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Boilerplate and the Boundary Between Contract and Tort

Margaret Jane Radin’s latest work, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law and a companion article and book chapter interrogate how now-ubiquitous fine print buried deep in consumer contracts affects the rights of ordinary Americans. This boilerplate can take many forms. It includes “extravagant exculpatory clauses,” choice-of-law provisions, and waivers of consequential damages. Frequently, and perhaps most importantly, it also includes agreements to arbitrate—and, in so doing, entails consent to eliminate the background protections we take for granted, including juries, reasonable filing fees, rights of appeal, rules of evidence, the ability to join with similarly aggrieved individuals, and stare decisis. Radin finds this fine print deeply troubling. She argues that, considered in tandem, these contractual terms make certain remedies for transgressions practically unavailable and thereby undermine individual autonomy, degrade democratic principles, and, ultimately, subvert the rule of law.

Because Radin is a contracts scholar—and her recent work is, on the face of it, about contract law—it would be easy for those of us who traffic in tort to miss the scholarship’s significance. That would be a mistake.

It would be a mistake, most notably, because the shifts that animate Boilerplate are taking place squarely on our turf. This is seen most clearly in compelled arbitration. NPR reports that arbitration agreements are now “common throughout the health care industry—in hospitals, surgery centers and doctors’ offices.” According to the New York Times, hundreds of cases involving elder abuse, neglect, and wrongful death have ended up in arbitration, where the clauses have been “consistently upheld.” And, many remember how, in 2014, General Mills tried to get its consumers to agree to route even garden-variety product liability claims to binding arbitration (with consent obtained whenever a customer downloaded online coupons or “liked” the company on Facebook), though that effort was ultimately abandoned in the face of widespread criticism. True, arbitration agreements will never overtake all of tort because certain parties who come into accidental contact with one another won’t have preexisting relationships. But, if allowed to continue on the current track, arbitral contracts do threaten to gobble up a large swath of the tort law ecosystem.

Further, though some have argued that forced arbitrations don’t alter legal rights, but merely simplify the procedures by which those same rights are vindicated, recent studies cast doubt on that claim. Arbitration clauses do not merely relocate the playing field, these studies suggest; they slant the field on which the ballgame is played. A Public Citizen study of arbitration proceedings in California found that businesses won nearly 94 percent of cases. The federal Consumer Financial Protection Bureau (CFPB) recently concluded that financial corporations prevailed in 93 percent of claims they asserted against consumers in arbitration, whereas consumers prevailed in only a tiny fraction of the claims they lodged against financial institutions. And, a recent study of 25,000 arbitrations conducted by the New York Times, found that roughly two-thirds of consumers contesting credit card fees failed in their arbitration attempts.

So, too, the very existence of an arbitration clause appears to dissuade plaintiffs from taking remedial action. According to an investigation by the New York Times, between 2010 and 2014, only 505 consumers—nationwide—went to arbitration over a dispute of $2,500 or less. The same review found that Verizon, which has more than 125 million subscribers, faced sixty-five consumer arbitrations in those five years; Time Warner Cable, with 15 million customers, faced seven; and Sprint, which boasts 57 million subscribers, faced six. Now, as far as I know, there are no data on how many tort victims abandon their injury claims in the face of arbitration agreements. But, the above information indicates that, when it comes to claim initiation, arbitration clauses can act as a powerful deterrent.

Radin’s recent work brings overdue attention to this problem of rights deletion in general and compelled arbitration in particular, and tort scholars ought to read it on that basis alone. But it goes beyond that, in that Radin’s work also adds a provocative new chapter to the long story of the intermingled but uneasy relationship between contract and tort.

Of course, contract law and tort law have never been totally separate or discrete. Many situations (including claims involving legal malpractice, medical malpractice, and products liability), fall on what Radin calls the “shifting, malleable, fuzzy line” between the two causes of action. Yet, it is tort law 101 that, ever since MacPherson v. Buick, decided by Justice Cardozo exactly one century ago, tort has bested contract in the competing doctrines’ long struggle.1 In the words of Professor Gregory Keating: “Tort law has triumphed over contract . . . and tort law—not contract . . .—generally determines the duties that people owe to each other with respect to the reasonably foreseeable risks of physical harm that their acts and activities create.”

Yet, what Radin points to is a quiet counterrevolution. In this new world, contracts may not formally redefine “the duties that people owe to each other.” But particularly forced arbitration agreements, drafted by sophisticated parties and agreed to by rushed and distracted individuals, may just as well, for they dramatically alter the practical consequences that flow from the sophisticated party’s breach.2 A bedrock tenet of tort law, in other words, is now in some doubt.

Radin’s suggestion of a path forward similarly blurs doctrinal divides. For here, Radin suggests that the solution to our current trouble won’t be found within contract. Instead, for the worst corporate offenders, it is tort law that holds the key.

Specifically, Radin calls for judges to evaluate contractual provisions along three dimensions: (1) the nature of the right that’s been truncated, (2) the quality of consent ostensibly obtained, and (3) the extent of social dissemination of the boilerplate scheme. Then, if the court finds that a firm has engaged in a mass deletion of market-inalienable rights with inadequate consent, not only must the court reverse the deletion.3 The court also ought to allow affected individuals to assert a new cause of action against the corporate entity. Similar to defamation and intentional infliction of emotional distress, this new cause of action is to be called the “intentional deprivation of basic legal rights” and come with sizable penalties.

Thus, there is a fascinating feedback loop: The current problem with (some of) tort law lies in contract law; it lies in the fine print that is eroding individuals’ legal protections. And, in Radin’s telling, the solution to the problem with contract law can be found, with a dash of ingenuity, in common law tort.

  1. MacPherson v. Buick Motor Co., 217 N.Y. 382, 390 (1916) (“We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought to be. We have put its source in the law.”). []
  2. In addition to being “rushed and distracted,” of course, individuals who waive rights for legal redress tend to be laboring under well-known cognitive biases, including optimism bias (i.e., “that bad thing surely won’t happen to me”) and myopia bias (individuals’ tendency to overweigh the short term relative to the long term). []
  3. Market inalienable rights, Radin explains, include certain political rights, such as the right to redress grievances, and human rights, including freedoms of speech and privacy. []
Cite as: Nora Freeman Engstrom, Boilerplate and the Boundary Between Contract and Tort, JOTWELL (April 22, 2016) (reviewing Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (2013)),

Junk Food and Assumption of Risk

Avihay Dorfman, Assumption of Risk, After All, 15 Theoretical Inquiries in Law 293 (2014), available at SSRN.

Avihay Dorfman has written an excellent law review article that ably defends claims about junk-food-and-obesity law, the nature of primary assumption of risk, and the validity of anti-libertarian critiques of assumption of risk doctrine.

Dorfman’s own words (with markers I have added) provide the best synopsis of the three objections he raises to assumption of risk doctrine:

First, it is a conclusory doctrine in the sense that (1) its prescriptions are reached by reference to either other tort doctrines, such as (a) duty analysis, or (b) contract law . . . Second, . . .(2) choosing to be exposed to a risk created by others cannot absolve these others of liability, since such consent is not an analytical feature of liability waiver . . . Third, on a philosophical level, (3) the assumption of risk doctrine is none other than a surface manifestation of a laissez-faire vision of labor markets (and probably of other spheres of action).
(P. 295)

Here, briefly, are Dorfman’s responses to each:

(1)(a) AOR is simply no-duty: Dorfman accepts that AOR is indeed a form of no-duty argument, but rejects the proposition that it is misleading to retain a special category for it. His view is that AOR involves saying in particular that because of the plaintiff’s own autonomous choice to participate in the risky activity in question, the defendant is not obligated to refrain from conducting the activity in question; respect for the plaintiff’s choice entails not regarding defendant as having acted wrongfully by generating this risk.

(1)(b) AOR is simply contractual waiver. This objection has things backwards, on Dorfman’s view. Contractual agreement is but one way a person can affect what level of risk a defendant would be entitled to generate toward plaintiff; manifested choice to confront the risk is another way. It does not involve contracting out of liability as such, but rendering it nonwrongful for the defendant to generate the risk.

(2) Waiving a right against such risks is analytically distinct from waiving a right to redress.  In tort law, Dorfman observes, the right to redress is predicated on a right against such defendant conduct. If there is not a right against such conduct, there cannot be liability based on the violation of a right.

(3) AOR is simply a holdover from a regressive regime of laissez faire.   Individuals who make significant, free, and well-informed choices concerning which risks to confront are entitled to be respected. Many of the concerns of the laissez-faire critique are more deeply characterized in terms of the conditions of choice: well informed consumer/plaintiff, lack of need or duress, outside options, etc.

The final part of the paper argues that the analysis of the idea of assumption of risk in torts is continuous with its analysis in thinking about some putatively paternalistic measures in public law. Thus, for example, Dorfman wants to be able to judge how much importance we should give to individual choice in debating whether government qua public health protector should ban junk foods. Should government be out of the business of regulating junk food, given that consumers voluntarily choose it?

Dorfman rightly contends that thinkers ought to be able to get beyond a paternalism versus laissez-faire version of the food policy debate and he plausibly suggests that the depth of analysis needed on assumption of risk in tort law can illuminate the debate in this area of public law. His own analytical framework for a liberal egalitarian conception of fair allocation of responsibility looks a lot like California’s Tunkl factors for assessing when to strike down a contractual exculpatory clause (utilizing express assumption of risk doctrine).

The principal thesis is that, in determining “whether it is appropriate to hold responsible one whose injury is a result of encountering a known risk” we must identify and answer the questions that “ought to be raised about the connection between a voluntary act of encountering a risk and the attribution of personal responsibility for so acting.” (P. 318). Four such questions (or categories of questions are identified: (i) the degree to which the plaintiff had the confronting of the risk as such as one of her actual purposes; (ii) whether the plaintiff was genuinely well-informed as to the nature and magnitude of the risk; (iii) the degree to which the activity in question is an essential one; (iv) the availability of alternate options.

The latter part of Dorfman’s article displays insight, cross-disciplinary research, and thoughtful analysis in applying this framework to the junk food public policy debate. Food consumers (unlike skydivers) are typically not seeking risk as such; they are typically underinformed on nutritional value and potential health risks; food is clearly an essential matter; and many urban areas are virtual deserts for healthy and nutritional food.

There is much to say about many aspects of the article, but for the purposes of this jot, I will identify only one thread of possible critical commentary. In tort law, the defense of assumption of risk bears only a strong family resemblance to the defense of consent; they are not identical. One of the many differences is that, under the defense of consent to an intentional tort, one consents to what would otherwise be a wrongful interference or injuring of oneself. In the defense of assumption of risk, one accepts that the other person will engage in certain conduct, but one does not otherwise have a legal right against that conduct.   One has a legal right against being injured by that conduct, but one does not consent to being so injured; one assumes the risk of being so injured. Note that this distinction allows one to be agnostic on the issue of whether the risk in question is an unreasonable, excessive, or wrongful risk. As Calabresi and others have pointed out, assumption of risk is a valuable legal tool in part for this very reason. It permits our legal system to finesse the often difficult question of whether the risk is wrongful by making it clear in advance that the plaintiff will not be able to hold the defendant accountable for the ripening of the risk into an injury.

On this account, primary assumption of risk is not always (and perhaps not even primarily) a tool for no-duty rulings (which, in any case, is a misnomer; it should be no-breach-as-a-matter-of law). It applies where the presence of a knowing acceptance of the terms of interaction allows courts to bracket the heart of the breach question. We do not have to decide if the risk of running a sky-diving operation is excessive, for the plaintiff’s understanding that she was taking the risk is sufficient to undercut the claim that there is liability; she is, by her conduct, accepting that the behavior of the defendant shall not be treated as a wrong to her.

Although I mention this line of thinking in part to enrich Dorfman’s account (for I believe that there is more than one function that the doctrine plays), it also raises a red flag with respect to Dorfman’s treatment of liberalism. Even if one shares (as I do), Dorfman’s view that liberalism in law is committed to enforcing fair and equal terms of interaction, that is plainly not all liberalism is about. One of its key commitments, from Mill through Rawls, plainly involves a sort of anti-paternalistic instinct that strives to keep the state out of the business of making controversial value judgments in areas where people hold widely different opinions. Most New Yorkers bridled at Mayor Bloomberg’s efforts to control sugary beverages. Regardless of whether many of these New Yorkers were under-informed and under-supplied with good alternatives, there is no question that an authentically liberal conviction was among their reasons for opposition: contempt for government’s judgmentalism about how one should eat. Dorfman’s own example – junk food regulation – ironically provides a vivid illustration of the tension between two aspects of liberalism in the doctrine of assumption of risk.


Cite as: Benjamin C. Zipursky, Junk Food and Assumption of Risk, JOTWELL (March 24, 2016) (reviewing Avihay Dorfman, Assumption of Risk, After All, 15 Theoretical Inquiries in Law 293 (2014), available at SSRN),

The Man, The Torts Legend

  • Christopher Robinette, The Prosser Letters: 1919-1948, 101 Iowa L. Rev. __  (forthcoming 2016), available at SSRN.
  • Kenneth S. Abraham & G. Edward White, Prosser and His Influence, 6 J. Tort Law 27 (2015), available at SSRN.

United States courts cited Dean Prosser’s hornbook on Torts more than 200 times over the course of 2015.  In that year, courts also cited Dean Prosser’s Restatement (Second) of Torts more a thousand times. Dean Prosser’s work shaped the law of Torts in the United States and continues to do so today, forty-three years after his death. Despite Prosser’s out-sized influence in the field, surprisingly few articles have been written about this founder of contemporary Tort law.

Two recent articles begin to fill that gap. Ken Abraham and Ted White tackle the subject of Prosser’s work and influence. Meanwhile, Chris Robinette uncovers the private correspondence of the man behind the law. Both the Abraham and White article and the Robinette article are insightful, a pleasure to read, and ultimately leave the reader ready to purchase the next chapter (Robinette reveals that part two is in the works).

Looking at Prosser from a biographical perspective, Abraham and White begin with an outline of Prosser’s career. While much of that background is generally known—from Prosser’s early teaching at Minnesota to his Deanship at Berkeley—there are surprises—that Prosser dropped out of Harvard Law School after his first year, that he began writing his hornbook in only his second year of Torts teaching, that Warren Seavey corresponded with Prosser “almost weekly” for the four-year period of the hornbook’s writing, that Prosser himself became something of a “laughingstock” at Harvard after a student filed suit against him for Prosser’s classroom demonstration of converting the student’s $5 bill, that Prosser’s “practical jokes” included delivering hearses to the homes of acquaintances, and that Prosser disapproved of faculty who refused to sign a loyalty oath.

After an overview of Prosser’s history, Abraham and White examine a seminal moment in Prosser’s career—the publication of Prosser’s Handbook on Torts, in 1941, to universal acclaim. They illustrate Prosser’s rhetorical style through closer examination of his handling of two particular torts, intentional infliction of emotional distress and invasion of privacy. Though they give credit to Prosser’s powerful and engaging writing, they ultimately conclude that his hornbook “was influential precisely because…it was somewhat deceptive.” (p. 64.) They contend that Prosser’s footnote-laden work, particularly in the two torts they examine, was not the synthesis of existing cases that readers of that time would have expected. Instead, although Prosser’s citations provided a “mantle of authoritativeness,” had readers “actually looked more carefully” they would have been dissatisfied with Prosser’s generalized propositions, which were largely unsupported by the authorities he invoked in their support. (p. 64.)

Meanwhile, Professor Robinette reexamines Prosser not from his published work, but from two collections of Prosser’s private letters—one set given by Prosser’s son to the Berkeley Law Center, and another given to the University of Minnesota Law Library by a person who purchased them at a yard sale. From these letters, Robinette pieces together key facts about Prosser’s childhood, education, and the start of his career. From Robinette’s work, we learn about Prosser’s father, a well-educated lawyer who ran an industrial institute and was known as the “Father of Vocational Education.” (p. 5.) We also learn about Prosser’s mother, who spent evenings reading aloud to her son and was proud of the way he could “sling the King’s English.” (p. 5.) The article discusses Prosser’s undergraduate education at Harvard, his enlistment during World War I, his 1L year at Harvard, his work as a sales manager in Minneapolis, his schooling at the University of Minnesota Law School, his work at a Minneapolis law firm, his time on the Minnesota faculty, and then his year on the faculty at Harvard.

Robinette’s examination reveals new information that shows Prosser as less deity than a man of his place and time. Prosser’s work “makes liberal use of ethnic references.” (p. 4.) For example, he’s glad not to spend Christmas in Germany “among the Heimies,” and a key feature of his law club is that it is “not Hebrew.” (p. 6.) Concerning honesty, when working as Secretary to the Commercial Attaché in Brussels, Prosser makes plans to smuggle some personal gifts via government supply truck and states that he hasn’t “any conscience about beating the government out of money.” (p. 12.) Moreover, readers (and Professor Robinette), are left to wonder why Prosser did not return for a second year of a play writing program at Harvard, or of Harvard Law School. Might he have been among the 1/2 of play writing students or 1/3 of law students who were not permitted to return?

That both the Abraham and White article and the Robinette article suggest there may have been a mere man behind the curtain of the great and powerful Torts scholar, does not ultimately detract from the professional accomplishments to which Prosser lays abundant claim.  As all acknowledge, his fluid use of language makes him one of the most readable scholars in the field.  His attention to detail— and to blending decided cases with broadly-articulated policy interests— warrants the full attention that courts have paid him. And his controlling influence in the field even today reveals his keen political acumen. Perhaps it is true, as Abraham and White have argued, that Prosser wrote in a time when Restatements and treatises were thought only to synthesize existing law and not to create it, but it is difficult to imagine that all of Prosser’s readers were either too lazy or obtuse to realize the ruse. Instead, perhaps Abraham and White underestimate the latitude Prosser’s readers gave him to shape the law beyond narrow descriptive boundaries. Indeed, the wide-spread acceptance of Prosser’s work suggests that, even after the realist moment, a broad and intelligent audience might accept normative development of doctrinal common law rules as long as the craftsman is skillful, modest in policy approach, and reflects well the values of the time.

Writing as only brilliant academics at elite institutions can, Abraham and White suggest that Prosser “certainly is not revered today in the way that he was in his own time.” (p. 2.) What they mean of course, is that Prosser is not revered by elite academics looking for interdisciplinary policy analysis served straight up, rather than shrouded in the traditional common law language of case law and doctrines.  But as they lament, in that rarefied academic world, it is more difficult to show any broad scholarly influence at all. Rather than consigning Prosser to the dust bin of historical relics, perhaps Prosser can be seen as an exemplar for current scholars to build impact—by using both instrumentalist and formalist tools. While it may be difficult to trace the impact of contemporary academics devoted to interdisciplinary policy analysis, it is not difficult to admire the enduring edifice of Prosser’s work—just count this year’s judicial citations.

Cite as: Ellen Bublick, The Man, The Torts Legend, JOTWELL (February 16, 2016) (reviewing Christopher Robinette, The Prosser Letters: 1919-1948, 101 Iowa L. Rev. __ (forthcoming 2016) and Kenneth S. Abraham & G. Edward White, Prosser and His Influence, 6 J. Tort Law 27 (2015)).

Stealth Ways to Keep Tort Cases from African-American Juries

Donald G. Gifford & Brian M. Jones, "Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law," __ Wash. & Lee L. Rev. __ (forthcoming 2016), available at SSRN.

What do Alabama, Maryland, North Carolina, Virginia, and Washington D.C. have in common? Answer: They all apply the doctrine of contributory negligence to tort cases. Indeed, they are the last five contributory negligence outposts; the rest of the United States has long since moved on to comparative fault regimes of one form or another.

They are, moreover, all located in the South. And according to Donald Gifford and Brian Jones, this is no coincidence.

In their provocative article, Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law, Gifford and Jones argue that certain states cling to contributory negligence and other “anti-plaintiff” tort doctrines to prevent cases from being decided by juries. The most worrisome aspect of their thesis is that this concerted effort to insulate cases from juries is most pronounced in Southern states whose major urban centers include significant African-American populations.

The article’s novel contribution to the literature is its distinct focus on the role of substantive tort law, as opposed to procedural issues like jury selection or political questions like judicial elections, in keeping cases from juries and ensuring that cases are decided (translation: dismissed) by judges. In addition to the doctrine of contributory negligence, the authors, having consulted with twelve tort law “experts” (judges, plaintiffs’ lawyers, and defendants’ lawyers), identify the following doctrines and standards as the most formidable barriers to jury access: laws that limit or block a property owner’s or landlord’s potential exposure in premises liability cases (such as laws immunizing property owners from anyone other than invitees), laws limiting the liability of charitable institutions (including hospitals), and standards governing the admissibility of expert testimony. Each of these rules facilitates pretrial dismissal as a matter of law on motions for summary judgment, or during trial but before submission to the jury, on motions for a directed verdict.

The authors devised an empirical test to measure how their dependent variable—a construct they term a particular state’s “jury access denial index,” or JADI (a weighted average, based upon their designated tort experts’ view of the relative significance of each of the five restrictive tort doctrines)—is affected by the following independent variables: a high degree of income inequality in the state’s largest cities, high percentages of African-Americans in a state’s largest cities, a state’s history as part of the traditional, slaveholding South, and a state’s political ideology. Their sample includes seventeen states, eight of which are part of the “traditional South,” including four of the contributory negligence stalwarts.

The authors’ powerful conclusion is that: “Even in the twenty-first century, supreme courts in a number of states with substantial percentages of African Americans in their largest cities, particularly those in the South, continue to follow outmoded doctrines of tort law that make it more difficult for personal injury plaintiffs to have their cases decided by juries.” (p. 41.)  A surprising outcome of their test is that a state’s political leanings have little to no effect on a state’s JADI (and, as they most unexpectedly determined, if anything, states with liberal leanings actually had a higher JADI).  They accordingly conclude that “it is race and region of the country, not political ideology that primarily affect a state’s JADI.” (p. 41.)

A key prong of the authors’ thesis is that the drive to prevent jury decision making where those juries are most likely to be comprised of African Americans is the unshakeable perception that such juries will rule in a plaintiff’s favor. In a section that deftly weaves together history, literature, and some colorful quotes from contemporary practitioners, the authors show that it is generally assumed that such jurors will rule against a defendant out of empathy for a plaintiff who, like themselves, has been harmed, marginalized or, in the words of one trial lawyer, “hammered all their lives” (p. 16.)

But according to certain scholars, the perception is false. Issa Kohler-Hausmann, a law and sociology scholar, has determined that “there is no statistically significant correlation between the chance of prevailing on the liability issue and any of the following three variables: the income inequality of the local population from which the jury is drawn, the percentage of the population living below the poverty line, and the percentage of persons of color.” (p. 19.) The authors cite work by Eric Helland and Alexander Tabarrok showing that “race and poverty [do] act . . . to increase the size of jury awards,” but do not affect “plaintiff success rates” in a statistically significant way. The authors do not try to explain why the disconnect between perception and actual impact persists. And, in any case, the truth or falsity of the perception is ultimately, for these authors’ purposes, beside the point:

Our objective is not to choose sides in this debate, mostly between judges and practitioners on one side and scholars on the other, as to whether the racial or socioeconomic characteristics of the juror population affected trial outcomes. Instead, our hypothesis is that the perceptions of judges and legislators that juries with higher percentages of African-American or low-income jurors in a state’s largest cities will lead them to continue to follow traditional tort doctrines that keep plaintiffs from reaching juries. (p. 20.)

The authors readily recognize the unlikelihood of obtaining direct proof in support of their thesis (“[J]ustices are not going to admit that they continue to follow doctrines in order to keep juries with substantial numbers of African-American or low-income jurors from deciding personal injury cases”), and, accordingly, they explain that they can only prove “strong correlations between a state’s substantive law that makes it difficult for personal injury plaintiffs to have their cases decided by the jury and the factors of race and being a part of the South.” (p. 41)  Their presentation of these correlations is masterful, and one in particular stands out: their description of certain states’ failure to adopt more liberal liability regimes viewed against the legal historical backdrop of jury selection.

The authors detail our country’s distressing history of measures, particularly “harsh, widespread and sustained” in the South (p. 23), designed to keep African Americans from serving on juries. Southern states were savvy in trying to avoid the Supreme Court’s holding in Strauder v. West Virginia (1879) that a West Virginia statute barring African Americans for juries violated the Equal Protection Clause. They required, for instance, that African Americans’ names be printed on different color paper and thus were immediately identifiable when names were picked out of a pile. They devised mandatory character prerequisites for jurors to meet and that were readily “interpreted to exclude African Americans” (p. 23) such as the requirement to be of “good intelligence, fair character, and sound judgment.” (p. 23.) As these and other efforts were stricken by such cases as Norris v. Alabama (1935), states became more creative in devising other means of exclusion.   But when, in the wake of Batson v. Kentucky (1986), Powers v. Ohio (1991), and, most relevant, Edmonson v. Leesville Concrete Co. (1991) (holding that a party in civil litigation was entitled to a jury trial where his or her adversary had not excluded jurors on the basis of race), overt exclusion of potential jurors for race-based reasons became all but impossible, states’ rigid adherence to retrograde tort laws filled the bill:

Edmonson, of course, was decided after Southern courts disproportionately failed to follow those courts elsewhere in the country that had already [approximately from 1965-1985] adopted substantive principles governing tort cases that made it easier for plaintiffs to have their cases heard by the jury. After Edmonson opened the doors to substantially greater African-American participation on Southern juries, principles of outmoded substantive tort law became principal bulwarks to prevent personal injury plaintiffs from having their cases heard by the jury. (p. 25.)

The authors’ keen insight is to juxtapose and, in so doing, shine a bright light on the contrast between, this chronology of gradual enlightenment and inclusion with the legislative and jurisprudential stasis in those states that continue to adhere to anti-plaintiff regimes. In so doing, they make a persuasive case that the stubborn clinging to these restrictive rules is an end run around rules requiring that African Americans be put on juries in the first place.

The authors should be commended for this article and the deep thinking (and, perhaps, the legislative or policy changes) it should prompt. The authors do, in fact, hope to effect policy changes. Indeed, Giffordspolicy-driven agenda rounds out this piece in an important way; standing alone, the article’s empirical study only goes so far in pointing out troubling correlations, and, as they acknowledge, does not reveal that the states in their empirical study have retained the tort doctrines at issue because they seek to keep cases from being decided by African-American jurors.  If anything, the article left me wanting to know more about what they had addressed. For instance, the authors could have clarified whether the “anti-plaintiff” legal rules at issue in their study were statutory or instead common law principles. This, in turn, would clarify if it is legislators or judges who are primarily responsible for perpetuating them. Moreover, to the extent that any of the rules at issue are statutory, the article would benefit from a discussion of any relevant legislative history or, more generally, contemporaneous lobbying or debates (either within the legislature or society at large) about the prospect of adopting a comparative fault regime, or laws abrogating premises liability immunities and the like. I would also have liked to know more about the judges in the state courts under scrutiny. The authors portray these judges as uniformly beholden to white, moneyed, establishment interests, but I wondered if there were any exceptions and, if so, how those exceptions bore on the issues under study. At a minimum, it would be good to know the percentage of African-American judges and state legislators at the relevant time of adoption of a so-called anti-plaintiff tort doctrine by common law or statute, respectively. Lastly, I wondered whether the authors, in the course of researching and writing this article, encountered any states that bore characteristics of those with a high JADI (e.g., large African-American populations in their major cities), yet had abrogated contributory negligence and, if so, how the authors might explain why such a state nonetheless plotted a different course.

Might it be that state-by-state variation with respect to various tort reform measures, such as caps on damages, or overall jury trial rates in tort cases could be explained, in part, by Gifford and Jones’ provocative thesis? They should be thanked for unlocking so many doors for future study.

Cite as: Catherine Sharkey, Stealth Ways to Keep Tort Cases from African-American Juries, JOTWELL (January 27, 2016) (reviewing Donald G. Gifford & Brian M. Jones, "Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law," __ Wash. & Lee L. Rev. __ (forthcoming 2016), available at SSRN),

What Happens if We Call Discrimination a Tort?

Sandra Sperino, “Let’s Pretend Discrimination is a Tort,” 75 Ohio St. L.J. 1107 (2014).

Sandra Sperino’s Let’s Pretend Discrimination is a Tort, 75 Ohio St. L.J. 1107 (2014), argues that if the United States Supreme Court is really serious about treating Title VII and other federal anti-discrimination laws as nothing more than extensions of tort law, then the current Supreme Court’s anti-plaintiff approach is insupportable. Sperino does not hide her personal disapproval of the current trend to “tortify” federal anti-discrimination law (especially Title VII), but she recognizes that the fight against discrimination may have to be fought “through any means necessary” (to quote Malcolm X, not Sperino). So her article is a bit legal jujitsu – to take the Supreme Court’s most favored tool to weaken Title VII, and to use it to make federal anti-discrimination law friendlier to plaintiffs than it has ever been.

In this essay I review the three attributes of common law tort that Sperino finds especially useful for her project of expanding the reach of federal anti-discrimination law. I then raise questions about Sperino’s assumption about common law tort. The features found in tort law that Sperino finds so congenial are not universal features of common law tort, but only found in those parts of tort that are concerned with one’s right to bodily integrity and security in land. Does it therefore make sense to argue (as Sperino does) – even for rhetorical purposes – that the interests Congress chose to protect in federal anti-discrimination law are akin to bodily integrity and security interests, or, rather (as I argue), more like other interests protected quite differently in tort, such as economic interests and interests in emotional tranquilty?

Sperino identifies three areas where the adoption of tort law would expand the rights of plaintiffs beyond the Court’s current understanding of federal anti-discrimination law.

1. Removing intent from Title VII and the ADEA.  Sperino reminds us that Title VII and the Age Discrimination in Employment Act (ADEA) do not require a finding of intentional discrimination by an employer in order to trigger liability. (Let’s Pretend at 1107.) The word “intent” does not appear in either statute. Part of Sperino’s argument in this article which I do not address is her very pointed jab at conservative textualists, such as Justice Scalia, who embrace a nontextualist interpretation of these statutes that inserts a requirement of intentional discrimination where Congress was silent. (Let’s Pretend at 1113-14.)

Sperino argues that the “most textually compatible reading” of the phrase “because of” in Title VII refers to causation not, intent. (Let’s Pretend at 1117.) In other words, as long as a plaintiff can show that had she not had the protected trait, the employment action would have been different, she has satisfied her prima facie case. Causation, in this context, is a post-hoc description of human behavior, not an attribution of either motive or purpose. If a factfinder concludes that, had the plaintiff been a man, it more likely than not that she would have had a different employment outcome, the outcome that occurred was “caused” by her sex.

Let’s assume, for the moment, that Sperino’s use of the term “causation” is similar to the way the term is used in tort. It clearly reflects a theory of anti-discrimination law which sees disparate treatment as more than an evidentiary doctrine for making it easier to prove subjective animus. As Sperino says, “replacing an intent standard with a causation standard makes it possible to prove cases of unconscious or structural discrimination, without proceeding through a disparate impact analysis.” (Let’s Pretend at 1117.)

2. Defining intent in relation to an “employment action”. Sperino reminds us that, despite inserting it into federal anti-discrimination law, neither the Supreme Court nor the lower federal courts have actually defined the term “intent”. In a case like Staub v. Proctor Hosp., 599 U.S. 1066 (2011), the Court suggested that the plaintiff had to prove that the defendant possessed a mental state similar to mens rea, since it held that the plaintiff had to prove that the defendant acted with “animus.”

Sperino points out that the concept of intent adopted in Staub is not that found in the Restatement of Torts. As every torts professor knows, the concept of intent in tort law differs from that in criminal law. It is two pronged, allowing the defendant to have acted intentionally if she either desired the outcome or if she was substantially certain of the outcome without desiring it. For Sperino, the adoption of the Restatement conception of intent would make it easier for plaintiffs to prevail in federal anti-discrimination cases than now, where the federal courts often act as if plaintiffs have to prove that the defendant specifically desired the discriminatory outcome that resulted from their employment decision. According to Sperino, if antidiscrimination law followed tort law, all the plaintiff would have to prove is that the employer took an employment action and was substantially certain that there would be a discriminatory result, without proving that the employer desired that result.

3. Decoupling injury from harm. In Meritor Savings Bank v. Vinson, 477 U.S. 57(1986), the Court held that a plaintiff had standing to allege hostile environment under Title VII only if the defendant’s discrimination was “sufficiently severe or pervasive to alter the conditions of [the victim’s] employment.” (Let’s Pretend at 1121.) As Sperino notes, this is not how tort law treats intentional torts such as battery, assault, or false imprisonment; in the common law, any invasion of a protected interest, regardless of its severity, completes the tort and gives the plaintiff standing to sue. Sperino contrasts the Court’s current approach in Title VII to trespass, which has for centuries allowed for suits for nominal damages without any evidence of either animus or actual injury. She argues that physical invasions in Title VII should be treated “with the same level of respect” as physical invasions in tort law.” (Let’s Pretend at 1122.)

While Sperino first illustrates her argument in the context of physical touchings that give rise to hostile environment claims in Title VII, her point is broader. The interest protected by anti-discrimination law is the interest against discriminatory treatment, and this interest can be invaded (like land in trespass) without any harm at all to the employee. As Sperino notes, “once the interest [against discrimination] is violated, the plaintiff can legally establish the claim without proving additional harm. . . . like [in] most torts.” (Let’s Pretend at 1123-24.)

Sperino’s argument is fascinating: it is like a work of speculative fiction about what would have happened if at some crucial point in time history had followed a different path. It also has another purpose: by pointing out the surprising (and surprisingly pro-plaintiff) places textualism would take the Supreme Court, Sperino, I suspect is interested in embarrassing the current Court out of using textualism as a pretext for their policy-driven interpretation of these federal statutes.

If these are Sperino’s goals, I applaud them: as an outsider to the debate over anti-discrimination law, I am inclined to support interpretations of the statutes that tip the balance back towards plaintiffs. As a torts scholar, however, I am anxious over the monolithic treatment of “tort law” by Sperino. It is not clear to me that, were Congress to order the courts to model anti-discrimination law on the “principles of common law tort” that the results would necessarily look like those predicted by Sperino.

First, it should be acknowledged, as Sperino herself notes, that Congress knows how to write a statutory tort. A clear example of this is the Federal Employers’ Liability Act [FELA] (45 U.S.C. § 51), which explicitly is a statutory negligence action. And, it should be further acknowledged, as Sperino also observes, that when there is a lacuna in the statutory language, the Supreme Court has resorted to the “principles of the common law” to fill those gaps. Here too, FELA provides an illustration, although not one that Sperino may like to admit: the Court interpreted common law tort principles to deny plaintiffs recovery for foreseeable pure emotional distress resulting from a railroads’ negligence suffered outside of a “zone of [physical] danger.” Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994).

In fact, if approached from the perspective of FELA, Title VII looks curiously obscure. It announces that certain acts will be “unlawful” and it establishes standing for certain person to receive certain remedies for those acts. Sperino’s point is that whenever Congress identifies certain acts as wrongs and allows for private persons to secure remedies for damages flowing from the successful completion of those wrongs, Congress is implicitly referring to common law tort. There is nothing odd about this argument – it is, in fact, identical to the argument made on behalf of implied rights of action. See, e.g., Tex. & Pac. Ry. Co. v. Rigsby, 241 U.S. 33 (1916).

“Common law tort” is a concept that has many mutually competing modalities. The ground of liability is different in trespass than in fraud. Some torts require an actual injury (trespass to chattel) and some do not (trespass to land). Some require specific intent to invade the protected interest (false imprisonment) and some do not (battery). Some require intent, as defined in the Restatement of Torts (assault) and some do not (intentional infliction of emotional distress, which requires only recklessness). The job of the courts, therefore, is to pick the appropriate modality when Congress is silent. Common law precedents usually instruct the courts, leaving scholars to think up post hoc rationales for the choices history has passed down to us. Only in rare liminal cases do the courts need to choose between modalities in order to decide concrete cases. An illustration of this latter point is the problem of informed consent: at first, the courts saw the injury arising from contact by a medical professional as a battery, and only later reconceptualized the same wrong as negligence.

Sperino is to be praised for noting that the textualists on the court have boxed themselves in and have to take common law tort seriously when it come to federal anti-discrimination law. But she opens a Pandora’s Box and she may not like what comes out of it. When the United States Supreme Court defined the ground of liability in Rigsby, it held that railroads who were under a duty established by federal law to “equip” all their cars with “secure steps” could be sued in strict liability for injuries resulting from the absence of a secure step. On the other hand, it held in Ernst & Ernst v. Hochfelder, 425 U.S. 185 (1976), that an issuer of securities who was prohibited by federal law from using any “manipulative or deceptive device” with regard to the sale of securities could only be sued if the if the party injured by such a device could prove the elements of the intentional tort of fraud. Unfortunately for the both the textualists and law professors playing at textualism like Sperino, there is no way to discern from either the words of most federal statutory torts what the proper modality is. In particular, Sperino is assuming far too much when she assume that Title VII is to be read as if Congress had lifted the structure of liability found in trespass to land or battery and inserted the modern interest of workers to freedom of discrimination on the basis of a protected status.

In fact, there some reason to suspect that the internal structure of the system of common law inherited by Congress when it wrote the modern suite of anti-discrimination law suggests that the modalities adopted are not like trespass to land or battery. The elephant in the room, so to speak, and one which Sperino could address only if her article was much longer, is the nature of the protected interest in anti-discrimination law. Is it an interest against offensive contacts? That seems far too narrow. Is it an interest against pure emotional distress (arising from status-denying conduct?) Perhaps, but the modalities of the torts that protect dignitary interests and emotional tranquility (false imprisonment, IIED, and, arguably fraud) require much more from plaintiffs than battery or trespass to land. Is it an interest in economic well-being (arising from the denial of employment opportunities due to prohibited conduct)? Again, perhaps: but then the modalities entailed will be far more defendant-friendly than anything mentioned by Sperino. The torts of common law fraud and interference with contract and prospective advantage require specific intent and a showing of actual injury.

Sperino has performed a great service by writing Let’s Pretend. Above all else, she reminds us of the complexity of the relationship between common law tort and statutory torts. Further, she exposes the laziness of the current Supreme Court’s invocation of textualism as a way to avoid doing the hard work of figuring out a defensible theory of federal anti-discrimination law. Sperino also opens the door to allowing tort law to inform any theory that the Court will develop. But as to this last point, Sperino has not fully addressed the possibility that, if we pretend that discrimination is a tort, advocates for equal rights may not like what they get.

Cite as: Anthony Sebok, What Happens if We Call Discrimination a Tort?, JOTWELL (December 17, 2015) (reviewing Sandra Sperino, “Let’s Pretend Discrimination is a Tort,” 75 Ohio St. L.J. 1107 (2014)),

A Holy Grail for Pluralist Theory?

Ronen Perry, Pluralistic Legal Theories: In Search of a Common Denominator, 90 Tul. L. Rev. ___ (forthcoming 2015), available at SSRN.

Can pluralistic legal theories be unified around a common framework? That’s the tantalizing question that Ronen Perry tackles in his recent essay. Perry is searching for a holy grail—a unifying principle for all pluralistic theories of law. Even if the holy grail does not exist, the quest itself proves interesting and worthy of consideration.

Modern tort theorists have advanced at least three rationales for the tort system: deterrence, individualized justice, and compensation. Under a deterrence-economic perspective, the goal of the tort system is to prevent accidents in an efficient manner. On the other hand, an individualized justice theorist views the tort system as a way to remedy a wrong caused by one to another. Finally, under a compensation or distributive justice theory, tort law’s goal is to spread loss and provide compensation to victims of tortious injury. But few scholars accept these multiple theories, and instead focus on their own singular rationale.

Perry begins his essay with a forceful critique of monist theories. Using a positive perspective, Perry contends that no one theory can account for the many contradictions of law. Strict liability for abnormally dangerous activities appears incompatible with individualized justice, but consistent with compensation and loss spreading. Causation, on the other hand, fits with individualized justice, but not with deterrence.1

Faced with a legal concept that conflicts with a unifying principle, the monist scholar, according to Perry, must take one of three problematic approaches: (1) ignore the contradictory concept, (2) argue that the contradictory concept is not really part of the law after all, or (3) assert that the contradictory concept is flawed and needs replacement. Perry further contends that the way the law develops renders it incapable of explanation by a monistic theory: The law develops over time by different lawmakers who promote different, conflicting values. Turning to the normative sphere, Perry is less critical of normative monistic theory, but contends that it is undesirable to reject values that society considers important “solely for the sake of coherence.” (P. 4.)

Now to the quest. Complementarity is a concept formulated by Danish physicist Neils Bohr to explain wave-particle duality in quantum mechanics. Borrowing this scientific concept, Izhak Englard has argued that complementarity provides an underlying framework for all pluralist theories of tort law. According to the principle of complementarity, a complete and full understanding of reality entails a combination of two conflicting models: “each provides a different and incomplete explanation for reality, and only together do they capture the whole picture.” (P. 5.) As applied to tort law, the argument goes, complementarity can connect mutually exclusive principles such as corrective justice and distributive justice.

In Part I, Perry rejects the idea of complementarity as the holy grail. First, Perry argues that, as defined by Bohr, the principle of complementarity applies only to dualism—the classic yin and yang. Because tort law theorists have proffered more than two incompatible goals, complementarity does not apply. Second, Perry points out that complementarity cannot work for legal theory because of the nature of the interaction between the conflicting models. Under the principle of complementarity, the competing scientific models (e.g., wave and particle) simultaneously co-exist, but cannot be simultaneously observed. Conflicting legal goals, on the other hand, are often partially fulfilled in a given legal doctrine—thus, simultaneously observed, but not fully achieved. Finally, Perry contends that complementarity was developed to account for positive, scientific theories, and therefore is inappropriate for normative legal theories.

Having rejected complementarity as a unifying principle, Part II continues the search for a holy grail that will provide a unifying framework for all normative pluralistic legal theories. Perry advocates the maxim timeo hominem unius libri—I fear the man of one book—as this unifying principle. Perry asserts that the “man of one book” is the monist, the “intellectual fundamentalist.” (P. 14.) In a sharp critique of monist theorists, Perry argues the monist should be feared “because viewing a phenomenon from a single perspective yields a partial, simplistic, and possibly flawed impression.” (P. 15.) As a normative matter, Perry rejects monist theory because it ignores relevant and valuable goals: “Each of the competing values or goals is legitimate and important in the eyes of many… And as all are legitimate and important, none deserve disregard, even if its precise weight might be debatable.” (P. 16.)

Perry closes by concluding that timeo hominem unius libri is as close to the grail as one can come. Pluralistic theories thwart any further unifying principle because pluralists diverge on both the values that the law does or should promote as well as on the method for balancing competing values. Thus, according to Perry, the only common ground among pluralistic legal theories is the rejection of monism itself.

Even if the holy grail does not exist, there is value in the search. Perry’s essay illuminates a thought-provoking question: Can we harmonize the competing theories of tort law around any central framework? Perry’s essay suggests that he is not going to pursue the question any further, having concluded that no common ground can be found. Others, however, may take up the quest and further illuminate the harmony that can be found among pluralist theories. By thoroughly eliminating complementarity as a unifying principle, Perry provides a valuable contribution to the ongoing debate about the rationales of tort law.

  1. For a thorough discussion of the conflict between torts rationales and torts doctrine, see Christopher J. Robinette, Torts Rationales, Pluralism and Isaiah Berlin, 14 Geo. Mason L. Rev. 329, 354-58 (2007), available at SSRN. []
Cite as: Sheila Scheuerman, A Holy Grail for Pluralist Theory?, JOTWELL (November 17, 2015) (reviewing Ronen Perry, Pluralistic Legal Theories: In Search of a Common Denominator, 90 Tul. L. Rev. ___ (forthcoming 2015), available at SSRN),

How to Get Away with Negligence

Robin L. West, Gatsby and Tort, in American Guy: Masculinity In American Law And Literature 86 (Saul Levmore & Martha C. Nussbaum ed., 2014), available at SSRN.

In Gatsby and Tort, Robin West engagingly argues that Fitzgerald’s famous novel highlights serious shortcomings of tort law as it has been traditionally understood, and of modern efforts to supplant or reconceptualize it.

West begins by observing that Gatsby would make for a good torts exam. In its ‘fact-pattern’ one can find bases for claims of battery, fraud, and criminal conversation. There is also a paradigmatic example of negligence—Daisy Buchanan, speeding in Gatsby’s Rolls Royce, runs down Myrtle Wilson. (Myrtle, Tom Buchanan’s mistress, had darted out into the street while escaping her husband George’s efforts to cloister her.) As West further notes, the novel ends with narrator Nick Carraway condemning the despicable Buchanans on terms that sound in tort: “They were careless people, Tom and Daisy—they smashed up things and creatures and then retreated back into their money or their vast carelessness, or whatever it is that kept them together, and let other people clean up the mess they had made.” (P. 3.)

So how can it be—asks West—that, in a novel lousy with torts, there is nary a word about civil litigation? (Criminal law, meanwhile, gets several mentions.)

A flatfooted reading of West would perhaps engender a scornful retort: “There’s no civil litigation in Gatsby because it’s a novel, and Fitzgerald didn’t fancy the idea of having Nick give a disquisition on the doctrine of last clear chance, or of Gatsby vacillating on whether to join Daisy as a third-party defendant in George’s wrongful death action.” (A dyspeptic critic might go further and claim that there is textual evidence of Fitzgerald’s familiarity not only with tort law but tort theory: amidst yet another episode of bad driving, he has the character of Jordan Baker offer the Calabresian-Coasean observation that “it takes two to make an accident.”)

But these imagined bits of snark take West—here writing in a literary vein—too literally. Putting aside the all-too-obvious answer to her puzzle, she instead plays out an intriguing alternative hypothesis. There is no mention of tort law in Gatsby, she claims, because tort law would have been, and was, entirely absent from the consciousness of Gatsby’s characters, author, and audience. To them, tort law was “invisible.” The novel thus provides a dramatic illustration of just how ineffectual tort law was in the 1920s.

To be sure, judges back then were busy marking off various forms of conduct as tortious, and were insistent that victims of such conduct were entitled to compensation from tortfeasors. But all this talk amounted to mere finger-wagging. For they were at the same time equally busy preventing victims from obtaining compensation by fashioning rules of contributory negligence, limited duty, and proximate cause. And even if the rules had been more plaintiff-friendly, the sheer cost of litigation put legal remedies out of the reach of ordinary folk. It’s thus hardly surprising that the same era that gave us Gatsby saw the rise of progressive efforts to supplant tort law’s ineffectual moralisms with workers’ compensation and automobile no-fault schemes.

Though hard on tort law, West concludes by registering some dissatisfaction with modern responses to its ‘failure.’ Here, she astutely points out a way in which the progressive attraction to no-fault is of a piece with the subsequent rise to dominance (in the legal academy) of economic analyses of tort law. As a law of wrongs, tort law was such a miserable failure that both camps eventually gave up on the idea of liability as a form of redress: either it had to be replaced with no-fault schemes, or recast as an amoral scheme of privately enforced safety regulation.

In sum, according to West, one can find in Gatsby not only a demonstration of tort law’s inability to right wrongs, but also a foreshadowing of the eventual extinction of any appetite for law that holds wrongdoers accountable to victims. Nick’s concluding description of Daisy and Tom as people who get away with negligence turns out to be an apt description of how our legal system actually operates, and how it got that way.

As the foregoing description I hope suggests, West has imaginatively fashioned a complex, rich, and provocative argument that cuts across literature, theory, and history. There is a lot to chew on here, and readers will have fun doing so. Of course one will also find some points of contention. I will mention two.

First, even as speculative reconstruction, West’s ‘invisibility thesis’ is implausible. Civil litigation over car accidents was enough of a problem in the 1920s that it generated the now-famous 1932 Columbia Study on compensation for car accident victims. Although West mentions the Study as an example of progressive dissatisfaction with tort law, she fails to mention that it was prompted in significant part by a concern that car-accident litigation was clogging the courts. Relatedly, in her discussion of the prohibitive costs of litigation, West gives little if any attention to our system’s longstanding reliance on contingent fees (and the American Rule against fee-shifting) to reduce some of the costs facing plaintiffs. Whatever its problems, the tort law of the 1920s seems often to have allowed persons of ordinary means to pursue negligence claims. In turn, it is unlikely that civil litigation and liability were entirely out of sight and out of mind.

Second, West’s complaint that, as a law of private wrongs, tort law was all bark and no bite is predicated on a theoretical mistake. (In fairness, it is a mistake that many others make.) Gatsby, she says, vividly demonstrates tort law’s failings because, in it, bad behavior goes unaddressed and injuries go uncompensated. This criticism, however, presupposes that tort law’s efficacy is properly judged by whether people who behave badly get their comeuppance and whether victims get compensation. Just as Gatsby is not that sort of novel, tort law is not that sort of law.

Tort law aims to empower victims to obtain recourse for having been wronged. Accordingly, it grants victims discretion to sue (or not sue) and to settle their suits regardless of the effects of their decisions on overall deterrence or compensation. Of course we might want a world without torts, or with fair compensation for tort victims. But it hardly follows that tort law is or ought to be designed to maximize deterrence or compensation. Doing so, after all, would almost certainly call for the law to constrain or override victims’ choices about how to respond to wrongful injuries. (Put it this way: Is it really a “failing” of the tort system that it allowed Tom to decline to pursue a criminal conversation claim in response to Gatsby’s affair with Daisy?) West unfairly stacks the deck against the private law of tort by measuring its “bite” using public-law metrics.

Relatedly, although tort law is indeed a law of wrongs, it is famously not concerned with wrongs ‘in the air.’ Rather, it aims to enable victims of injurious wrongs to respond to having been wrongfully injured. Negligence law, for example, does not take notice of carelessness in and of itself, but of carelessly caused injuries. One can readily condemn Daisy for her irresponsible driving. But before we can reach the conclusion that she was “negligent”—in the tort sense—we need to know, among other things, whether her speeding was a cause of Myrtle’s death, and whether Myrtle was herself careless in running out into the street. To treat these aspects of negligence law as ‘arbitrary’ limits that undermine tort law’s ‘efficacy’ in policing irresponsible behavior is to proceed from the mistaken premise that tort law exists to police irresponsible behavior.

These complaints aside, I share West’s concluding lament over the tendency among moderns to downplay notions of individual responsibility and accountability. The path forward, however, is not to dismiss tort law, in general, as too judgmental, too ineffectual, and too undemocratic, though it certainly has at times and in certain applications been vulnerable to these charges. We must instead see tort law for what it is (a law of private wrongs and victim redress), recognize its importance as one longstanding component of our legal system, and reform it as necessary to ensure that it can properly play its part. So must we beat on, boats against the current, borne back ceaselessly into the past.

Cite as: John C.P. Goldberg, How to Get Away with Negligence, JOTWELL (October 20, 2015) (reviewing Robin L. West, Gatsby and Tort, in American Guy: Masculinity In American Law And Literature 86 (Saul Levmore & Martha C. Nussbaum ed., 2014), available at SSRN),

Is Negligence Law Less Objective Than We Think?

Avi Dorfman, Negligence and Accommodation: On Taking Other People as They Really Are, (2014), available at SSRN.

Avi Dorfman, a private law scholar at Tel Aviv University, has posted a deep and provocative paper Negligence and Accommodation: On Taking Other People as They Really AreNegligence and Accommodation is one of those rare papers that manage to say something new about familiar terrain. Here, the terrain is negligence law’s treatment of primary (other-regarding) negligence and contributory (self-regarding) negligence. Dorfman makes the case that the matter is of prime importance for our understanding of the morality of negligence law. The essential idea is simple enough. We are accustomed to thinking of the standard of reasonable care as objective. Indeed negligence law is famously objective. It holds people to the standard of conduct that an idealized normal person would achieve. Dorfman argues, however, that negligence law takes people as they are—subjectivizes by taking their individual limitations into account—more than we think, but it does so asymmetrically. Negligence law takes the traits of victims into account when they fail to exercise sufficient care for their own protection, but it is as firmly objective as the received wisdom takes it to be when it addresses the negligence of those who endanger others.

Challenging the Received Wisdom

Quite rightly, Negligence and Accommodation, takes negligence law’s treatment of physical disability as the canonical instance of the law addressing people whose capacities and competencies are less than those of the standardized “reasonable person.” The paper then marshals an impressive amount of evidence in support of two theses. The first is that the law makes allowance for physical disability and adopts a “watered-down standard of care [for] cases of contributory or comparative negligence.” (P. 12, fn. omitted.)1 The second is that not even “one case concerning the conduct of the tort-feasor has made allowance for her physical disability. Thus, tort-feasors are required to exercise the care a non-disabled tort-feasor would have been expected to exercise.” (P. 13, fns. omitted.) Neither of these theses is either wholly new, or utterly surprising. As Dorfman notes, Fleming James stressed that the subjectivization of the standard of care found its most intense manifestation in the case of physical disabilities. Still, no one has developed as thoroughly or as persuasively the thesis that asymmetric treatment of self-regarding and other-regarding obligations of care is a deeply entrenched feature of negligence law.2 In zeroing in on the asymmetric treatment of primary and contributory negligence, moreover, Dorfman is highlighting a theoretically important feature of negligence law. The two dominant tort theories of our time—economic analysis and corrective justice—both impose frameworks which suggest that primary and contributory negligence are on a par and both tend to push the actual treatment of contributory negligence by negligence law to the peripheries of their theories. They do so because the law’s asymmetric approach embarrasses both views.

On the welfarist view of law and economics, primary and contributory negligence should be treated identically in principle because coordinate precautions are essential to optimal accident avoidance and so to wealth-maximization. It is a wholly empirical question whether the cheapest-cost-avoider for any accident (or class of accidents) is the victim or the injurer. Normatively, potential injurers and prospective victims have the same obligation. They must both take efficient precaution. Epistemically, the case for using objective standards is the same in both cases. The information necessary for both actors and courts to apply a subjective standard is generally too expensive to be worth acquiring. Yet the law is more solicitous of identical individual infirmities when contributory negligence is at issue than it is when primary negligence is at issue. Negligence law’s practice confounds economic theory.

On the corrective justice view, subjective standards are objectionable because attention to the idiosyncrasies of one party’s capacities allows that party to fix the terms of interaction between equal persons unilaterally. Negligence liability is about two related principles: one is the formal or transactional equality of the parties; the other is equal freedom. In the eyes of the law, all potential injurers and prospective victims are equals. Honoring that equality requires treating injurers and victims in formally equal ways and that, in turn, requires an objective standard of care. Subjective standards of care make individual idiosyncrasies dispositive in a way which undermines equal liberty. If I have an especially egotistical sense of how important it is that I get to the beach early on some summer Saturday, a subjective standard will take my unreasonably intense desire as a reason which authorizes me to impose an especially great amount of risk on others en route to the beach. Perversely, my inflated sense of the importance of my own projects makes the benefit to me of getting to the beach quickly greater than it is for a more reasonable person, who sees their own projects as no more important than anyone else’s.

On a subjective view, the especially great benefit that I derive from the successful realization of an end authorizes me to impose more risk than a normal person. I may, for example, be authorized to drive ten miles an hour faster than everyone else. Or, if I’m unusually inept, like Menlove,3 I will owe other people less care—because the cost of care to me will be higher. Conversely, they will owe me more care—because my inability to protect myself to a normal extent will increase the risks that their conduct imposes on me as opposed to a normally competent person. On the one hand, I will get to stack my hay incompetently. On the other hand, others will have to take special precautions— both to protect me because I’m less able to protect myself and to guard themselves against my incompetence. By contrast, an objective standard requires Menlove to “get with the program”—to get up to speed with the practice of a normally competent farmer—because an objective standard treats everyone as if they are normally competent. Because a subjective standard requires others to accommodate Menlove’s lesser competence a subjective standard bends others’ liberty to the requirements of Menlove’s particular shortcomings. Menolve unilaterally determines the terms of his interactions with others. That cannot be squared with tort law’s commitment to equal liberty and formal equality.

Vaughan v. Menlove is canonical. If the case didn’t exist, we’d have to invent it. The basic doctrinal point of Dorfman’s paper is that we tend to overgeneralize the lesson of Vaughan. Negligence law’s treatment of pure contributory negligence—of careless conduct which endangers only the plaintiff—has long had a subjective cast. To be sure, you might think there is a sound justification for this, one overlooked by theories as general as the economic and corrective justice theories. That justification is that pure contributory negligence is a self-regarding error, a failure to exercise rational prudence for one’s own protection. If I go bicycling without a helmet I put myself at risk of serious, avoidable injury. That’s foolish, but strangers who encounter me on the street don’t have standing to complain about it. After all, the risk to others from my cycling is the same whether or not I wear a helmet. My foolishness merely endangers myself. Primary negligence, by contrast, is an other-regarding failure. If I run a red light, I put others as well as myself at risk of serious, avoidable injury. Primary negligence is a failure to conduct oneself with sufficient regard for the urgent interest that others have in the integrity of their persons and property. It is a moral failure to show others the respect that they are owed.

The Interdependence of Primary and Contributory Negligence

Early in his paper Professor Dorfman anticipates and addresses the objection that the justification for the differential treatment of primary and contributory negligence is obvious once we recognize that they are not morally equal. Dorfman parries this thrust with the well-taken observation that primary and contributory negligence are interdependent. In determining how much care I must exercise for others’ protection I need to estimate the risks that my contemplated conduct imposes on others. Often—perhaps normally—the risks that a course of conduct imposes are affected by how much care those the conduct endangers are exercising for their own protection. If I dig a ditch to make repairs to the gas line in front of my property, the risk that others will fall into the ditch depends in part on whether they have normal powers of sight. And if they don’t, the risk to which they are exposed depends on whether they take the precaution of using a cane or a seeing-eye-dog.

To be sure, the casuistry here is surprisingly complex. I may endanger cyclists without helmets, or drivers who don’t buckle their seat belts, more than I endanger cyclists who do wear helmets or drivers who do wear seat belts. Even so, I am probably unable to take different precautions for the two different classes of potential victims and I’m fairy sure that I’m not expected to try. Moreover, the law can respond to recognized “disabilities” by imposing more extensive obligations on those with lesser competence, not by imposing more obligations on those with normal competence. Children may have to stay out of adult activities on pain of being held to an adult standard of care, blind people may have both to adjust their activities (e.g., no driving) and take special precautions (e.g., use a cane).

Indeed, there is a burgeoning doctrinal development that Professor Dorfman might want to ponder as he continues to develop his ideas. The near-universal modern adoption of comparative negligence may be recasting negligence law as a whole in a more subjective mold. In particular, Comment e to § 10 of the Restatement 3rd of Torts the widespread adoption of comparative negligence “weaken[s] the argument for a double standard” under which contributory negligence is essentially subjective whereas primary negligence is essentially objective. As Comment e points out, comparative negligence makes the assignment of relative culpability to a party turn on all the factors that bear on the party’s fault. Individual shortcomings thus come readily into play. Comparativization introduces an aspect of schizophrenia into the law of negligence. The determination of duty and the standard of reasonable competence are fixed objectively but judgments of relative culpability are made subjectively.4 It is far from clear that this development is confined to cases of contributory negligence where the plaintiff endangers only themselves.

Still, it may be a mistake to go too deep into the weeds here. For Professor Dorfman’s purposes it may do to note that, increasingly, we expect people to take precautions for their own self-protection and increasingly we reduce their recoveries when they do not do so. “Seat belt” and “helmet” defenses, for example, are more prominent that they used to be.5 We impose responsibilities of self-protection and penalize people who fail to discharge those responsibilities. This underscores Professor Dorfman’s point. We expect prospective victims to take precautions for their own protection in part because we believe that potential injurers are entitled to rely on prospective victims looking out for themselves in certain ways. To a larger extent than is generally appreciated, negligence law is a system of interdependent, coordinate precaution. It imposes affirmative duties of self-protection on potential victims.

Respecting People As They Are

Various explanations for the imposition of these duties of self-protection come to mind. Outright paternalism is one. It is foolish for people not to wear seatbelts and the law may just decide not to respect some foolish choices. The economic idea that the obligation of avoidance ought to be placed on the cheapest-cost-avoider is another. Dorfman’s conclusion, however, is different. He thinks that the law of negligence is respecting people as they are, not as they ought to be. To appraise his thesis we have to step away from the issue of interdependence a bit and return to the incapacities used to justify lesser self-protection. The cases where the law treats failures of victim self-protection more leniently are cases of disability—physical disability especially. Childhood status is treated as a kind of physical disability and there is some evidence that courts increasingly treat mental disabilities in the same more subjective way that they treat physical disabilities.6 Dorfman’s thesis is that in individuating to take account of these incapacities and fixing the standard of care, the law is showing that its deepest moral commitment is to respectful recognition of people as they are.7 Corrective justice theories, by contrast, are mostly Kantian. Their deepest value is respect for rational nature. Rational nature is only one aspect of people as they are.

This is a very interesting idea. On the one hand, there is genuine moral progress in recognizing the disabled as fully human persons notwithstanding their limitations. The impact of a fully objective standard on them is stigmatizing and tends to drive them out of normal activities. By ignoring the moral significance of genuine disabilities a fully objective standard treats the disabled as less than fully equal. It accords them equal rights on the fiction that they are not as they in fact are and demands the impossible of them. On the other hand, the idea of respectful recognition of people “as they are” strikes me as overbroad. Various features of persons’ “judgment[s] or sensibilit[ies]” as they are do not command our respect. Racist, sadistic and sexist preferences are cases in point. In negligence law, so too are the shortcomings of people who are just too lazy to acquire the competencies necessary to conduct dangerous activities safely.

Negligence law seems to bend away from objectivity on a narrower principle than respectful recognition of people as they are. It individuates in the face of disability, doing what it can to enable those with significant, identifiable impairments to engage in ordinary activities without being subject to impossible burdens, and with special slack cut for their more limited capacities to protect themselves. The fact that negligence law both recognizes affirmative duties of self-protection and relaxes those duties for persons with identifiable impairments may teach the general lesson that negligence law is a practice committed to the promotion of a good which can only be realized through cooperative efforts. That good, in a word, is safety and safety is in part a public good. It can only realized if people do their parts by taking the coordinate precautions demanded by a system of mutually beneficial precaution. Within that system particular doctrines are often the expressions of complex value judgments. We therefore need richer, less reductionist tort theories.

Negligence and Accommodation shows persuasively that our actual doctrine of contributory negligence does not match the accounts of negligence given either by law and economics or corrective justice theory. And it shows that the departures are important enough to require us to revise our theories. The economic theory of negligence is inadequate to our actual law of contributory negligence because its focus on overall welfare has no place for doctrines whose contours are shaped by complex considerations of what people owe to one another. Contributory negligence is sensitive to the differences between what we owe to others in the way of primary duties of care and what can be demanded of each of us in the way of responsible self-protection, and because it registers the moral significance of disability as a status. Corrective justice theory, for its part, is committed to an idea of equal liberty so general and so formal that it cannot accommodate morally relevant distinctions between what we owe to others and what we owe to ourselves, and struggles to accommodate the moral significance of physical and mental limitations. And corrective justice theory may be so attached to the idea that tort law is a domain of negative duties that it is unable to recognize the extent to which negligence law is a practice which promotes an important value in a way which involves the imposition of affirmative duties. In teaching these lessons, Negligence and Accommodation makes an important contribution to tort theory.

  1. One might quibble with Dorfman’s way of formulating it. To my mind, two-part tests are rather common in this corner of the law. The first step is subjective: particularize the standard of care owed to the category of people with the disability in question (e.g., blindness). The second step, however, is objective. Hold the disabled person at issue to the standard of conduct of an objectively reasonable person with the disability in question. See e.g., Mastland Inc. v. Evans Furniture, Inc., 498 N.W.2d 682, 684 (Iowa 1993) (summarizing the standard of care applicable to children by writing: “The jury’s first inquiry is a subjective one: What was the capacity of this particular child—given what the evidence shows about his age, intelligence and experience—to perceive and avoid the particular risk involved in this case? Once this has been determined the, the focus becomes objective: How would a reasonable child of like capacity have acted under similar circumstances?” This quibble doesn’t undermine the essential soundness of Dorfman’s argument. []
  2. Except perhaps for Fleming James. See Fleming James, The Qualities of the Reasonable Man in Negligence Cases, 16 Mo. L. Rev. 1, 1–2 (1951). Dorfman might want to say more about James. []
  3. See Vaughan v. Menlove 3 Bing., N.C. 468 (Common Pleas, 1837). []
  4. See e.g., Champagne v. United States, 513 N.W.2d 75, 81 (N.D. 1994). Plaintiff, who was under treatment for “suicidal ideation” committed suicide. In a suit for medical negligence, duty was determined objectively. Reasonable people don’t commit suicide. But relative fault was determined subjectively. “In making the fault comparison, the factfinder should always take into account the extent of the patient’s diminished mental capacity to care for his own safety. . . . A mentally ill person can only be held to the degree of care that his diminished capacity permits.” []
  5. See e.g., Waterson v. General Motors Corp., 544 A.2d 357 (N.J., 1988); Halvorson v. Voeller, 336 N.W.2d 118 (N.D. 1983); Dan B. Dobbs, Dan B. Dobbs, The Law of Torts, § 231 (2d ed.). Technically, these doctrines fall under the “doctrine of avoidable consequences.” []
  6. In addition to Champagne, supra note (holding that a “mentally ill person can only be held to the degree of care that his diminished capacity permits.”), see e.g., Breunig v. American Family Ins. Co., 173 N.W.2d 619 (Wis. 1970) (applying, implausibly, the test used for sudden physical disability to the onset of delusion); C.T.W. v B.C.G. & D.T.G., 809 S.W. 788 (Tex. Ct.App. 1991) (holding that it is reasonable to expect a pedophile to avoid situations where they would be alone with young boys; this holding treats a psychological disability in the way that physical disabilities are commonly treated); and Berberian v. Lynn, 809 A.2d 865 (N.J. Super. 2002) (ruling that a “flexible capacity-based standard is appropriate when considering the potential negligence liability of Alzheimer’s patients . . . towards their care-givers”). Berberian followed Cowan v. Doering, 545 A.2d 159 (N.J. 1988); but see, Dobbs, supra note 7, § 130 (asserting that the rule that “mentally impaired persons are liable for their torts seems to be rather fully accepted). []
  7. “[T]he notion of respectful recognition under discussion puts forward a demand to acknowledge the distinctive subjectivity and sensibility of others by accommodating their judgment or sensibility in our own practical lives.” (P. 32, emphasis in original). []
Cite as: Gregory Keating, Is Negligence Law Less Objective Than We Think?, JOTWELL (September 14, 2015) (reviewing Avi Dorfman, Negligence and Accommodation: On Taking Other People as They Really Are, (2014), available at SSRN),

Theorizing Damage Through Reproductive Torts

Nicky Priaulx, Injuries That Matter: Manufacturing Damage in Negligence, available at BePress.

Of the five basic elements of the negligence cause of action (duty, breach, cause-in-fact, proximate cause, damage), the concept of “damage” (sometimes referred to as “injury” or “harm”) has probably received the least attention from torts scholars and certainly commands less time in the classroom. Indeed, the comparative lack of discussion likely exacerbates the common tendency to confuse the concept of actionable damage with the related topic of recoverable damages, i.e., those specific items of loss (such as medical expenses or sums paid for pain and suffering) that are a consequence of an actionable injury. In the U.S., controversial claims for negligent infliction of emotional distress and for reproductive injuries, especially wrongful conception and wrongful birth claims, have triggered debates under the headings of duty, proximate cause, or recoverable damages. Recently, however, Gregory Keating has argued that the concept of harm “can do more work than it is presently being made to do,”1  inviting more theorizing about what lies beneath the largely intuitive concept of harm or damage.

This ambitious article by British tort theorist Nicky Priaulx aims to fill the void by theorizing about the normative dimensions of the concept of damage. Although she doesn’t use the f-word (feminism) until the end of the piece when she discusses just whose injuries tend to be addressed by tort law, her approach is clearly informed by feminist scholarship, as is evident by her starting point that the concept of damage is “imbued with ideals of social justice and equality [and] directed towards treating like cases alike.” (P. 2.) But Priaulx’s legal feminism is of a newer stripe: it is as much about harm to men as it is about harm to women and is interwoven into a universal theory about how to shape tort law to fit the social experience of injury.

Priaulx’s critique of British negligence law has a familiar ring. She upbraids the courts for continuing to treat the presence of a bodily harm as the “gold standard of ‘damage’ in negligence” (P. 7) and for assuming that physical harms are different in nature from other kinds of harms. According to Priaulx, the British courts have been so intent on finding “a physical hook” to justify recovery that they often distort or misrepresent the experience of tort victims. She would instead center the concept of ‘harm’ on those events which leave individuals appreciably worse off, experiences that are so disruptive or corrosive of life “as to completely destablise it.” (P. 8.) This definition of harm of course is broad enough to capture many non-physical injuries classified as emotional or relational (or what Priaulx calls “psycho-social harms”), from the loss of a loved one, to the “labour of caring for a child that one does not want.” (P. 9.)

Priaulx’s focal points are two prominent reproductive harm cases: a case involving a negligently-performed sterilization of a woman that resulted in the birth of a healthy child and a case involving the negligent destruction of sperm samples provided by male cancer patients about to undergo chemotherapy. Although the British courts found a way to allow the plaintiffs to recover a limited amount of damages in each case, Priaulx argues that the decisions utterly failed to capture either a woman’s experience of raising an unwanted child or the significance of infertility in the lives of the male plaintiffs. In the negligent sterilization case, the courts placed too much emphasis on the physical aspects of pregnancy and childbirth, minimizing the continuing, deleterious effects of forced motherhood in such situations. In the lost sperm case, the courts treated the harm merely as a loss of physical property, completely missing the social and psychological effects on men who confront the prospect that they may not be able to father children.

Priaulx digs deep to express the multiple dimensions of reproductive harm in each case, explaining how gendered stereotypes eclipse our understanding of male and female experiences. Echoing feminist scholars such as Robin West and Reva Siegel, Priaulx contends that the “significance of being pregnant is inextricably intertwined with the considerable responsibility and enduring consequences which pregnancy heralds.” (P. 11.) In her analysis, any attempt to draw a “clean line at birth” and deny damages associated with childrearing in wrongful conception cases not only recapitulates the law’s preoccupation with physical injury but insists on treating the birth of a child as “natural” and a “blessing,” despite its real disruptive effects on mothers who take on the care and labor of raising a child. ( Notably, Priaulx does not consider the possible stigma wrongful conception suits may inflict on children labeled as unwanted, a concern that has surfaced in the U.S. caselaw.) In a similar vein, Priaulx contends that the law utterly misapprehends the impact of infertility upon men, envisioning the harm as extending only to their “wallets or property.” (P. 18.) Courts often end up by treating men as only “distant,” “vicarious,” or “peripheral” actors in the reproductive process. Lost are the stories of men who mistake infertility for impotence, who feel worthless when they discover that they are infertile, or whose masculinity so depends on the prospect of becoming a father that they no longer believe their lives makes any sense.

The most notable aspect of Priaulx’s analysis of harm is that she regards the reproductive injuries suffered by both male and female plaintiffs in these cases as “essentially the same kind of harm” and contends that “[i]f we care about horizontal equity between victims, in the sense of treating like cases alike, there is no reason for distinguishing between [the] cases.” (P. 22.) Priaulx is only able to assimilate the harm of forced motherhood to the lost opportunity to father children because she believes that in the end it all comes down to loss of autonomy. What is important for autonomy theorists like Priaulx is the frustration of reproductive plans, whether it is being compelled to become a mother against one’s wishes or being denied the opportunity to become a biological father. What matters is the “freedom to make plans concerning reproduction [and] its instrumental relationship with a far broader series of interests which form the architecture of our lives.” (P. 22.) In this analysis, there is no significant difference between decisions to reproduce and decisions not to reproduce. One’s physical body (and bodily integrity) also becomes an aspect of autonomy, conceptualized as a “stable platform for pursuing one’s plans.” (P. 7.) Similar sentiments were recently articulated by Gregory Keating in his analysis of the famous Dillon v. Legg case in which a mother suffered nervous shock upon witnessing the negligent killing of her child. For Keating, the harm to Margery Dillon was at bottom a shattering injury to her “agency,” because it “forced upon her an unwelcome end to one of her life’s important projects,” namely the raising of her child.

Autonomy theories, such as Priaulx’s and Keating’s, certainly work to explain why we should not limit tort recoveries strictly to bodily harms. They also are important contributions to the body of tort theory that has neglected the concept of harm and its normative dimensions. But if the goal is to connect tort law to the psychological and social experience of injury, I wonder whether reducing everything to “autonomy” is really the right move. Unlike Priaulx, I am not ready to equate the lost opportunity for biological fatherhood to either the imposition of an unwanted child or the loss of one’s existing child because I sense that there something qualitatively different about the relational injuries suffered by mothers in the bystander and wrongful conception cases that is simply not captured by naming the injury a loss of autonomy and/or a frustration of an important life project. The destruction of an important, intimate and irreplaceable relationship is an especially devastating harm. Although tort law has long recognized relational harms, such as loss of consortium, we have so far failed to articulate what makes some relationships special and especially deserving of legal recognition. Perhaps we need a theory of relational harm all of its own.

  1. Gregory C. Keating, When is Emotional Distress Harm?, in Tort Law: Challenging Orthodoxy, 304 (Stephen G.A. Patel, Jason W. Neyers & Erika Chamberlain, Eds.) (2013). []
Cite as: Martha Chamallas, Theorizing Damage Through Reproductive Torts, JOTWELL (July 29, 2015) (reviewing Nicky Priaulx, Injuries That Matter: Manufacturing Damage in Negligence, available at BePress),

What’s Missing in New Zealand?

“What’s missing in New Zealand?” That’s the question David Enoch poses in his thought-provoking essay, Tort Liability and Taking Responsibility. As every tort scholar knows, New Zealand has abandoned tort law, at least for injuries caused by accidents. Instead of filing a tort suit, a person injured in an accident files a claim with the Accident Compensation Corporation, which quickly determines whether she suffered a qualifying injury and, if so, provides compensation for it. The money paid out is funded through levies on risk-generating activities. So the New Zealand scheme provides compensation and (at least some) deterrence. It also puts the costs of accidents on the people who risk causing them. And it does all that at a lower cost than maintaining a system of private lawsuits, like tort. That sounds pretty good to Enoch—so good, in fact, that he wonders what is to be said for tort law in face of the New Zealand alternative.

Perhaps there is nothing to be said on behalf of tort. That’s what Enoch wants us to ponder. But he offers a tentative suggestion about what’s missing in New Zealand, and a rather surprising one at that. “What’s missing in New Zealand,” he says, “is the tortfeasor taking responsibility for her actions.” (P. 252) Now, we should pause here to acknowledge how odd that sounds. Many tortfeasors never take responsibility for their actions; they contest liability to the bitter end. Tort cannot ensure that tortfeasors take responsibility. What it can do, and does do, is assign responsibility, whether or not tortfeasors wish to take it.

So why does Enoch think that tort is way of taking responsibility? The answer lies in his claim that, absent tort law, we are not responsible for the consequences of our actions, or at least, not for those consequences that we did not intend. According to Enoch, “we are responsible for the risks we bring about, rather than for their (somewhat random) realizations.” (P. 253) He declares himself an opponent of moral luck. The consequences of our actions, he suggests, do not matter for moral assessment, at least not when they are beyond our control: “If you and I both create a similar risk (say, by driving), and if your risk results in harm and mine does not, it isn’t clear that there is a morally coherent sense in which you’re more responsible than I am, or—therefore—that it would be appropriate to expect you rather than me to apologize.” (P. 254) If this is right, Enoch says, then we have reason to abandon tort law in favor of the New Zealand scheme, which treats those who engage in risk-generating activities equally, without respect to whether the risks they generate are realized in injuries.

But that is not the end of Enoch’s story. We may not be responsible for the consequences of our actions, but we can take responsibility for things we are not responsible for. When your daughter causes an accident, you may not be responsible for what she did (suppose there is no failure of yours that might have prevented it). But you could—and perhaps should—take responsibility for what she did, by apologizing for it, or offering to fix the damage. Or try this: while driving, you hit a pedestrian, but it’s not your fault; you were being careful. You are not responsible for the pedestrian’s injuries. But you could—and perhaps should—take responsibility for them, by expressing regret or even apologizing (here, compensation seems out of place if you are really not responsible). Or this: you may not be responsible for your country’s military activities (perhaps you have no influence over them, or exercise your influence to oppose them). But you could—and perhaps should—take responsibility for them, by apologizing for them when they are unwarranted.

The lion’s share of Enoch’s article is given over to an extensive investigation into what it means to take responsibility and the circumstances in which you ought to do it. These sections are interesting independent of tort law and well worth reading for anyone interested in responsibility. How do they apply to tort? Here, Enoch is (by his own admission) a bit sketchy. The idea runs roughly like this: We are responsible for the risks that we create, not the realizations of those risks. But we can—and perhaps should—take responsibility for those realizations. Why? Enoch offers several suggestions. One echoes Tony Honoré’s argument in favor of outcome responsibility. We are happy to claim credit for the consequences of our actions when they turn out well, and we might think that commits us to accepting responsibility when things turn out poorly. Another possibility is that we have reason to see ourselves as creatures with (limited) control over the consequences of our actions, and therefore reasons to take responsibility for them.

If you find either of these ideas attractive, then Enoch suggests that you could see tort “as an institutionalized way of taking responsibility.” (P. 268) Following on the first suggestion, we might think that each of us is already committed to taking responsibility for the consequences of our actions, on account of the fact that we tend to take credit for the fortuitous ones. Tort law is a way of making sure we take the bad with the good. Alternatively, Enoch suggests, tort law might reflect a collective act of taking responsibility. By maintaining an institution of tort law, we collectively commit to taking responsibility for the realizations of the risks we create. Tort law, on this picture, assigns reluctant defendants the responsibility we have collectively decided that they should take.

The last suggestion sits a bit uncomfortably with Enoch’s earlier assertion (in discussing the responsibility one has for the actions of one’s country) that he is an individualist about responsibility. (P. 255) If I am not responsible for what others do, it is not obvious that others can take responsibility on my behalf. But maybe there is a story to tell there. More worrisome, I think, is Enoch’s exclusive focus on the people who create risks, to the exclusion of the people who suffer the consequences of them, and the relationship between them. Absent from Enoch’s account is any suggestion that tortfeasors owe duties to the people they might injure, and that cuts him off from the possibility that liability is a response to the breach of a duty, for which a tortfeasor is properly held responsible.

Here is what I think is missing in New Zealand: an opportunity for the victims of wrongs to vindicate their rights by, among other things, holding the people who hurt them responsible for their injuries. In a negligence suit, for example, the plaintiff complains that she was injured by the defendant’s failure to take ordinary care for her safety. If she is right, then we assign responsibility for the plaintiff’s injuries to the defendant. Enoch finds this perplexing; lots of people might have failed to take ordinary care for the plaintiff’s safety. Why limit our gaze to the person who injured her? The answer, I think, is that the risk that is realized in an injury leaves a mark—in some cases, quite literally. It becomes part of the story of our lives, in ways that require response more so than risks unrealized do. And the response required is not just repair, but rather recognition of the wrong. That is what is missing in New Zealand—an acknowledgment of the wrong from which the plaintiff’s injuries resulted.

This is sketchy, even more so than Enoch’s suggestion. (Stay tuned to SSRN this summer if you want to hear more; I’ll post an essay on the expressive significance of tort liability, which develops these ideas in more detail.) And, it leaves open the question whether what New Zealand is missing is important enough to soldier on with tort. But Enoch is right to press those who would defend tort law to say just what it is New Zealand is missing. And he offers a provocative suggestion, showing that even those who (unlike me) are inclined to reject the idea that we are responsible for the consequences of our actions might nevertheless have reasons to support an institution that assigns responsibility for them.

Cite as: Scott Hershovitz, What’s Missing in New Zealand?, JOTWELL (July 1, 2015) (reviewing David Enoch, Tort Liability and Taking Responsibility in Philosophical Foundations of the Law of Torts (John Oberdiek ed., 2014)),