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Compensating Distress With A Stiff Upper Lip

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What Tort Law Is

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

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

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

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

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

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

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

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

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

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

Why Reparation?

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

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

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

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

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

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

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

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

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

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

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

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

Computer Code as Law: A New Frontier?

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

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

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

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

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

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

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

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

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

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

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

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

Recovery for Emotional Distress in Tort

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(P. 1843).

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

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

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

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

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

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

Rethinking Tort Liability for Suicides

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

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

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

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

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

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

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

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

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

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

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

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

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

Cardozo’s Great Proximate Cause Decision?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Can Damage Calculations in Tort Cases be Unconstitutional Because They Discriminate on the Basis of Race? Yes, and Here’s Why.

In basic tort damage doctrine, a person injured by a tort can recover lost wages. This means it costs less to harm some people than others. People who earn less, whether because of reduced educational opportunities, racism, geography, family responsibilities, or other factors, will suffer lower damages than people who earn more. Defendants (and insurance companies) will have to pay less to “make them whole.” This aspect of tort damages is in tension with, if not in contradiction to, the notion that—formally—everyone counts equally in torts. This tension rarely gets attention or critique, in part because tort damages are determined individually, usually through informal and private settlements

In one context of U.S. tort law, however, the relationship between damages and inequality is on the surface and subject to critique. When an injured individual lacks an earnings history, race-based statistical tables estimating wages, life expectancy, and work-life expectancy are still routinely used in calculating tort damage awards. African-American plaintiffs, as a result, receive lower damage awards than white plaintiffs in such circumstances. Many people are surprised to hear this practice endures, although scholars have criticized it for decades.1 Valuing Black Lives is the most detailed explanation yet published as to why the use of race-based tables in calculating tort damages is unconstitutional. It is a companion piece to the authors’ previous article, Torts and Discrimination, earlier reviewed in Jotwell.2 Valuing Black Lives is excellent. In this era of resurgent racism, it is also particularly timely.

A key question in tort damages, especially where a child is grievously injured, is how much the child would have earned if she had not been hurt. This question is particularly challenging because the child obviously does not have a personal earning history that could be used to estimate lost future earnings. Courts and experts often use race-based and gender-based tables to calculate future lost wages in such a situation. Yuracko and Avraham argue that the use of race-based tables to calculate damages disadvantages individuals and creates incentives for companies to disproportionately allocate risks to minority communities so as to minimize tort damages. They claim, for example, that it would be economically rational for a large delivery company to concentrate its routes and its risky drivers in African-American neighborhoods because the company would end up paying lower damages as a result. As they note, the use of tables ‘embeds effects of racial discrimination into individual tort awards and channels past levels of racial discrimination into predictions about the future.’ The authors painstakingly and persuasively argue that race-based tables are racial classifications when used in court. Further, tables ‘stereotype individuals and make predictions about individual preferences and proclivities based on group membership,’ much like racial profiles. Because tables operate as race-based classifications, their use will be subject to strict scrutiny as long as state action is present. Based on a detailed discussion of state action doctrine, the authors methodically show how judicial reliance on race-based tables to calculate tort damages constitutes state action. Then they carefully apply strict scrutiny and conclude use of the tables doesn’t pass muster. They close by highlighting important aspects of tort damages calculations that will not be remedied by simply discarding race-based tables. As noted above, an injured person whose education and employment opportunities have been stunted by racism will have lower lost wages than a more privileged, higher earning person who suffers a similar injury.Inequality rooted in race and privilege pervades our torts damage calculation regime. The authors provide no solution to this deeper problem; I hope they write an additional article which focuses on that topic. I also hope they focus on gender-based tables which are also still used but are not discussed in Valuing Black Lives (perhaps because of the different standard of review)Their analysis provides a strong and detailed foundation for a court to hold that use of race-based tables to determine tort damages is unconstitutional.

The article and the earlier Torts and Discrimination join a growing literature on race and torts. This literature goes beyond targeting use of race-based tables which is perhaps the only remaining overt use of race on the surface of tort litigation. Up until the 1960s judges generally mentioned the race of tort litigants if they were not white; there are hundreds of published tort opinions dealing directly or indirectly with race to which few torts scholars have paid attention.3 Now that race is absent from the surface of tort opinions, the topic is even harder hard to study. A race-based discount was clear from older opinions.4 Race-based devaluation probably persists in many contexts, such as settlement, that are exceedingly difficult to study. A fascinating empirical analysis published in 2016 argues that the failure of some Southern states to adopt reforms such as comparative negligence can be traced to race and geography rather than explanations such as economics.5 A recent international comparative analysis shows that the use of race-based and gender-based tables is neither universal nor inevitable.6 There is more work to do.

It is or should be widely seen as extremely objectionable that race-based tables are still used in tort litigation and the authors’ concentrated attention to this issue is welcome. Other aspects of race, racism and torts deserve more attention than they have received. It’s high time outstanding work like this gets center stage.

  1. The first published argument that the use of race-based and gender-based tables is unconstitutional was published by Martha Chamallas in 1994. See Martha Chamallas, Questioning the Use of Race-Specific and Gender-Specific Economic Data in Tort Litigation: A Constitutional Argument, 63 Fordham L. Rev. 73 (1994). Later publications making similar arguments and discussing other aspects of race, gender, and torts include: Martha Chamallas & Jennifer B. Wriggins, The Measure of Injury: Race, Gender, & Tort Law (2010); Martha Chamallas, Civil Rights in Ordinary Tort Cases: Race, Gender, and the Calculation of Economic Loss, 38 Loy. L. Rev. 1435 (2005); Martha Chamallas, The September 11th Victim Compensation Fund: Rethinking the Damages Element in Injury Law, 71 Tenn. L. Rev. 51 (2003); Martha Chamallas, The Architecture of Bias: Deep Structures in Tort Law, 146 U. Pa. L. Rev. 463 (1998); Jennifer B. Wriggins, Constitution Day Lecture: Constitutional Law and Tort Law: Injury, Race, Gender, and Equal Protection, 63 Me. L. Rev. 264 (2010); Jennifer B. Wriggins, Damages in Tort Litigation: Thoughts on Race and Remedies, 1865-2007, 27 Rev. Litig. 37 (2007); Jennifer B. Wriggins, Whiteness, Equal Treatment, and the Valuation of Injury in Torts, 1900-1949, FAULT LINES; TORT LAW AS CULTURAL PRACTICE (David M. Engel & Michael McCann eds. 2009).
  2. Ellen Bublick, How Much is Your Injury Worth? First Tell Me Your Race and Gender, JOTWELL (July 6, 2017) (reviewing Ronen Avraham and Kimberly Yuracko, Torts and Discrimination, Law and Economic Research Paper No. E570 (2017), available at SSRN).
  3. See generally Barbara Young Welke, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865-1920, The Annals of Iowa 62 (2003); Martha Chamallas & Jennifer Wriggins, The Measure of Injury: Race, Gender, and Tort Law (2010); Jennifer Wriggins, Torts, Race, and the Value of Injury, 1900-1949, 49 How. L. Rev. 99 (2005); Jennifer Wriggins, Towards a Feminist Revision of Torts, 13 Amer. U. Jnl. of Gender, Soc. Pol. & Law 1 (2005).
  4. See, e.g., Jennifer Wriggins, Race, Torts, and the Value of Injury, 1900-1949, 49 How. L. Rev. 99 (2005).
  5. Donald G. Gifford & Brian Jones, Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law, 73 Wash. & Lee L. Rev. 557 (2016).
  6. Goran Dominioni, Biased Damages Awards: Gender and Race Discrimination in Tort Trials, 1 Int’l Comp., Pol’y & Ethics L. Rev. 269 (2018).
Cite as: Jennifer Wriggins, Can Damage Calculations in Tort Cases be Unconstitutional Because They Discriminate on the Basis of Race? Yes, and Here’s Why., JOTWELL (February 20, 2019) (reviewing Ronen Avraham & Kimberly Yuracko, Valuing Black Lives: A Constitutional Challenge to the Use of Race-Based Tables in Calculating Tort Damage, 106 Cal. L. Rev. 325 (2018). ),

Is Less Really More? Abraham and Kendrick on Getting Rid of Affirmative Duties

Kenneth S. Abraham & Leslie Kendrick, There’s No Such Thing as Affirmative Duty, Virginia Public Law and Legal Theory Research Paper No. 2018-59, available at SSRN.

When it comes to inherited scholarly categories and taxonomies, a prominent strand of modern American tort scholarship pursues a particular kind of deflationary agenda. The First and Second Restatements divided the law of negligence into sub-rules distinguished by spurious differences (for example, the section on “type of negligent acts” distinguished between “Use of Incompetent or Defective Instrumentalities” and “Want of Preparation”). The Third Restatement combined many rules that could be brought under a more general description – the laundry list of types of negligent acts has been radically pruned, leaving just a handful, such as “negligent failure to warn”.

Because the mission of the Restatement is to organize concepts latent in the common law, it is understandable that subsequent generations of reporters will see common themes between categories that were overlooked by their predecessors (and it is also possible that the law itself might evolve over time towards fewer principles as courts eliminate ad hoc categories). But reducing the number of rules, or principles, in the common law is not an unalloyed good. Debates still rage over whether the Restatement has, for all intents and purposes, removed duty as an element of the prima facie case in negligence in most cases of personal injury or property damage, and if it has, whether that move was salutary. Last year I reviewed for Jotwell an article by Prof. Stephen Sugarman calling for the merger of battery – an intentional tort – into negligence.

And now comes a proposal from Professors Ken Abraham and Leslie Kendrick to merge Chapters 3 and 7 of the Third Restatement, so that, instead of two general categories of duty in connection to physical harm, there will be just one rule of negligence for risk creation and there would be no need for a rule concerning affirmative duties. I will review Abraham and Kendrick’s arguments for the merger, suggest a few criticisms of their arguments, and conclude by evaluating the costs and benefits of pursuing yet another round of doctrinal deflation.

Abraham and Kendrick’s argument – which they recognize as somewhat radical – is that the category of “affirmative duties” ought to be abandoned. Their recommendation, in terms of the Restatement, is that §§ 37 – 43) be eliminated, and any claim by injured victims for physical harm that would have arisen under these sections come under the relevant sections elsewhere in the Restatement. Since the article is mostly a critical project, Abraham and Kendrick do not address where the orphaned causes of action would go, and this should not be held against them. Presumably, they would find a home in Chapter 3 (“The Negligence Doctrine and Negligence Liability” or Chapter 9 (“Duty of Land Possessors”).1

Abraham and Kendrick’s argument is simple and familiar to anyone who has tried to teach torts: The line drawn between act and inaction is vague, and because it is vague, the doctrinal rules that purport to rely on that line are either over-inclusive or under-inclusive. As a descriptive matter, I agree with Abraham and Kendrick, and a brief tour of their argument will induce, I suspect, in many torts professors a familiar sense of frustration with the common law rules in this area.

The Third Restatement preserves a categorical distinction between duties grounded on risks of physical harm “created” by the defendant (§ 7) and those risks of physical harm not created by the defendant (§ 37). I will note in passing that Abraham and Kendrick organize their argument by comparing § 7 and § 37, but that § 37 deals with risks of emotional harm not created by the defendant as well as with risk of physical harms. Their focus only on the treatment of affirmative duties in relation to risk of physical harms leaves open the question of how their analysis would apply to “pure” negligent infliction of emotional distress unconnected to physical imperilment (e.g. Section 47(b)). As an initial matter, I will only address the topic they have chosen for themselves – affirmative duties in relation to physical harm.

In tort law, it is commonplace for terms used frequently by laypeople to turn out be vague when those terms are put to work in tort. The “reasonable” person is a prime case in point. Modern doctrine, it could be argued, usually handles the problem of vagueness is ways that do not produce unnecessary complexity. One way tort law deals with vagueness is to delegate the final act of line drawing to the factfinder.  Not so with the line between risk creation and risk non-creation. The line is drawn as a matter of law, note Abraham and Kendrick (P. 53), and the conclusion that a risk was created by the defendant – or not – has significant consequences for the parties. If the court holds that the risk was created by the defendant then it falls under the “standard” rules of negligence for physical injury, which impose a very broad duty on the defendant. As the Third Restatement says in § 6, comment f, “[i]n cases involving physical harm, courts ordinarily need not concern themselves with the existence or content of this ordinary duty. They may proceed directly to the elements of liability.” However, the reverse is true if the court determines that the defendant did not create the risk. Unless the plaintiff can demonstrate that the risk falls into one of three limited categories, the defendant will be held to have had no duty to reduce the risk at issue, or mitigate any harm it may cause.

Abraham and Kendrick claim that there are descriptive and normative dimensions to the vagueness problem described above. (P. 10.) Yet, according to Abraham and Kendrick, the point of their article is not to criticize the ultimate holdings of any of the many courts that have applied the distinction between risk creation and risk non-creation. They are careful to emphasize that their project does not entail a normative argument that any particular case (including such chestnuts as Tarasoff orMoch) ought to have been decided differently. Their critique is conceptual. Abraham and Kendrick believe that there is no bright line separating affirmative duty cases from negative duty ones. Dispensing with the distinction might bring valuable clarity to our legal categories but it would not necessarily change the outcome of any of the cases they discuss.

The conceptual critique can be seen best in their treatment of cases involving the duties owed by landlords to tenants and other entrants in regard to criminal assault. (Pp. 12 – 14.) These cases, such as Kline v. 1500 Mass Ave. Apartment Corp., are treated as affirmative duties by the Third Restatement in § 40. Abraham and Kendrick’s problem with Kline is not with the outcome – a finding that there was a duty – but with the rationale for the duty provided under § 40. § 40 describes a situation where (1) the defendant did not create the risk that harmed the plaintiff but (2) there was a special relationship between the plaintiff and the defendant. Abraham and Kendrick’s conceptual critique is twofold: first, the Restatement’s reasons for holding that a special relationship exists between landlords and tenants and other entrants are conclusory and, second, that the conclusion that a landlord doesn’t create risk in cases like Kline is question-begging. Abraham and Kendrick think that the landlord, by maintaining the property, creates the opportunity for criminal assault on that property (“landlords . . . create the very conditions under which risk to the individuals with whom they deal may arise” P. 52.) and hence participates in creating the risk of criminal assault.

If the landlord in Kline created the risk, then the case should have been analyzed under § 7 or § 39. Under § 7, the landlord would owe a duty if his or her unreasonable conduct created the risk of criminal assault. Under § 39, the landlord would owe a duty because, despite the exercise of reasonable care, the relevant conduct created a continuing risk of physical harm that the landlord could prevent or minimize. In neither case would the court in Kline have to resort to finding a special relationship between the landlord and the victim. According to Abraham and Kendrick, given the breadth of § 7 and § 39 (negligent risk creation and non-negligent prior risk creation), duties based on special relationships (§ 40) end up being a fifth wheel.

Abraham and Kendrick’s treatment of the third category of affirmative duties, the duty to perform a gratuitous rescue reasonably (§§ 42 – 44) is extremely brief. This is probably because they see these duties as clear cases of risk creation, and therefore not true cases of affirmative duty. The bulk of their argument is devoted to showing that despite its many subsections, only one special rule for affirmative duties is needed to explain the doctrine – the rule concerning duties arising from prior risk creation (§ 39).

It must be observed that Abraham and Kendrick choose a rule for affirmative duty that is often viewed as having the most limited scope of application, as compared to the other two rules (affirmative duties based on special relationships and the duty to perform a gratuitous rescue reasonably). And although they concede that courts don’t actually hold that landlords in the sort of cases discussed above are found to have affirmative duties under § 39, they insist that this is a mistake. Abraham and Kendrick point to Illustration 1 of § 39 to prove their point. This illustration describes a golfer who, after carefully scanning the course and carefully hitting a long drive, sees a stranger walking towards the point where her ball is likely to land. (P. 17.) There is a duty to warn says the Restatement, even though the golfer was careful in every respect.  If the golfer has a duty to warn because she non-negligently created a risk which imperils a foreseeable victim, then the landlord in Kline also owes a duty, and for the same reason.

The overall conclusion of Abraham and Kendrick’s article is that almost all of the cases that the Restatement breaks off from §7 are really instances of what they call “prior risk creation” described in § 39. For Abraham and Kendrick, Chapter 8 contains two mistakes. The first is its failure to see that if it needed to exist at all, it would only need one rule – the duty to take reasonable precautions to protect others from the consequences of prior risks one has created non-negligently. The second mistake is to fail to see that there is no need to have a special rule for affirmative duties based on prior risk creation at all. In other words, § 39 can be collapsed into § 7 (and vice versa). They say this quite clearly on P. 18.

“Prior risk creation” threatens to transform most negligence cases into affirmative duty cases. Many standard negligence cases assume that the defendant had a duty to anticipate that his conduct might impose risks on others and to take reasonable precautions to prevent this. If this constitutes an “affirmative” duty of anticipatory risk reduction – if it essentially turns every case into a rescue case –then there is no distinction left between negative and affirmative duties.

This second mistake is based on the naïve belief that tort law should (and can) distinguish between conduct and non-conduct. While some might think that the line exists but is vague, Abraham and Kendrick don’t think there is a line at all. They assert: “All conduct creates some risk of harm” (P. 48, emphasis added.) The real meaning of this statement is that by choosing any course of action (including inaction), one is engaging in risk producing conduct, since at every moment one is potentially, no matter how remotely, in a position to affect the risk of harm faced by another. The “conventional duty of care [§ 7] often involves minimizing or protecting another against a risk of harm whose source is not the defendant’s negligence” (P. 45.) Of course, in much of a person’s daily life the practical opportunity to reduce the risks faced by others is so minimal as to be almost invisible, but that does not undermine the point that, in theory, there is always a potential opportunity to mitigate another’s experience of risk. The choice to do nothing is “conduct”. The choice to do something is “conduct”. All choosing is conduct, and since “all conduct creates some risk of harm,” every choice may, in theory, may create a risk to which another is exposed.

The viewpoint that “all of life is conduct and all conduct produces risk to others” is illustrated by Abraham and Kendrick with the following example. Driver, through no fault of her own, is confronted with a pedestrian entering into the street. Sidewalk User sees the pedestrian at the same time.  Abraham and Kendrick insist that there is no reason to evaluate Driver’s response to the pedestrian under § 7 (with all the attendant issues of comparative fault) and Sidewalk User’s response under § 39. They have no objection to the likely outcome that today’s doctrine would produce (Driver likely liable; Sidewalk User likely not liable) but they insist that, since Sidewalk User’s “conduct” potentially created risk (since Sidewalk User could reduce the pedestrian’s risk of injury) the question of duty should be analyzed under the part of the Restatement at the question of duty for Driver.

The elegance of Abraham and Kendrick’s approach is that it deflates so many categories with a single blow. Of course, there is no reason to have three exceptions to the no affirmative duty rule covered in Chapter 8:  Once a defendant’s ex ante opportunity to reduce another’s risk of injury is deemed to be an act of potential risk creation, the obligations imposed by special relations, gratuitous undertakings and the non-negligent creation of a continuing risk can be fused into a single class of conduct. Further, since the test of conduct is purely based on circumstance – whether one is in a position to reduce the risk of injury to another – any focus on conduct prior to the decision to reduce risk to another is irrelevant, and so the distinction between conduct and non-conduct at the point of that decision is erased.

Obviously, it is a serious question whether the concept of “conduct” adopted by Abraham and Kendrick has much currency in everyday language or the moral conventions of the societies to which the Restatement is addressed. In moral philosophy, their position is most closely associated with act-utilitarianism. In tort theory, there is a superficial connection between their account and a simplistic version of Calabresi’s cheapest cost-avoider. After all, Calabresi did, for rhetorical purposes, hypothesize that anyone who could most cheaply reduce the cost of car accidents ought to be held liable in tort for those accidents. But Calabresi was making a point about the relationship between strict liability and negligence, and Abraham and Kendrick claim to be offering an interpretation of negligence law. Therefore, it makes sense to evaluate their proposal from the perspective of their target, which is a reconstruction of negligence in the common law. I want to conclude with a much more limited critical observation.

As mentioned above, Abraham and Kendrick do not explicitly call for significant changes in liability judgments. They are calling for a significant change in legal process. They note that, once the ad hoc segregation of a case like Pedestrian v. Sidewalk User is abandoned, the case against Sidewalk User will be handled by the same process as the case of Pedestrian v. Driver. In the modern era of the Third Restatement, that means that, unless § 7(b) is invoked, the liability decision will depend on a factual judgment about breach, causation, and proximate causation. This is the clear implication of the statement that “prior-risk-creation cases can be more simply and more accurately be seen as asking whether the defendant exercised reasonable care under all the circumstances” (P. 54, emphasis added.) Abraham and Kendrick mention that in some cases, like Pedestrian v. Sidewalk User, the court will exercise its “tools for policing the outer-boundaries of fact-finding” to routinely find for Sidewalk User. (P. 53.)

My point is not that there is any reason to distrust the capacity of courts to use their supervisory power over fact-finding to preserve the status quo’s consensus that the defendants who today are found not liable under Chapter 8 will continue to be found not liable. It is rather, to observe that it is just as likely that many of the defendants who today are found not liable under Chapter 8 will be diverted into § 7(b). § 7(b) states “[i]n exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification.” It was added, of course, in response to the concern that, by adopting the view that there was a “ordinarily” a duty to all with regard to the creation of unreasonable risk (§ 7(a)), judges needed some way to block plaintiffs from asking whether the defendant “exercised reasonable care under all the circumstances” as a matter of law in some familiar classes of cases.

Even if one were persuaded that the conceptual deflation of the word “conduct” is defensible, I suspect that it will not achieve Abraham and Kendrick’s aim of removing complexity from the Third Restatement. It is just as likely that they have done nothing more than moved a difficult problem from one chapter to another.

  1. Presumably the deflationary project will come for Chapter 9, but that project awaits other critics.
Cite as: Anthony Sebok, Is Less Really More? Abraham and Kendrick on Getting Rid of Affirmative Duties, JOTWELL (January 23, 2019) (reviewing Kenneth S. Abraham & Leslie Kendrick, There’s No Such Thing as Affirmative Duty, Virginia Public Law and Legal Theory Research Paper No. 2018-59, available at SSRN),