts also cited Dean Prosser’s Restatement (Second) of Torts more a thousand times. Dean Prosser’s work shaped the law of Torts in the United States and continues to do so today, forty-three years after his death. Despite Prosser’s out-sized influence in the field, surprisingly few articles have been written about this founder of contemporary Tort law.
Two recent articles begin to fill that gap. Ken Abraham and Ted White tackle the subject of Prosser’s work and influence. Meanwhile, Chris Robinette uncovers the private correspondence of the man behind the law. Both the Abraham and White article and the Robinette article are insightful, a pleasure to read, and ultimately leave the reader ready to purchase the next chapter (Robinette reveals that part two is in the works).
Looking at Prosser from a biographical perspective, Abraham and White begin with an outline of Prosser’s career. While much of that background is generally known—from Prosser’s early teaching at Minnesota to his Deanship at Berkeley—there are surprises—that Prosser dropped out of Harvard Law School after his first year, that he began writing his hornbook in only his second year of Torts teaching, that Warren Seavey corresponded with Prosser “almost weekly” for the four-year period of the hornbook’s writing, that Prosser himself became something of a “laughingstock” at Harvard after a student filed suit against him for Prosser’s classroom demonstration of converting the student’s $5 bill, that Prosser’s “practical jokes” included delivering hearses to the homes of acquaintances, and that Prosser disapproved of faculty who refused to sign a loyalty oath.
After an overview of Prosser’s history, Abraham and White examine a seminal moment in Prosser’s career—the publication of Prosser’s Handbook on Torts, in 1941, to universal acclaim. They illustrate Prosser’s rhetorical style through closer examination of his handling of two particular torts, intentional infliction of emotional distress and invasion of privacy. Though they give credit to Prosser’s powerful and engaging writing, they ultimately conclude that his hornbook “was influential precisely because…it was somewhat deceptive.” (p. 64.) They contend that Prosser’s footnote-laden work, particularly in the two torts they examine, was not the synthesis of existing cases that readers of that time would have expected. Instead, although Prosser’s citations provided a “mantle of authoritativeness,” had readers “actually looked more carefully” they would have been dissatisfied with Prosser’s generalized propositions, which were largely unsupported by the authorities he invoked in their support. (p. 64.)
Meanwhile, Professor Robinette reexamines Prosser not from his published work, but from two collections of Prosser’s private letters—one set given by Prosser’s son to the Berkeley Law Center, and another given to the University of Minnesota Law Library by a person who purchased them at a yard sale. From these letters, Robinette pieces together key facts about Prosser’s childhood, education, and the start of his career. From Robinette’s work, we learn about Prosser’s father, a well-educated lawyer who ran an industrial institute and was known as the “Father of Vocational Education.” (p. 5.) We also learn about Prosser’s mother, who spent evenings reading aloud to her son and was proud of the way he could “sling the King’s English.” (p. 5.) The article discusses Prosser’s undergraduate education at Harvard, his enlistment during World War I, his 1L year at Harvard, his work as a sales manager in Minneapolis, his schooling at the University of Minnesota Law School, his work at a Minneapolis law firm, his time on the Minnesota faculty, and then his year on the faculty at Harvard.
Robinette’s examination reveals new information that shows Prosser as less deity than a man of his place and time. Prosser’s work “makes liberal use of ethnic references.” (p. 4.) For example, he’s glad not to spend Christmas in Germany “among the Heimies,” and a key feature of his law club is that it is “not Hebrew.” (p. 6.) Concerning honesty, when working as Secretary to the Commercial Attaché in Brussels, Prosser makes plans to smuggle some personal gifts via government supply truck and states that he hasn’t “any conscience about beating the government out of money.” (p. 12.) Moreover, readers (and Professor Robinette), are left to wonder why Prosser did not return for a second year of a play writing program at Harvard, or of Harvard Law School. Might he have been among the 1/2 of play writing students or 1/3 of law students who were not permitted to return?
That both the Abraham and White article and the Robinette article suggest there may have been a mere man behind the curtain of the great and powerful Torts scholar, does not ultimately detract from the professional accomplishments to which Prosser lays abundant claim. As all acknowledge, his fluid use of language makes him one of the most readable scholars in the field. His attention to detail— and to blending decided cases with broadly-articulated policy interests— warrants the full attention that courts have paid him. And his controlling influence in the field even today reveals his keen political acumen. Perhaps it is true, as Abraham and White have argued, that Prosser wrote in a time when Restatements and treatises were thought only to synthesize existing law and not to create it, but it is difficult to imagine that all of Prosser’s readers were either too lazy or obtuse to realize the ruse. Instead, perhaps Abraham and White underestimate the latitude Prosser’s readers gave him to shape the law beyond narrow descriptive boundaries. Indeed, the wide-spread acceptance of Prosser’s work suggests that, even after the realist moment, a broad and intelligent audience might accept normative development of doctrinal common law rules as long as the craftsman is skillful, modest in policy approach, and reflects well the values of the time.
Writing as only brilliant academics at elite institutions can, Abraham and White suggest that Prosser “certainly is not revered today in the way that he was in his own time.” (p. 2.) What they mean of course, is that Prosser is not revered by elite academics looking for interdisciplinary policy analysis served straight up, rather than shrouded in the traditional common law language of case law and doctrines. But as they lament, in that rarefied academic world, it is more difficult to show any broad scholarly influence at all. Rather than consigning Prosser to the dust bin of historical relics, perhaps Prosser can be seen as an exemplar for current scholars to build impact—by using both instrumentalist and formalist tools. While it may be difficult to trace the impact of contemporary academics devoted to interdisciplinary policy analysis, it is not difficult to admire the enduring edifice of Prosser’s work—just count this year’s judicial citations.
Cite as: Ellen Bublick, The Man, The Torts Legend, JOTWELL (February 16, 2016) (reviewing Christopher Robinette, The Prosser Letters: 1919-1948, 101 Iowa L. Rev. __ (forthcoming 2016) and Kenneth S. Abraham & G. Edward White, Prosser and His Influence, 6 J. Tort Law 27 (2015)).