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How Important is Community to Tort Law?

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

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

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

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

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

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

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

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

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

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

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

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

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

Cite as: Martha Chamallas, How Important is Community to Tort Law?, JOTWELL (June 6, 2017) (reviewing Christina Carmody Tilley, Tort Law Inside Out, 126 Yale L. J. 1321 (2017)),

A Benefit Theory of Tort Law

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

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

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

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

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

What, then, to make of the argument?

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

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

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

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

ISO the Missing Plaintiff

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cite as: Benjamin C. Zipursky, Tort Theory in Copyright Law: Thinking about Patrick Goold’s Unbundling the “Tort” of Copyright Infringement, JOTWELL (March 15, 2017) (reviewing Patrick R. Goold, Unbundling the “Tort” of Copyright Infringement 102 Va. L. Rev. 1833 (2016), available at SSRN),

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wrongs Without Rights

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I Can Explain That

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

Richard Posner has claimed that tort law is best understood as a means of incentivizing actors to take cost-efficient precautions against inflicting losses on others. “Not so!” says Ernest Weinrib, who insists that tort is an embodiment of corrective justice. Against both, Robert Stevens maintains that tort law defines and vindicates rights we have against each other. How are we to decide which of these theories, if any, offers the best interpretation of tort law?

In their provocative article, The Failure of Universal Theories of Tort Law, Professors Goudkamp and Murphy make a basic, important, yet oft-ignored point: to assess the validity of an interpretive theory, one must be clear on the object of interpretation. About what body of law are Weinrib, Posner, and Stevens theorizing? What permits these and other interpretive theorists to claim support from, or to dismiss as erroneous, decisions issued by American, Australian, Canadian, and English courts? Until we answer this question, we can’t assess whether any of them have offered fitting interpretations.

More pointedly, Goudkamp and Murphy argue that the aforementioned theories, as well as others, badly overreach. (Full disclosure: the authors suggest in passing that this critique applies to the civil recourse theory that Benjamin Zipursky and I have propounded.) The problem, they say, is that each purports, explicitly or implicitly, to provide an interpretation of a pan-national entity that sometimes goes under the name of “the common law of tort.” Under present conditions, no theorist can hope to offer a satisfactory interpretation of this body of law because … well … there is no such body of law. The rules that have been adopted by the national or subnational units that supposedly comprise the common law of tort (or “Anglo-American tort law”) are inconsistent.

For example, Posner’s theory famously hinges on the thought that, in negligence cases, courts have settled on the Hand Formula conception of breach. Goudkamp and Murphy point out that, at best, Posner’s claim fits U.S. decisions, not decisions from Australia, Canada, and England. Indeed, Weinrib claims in support of his corrective justice account that courts approach the breach question in a manner that is largely insensitive to precaution costs—an approach he associates with Lord Reid’s opinion in the English decision of Bolton v. Stone. Yet even if this is what Lord Reid had in mind, other English judges and judges in other commonwealth countries seem to apply notions of breach that are at least somewhat cost-sensitive. Meanwhile, Stevens claims as a “plus” for his rights-based theory that it can explain the absence of liability for negligence causing pure economic loss. (There is no right, he says, to mere economic expectancies.) Yet Goudkamp and Murphy tell us that Australian and Canadian law sometimes allow recovery for such loss.

The Failure of Universal Theories of Tort Law sounds a valuable cautionary note. Any scholar who purports to offer an interpretive theory of a body of law (rather than, say, a wholly prescriptive theory) must be attentive to the question of what is being interpreted, as well as the reach of the interpretation—that is, the level of detail at which the interpretation is supposed to provide explanations. Moreover, it is both fair and useful to have a pair of grounded skeptics “call out” theorists for maintaining that their theories have unique doctrinal entailments. Posner really does seem to be committed to asserting that courts have in fact adopted a Hand Formula conception of reasonable care. (That is, unless we are to treat his appeals to doctrine as mere window-dressing.) Weinrib seems no less committed to claiming that courts across common law jurisdictions have embraced a largely cost-insensitive conception.

Still, I wonder if Goudkamp and Murphy’s charge of overreach can be turned against them. Or perhaps it would be fairer to say that they are not as precise as they might be in explaining what counts as a “universal” tort theory, and hence are coy as to the reach of their argument.

I would submit that their beef is not with all theories that purport to make sense of the common law of tort. Rather, it is with theories that purport to derive fully specified substantive rules of the common law of tort from general principles. It is only theories of this extraordinary ambition that can be shown to fail upon proof of doctrinal disagreement. Notably, on this reading, even if Goudkamp and Murphy’s argument is valid, it leaves lots of room for interpretive theories of Anglo-American tort law.

Suppose Australian courts long ago rejected Vaughan v. Menlove’s insistence on an objective standard of care in favor of a subjective standard. Now imagine a theory asserting that Anglo-American tort law is concerned to define and prohibit interpersonal injurious wrongs, and to empower victims of those wrongs to obtain redress from those who have wronged them. This theory (after it is more fully elaborated) may have a lot to say about what the common law of tort is and how it differs from criminal law, contract law, etc. It may also have robust doctrinal implications. (For example, it may tell us that strict liability that results from courts’ having adopted relatively unforgiving definitions of legal wrongs counts as genuine tort liability, whereas strict liability that is fully detached from any notion of wrongdoing does not.) But the fact that the theory does not call for a unique answer to the question of whether negligence law’s standard of care should be objective or subjective hardly seems like a ground for deeming it a failure. Different courts define torts and tort defenses differently. But when they do so, they understand themselves, and we understand them, as operating within the domain of tort law. If this were not the case, then there would be no basis for asserting the existence of conflicting rules of tort law.

Goudkamp and Murphy provide a healthy dose of lawyerly skepticism about academic theories that treat tort law as a brooding omnipresence. But their intended prey is an exotic creature. What they aim to hunt down is not grand theory but grandiose theory: theory that aims to explain Anglo-American tort law on terms that leave no room for doctrinal variation. The theories they criticize probably are guilty of moments of grandiosity. And yet it surely remains possible to theorize across jurisdictions. If there can be a Restatement of “Torts,” there can be theories of U.S. tort law. And if there can be theories of U.S. tort law, there can be theories of Anglo-American tort law. Tort theory should pay attention to jurisdictional boundaries. It needn’t be confined by them.

Cite as: John C.P. Goldberg, I Can Explain That, JOTWELL (November 29, 2016) (reviewing James Goudkamp & John Murphy, The Failure of Universal Theories of Tort Law, 21 Legal Theory 47 (2015), available at SSRN),

A Duty To Sell Life-Saving Medicine?

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

Imagine that you have a rare, life-threatening medical condition. You are prescribed a drug that is critical to your survival. You thrive on the prescribed drug and your health improves significantly. However, only one company manufacturers this drug. Unfortunately, due to contamination during the production process, the manufacturer experiences inventory shortages. As a result, you cannot get prescriptions filled as ordered by your doctor, and your health deteriorates rapidly. Does the drug company have a legal duty to continue selling you the prescribed medicine? And, if the manufacturer’s negligence caused the inventory shortage, can you sue the company for tort-based damages? Professor William M. Janssen tackles these intriguing questions in his recent article, A “Duty” To Continue Selling Medicines.

I was fascinated by the dilemma that Janssen lays out in his article. He begins his exploration of the legal duty question with a compelling and heart-wrenching tale. In 2004, a Salt Lake City man was diagnosed with a rare, life-threatening disease, but he thrived after receiving a biological enzyme replacement therapy. In 2010, however, the biologic manufacturer reduced its inventory in order to make space available to produce a different therapy. At around the same time, a virus struck the manufacturing facility, contaminating the product, and in addition, the biologic was somehow contaminated during the production process with tiny pieces of steel, rubber, and fiber. These events led to a shortage of the drug, and the Utah patient received only 70% of his prescribed dosage. When he died, his widow brought suit alleging that the manufacturer failed to use reasonable care to ensure an adequate supply of the biologic. Her claim failed in court based on the finding that the manufacturer had no legal duty to continue to supply the drug. Specifically, the Utah court rejected the widow’s argument that the manufacturer engaged in affirmative wrongdoing by allowing the biologic to become contaminated by the virus, and thereby creating a drug shortage. Rather, the court found that the alleged medicine shortage was merely a failure to act (nonfeasance), and therefore, tort law did not provide a remedy.

After presenting a few of these case scenarios, the article surveys a wide range of theories—from statutory pharmaceutical laws to federal constitutional law—that could be considered potential sources for legal claims. Of particular interest, Janssen considers a variety of tort principles including the no-duty-to-rescue doctrine. An exception to the no-duty-to-rescue rule provides, however, that a person responsible for an instrumentality must render aid if the instrumentality causes harm, even if there’s no fault. Janssen situates this hornbook doctrine in the medicine shortage context: Arguably, the drug manufacturer’s inadequate supply is an instrumentality of harm, regardless of any fault. Janssen, however, concludes that this exception does not apply because the patient’s harm is not caused by the drug shortfall, but rather by the underlying medical condition.

Janssen next considers the corollary rescue principle that one who undertakes a rescue must do so non-negligently. Liability may attach if the rescuer abandons his attempt in a manner detrimental to the injured party. But Janssen rejects this theory on the ground that the drug shortfall did not place the plaintiff in a worse position than where he was before beginning treatment. Still, perhaps the loss-of-chance doctrine could apply here, and compensate the plaintiff for his reduced chance of survival without the drug. Although Janssen does not directly address this theory, his analysis implicitly rejects it. In examining the common law duty to avoid interfering with a rescue, Janssen concludes that the manufacturer’s failure to supply adequate amounts of the drug should be considered passive inaction, not the “active intervention” required by the no-duty-to-rescue doctrine (P. 378), or presumably, the affirmative misconduct required under the loss-of-chance doctrine.

Given the lack of a viable legal theory under current doctrine, Janssen explores whether tort law should be extended to provide a remedy for these patients. On the one hand, imposing a duty to supply life-saving drugs on drug manufacturers could encourage them to take risk-reduction precautions. Perhaps supply interruptions could be avoided or minimized if drug manufacturers faced tort liability. Likewise, it would seem that drug manufacturers are in the best position to absorb the costs of injury. Yet on the other hand, such liability could stifle research and development, especially where, as in the cases discussed, the drugs serve a very small population.

Trying to balance these competing policy concerns, Janssen recommends a regulatory solution that would avoid the drug shortfall in the first place. The first step of this solution would place responsibility on the manufacturer to submit a “realistic proposal” to the FDA, “supported by appropriate commitments and resources,” to resolve the shortage. (P. 390.) Alternatively, the manufacturer could enter into a license agreement with a substitute manufacturer to resolve the shortage. Where the original manufacturer fails to “satisfy [the FDA] that a reasonable proposal is in place to resolve the shortage,” Janssen proposes empowering the FDA to license an alternative drug manufacturer. (Id.) The goal, then, would be to fix the supply interruption and also to incentivize the original manufacturer to remedy the shortfall as quickly as possible.

Janssen’s article is well worth reading. He calls attention to an important social problem and his conclusion highlights the inability of tort law to address all of society’s injuries. One hopes to see more work on this topic.

Cite as: Sheila Scheuerman, A Duty To Sell Life-Saving Medicine?, JOTWELL (October 28, 2016) (reviewing William M. Janssen, A “Duty” To Continue Selling Medicines, 40 Am. J. of Law & Med. 330 (2014), available at SSRN),

Are Corporations Responsible Agents?

In The Structure of Tort Law, Revisited: The Problem of Corporate Responsibility, Benjamin Ewing, a visiting assistant professor at Duke Law School, breaks fresh ground by stitching together contemporary tort theory and recent philosophical work on responsibility. By knitting these threads together, Ewing’s fluent, sophisticated paper shows that imputing moral responsibility to artificial legal persons is an eminently plausible enterprise. The Structure of Tort Law, Revisited shows us that it makes eminently good sense to think about corporations not merely as institutions that we may manipulate to pursue valuable social objectives, but as institutions that bring responsibility upon themselves by their actions. In doing so, the paper broadens the horizons of normative non-instrumental tort theory.

As Ewing notes at the outset of his article, “moralized accounts of tort law” seem “particularly impotent” (whereas economic approaches to tort “seem especially powerful”) in tort cases in which corporate defendants are either held vicariously liable for the torts of their employees, or are themselves held directly liable for the marketing of defective products. (P. 2.) “It is obvious that tort law may affect corporations’ incentives but it is not self-evident that tort liability can be meaningfully understood as a form of moral accountability when it is imposed upon corporate rather than human persons.” (Id.) The central insight of Professor Ewing’s paper is that a particular form of responsibility— namely, “attributive responsibility”— is fundamental to accountability in both law and morals, and that corporations are attributively accountable agents.

Revisiting the Structure of Tort Law

In the 1980s and 90s, corrective justice theorists, particularly Jules Coleman and Ernest Weinrib, developed both a powerful critique of the economic theory of torts and a strong case for the corrective justice conception of the subject by calling attention to the bipolar structure of tort adjudication. Tort law unites plaintiffs with the defendants who have injured them, making the defendant’s liability symmetric with the plaintiff’s recovery. Weinrib explained the significance of this feature of tort adjudication by saying that tort law “treats the wrong, and transfer of resources that undoes it, as a single nexus of activity and passivity where actor and victim are defined in relation to each other.”1 Tort adjudication embodies “the correlativity of doing and suffering harm.”2 It institutes “[c]orrective justice [because it] joins the parties directly, through the harm that one of them inflicts on the other.”3 This unification of doing and suffering both expresses corrective justice and poses problems for instrumental accounts of tort, because bipolarity works to limit the pursuit of instrumental ends by tort means.

Economic theorists of tort have argued that tort law pursues two basic, valuable objectives— deterrence and insurance. Some accidents should be deterred; the social cost of their avoidance is less than the social cost inflicted by their occurrence. Other accidents should be allowed to happen; it is socially less costly to let them happen than to prevent them. Yet even accidents that should not be avoided should be insured against—and their concentrated costs dispersed—because concentrated losses generally diminish social welfare more than dispersed losses do. Precisely because it links injurer and victim through the wrong done by the former and suffered by the latter, the structure of tort law limits the pursuit of both deterrence and insurance. “When formulating forward-looking regulations designed to deter” risky behavior, “we seldom condition the applicability of regulation on the actual occurrence of harm.” (P. 5.) Tort law, however, “generally abides by the adage ‘no harm, no foul.’” (Id.) As a way of deterring harm, abiding by this adage is not especially attractive. Tort’s bipolar structure similarly impairs the pursuit of loss-spreading as an objective. “[I]n tort law, the only people who can be made to compensate a victim are individuals who bear a fairly close causal nexus to a victim’s losses. Such people are generally few in number…. The idea that tort law is designed to spread losses stands in tension with the fact that potential defendants in tort law are limited to the specific agents who have caused each plaintiff’s injuries.” (Id.)

Ewing’s rehearsal of Coleman and Weinrib’s arguments is expert, concise, and fluent. Even so, most law and economics scholars would contest the charge that economic considerations cannot justify the structure of tort law. Economic analysis is more sophisticated and fine-grained than Ewing’s faithful exposition of corrective justice theory suggests. For example, victims are sometimes better insurers than injurers. The insurance rationale for tort liability may therefore not imply extensive loss-spreading by defendants. The proper extent of tort liability depends on the relative advantages of first- and third- party insurance. That may vary from context to context, and be a deeply empirical matter. So, too, under-deterrence is a threat to the efficiency of tort liability, but tort law’s toolbox includes punitive damages, which can be deployed to address this very issue. Moreover, over-deterrence may be as much of a threat as under-deterrence. Striking the balance correctly may require fine-tuning damages in various ways (e.g., restricting or expanding pain and suffering damages). Consequently, it is far from obvious that tort law strikes an implausible balance among the instrumental policies that legal economists take it to serve.

Ewing would likely respond that these refinements still fail to explain and justify tort’s deeply relational character, or the centrality of responsibility to tort. Tort law is concerned with who did what to whom. The intrinsic relation that it takes to exist between tortfeasor and victim poses a problem for instrumentalist explanations. They struggle mightily to explain why the backward-looking fact that A wronged (and harmed) B is a reason for the forward-looking conclusion that A should repair B’s injury. Such a reframing of the matter would be fruitful, because Ewing’s real contribution to this debate is to point out that corrective justice theory has shown that a particular form of responsibility—namely, “responsibility as attributability”—is fundamental to tort law. The importance of this point is overlooked, Ewing thinks, because the fact that this form of responsibility is an important ground of corporate responsibility is itself overlooked.

Responsibility as Attributability

Ewing’s contribution, then, lies in characterizing the basic importance of bipolarity by saying that tort cares enormously about whether a harm is rightly attributed to someone. When wrongful harm is properly attributed to someone, tort law is strongly disposed to treat that person as liable. This aspect of tort tracks a distinction drawn in slightly different ways by two eminent moral philosophers—Gary Watson and Tim Scanlon. Watson distinguishes between “two faces of responsibility,” namely “‘attributability’ (what reflects on a person), and ‘accountability’ (what demands can be appropriately placed on a person).” (P. 10.) Scanlon draws a similar distinction between “responsibility as attributability” and “substantive responsibility.” (Id.) For both Scanlon and Watson, attributive responsibility flags the fact that some action or outcome is appropriately taken as a basis of moral appraisal of some agent. Strictly speaking, attributive responsibility says nothing about what the appraisal should be—whether or not an action is creditworthy, blameworthy, or neither.

Our tendency is to think that “substantive responsibility”—what we may reasonably hold people fully accountable for, all things considered— is the only important kind of responsibility. The lesson of Scanlon and Watson’s work, however, is that “attributive responsibility” is also a fundamental form of responsibility. We may hold people accountable for outcomes that are attributable to them even when we would hesitate to say that those people are, all things considered, substantively responsible for those outcomes.4

Indeed, tort law is notorious for assigning credit and blame in ways which do not track moral blameworthiness. Vaughan v. Menlove is a classic case in point.5 Menlove stacked his hay in a way that he was told was dangerous; it ignited and set fire to Vaughan’s property. In the ensuing lawsuit, Menlove defended himself by saying that he had used his own best judgment; that he had no choice but to use his own judgment; and that he was not at fault because he could not have exercised the better judgment of a more competent person. The court imposed liability because the standard of care is fixed objectively (by what we may reasonably expect from a person of normal competence), not subjectively (by what we may reasonably expect from someone with the defendant’s particular capacities). Negligence law is prepared to hold Menlove responsible for the destruction of Vaughan’s property even though he may have lacked the cognitive capacity to appreciate the dangerousness of his own conduct. Morally, if we accept Menlove’s account of his own limited capacities, we may wish to excuse him for stacking his hay in an objectively unreasonable way. Legally, we are wholly prepared to hold Menlove “outcome responsible” for the harm that he has done. Negligence law holds Menlove accountable just because the harm that he did was done by him and his conduct was objectively unreasonable. It doesn’t care if he lacked the mental capacity necessary to appreciate the objective unreasonableness of his conduct; his moral culpability is not tort law’s concern.

The lesson of Scanlon and Watson’s work is that this kind “attributive responsibility” is a fundamental and defensible form of moral responsibility. Our moral judgments, attitudes and practices commit us to evaluating people in important part on the basis of the outcomes legitimately attributed to them.6 Morally speaking, attributive responsibility is a precondition of substantive responsibility. People can be held substantively responsible only for actions that are properly attributed to them. If I kick you in the face because my evil colleague surprised me by hitting me with a rubber mallet, causing an involuntary muscle contraction, I am not attributively responsible for harming you. If, on the other hand, I kick you playfully in the shin as class is called to order, I am attributively responsible for the harm you suffer. When that harm turns out to be your leg falling off two days later, just how blameworthy I am is a matter of debate. Tort law often strikes moral philosophers as an odd duck precisely because a defendant’s attributive responsibility for a bad outcome is typically taken to settle the question of the defendant’s substantive responsibility for that outcome. Blameworthiness matters in criminal law and to punishment, but not in tort and to liability. Negligence is concerned with fault as defective conduct, not with fault as moral culpability. Attributive responsibility dominates substantive responsibility.

Corporate Responsibility and Tort

The tort norms governing the liability of organizations in tort are very much about the attribution of bad outcomes to actors. The heart of vicarious liability doctrine, for example, is the set of rules for attributing the torts of agents to the principals who employ them. Defect rules lie at the heart of product liability law, and they settle which product-related harms will be attributed to the firms responsible for manufacturing and marketing the products in question. Attributive responsibility is thus fundamental to corporate liability in tort. By bringing Scanlon’s and Watson’s important work on attributive responsibility into the conversation, Ewing makes the point that the attribution of an outcome to an agent is itself often a judgment that the agent is responsible for the outcome.

Simply reminding us that attributive responsibility is genuine responsibility is not enough, however. It is one thing to show that attributive responsibility for an outcome is an important form of moral responsibility; it’s quite another to show that the agent to whom the responsibility is imputed is a moral agent. For perfectly good reason, we attribute many harms to natural forces. Earthquakes, fires, floods, and other natural disasters wreak havoc with people’s lives. When we attribute harms to natural forces, however, we are asserting these harms do not have responsible causes. In morality and in law, an “act of God” negates human responsibility. Mother Nature is not accountable. Artificial persons such as corporations are neither forces of nature nor natural persons. We can manipulate them in pursuit of our ends—as economic theories attempt to do when they shape liability rules to give firms appropriate incentives to minimize the combined costs of accidents and their prevention—but it is not clear that they count as moral agents to whom intrinsic principles of accountability apply.

To meet this challenge, Ewing turns to recent works by Philip Pettit and Christian List. (P. 20 n.1 (citing, e.g., Christian List & Philip Pettit, Group Agency: The Possibility, Design, and Status of Corporate Agents (2011).) Pettit and List argue that organizations commonly develop forms of collective rationality that are partially autonomous from the persons who people and constitute them. Even an institution as simple as a multi-member judicial panel issues decisions that no single judge necessarily endorses as his or her own. The decision may be endorsed only by the collectivity—only by the panel. Both because individual persons tend to disagree with one another and because institutions are charged with specialized responsibilities, institutions tend to develop forms of practical rationality that characterize the institutions as such. Absent perfect and persistent consensus, institutions adopt and act upon decisions, policies, and norms that are distinctively the institutions’. Over time, and often by explicit design, collective decision accretes into what Pettit calls “programs.” For instance, corporations devise divisions of labor and put in place job responsibilities, protocols, and procedures in order to manufacture and market products, and then see to it that these cohere to actually do so.

Petit and List’s account shows that and why many outcomes may properly be attributed to corporations. That attribution is an attribution of moral responsibility because the entities to which it is attributed exhibit the practical rationality essential to agency and responsibility. Or so Ewing argues.

The Substance of Tort Law

The Structure of Tort Law, Revisited does a remarkable amount in a relatively short space. Tantalizingly, the paper stops at the doorstep of legal conceptions. Readers are left wondering whether and how far the conception of group responsibility deployed by Ewing can be mapped onto the legal conceptions that inform corporate tort liability. Product liability law, for example, relies explicitly on a mix of instrumental policies (deterrence and loss-spreading) and what the philosopher Joel Feinberg called “the benefit principle [of commutative justice] that accidental losses should be borne according to the degree to which people benefit from an enterprise or form of activity.”7 People have a prima facie responsibility to shoulder the harms that are a price of the benefits they are voluntarily reaping. Therefore, those who benefit from the imposition of product-related risks should shoulder responsibility for product-related harms. This principle takes the corporate form to be a vessel through which the responsibilities of natural persons flow. Employees, shareholders, suppliers, and consumers are responsible because they must take the bitter with the sweet. Ewing’s arguments, I think, are wholly compatible with this principle of commutative justice, because Ewing’s arguments bear on the attribution of harm in the first instance. But one wants to hear Ewing’s thoughts on just how his account of group responsibility relates to the grounds that tort law itself gives for imposing corporate liability.

On their face, ideas of corporate control in vicarious liability law resonate more directly with Pettit and List’s ideas. Scope of employment in vicarious liability law lends itself to explication in terms of “outcomes” that employers “program for” by virtue of the ways in which employers allocate authority and articulate job responsibilities. Can the idea of programming for outcomes illuminate ongoing debates about the scope of vicarious liability for such wrongs as sexual harassment, battery, and abuse? Institutional positions often enable the commission of such wrongs. Does that count as programming for them? If not, what more might be needed?

Still, it would be more than uncharitable to fault The Structure of Tort Law, Revisited for failing to delve deeper into the details of doctrines and cases. The paper’s project is to show that instrumental manipulation is not the only possibility when corporate wrongdoing is at issue. It succeeds admirably in building a sophisticated and compelling case that corporations are, in fact, strong candidates for the form of responsibility most characteristic of tort liability in general. This paper’s end point is a fruitful starting point for both Professor Ewing and the rest of us.

  1. Ernest J. Weinrib, The Idea of Private Law 56 (1995).
  2. Id. at 78.
  3. Id. at 71.
  4. Strangely, attributive responsibility can strike us as simultaneously too weak and too strong. A sports example may be illustrative. In 2011, Roger Federer and Novak Djokovic played an epic semifinal match at the U.S. Open. Federer was serving for the match in the fifth set and hit an unexceptional first serve. Djokovic, who had decided to go for a “Hail Mary” return even before Federer served, returned Federer’s serve with an unreturnable shot that seemed sure to fly out but, implausibly, landed just on the baseline. He went on to win the match. Afterwards, Federer was uncharacteristically unsportsmanlike. He made it clear that he had contempt for Djokovic for playing so recklessly on such a big point. Grownups didn’t play that way. Others celebrated Djokovic’s gutsiness. On the one hand, it seems clear that the return had to be attributed to Djokovic. On the other hand, it seems clear that reasonable people can disagree profoundly over whether Djokovic was “really responsible” for the return or “absurdly lucky,” and whether the return reflected brilliantly or badly on him. In tennis, Djokovic gets the credit and the win. In morality, he may deserve blame.
  5. Vaughan v. Menlove, (1837) 3 Bing. N.C. 467 (Ct. Common Pleas).
  6. Ewing also develops the point that “attributive responsibility” connects to the important idea of “outcome responsibility” articulated by Tony Honorè and further developed by Stephen Perry and John Gardner.
  7. Joel Feinberg, Sua Culpa, Doing and Deserving, 221 n.21 (1970).
Cite as: Gregory Keating, Are Corporations Responsible Agents?, JOTWELL (September 29, 2016) (reviewing Benjamin Ewing, The Structure of Tort Law, Revisited: The Problem of Corporate Responsibility, 8 J. Tort Law 1 (2015)),

When Physical Harm Is Threatened but Not Realized: Who Should Pay?

Donal Nolan, Preventive Damages, 132 Law Q. Rev. 68 (2016), available by subscription at Westlaw.

The recent Restatement Third of Torts divides U.S. tort law into separate categories of harm. Liability for physical injury is governed, on the one hand, by the Restatement Third of Torts: Liability for Physical and Emotional Harm. Liability for economic loss, on the other hand, is governed by the Restatement Third of Torts: Liability for Economic Harm. In the case of physical harm, default rules permit generous liability and recovery. In the case of economic losses, liability is quite limited. So it is no surprise that issues arise at the border of these two subjects. Specifically, what happens when the defendant’s conduct creates not actual physical harm, but a risk of physical harm that occasions the need for the plaintiff to incur economic expenses that will prevent it? Should the more liberal rules of physical harm recovery apply because the defendant’s conduct created a risk of physical harm? Or should the more restrictive rules of economic loss recovery apply because the actual damage is, after all, purely economic?

In his recent article, Preventive Damages, Professor Donal Nolan of Oxford University confronts this thorny issue, which, as he notes, “has been the subject of surprisingly little analysis by common law scholars.” Professor Nolan begins his article with the general principle of preventative damage recovery outlined in the Principles of European Tort Law. Specifically, Article 2.104 provides that “Expenses incurred to prevent threatened damage amount to recoverable damage in so far as reasonably incurred.” This general principle apparently captures the preventative damage rules of a number of civil jurisdictions, including Germany and France. But Nolan suggests that “most common lawyers would struggle to answer” whether this principle represents the law in their jurisdictions. The cases Nolan highlights seem to warrant that legal uncertainty as they pull in both directions.

Professor Nolan’s goal is not necessarily to put forth a firmly held position, but to identify problems in the area and begin to sketch some “tentative” solutions. His illustrations alone make the article worth the read. What if B negligently starts a fire and A pays firefighters to prevent the spread of fire to A’s land? What if B’s workers cut through a power company’s cable and A, who owns a frozen food facility, has to transfer food to another facility at considerable expense? What if B manufactures a crane that collapses and kills the operator, and the owner of a similar crane finds structural defects and has to repair them? What if B negligently builds an apartment with an inadequate foundation, and A, who bought an apartment in the building from a third party, has to undertake expensive repairs?

Professor Nolan reveals how commonwealth courts have resolved these and similar cases, and expresses his own opinions about their resolution. Although he does not propose a firm rule, Professor Nolan suggests that preventative damages should be allowed at least some of the time. He would adopt reasonableness as one general limit. However, he acknowledges that there are further issues “that a test of reasonableness may not resolve.” For example, if the general threat of burglary warrants A’s purchase of security locks, A may not be able to tag a particular burglar B with the expenses for prevention.

Professor Nolan’s article begins a crucial conversation. But as he acknowledges, this piece marks the beginning and not the end of the analysis. In many places a reader would welcome further analysis of principle and policy concerns. For example, Professor Nolan suggests that liability of a defendant for preventative damages is a “logical corollary of the law of contributory negligence and causation. After all, if a person who complains that they are the victim of a wrong can have their damages reduced because they failed to take reasonable steps to avert the wrongful interference, then it seems only right that if they do in fact take such steps, they should be able to recover the cost of doing so from the person responsible for the danger.” But there are problems with this argument. First, there seems to be a significant legal difference between being “the victim of a wrong” and being put at risk by a “person responsible for the danger.” As Nolan himself recognizes, the wrong underlying negligence law has not been “unreasonable risk creation,” but rather “negligently causing injury.” In the preventative damages hypotheticals there has been no negligently caused injury—no tortious wrong. Although Nolan discusses a number of possible ways to address this concern, he admits that “none of the potential solutions is straightforward.” For example, suppose B is an actor who created a risk of harm to another. Suppose also that A, the actor who was put at risk of harm by B, pays for preventive measures to avoid the risk. B cannot be seen as unjustly enriched by A’s expenditures for preventative measures because A’s actions were not undertaken with the predominant intention of benefitting B. Indeed, A undertook those actions to benefit A. Moreover, B— who put A at risk but did not harm her—would not traditionally have a duty of repair to A, so A’s repair would not discharge a liability owed by B.

Even if the plaintiff must take steps to reduce the possibility of injury in order to recover in tort, this does not necessarily imply that those steps must be paid for by the defendant. For example, if my neighbor builds a pool that could pose a danger to my toddler and I decide to fence my backyard or hire a babysitter, whether those precautions are reasonable, or not taking them unreasonable to the point a jury could tag me with partial comparative fault, seems a separate matter from whether my neighbor must build the fence or pay the sitter. The latter issue would invoke concepts of duty as well as those of negligence.

In favor of preventative damages recoveries, Professor Nolan also notes the policy of making such awards “serves to encourage those threatened with wrongful injury to take reasonable steps to reduce or eliminate the danger when best placed to do so… whereas refusing such claims creates an incentive for them to sit back and wait for the injury to occur.” However, he does not address the policy interests in tort redress for only actual injuries rather than threats of injury. For example, perhaps plaintiffs need no further encouragement to take protective measures. Many, if not most, threatened injuries will never become actual physical injuries. A fire on B’s property may not spread to A’s property, with or without reasonable preventative action by A. Providing A with recovery for preventative damages may give A too great an interest in taking steps to eliminate the danger. Moreover, it could be said that tort recovery in every case of negligence without physical harm would encourage defendants to create fewer threats of danger. Why allow recovery in this subset of negligence cases and not simply abolish the actual harm requirement entirely? If courts blur the line between recovery for actual physical harm and threatened physical harm, what will be the burden on courts (and in the U.S., juries) of legal process in every case to decide how imminent or likely and severe each threatened harm was?

An equally important issue to explore would be available alternatives to tort recovery for preventative damages. Could it be more efficient to leave these economic costs to first-party insurance or contract law rather than third-party tort liability? For instance, one can easily imagine that the owner of a freezer facility could insure against power outages either by purchasing business interruption insurance or providing backup generators. Similarly, the defective crane might be covered by some type of warranty, whether negotiated or implied.

This is not to say that any particular issue of principle and policy should decide the rule, but only that readers should take seriously Professor Nolan’s invitation to common law scholars to add to the analysis in this important area.

Cite as: Ellen Bublick, When Physical Harm Is Threatened but Not Realized: Who Should Pay?, JOTWELL (August 19, 2016) (reviewing Donal Nolan, Preventive Damages, 132 Law Q. Rev. 68 (2016), available by subscription at Westlaw),