Dec 6, 2024 Cristina Tilley
As an early-career beneficiary of Jotwell, I often use my annual platform to spotlight the work of emerging or underappreciated scholars. Robert Rabin is emphatically not a member of that group. Why, then, is Stand Alone Emotional Harm: Old Wine in New Bottles the thing I like lots right now? The piece elegantly observes – and joins – an incipient movement to recenter in tort non-physical injuries that tarnish American social life. These claims have long been ridiculed by mainstream tort, so they need a prominent champion like Rabin.
Rabin’s contribution to the 2023 Clifford Symposium on Tort Law and Social Justice is compact but undeniable. In eleven short pages, he makes the case that much maligned non-physical injuries actually have a centuries-long pedigree in tort. The drunken hatcheteer in I de S. v. W de S. (P. 733 (citing I de S. v. W de S., Y.B. Lib. As. Folio 99, placitum 60 (Assizes 1348)) for example, was made to pay the tavernkeeper who escaped the blade because assault doctrine recognized a personality interest extending beyond the body. The same expansive notion of personality, he observes, has been driving judges since the nineteenth century to order compensation for those suffering “serious emotional distress” at the hands of others. (P. 734.) Over time, he suggests, these exceptions have come to look a lot like a new rule, one willing to stigmatize one-on-one behavior that inflicts non-physical social harm.
He begins with the nineteenth century expansion of consortium claims to cover not just a husband’s loss of a wife’s services but any spousal loss of companionship. (P. 735.) From there, he identifies turn-of-the-century forerunners to the intentional infliction of emotional distress tort (IIED), including the chestnuts Wilkinson v. Downton (P. 736 (citing Wilkinson v. Downton, 2 Q.B. 57 (1897)) and Nickerson v. Hodges (P. 736 (citing Nickerson v. Hodges, 146 La. 735 (1920)) in which women ridiculed by community jokes won compensation for their long-term trauma. He sees the tort of negligent infliction of emotional distress as a cousin to IIED in its willingness to forego a physical injury requirement and instead compel compensation for “pure unadulterated distress and grief” experienced by those who narrowly escape harm or watch loved ones suffer it. (P. 738.)
Rabin next documents how even torts that do not allude to emotional distress legitimate it as an interest. For example, twentieth century privacy law treats as worthy of legal recognition a personal interest in dignity and control over one’s physical surroundings and intimate information. (P. 738-40.) And twenty-first century privacy law has attempted to deter revenge pornography and sexualized deepfake imagery. (P. 738-40 (citing, inter alia, Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).) Finally, given his expertise in health care and compensation systems, it is unsurprising that Rabin finds tributaries of emotional harm protection emerging in both arenas, via intensified informed consent requirements and the introduction of emotional distress as a component of workers compensation awards. (P. 741-43.)
This history shows the length and breadth of tort’s concern for non-physical injury; it neatly refutes the canard that tort has limited itself to body and property. That alone, coming from Rabin, should afflict the comfortable. But he is not content to simply offer an alternate history of psychic harms in tort. He also aims to offer a theoretical justification for placing these harms in the modern mainstream. Here, too, his voice is critical and welcome. Body and property are physical artifacts, knowable to all and bearing objective properties, so there is general agreement on the equity of holding actors liable for injuring them. In contrast, non-physical injury does not take up space in the observable world. Thought to reside exclusively in a plaintiff’s psyche, it is often condemned as too “subjective” and “untethered” to deserve tort recognition.
Rabin takes this objection seriously. He responds by offering an unusually precise taxonomy of tort’s non-physical interests, extracted from both doctrine and caselaw. So, for example, loss of consortium and bystander NIED awards treat, as real tort injuries, “grief and despair” at the loss of expressive family relationships. (P. 736.) The various privacy actions treat as real tort injuries invasions of “personal inviolability” and “dignity.” (P. 738.) Informed consent, too, protects patient dignity and individual autonomy. (P. 741.) Workers’ compensation awards for non-physical harm reflect a legal interest in avoiding the depression, fear, and occasional guilt that may arise from accidents and injuries in the modern workplace. (P. 742-43.) Finally, Rabin tackles the least bounded tort of all, IIED. He acknowledges that tort is wary of declaring an interest in deterring “rude” or “uncivil” behavior but suggests that in the twenty-first century, the tort expresses the law’s rejection of the “abuse” that is too often visited on women and people of color. (P. 736-37.)
Will this sincere attempt to concretize tort’s interests in non-physical harm satisfy the emotional injury naysayers? Plaudits to Rabin aside, I’m not sure. It is true that a new generation of tort scholars, myself included, are entirely sympathetic to the idea that non-physical injury is real and that tort duties are not limited to the physical world. But we, and Rabin, too often draw from a menu of soft, aspirational words like “dignity,” to describe the preferred interest; and equally soft condemnatory words like “distress” or “abuse,” to describe the wrongs at issue. Once tort ventures into the intangible, skeptics pounce.
Luckily, these words do have meaning. A right to “dignity” can be understood as an expectation of equal worth, while “abuse” is arguably a wrong because it connotes a “using up” of someone else’s worth. Of course, in life generally, and American capitalist life specifically, we use others with some regularity. When does the “implied license of the playground” exhaust itself? Hard to know. Perhaps, contra Rabin, the concept of “insult” does have a useful role to play in identifying the line between rightful gumption and wrongful aggression. Insult originally meant to “trample on,” and, later, identified behavior that was considered “exulting” or “arrogant.” It conjures an actor who assumes he is “up here,” while others – often by virtue of socially constructed hierarchies – are “down there.”
Notably, this concept aligns almost precisely with the cases Rabin uses to illustrate the past, present, and future law of non-physical wronging. The barkeep expected to open her tavern at the whim of a tippler? (P. 733.) A woman. A spit-upon battery plaintiff? (P. 734 (citng Alcorn v. Mitchell, 63 Ill. 553 (1872).) A man whose net worth was one percent of his assailant’s. The proto-IIED plaintiffs? (P. 736 (citing Wilkinson v. Downton, 2 Q.B. 57 (1897); Nickerson v. Hodges, 146 La. 735 (1920).) A would-be widow, and a mentally fragile spinster. The NIED plaintiffs? (P. 737-38 (citing Dillon v. Legg, 441 P.2d 912, 914 (Cal. 1968); Porter v. Jaffee, 417 A.2d 521 (N.J. 1908).) A frightened child and two mothers grieving offspring killed by malfunctioning machinery. The privacy plaintiffs? (P. 738-40 (citing Shulman v. Group W. Prods, Inc., 955 P.2d 469 (Cal. 1998); Robertson v. Rochester Folding Box Co., 64 N.E. 442 (1902).) A quadriplegic woman filmed for a reality television show and a teenaged girl whose portrait was used unbeknownst to her to advertise flour. In virtually every case, the plaintiff belonged to a gender, class, or race identity group with limited access to economic or social capital, while the defendant belonged to a corresponding identity group with generous access to those resources. And in almost every case, the defendant seemed to assume this status gap justified the intentional or careless treatment of the plaintiff as unworthy in relation to him. Thus, the dignitary injuries in each case are grounded in status hierarchies and might more plausibly be called tortious insults than tortious indignities or abuses.
Friendly amendments notwithstanding, Rabin’s typically incisive commentary comes at a crucial time. The American Law Institute is deep into work on the Remedies and the Defamation and Privacy sections of the Restatement (Third) of Torts, and if they pay attention to it, Rabin’s powerful work of history and theory has the potential to modernize tort’s approach to interpersonal wrongs and remedies for the current age.
Nov 12, 2024 Sandy Steel
In his excellent book, Egalitarian Digital Privacy: Image-Based Abuse and Beyond, Tsachi Keren-Paz defends a number of interesting and provocative claims about the liability of persons in relation to the distribution and viewing of intimate images whose dissemination and in some cases, production, is non-consensual, such as revenge porn. As with Keren-Paz’s other work, the book is characterised by an engagement with foundational issues in tort law – causation, fault v strict liability, positive duties – and a detailed tracing through of the implications of theoretical positions on those issues for an important social problem.
The book’s primary concern is the liability of internet intermediaries – mainly, hosts and search engines – and viewers in relation to wrongful image-based content. I focus here (to the exclusion of the book’s rich discussion of several other issues) on the book’s treatment of three foundational matters raised by such cases: (1) the extent to which intermediaries ought to have positive duties to remove content that amounts to a violation of the victim’s privacy rights, (2) the causal problems that arise in relation to claims for image-based harm that is massively overdetermined, (3) the standard of liability for claims against viewers and others.
The book responds as follows: (1) The absence of a positive duty to remove content after notice is inconsistent with general tort principles. (2) It is possible to establish causation against viewers even when their contribution to the victim’s harm is not a necessary, but-for, cause and sometimes even in relation to abuse suffered by a victim on the basis that viewing such images contributed to demand. However, this may justify apportionment. (3) Viewers ought to be strictly liable.
Positive duties. Chapter 3 aims to show that an “immunity” from tort liability on the part of an internet intermediary once they have received notice is inconsistent with the general tort principles regulating the imposition of liability for the actions of another (compare US courts’ interpretation of s.230 of the Communications Decency Act 1996, criticised by Keren-Paz in Ch 3, and at Pp. 25-27). While tort law generally imposes no liability for pure omission or nonfeasance, it does so in limited situations. Keren-Paz analogises the position of an internet host site to that of a land occupier. The justification of the situations in which one comes under a positive duty in tort, according to Keren-Paz, are all to do with “control”: “all the established exceptions to [the nonfeasance] rule have to do with the defendant’s control over the situation” (P. 30). Thus, an occupier, having the legal right to remove dangers on the land, has effective control, and this justifies their being under a duty to take reasonable steps to protect others from the danger.
Virtual spaces, the book argues, are like physical ones in the relevant respects. Hosts, such as Twitter and Facebook, have materially similar control over these virtual spaces as occupiers’ have over the occupied land in relation to invitees. Indeed, Keren-Paz claims that, in two respects, the duties of commercial hosts should be more stringent, and more demanding, than the relatively minimal duties owed by ordinary occupiers of private land.
First, economic megaliths like Facebook and Twitter have substantial means, so the concern expressed in the negligence and nuisance cases about overburdening occupiers relative to their economic means has to take this into account. Second, Keren-Paz emphasises that uploaders are invitees, and since the occupier stands to benefit from an invitee’s acts more than a trespasser’s, fairness supports a more demanding duty. He writes: “Increased liability for invitees’ acts is just the flip side of the enhanced duty towards them: the closer relationship with invitees is a reason both for enhanced responsibility towards the invitee, but also towards injured third parties from the acts of the invitee” (P. 37).
Although the costs of monitoring content, even after notice, may be substantial, the book points out that they are likely to be a relatively small proportion of, say, Facebook’s profits – salary costs for moderators are around 2% of Facebook’s profits. Given the irreparable harm that the book plausibly argues results from sharing of intimate images without consent, and the frequency of such harm through these hosts, it is likely that these costs can fairly be required of the host (Pp. 40-41).
On the question of what constitutes a reasonable burden to impose on hosts, Keren-Paz goes so far as to suggest that, if hosts are understood as active participants in the breach, the extent of the burden to remove should be ignored. He notes that in relation to the intentional torts, unlike in negligence, a cost-benefit balancing is “irrelevant,” and claims that the breach of privacy underlying a claim in relation to intimate images is an intentional tort (P. 42).
Overall, the book’s argument that there ought to be positive duties post-notice to take down offending content, based on basic tort principles, is persuasive. However, there are a few aspects of his analysis in Chapter 3 that seemed more disputable.
First, it doesn’t seem true that all of the situations in which a positive duty arises to protect a person from a third party are based on control, as the book claims. Second, in truth, “control” is not a free-standing basis of positive duties. Being well-placed to deal with a problem is surely only part of the justification of a legal duty. Notably the book also emphasises the benefit obtained from control of virtual spaces, and the fact that the host is implicated, albeit indirectly, in the harm-causing by their invitation to use the space.
Causation. Mass invasions of privacy raise causal problems. Each viewer of a wrongful image is unlikely to be a necessary condition of the victim’s harm (for instance, emotional distress), given the enormous number of other viewers. Further, each viewer is unlikely to be individually sufficient for the entirety of a severe indivisible emotional harm, which may be due to the fact of mass viewing of the image.
Drawing on his earlier work with Richard Wright on the US Supreme Court’s Paroline decision on compensatory liability in relation to possession of child pornography, Keren-Paz argues that a viewer’s liability in such cases ought not to be for the entirety of a victim’s loss nor, as the majority in Paroline held, based on the viewer’s relative causal contribution. The argument against full liability is essentially that this fails to register that the viewer was neither necessary nor sufficient for the entirety of the harm, but only causally contributed to its occurrence alongside thousands or millions of others (P. 133).
On the other hand, proportional liability based on relative causal contribution is “incompatible with the overdetermined character of the injury” and results in minimal awards of compensation for victims (P. 133). This fails to do justice to the fact that the viewer is likely to have been individually sufficient for some of the emotional harm, and sufficient together with only a small number of others, for its entirety or a substantial amount. So Keren-Paz favours some kind of intermediate position whereby the defendant viewer is liable to compensate “at least for the emotional distress and related pecuniary costs that would have been suffered by the victim solely as a result of the defendant’s offence or, preferably, the defendant’s offence combined with only a few other offenders’ similar offences” (P. 133).
This is plausible, though one might think that full liability could be appropriate in cases in which the wrongdoer has a high level of culpability, even if their causal contribution is relatively diminished. So a person who deliberately seeks out revenge porn might justifiably be treated differently in this regard from a person who is held liable regardless of fault.
Strict liability. The book goes much farther than defending fault-based liability for failure to remove wrongful images or for unreasonable risk-taking in accessing images. Perhaps its most striking claim is that strict liability can be justified both against hosts and viewers. It proposes that the right to privacy in relation to intimate images is a form of property, or should be treated as subject to property-like rules, including strict liability against innocent recipients (chapters 4, 5, 10). For internet intermediaries, this makes their liability akin to that of an auctioneer who innocently sells stolen goods.
Essentially, the book’s central argument is one of consistency: if one has strict liability in conversion for less important interests over which one should have exclusionary powers of control, one ought to have it for non-consensually distributed intimate images. Framed in this way, I suspect many would intuitively agree: if we each had an equal probability of having our tangible property taken without permission (say, one’s car) versus intimate images, we would prefer strict liability in relation to the latter than the former (and likely even if the intimate image invasion was lower probability).
Though acknowledging that the strictness of liability in conversion has been criticised, the book does not deal head-on with this objection, and instead rests on the consistency argument. The apparent harshness of strict liability is softened in various ways in Keren-Paz’s account, however. First, as we have seen, the viewer’s liability is likely to be subject to apportionment given the overdetermined nature of the harm. Second, Keren-Paz argues against liability of the innocent recipient of an image if they delete it within a reasonable time.
This brief conspectus of the treatment of three basic issues – positive duties, causation, and strict liability – hopefully gives a sense of the provocative, searching analysis that characterises the book.
Oct 9, 2024 Kenneth W. Simons
Leo Boonzaier,
Is a tort a failure to do what one ought?,
in New Directions in Private Law Theory 165 (Fabiana Bettini, Martin Fischer, Charles Mitchell, Prince Saprai eds., 2023).
“Is a tort a failure to do what one ought?,” asks the South African scholar Leo Boonzaier. In this book chapter, Boonzaier provides an insightful analysis of the question, which he frames as follows. A distinguishing feature of many non-instrumentalist theories of tort law is how they conceive of a tort—as a wrong, not merely as a cost or loss that the law has an interest in efficiently deterring through a compensatory remedy. But what does it mean to characterize negligent conduct or an intentional battery or a defamatory statement as a wrong?
Here is a very appealing answer: “The commission of a tort is a failure by the tortfeasor to do what, in the law’s view, he ought to do, all things considered.” (P. 169.) This answer helps explain why negligence is defined as unreasonable conduct, and why tort law sometimes awards injunctions to prevent the commission of torts and sometimes awards punitive damages. Note that the failure in question is the unjustifiability of the actor’s conduct, not the culpability of the actor. After all, tort law employs objective tests and does not recognize excuses: “one may blamelessly fail to do what one ought.” (P. 170.)
Yet this answer, Boonzaier points out, confronts significant counterexamples. In necessity cases such as Vincent v. Lake Erie Transportation Co., the ship’s captain trespassed on the plaintiff’s property during a storm and was justified in doing so, yet he had to compensate the plaintiff. And in some nuisance cases, courts award compensatory damages yet refuse to enjoin the conduct. For example, in the British case Miller v. Jackson, a British court upheld nuisance liability based on numerous balls from a cricket field striking plaintiff’s adjoining property, but the court refused to award an injunction because of the substantial recreational value of cricket; only a damage remedy was warranted. It seems impossible to explain such examples if a tort is defined as conduct that the actor should not have engaged in. Although the trespasser and the creator of the nuisance do not satisfy that definition, tort law requires them to pay compensation.
How to explain these counterexamples? One solution proposed by some scholars is to characterize tort law as having two tracks. One track embraces the definition, but a second track explains the counterexamples on entirely different grounds. The first track includes most torts, while the second track offers a potpourri of quite different rationales for the small number of torts that the first track cannot explain. Thus, some would categorize Vincent as an instance of unjust enrichment, or the nuisance cases as reflecting property law rather than tort law principles.
Having nicely framed the problem, Boonzaier critiques the twin-track solution. The suggested explanations for the counterexamples are, he claims, ad hoc and inadequate. A theoretically satisfactory account of tort law should, he claims, find a unifying logic that embraces both the standard cases and the counterexamples. Boonzaier argues that another cricket case, Bolton v. Stone, reveals that logic. In Bolton, plaintiff was struck on the head by a cricket ball driven out of the cricket ground. The court rejected negligence liability due to the very low risk of injury, but one judge believed that compensation was morally required even in the absence of negligence, and many commentators criticized the no-liability result. Here is Boonzaier’s analysis:
[T]he prevailing doctrine, to which the Lords ultimately acceded, coupled tort liability with unreasonable conduct. But if the Lords had uncoupled it [and imposed liability], they would have made an equally viable choice, and quite possibly one that would have been less controversial.
(P. 186.) In Boonzaier’s view, it would be “rationally intelligible,” even if not the best rule, to impose liability in Bolton, especially in light of the imposition of nuisance liability in the first cricket case. Boonzaier then tentatively concludes that the “failure to do what one ought” standard is a sufficient ground of liability that can nevertheless be defeated by other values, especially the value of the defendant’s liberty. (P. 190.)
There is much to admire in Boonzaier’s well-written, carefully argued chapter, which offers a fresh perspective on well-trod issues. Let me now suggest some questions and additional thoughts about his analysis.
First, I commend Boonzaier for emphasizing the contrast between the liability result in the nuisance cricket case and the no liability result in the negligence cricket case, but more could be said. The contrast illustrates a doctrinal difference between nuisance and negligence, and between trespass and negligence, that is worthy of further study. When an actor knows or should know that her conduct is highly likely to cause repeated invasions of the property rights of a neighbor, she is potentially liable for nuisance; and when she knows that a single act will damage another’s property, she is potentially liable for trespass. But when she lacks such actual or constructive knowledge, and merely poses a small risk of property damage, at worst she is negligent. And in the former case but not the latter, a court is likely to require compensation even though her conduct was justifiable.
Why the difference? Principles of fairness (e.g. based on imposing a nonreciprocal risk or obtaining a nonreciprocal benefit) arguably support liability in both cases. Perhaps the answer can be found in Boonzaier’s brief reference to the liberty of defendants. The lower-risk activities that negligence law governs are much more prevalent than the higher-risk activities that nuisance and trespass govern. Thus, expanding strict liability beyond the latter to the former might substantially burden the liberty of actors whose activities create risk.
Second, the doctrinal schizophrenia that Boonzaier identifies is arguably more widespread than he suggests. Boonzaier decides not to categorize traditional strict liability categories (such as the Rylands v. Fletcher rule) as counterexamples to the “failure to do what one ought” conception of tort wrongs. (P. 176.) But this choice depends on a controversial conception of “ought.” Invoking Derek Parfit, Boonzaier relies on the “fact-relative” conception—that is, whether the actor’s conduct was justifiable given the facts about what actually transpired. But it is problematic to employ this sense throughout tort law. A determination that an actor is negligent, for example, relies on an ex ante perspective, not an “actual facts” perspective. Suppose I flip a switch in a room that, as it turns out, has poor wiring, resulting in harm to a neighbor. If I do not know and should not reasonably know about the wiring, I am unjustified in flipping the switch in the fact-relative sense, but I am not negligent. On an ex-ante understanding of “ought,” traditional strict liability categories such as abnormally dangerous activities, liability for dangerous animals, and product manufacturing flaws are indeed counterexamples to the “ought” conception of tort law.
To be sure, there is a difference between these traditional strict liability categories and liability under the Vincent necessity rule. In the former cases, but not the latter, the actor’s conduct on the particular occasion that caused harm is unjustifiable and regrettable ex post. If defendant knew that the dynamite blast would kill the victim, or that the soda bottle with the flaw would explode, defendant should not have set that blast or sold that bottle. But in Vincent, there is nothing unjustifiable, even ex post, in damaging a dock in order to save a ship. If the same fact pattern were to arise again, it would again be justifiable to cause the damage. Whether this distinction requires that different principles be invoked to justify strict liability is a fertile question for inquiry.
Consider also a third, related issue: the problem of reasonable mistakes. Sometimes, even if a mistake about an element of a tort is reasonable, tort law ignores the mistake and imposes liability. For example, when a property owner makes a reasonable mistake in determining the boundary between their property and their neighbor’s, the owner is still liable for trespass. But sometimes a reasonable mistake precludes liability, as when X using defensive force makes a reasonable mistake in concluding that the plaintiff was threatening force, or when Y makes a reasonable mistake in concluding that the plaintiff consented to a physical touching. Yet Boonzaier, like many scholars, treats reasonable mistakes as excuses, not justifications. On this understanding, it would seem that X and Y should be liable, for they ought to have acted differently. By contrast, some scholars treat (many) reasonable mistakes as justified, not merely excused, thus supporting a no-liability outcome. Once again, the fact-relevant conception of “ought” is more controversial than the chapter suggests.
I hope that Boonzaier explores some of these questions in future work. In the meantime, this illuminating chapter is an impressive exploration of fundamental questions about the nature and scope of tort liability.
Cite as: Kenneth W. Simons,
Why The Law Of Tort Ought Not Be Limited To What We Ought Not Do, JOTWELL
(October 9, 2024) (reviewing Leo Boonzaier,
Is a tort a failure to do what one ought?,
in New Directions in Private Law Theory 165 (Fabiana Bettini, Martin Fischer, Charles Mitchell, Prince Saprai eds., 2023)),
https://torts.jotwell.com/why-the-law-of-tort-ought-not-be-limited-to-what-we-ought-not-do/.
Sep 18, 2024 Ellen Bublick
Of the tens of thousands of reported civil cases in Westlaw’s torts database, would it surprise you that a mere 34 opinions in the set use the word “vulva”? Even then, the term is often mentioned only as a quote from a statute, regulation, or expert testimony, or used with reference to non-human animals (baby mink). 74 cases mention the term “oocyte or ovum.” 578 mention the word “vagina.” These small numbers exist alongside 5,954 published civil cases in the database that mention “rape” or “sexual assault.” Courts use terms related to male anatomy more often than their female analogues, but only two to three times more often.
Into this gap concerning bodies and sexuality, Professor Anita Bernstein has consciously “chosen to feel inspired by this silence in the discourse.” (P. 239.) If you are feeling squeamish already, I feel your pain. We law professors, judges and lawyers are a pretty staid bunch. When Bernstein first made her unabashed presentation about semen and products liability (in that order) to a packed audience of lawyers and law professors, I will admit to wincing just a bit. Until, that is, I thought more about the strength of Bernstein’s topic and her candor, as well as the importance of precise language when addressing it. In a world of AI and big data, euphemisms such as “privates” and “reproductive tissue” (some actual substitutes in opinions and scholarship) will prevent detection, understanding and study of legal subjects that relate to sexual anatomy. Worse still, the comfortable route of skipping unmentionable topics altogether neglects needed judicial and academic scrutiny.
Consequently, it was with both trepidation and admiration that I first heard, and then read, Professor Bernstein’s exhortation to forthrightly discuss semen in civil law contexts. The upside of violating entrenched norms of “polite company” is Bernstein’s salvo into questions of tort liability related to the commercial sale of semen. The topic is important today and will likely become more so as the use of reproductive technologies such as IVF increases.
Bernstein’s article advances two central claims. First, she argues that “as long as adverting to [semen’s] existence in public is considered too impolite or eccentric to attempt, people will continue to suffer.” (P. 239.) Suffer because important underlying issues related to sex, reproduction and injury will remain unaddressed. Second, Bernstein argues that “when sold by a commercial provider and alleged to be the source of injury, semen (emitting from any species) qualifies for a products liability label.” (P. 215.) The potential for products liability, Bernstein argues, will both increase legal accountability and improve safety.
On the first issue, the “unmentionability” of semen, Bernstein offers some concrete but humorous examples well suited to her engaging writing style. She peruses medical texts and finds indexes such as the one in Immunology of Reproduction, in which the “s” section tags the word “shrew” but not “semen.” (P. 216.) Even ChatGPT gets in on the shaming. When Bernstein writes a query searching for popular writing about semen, the search response reproaches, in part, “it’s important to note that explicit or adult content is not appropriate for this platform.”
On the second subject, products liability’s application to the commercial sale of semen, Bernstein begins her appeal with an homage to products causes of action which can sometimes provide greater consumer protections than do negligence claims. (P. 221.) In products liability law, the product itself, and not the conduct of defendant, becomes the locus of inquiry. Products liability ascribes “responsibility to a thing.” (P. 219.) This liability tag on products can aid tort law’s big three goals: responsibility, deterrence, and compensation. (P. 221.) With regard to the perennial American favorite of the three, deterrence, manufacturing executives “identified products liability law as a stronger spur to design-decision improvements than both regulation and concerns about reputation.”
In terms of doctrine, Bernstein relays courts’ apparently unanimous agreement that semen is a “product” for products liability purposes. (P. 224.) This reading, Bernstein contends, accords with both common law and statutes. Laws that shield blood, and sometimes “blood and tissue,” from products liability rules implicitly accept that statutes are needed to prevent liability. In states with laws that bar only blood-related liability claims, semen, ordinarily classified as a “tissue,” may yet be the subject of products liability actions. (P. 228.)
Bernstein sees this resolution as the appropriate outcome. Products liability law governs “items or objects that deliver both utility and risk to human beings.” (P. 231.) Such items include spyware, 3D printing technology, and artificial intelligence. (P. 231.) Semen too, Bernstein observes, “can make people and it can make people sick.” (P. 237.) And tort law is, after all, “an instrument that law applies to the task of anticipating dangers and mitigating their consequences.” (P. 212.) Requiring products to be made safer, or to provide warnings when they can’t, may aid consumer choice and inure to the safety of all. (P. 233.)
Of course, the availability of products liability law to regulate defects related to semen is just the start of the liability questions. Commercial sellers’ failure to screen semen for sexually transmitted infections is one of the clearest examples of potentially actionable liability. (P. 232.) But how far defect and warning liability should extend is a disputed and critical issue. For example, courts have rarely sided with plaintiffs when considering claimed genetic harm to offspring attributable to commercial sales of semen. (P. 233.)
Bernstein is undoubtedly right that the potential for products liability from the commercial sale of semen (as a threshold matter), and the scope of that liability, are important issues that must be addressed in the forthright fashion she models. Legal professionals must graduate from sniggering and blushing to adopt accurate clinical language—here and in so many other contexts. (Think of defamation and intentional tort opinions that examine liability when the defendant uttered “an epithet,” without saying which one).
The use of accurate language to describe culturally shunned topics won’t be easy. As Bernstein wisely recognizes with respect to “new” approaches as a whole, “[t]he past is never dead. It’s not even past.” (P. 211 (quoting Faulkner).) Between Bernstein’s wise counsel, and its execution in the spoken and written word, lies a universe of tradition and discomfort. To begin a new approach we must build another habit. When sex-related topics come up in the courtroom or classroom and we wish, instinctively, to flee to the safety of silence or euphemism, we lawyers must instead force ourselves to directly address subjects such as (write it!) semen.
Aug 1, 2024 Christopher J. Robinette
In discussing tort theory, Professor Gregory Keating sometimes refers to a “third way.” By this, I take him to mean an approach to tort theory different than, and drawing from, the two major ways of explaining and/or justifying tort law. For decades, those dominant approaches were law and economics efficiency and corrective justice, though I suspect civil recourse theory has now supplanted corrective justice as the primary “rights-based” theory.
Keating’s own version of a third way emerges in the course of reading his excellent book, which builds on his previous scholarship. While engaging with law and economics (hereafter “L&E”) and corrective justice (hereafter “CJ”)/civil recourse (hereafter “CR”) scholars, Keating constructs a theory of tort law that draws from both sources. Keating is not, however, Solomonic in the sense that he is simply splitting the baby. He embraces a deontological perspective that he believes is inherent in tort law. In sum, “[t]ort is about what we owe to each other in the way of coercively enforceable obligations not to impair or interfere with each other’s urgent interests as we go about our lives in civil society.” (P. 6.)
Five choices by Keating, in which he departs from the consensus of deontological tort scholars, flesh out his third way. First, his insistence that tort is forward-looking, though not in the way L&E scholars describe. According to L&E scholars, tort judgments “shape behavior so that the only injuries inflicted are those that are cheaper to inflict than to avoid.” (P. 21.) CJ scholars reject this interpretation of tort on the grounds that tort litigation is “just what it seems to be, namely, a backward-looking attempt to assign responsibility for redressing harm wrongly done—not a forward-looking exercise in regulation.” (P. 21.) Keating agrees with CJ scholars on this point, but he argues that they go astray by placing tort’s remedial obligation at its center.
Following a number of tort scholars, Keating differentiates tort’s primary and secondary obligations. Tort’s primary obligations are the rules it imposes on us not to interfere with each other’s urgent interests. Tort’s secondary obligation is to repair violations of those primary obligations (past wrongs). Partially because so many of tort’s wrongs cannot really be repaired (wrongful death is the prime example), Keating believes reparation is tort’s second-best solution. Instead, “[t]he ‘overaching aim or purpose’ of the law of torts is not to repair harm wrongly done but to articulate and enforce certain obligations to others—obligations that are grounded in fundamental interests of persons ….” (P. 51.) Because tort adjudication “puts the prospect of reparation to use to enforce primary rights and responsibilities,” it is not just backward-looking, but forward-looking as well. (P. 58.)
Second, Keating’s understanding of tort as “private law” differs from prominent CJ theorists. In response to L&E scholars arguing that tort is essentially an instrument of public law objectives, CJ scholars assert that tort is private law. Those scholars emphasize the form of tort lawsuits—a plaintiff suing in her own name against a defendant—to remind us that such form does not match the public substance claimed by L&E scholars. (P. 74.) Although Keating agrees with this basic point, he believes that CJ scholars are “both asking and making too much of form.” (P. 70.) They ask too much of form when they try to make sense of private law solely on that basis, without taking interests into account. (P. 70.) Tort does not simply recognize our formal independence from one another, it secures protection for our urgent interests, especially bodily security. (P. 121.) CJ scholars make too much of form “when they present the legal category of tort as its own independent kingdom, walled off from surrounding legal fields.” (P. 70.) Instead, Keating asserts, tort law is “interwoven” with administrative systems, such as workers’ compensation, and statutory regimes, such as zoning and direct risk regulation. (P. 71.)
Third, Keating embraces negligence as balancing. The concept of balancing fits nicely into a L&E version of tort law; in fact, the L&E theory was most famously elaborated from the Hand (balancing) test. CJ and CR scholars have offered alternative explanations of negligence that typically avoid the need to balance factors. Keating concedes that a categorical approach has both positive features and some support in case law. However, it “risks legitimating unacceptably large risk impositions that happen to be common, and it is out of step with the dominant contemporary understanding of negligence in the United States….” (P. 129.)
Keating insists that negligence is a balancing of freedom and security, and it can be done in a way that avoids the objectionable aspects of L&E. That account improperly equates reasonable care with rational care: “the care that society would take, imagining society to be a single actor who bears all the costs and all the benefits of risk impositions and who seeks to make itself as well off as possible.” (P. 125.) Thus, acting rationally is to “pursue our self-interest in an instrumentally intelligent way.” (Pp. 125-26.)
Keating rejects the economic interpretation of the Hand test. As opposed to acting rationally, acting reasonably is to “take the rights and interests of those others that our actions affect into account, and act in ways that are justifiable to them.” (P. 126.) Moreover, safety “has special importance because it is an essential condition of effective agency.” (P. 157.) Instead of economics’ deference to subjective preferences, negligence law “is firmly committed to the objective valuation of the urgency of claims and the importance of interests.” (P. 139.) Thus, for Keating, negligence law balances freedom and security, but gives greater weight to the latter.
Fourth, Keating accepts strict liability as a legitimate part of tort law. For Keating, there are two distinct kinds of strict liability: sovereignty-based and harm-based. Sovereignty torts “involve crossing normative boundaries that define domains subject to the control of those who hold relevant autonomy rights.” (P. 234.) Examples include trespass, conversion, and some instances of battery, in spite of the fact they are labelled as intentional torts.
The controversy is over harm-based strict liability torts, which are accepted by L&E scholars, but not by many CJ and CR scholars. Harm-based strict liability “identifies a kind of tort liability which imposes responsibility for repairing harm on a party responsible for the infliction of that harm, even though that party cannot be faulted for failing to prevent the harm.” (P. 231.) Examples include abnormally dangerous activities, instances of nuisance liability, vicarious liability, and some forms of product defect liability. Many CJ and CR scholars argue this form of strict liability does not involve a wrong, and therefore is not a legitimate part of tort law. But Keating defends harm-based strict liability as involving a wrong: “the wrong committed in these liabilities is the conditional wrong of harming-without-repairing.” (P. 248.) Keating asserts, “[h]arm-based strict liabilities are corrective insofar as they undo wrongs whose essence lies in benefiting through harming a particular person and thereby benefiting at that person’s expense.” (P. 263.)
Fifth, Keating acknowledges the concept of collective responsibility. For Keating, following Holmes, the world is divided into acts and activities. “Premodern tort law was a law of nominate, mostly intentional, wrongs, whereas modern tort law is mostly a law of accidents that are recurring byproducts of basic activities in industrial and technological society.” (P. 107.) Because modern tort law is “characteristically associated with activities, responsibility for those accidents may be lodged either with individuals or with activities.” (P. 107.)
Keating contends that tort sometimes requires collective responsibility in the form of enterprise liability, which is “liability for the harms distinctive to a firm, to an institution, or to an activity.” (P. 266.) It is generally associated with L&E-like instrumentalism, specifically compensation (loss-spreading) and deterrence. Keating, however, argues that this understanding overlooks, and thus badly misunderstands, enterprise liability’s moral foundation, a principle of fairness: “[t]he costs of [accidents characteristic of an enterprise] should … be distributed among those who benefit from the imposition of the enterprise’s risks.” (P. 272.) Keating sees enterprise liability in some parts of tort law, particularly vicarious liability and aspects of products liability, and in compensation systems that are tort adjacent, such as workers’ compensation and no-fault automobile insurance. CJ and CR scholars do not recognize the legitimacy of collective responsibility because it does not correspond to wrongs as they understand them.
Of all Keating’s fascinating topics, the last is the most comforting and challenging to me. It is comforting because it helps me reconcile my increasingly wrongs-oriented approach to tort law with my attraction to compensation systems. I have long believed there was a fairness principle in those systems overlooked in the literature.
But acknowledging collective responsibility as operating within tort law is destabilizing in that it creates significant line-drawing issues. Keating is correct that enterprise liability, properly understood, will not swallow up all individual responsibility. But the boundary between acts and activities will not always be clear. Moreover, even if it is clear that something is an activity and not an act, Keating claims that responsibility may be lodged either with individuals or with activities. In any given case, how are we to choose? Keating is aware of these issues and, in the context of administrative systems, states it is a topic for another day. (P. 296.) Surely with as much as he tackled in this book, we can be patient for more. But these crucial issues will become urgent as we wrestle with how to treat injuries from autonomous vehicles and other artificial intelligence-based products and technologies.
Keating skillfully brings his philosophical training to bear on tort law while remaining grounded in doctrine and cases. His book is a must-read for anyone interested in tort theory.
Jun 6, 2024 Anita Bernstein
So many ways to suffer, so few of them redressed by the law of torts. We who teach the course cover a short list. First and foremost, physical impact on the body. Damage to tangible property. Intrusions into land, almost all of them of the visible kind.
Tort puts another set of interests in a secondary or lesser category, recognizing the possibility of real harm caused by faulty conduct but simultaneously blocking recourse with doctrinal hurdles that keep most potential plaintiffs out of court. Consequential economic loss, emotional distress, reputational harm, and interference with a possessor’s enjoyment of land fall into this category of recognized-yet-mostly-unremedied types of injury. In a pair of recent articles, both of them honored by her school as outputs originating in the same project, Hila Keren argues persuasively for an addition to this tranche.
The article Keren published first, titled simply Market Humiliation (here abbreviated Market), announces an injury with a novel description. Beyond Discrimination: Market Humiliation and Private Law (Beyond Discrimination), the follow-up, sends civil recourse to the rescue. Both pieces rest on a posited ideal of “market citizenship,” which Keren defines as “a unique set of rights and duties that should be defined and enforced by the state … not only via expanded nondiscrimination laws but also through private law” (Market, abstract.) At stake is “immense human suffering–individual and collective” (Beyond Discrimination, P. 94).
For the tersest possible example of market humiliation, Keren mentions (Beyond Discrimination, P. 98) a sign in public view that says Whites Only. Readers might hold different opinions on what the law should do about this affront but would likely agree that this message does, or at least could, inflict harm. In further illustration of market humiliation, Keren offers a real-life account on point: Ruth Bader Ginsburg recalled having seen in her youth a sign in public that said No Dogs or Jews Allowed (Beyond Discrimination, P. 137).
Keren starts with eight true-story vignettes whose facts come from decisional law. Jobsite supervisors tell a (white, apparently) woman who does drywalling work that she’s a ‘c–t’ and a ‘f—–g b—h’ who should be cleaning instead. An African American customer at McDonald’s tries to return her fries when they’re cold and the manager yells that he’s “tired of those damn [n-word] bringing their food back and don’t want to pay for it.” Robert Hasbany thought Deborah Reynolds was good enough to employ in his medical office but not good enough to escape his repeated berating about her weight. One day when Reynolds showed up for work Hasbany ordered her to weigh herself, presumably in front of him on his office scale, and when she refused he ordered her to either “weigh in, or get a doctor’s note.” Keren has five more anecdotes. (Market, Pp. 569-70.) These three will suffice.
Market humiliation has six characteristics (Beyond Discrimination, Pp. 97-102) that can unite to form a balancing test for a cause of action, says Keren. These traits are (1) exclusion, (2) a gap in power between the aggressor and the target, (3) hostility, (4) pointed targeting of a marginalized identity, (5) surprise, and what Keren calls (6) “audience” or witnesses. Consistent with the multifactor-test pattern familiar in American law, not all six need be present to support a claim.
By “market” in her two titles Keren makes reference to an array of settings familiar from daily life: “work, housing, transportation, retail, and other types of transactional exchanges of goods or services for pay” (Market, P. 570). Aggregating these venues into a larger “market” references a theme Keren mentions only briefly (see Beyond Discrimination, P. 143): law and economics, wherein we rational actors know what we want and express our desires through the instrument of price. Keren sites market humiliation in “the rising critical perspective of Law and Political Economy” (Beyond Discrimination, P. 143). From my hobbyist interest in law and economics, I think this characterization understates Keren’s contribution. Market humiliation as a construct joins critical perspectives on law and economics, yes, but it also enlarges a major insight of none other than Adam Smith.
Smith taught that exchanges of money and its counterparts generate value for us as individuals and enlarge the political economy in which we live. We prefer more wealth to less. Smith famously told his readers that this attitude of ours is socially useful rather than reprehensible or materialistic in the pejorative sense of that word. Food, said Smith, reaches our table not because of the benevolence of providers like “the butcher, the brewer, or the baker,” but “from their regard to their own interest. We address ourselves not to their humanity but to their self-love, and never talk to them of our own necessities but their advantages.” In this realm, nobody receives or expects a favor: the market economy delivers pleasure and satisfaction as standard operating procedure.
From there, the sting Keren says will ensue ensued for us when fellow participants in markets cast us out of a shared social ideal becomes clear. We victims encountered fellow market participants asking nothing from them but for them to act on that universal self-love. After bringing to the exchange what the market supports, we learned that these people preferred to insult us than give themselves what they want. We never claimed to be anything special, but our rejectors went out of their way to say we’re lower than that.
The law ought to care about this experience. Keren gathers evidence to show the harm of market humiliation (Beyond Discrimination, Pp. 102-03) and its tendency to stay in place or get worse. Rather than dissipate, it gets “recalled and refelt by victims” (Beyond Discrimination, P. 104).
Docket timing at the Supreme Court occasioned a turn for Keren as chronicler of market humiliation. In 2023, shortly after Market, the first of the two articles, was published, the Court decided 303 Creative LLC v. Elenis, a dispute at the intersection of antidiscrimination law in public accommodations and the First Amendment. Calling this case “an actual dispute” might be an overstatement, as Keren suggests (Beyond Discrimination, P. 112), at least from the vantage point of private law’s insistence that something happen to someone before the courts will intervene. The proprietor of 303 Creative LLC wanted to know—in advance, before a real-life clash arose—whether her website business had permission to turn away hypothetical couples in the future should they ask her to publicize their same-sex weddings. Rather than act according to her conscience and find out the consequences, this seller went to federal court for reassurance that she’d be safe from enforcement by the Colorado Civil Rights Commission should a hypothetical future buyer complain about her policy. The Supreme Court, by a 6-3 vote, gave Lorie Smith the comfort she sought as inflictor manqué of humiliation in the wedding-website market.
First Amendment freedom of speech as interpreted in this decision “opened the door wide to more practices of discrimination to be carried out through market activities and to an expanded risk of market humiliation” (Beyond Discrimination, P. 91). Keren reads the majority opinion in 303 Creative LLC as in effect supplying another of her vignettes like the one about the drywall worker and the McDonald’s customer and the medical-office employee ordered by her doctor boss to step on the scale. Siting the 303 Creative LLC result in free speech rather than the free exercise of religious homophobia worsened this risk, Keren continues. Only a fraction of market humiliators prefer to characterize what they do as religion, and now all of them needn’t bother. Entitlement to humiliate as provisioned in 303 Creative LLC “from now on will be available to countless commercial providers” (Beyond Discrimination, P. 91). And so Keren has “sounded an alarm in a time of crisis” (Beyond Discrimination, P. 172).
In response to this cry, the private law maxim of ubi jus ibi remedium comes to mind. If these behaviors that Keren condemns are of interest to the law, then there ought to be a remedy for persons who suffer harm when these behaviors occur. Putting “private law” into the title of Beyond Discrimination, Keren invites her reader to judge this complaint from a humiliated individual at a kind of pleading stage. Does it, or should it, state a cause of action? Keren finds an imperative for private law by showing the inadequacy of the rights and remedies that current antidiscrimination law provides.
Market actors inflict humiliation on other people with reference to more traits or identities than what antidiscrimination law recognizes in its protected categories. Keren nominates “LGBTQ+,” being fat, and speaking with a foreign accent as pertinent omissions. Even targets of market humiliation “lucky” enough to have their condition recognized in civil rights law find their entitlements to redress interpreted narrowly in court. Take for example Shopping While Black. (Beyond Discrimination, P. 108.) The McDonald’s customer in Keren’s second vignette (Market, P. 568-69) lost when a Florida court found she was not “actually denied the ability either to make, perform, enforce, modify, or terminate a contract” by the defendant’s employee who shouted the N word at her when she told him the French fries she’d bought were cold. Humiliation isn’t enough to generate redress until the law changes.
Before she wrote these two articles, Keren named her project “Market Citizenship for All: An Inclusive Theory of Contract Law,” reflecting her experience as a scholar and teacher of contracts. Beyond Discrimination does indeed engage with contract law when Keren favors expanded understanding of a particular contracts doctrine, good faith, to strengthen her construct of market citizenship. But Keren moved on as her work progressed. I admit I’m partial, but I park the flag of Tort on the problem that these two papers present.
Having started with a focus on commerce and then moving to care more about a species of personal injury attributable to fault, Keren’s two articles remind readers of the emergence of another important legal concept. Products liability has a similar origin story. When Keren observes that good faith is thinner in the United States than in the civil legal systems it came from (Beyond Discrimination, P. 154) and that a remedy available in tort but not contract, punitive damages, seems necessary, she echoes the products liability precedent where tort superseded contract. Keren ends up characterizing her idea as a “new tort of market humiliation” (Beyond Discrimination, P. 164) rather than an expansion of contract principles. In a parallel to the emergence of products liability in the twentieth century, contributions from Contract can inform a new tort in the twenty-first.
Taken together, Beyond Discrimination and Market point to work ahead. Keren has established policy priorities and a useful six-factor balancing test for the tort. Followers will fill in particulars about the wrong and build on the remedies that Keren has sketched preliminarily.
This new-tort partisan applauds Keren’s plan and its execution in these two articles. Market humiliation is central to literatures on other private law fields and to antidiscrimination law, not to mention all human life in the modern political economy—and because this wrong is a personal injury, it deserves signal honor here in the Torts bytes of Jotwell.
Cite as: Anita Bernstein,
Public Humiliation Meets Private Law, JOTWELL (June 5, 2024)(reviewing Hila Keren,
Beyond Discrimination: Market Humiliation and Private Law, 95
Univ. Colo. L. Rev. 87 (2024); Hila Keren,
Market Humiliation, 56
Loy. L.A. L. Rev. 565 (2023)),
https://torts.jotwell.com/public-humiliation-meets-private-law/.
May 15, 2024 Nora Freeman Engstrom
It’s no secret that, in recent years, third party litigation funding has become something of a lightning rod. The Chamber of Commerce, some in Congress, and various states have sought to rein in a rapidly growing industry. In Opaque Capital and Mass-Tort Financing, Samir D. Parikh calls attention to a newfangled form of litigation financing in mass-tort cases, which, he believes, threatens to distort outcomes and “push victims further away from financial recovery.” (P. 32.) In so doing, Parikh helpfully reminds us that there is still much to be understood about new forms of funding before plunging into reform.
Before turning to Parikh’s argument, it’s helpful to start with a bit of background.Third-party litigation funding (sometimes called TPLF, alternative litigation funding, or ALF), is an umbrella term that refers to various lawsuit funding mechanisms. Three main flavors of funding fall under this broader umbrella.
First up is “lawyer lenders,” funders who offer specialized financing to personal injury lawyers to cover the costs and expenses of litigation. A second cohort—frequently called “consumer legal funders” —offers relatively small sums, on a non-recourse basis, to individual plaintiffs to tide them over while they are waiting for their personal injury lawsuit to resolve. A third group of funders—most prominently, the behemoth Burford Capital—invests in commercial lawsuits. These “commercial lenders” usually invest in lawsuits that pit one business against another (not personal injury litigation). They fund those on both sides of the “v.” And their investments are large, commonly running in the millions of dollars.
One key (and often confused) preliminary point is that, although this trio of mechanisms is logically linked, they are actually quite different. The funding streams are directed toward different people or entities, by (often) different funders, in drastically different dollar amounts, for different purposes, to fund (often) different kinds of cases.
Over the decades, funding mechanisms have also changed. Take lawyer lending. Initially, lawyers tended to fund even complex cases from their own pocketbooks. In 1980, for instance, noted plaintiffs’ lawyer Stuart Speiser lamented the fact that, although case costs could be substantial, personal injury lawyers had to “finance everything themselves.” Fast forward to the late 1980s and early 1990s, and cash-strapped lawyers tended to take one of two approaches: they would forge co-counsel relationships (and give their funder, now co-counsel, a share of the contingency fee) or take out loans from traditional banks. Then, in the late 1990s, freestanding lawyer lenders (including Counsel Financial, Advocate Capital, and Amicus Capital Services) opened for business. These lenders offered (and continue to offer) recourse loans to lawyers—meaning that the lender would cover the lawyer’s case costs and litigation expenses, but the investment would have to be paid back, even if the case or portfolio of cases went kaput.
Now, Parikh explains, there’s a new entrant, which he dubs “opaque capital.” These latest funders, Parikh says, are different from their predecessors in that they offer nonrecourse loans and are also more heavily involved in the underlying litigation. Historically, he says, funders “have been silent partners, content to sit on the periphery and allow attorneys to develop strategy and execute game plans,” (P. 36), whereas this new breed tend to use “contractual and relational leverage to control outcomes affecting their investments,” (P. 37). Thus, Parikh discusses one funding agreement that made plaintiffs liable for the full amount of the loan (plus interest and fees) “upon default in performance of any obligation required to protect and preserve the litigation” and another that he contends gave the funder “unilateral power to veto any settlement offer in the case.” (P. 62.) With enough leverage, Parikh warns, “the financier would have the power to control the contours and timing of settlement for their benefit rather than that of claimants.” (P. 63.)
This latest chapter in litigation funding is fascinating—and worrisome—for those who care about the integrity of the tort liability system, as well as those who care about lawyers’ bedrock obligations to clients and courts.
Yet, while I very much like Parikh’s contribution, I also have quibbles. For starters: In emphasizing the unethical tactics of opaque financing, the piece fails to differentiate between the funding of attorneys (lawyer lending) and the funding of litigants themselves. This blurring is, to my mind, unfortunate. As noted above, the mechanisms are different. And, critically, surrounding ethical concerns also markedly differ.
Consider, for example, an agreement that allows the funder to review a plaintiff’s case files, including “medical records, litigation documents, and anything related to his cases,” “without restriction.” Id. at 60. If an attorney seeking funding ships that sensitive material off to a lender without the client’s knowledge or permission, the attorney’s ethical violations are clear. Model Rule 1.6(a) strictly limits the disclosure of case-related information, and, per Rule 1.4, a lawyer may not take significant steps in the litigation without conferring with the client first. But if, on the other hand, the client independently agrees to this arrangement, and the client supplies the document, there’s no violation.
Or consider a funding agreement that gives the funder veto power over settlements. If forged between a lawyer and a funder, such a provision would violate Rule 1.7(a)(2), which governs conflicts, and also Rule 1.2(a), which requires the lawyer to abide by a client’s decision to settle. If, however, the client forges such an agreement, different story.
That said, Parikh’s piece makes three significant contributions to the literature. First, Parikh shines a light on the costs of complex litigation and the fact that these costs “place[] a staggering burden on all litigants.”(P. 32.) Litigation costs, to this point, have received inadequate scholarly attention, even though they frequently determine which cases are brought, which cases succeed, and the vigor with which cases are litigated. If we care about litigation in general, and about tort litigation in particular, we have to pay them greater heed.
Second, Parikh charges that these funders work hand-in-hand with lead generators and claim aggregators to identify claims—including those of dubious value—and channel them into the tort system. (Pp. 37, 49.) It’s a serious charge—and one that warrants further scholarly attention. But, if Parikh is right, and if there are new mechanisms to usher bad claims into aggregate actions, it underscores the importance of arming courts with appropriate tools to identify and discourage such filings.
Third, the piece serves as a signal to the legal profession—and the judges overseeing big cases (particularly mass tort MDLs)—that we ought to be cognizant of, and adapt to, TPLF’s various forms. Whereas prior TPLF funders and beneficiaries could be governed by the standard rules of legal ethics, new players, who raise new ethical issues, appear to be in the game.
Now, it bears emphasis: New isn’t necessarily bad. The involvement of new players could be salutary. They could expand access to justice and make it more likely that meritorious cases succeed. They might efficiently transfer risk from plaintiffs’ lawyers, encouraging them to roll the dice at trial rather than taking quick (and certain) settlements. Conversely, to the extent sophisticated funders scrutinize claims, they can give lawyers and litigants a sober assessment to puncture exaggerated expectations, also to positive effect.
The jury is, to my mind, still out on how prevalent new funders are, how exactly they operate, and whether they pose a real (as opposed to theoretical) threat to lawyers’ ethics, client autonomy, or the basic integrity of the tort system. But, we can’t know—and we can’t even begin to grapple with potential policy responses—until we understand, exactly, who these funders are, how they operate, and the risks they pose. On that score, Parikh’s piece represents a substantial step forward.
Apr 5, 2024 Anthony Sebok
Kenneth S. Abraham & Catherine M. Sharkey,
The Glaring Gap in Tort Theory, 133
Yale L.J. __ (forthcoming, 2024), available at
SSRN (Sept. 27, 2023).
Kenneth S. Abraham and Catherine M. Sharkey’s The Glaring Gap in Tort Theory has a dramatic title. The article, which is about the unheralded and unappreciated role that liability insurance plays in tort, promises to make good on two claims—first, that the major (or a major) “missing piece” in modern tort scholarship is liability insurance, and second, once this missing piece is identified, it is impossible to ever see tort law the same way again.
It is easy to quibble with both these claims. As to the first, it is worth observing that tort theory has been taken to task by critics for other failures, which also probably are, in the eyes of those critics, “glaring” and demand urgent correction. For example, mainstream tort theory, it has been observed, like much of academic legal analysis of the common law, ignores gender and race. Others have criticized tort law for its failure to grapple with its commitment to liberal individualism and, by extension, its complicity in the lack of equity in modern society. One might even take the view that tort’s failure to provide a framework through which climate change may be addressed is a “glaring gap” that should be addressed before its failure to identify and discuss liability insurance.
It is easy to dispose of this first quibble. To start with, nowhere do Abraham & Sharkey say that they have identified the only gap (glaring or otherwise) in tort law or theory. There may be others. But more to the point, the gap they identify is specific to theories that purport to explain “tort liability as we know it today.” (P. 10.) Criticism identifying what is left out of tort law, and the theory that interprets it, is often external to the practice—the gaps in its treatment of race and gender and its failure to provide courts with tools to address economic inequality and climate change are often calls for the reform (or abandonment) of tort. By contrast, Abraham & Sharkey’s criticism is internal, filling in a missing “ingredient” (as Abraham & Sharkey put it) in a recipe for a product that is working (relatively) well and is worth preserving.
The second quibble is harder to ignore and will take up the balance of this Jot. The quibble is not with the premises underlying the article. These are, to simplify, (1) that liability insurance is pervasive in tort litigation and (2) that this fact is rarely the subject of comment by courts or scholars. As to the first premise, Abraham & Sharkey estimate that “liability insurance pays roughly 85 percent of all tort costs.” (P. 10.) There is no reason to doubt this is true, although it is worth noting that their estimate is based on the dollars spent on torts costs, not the number of tort claims brought, or resolved at trial. (In a world where 100 tort cases were filed and resolved, and only 25 of these cases involved liability insurance while 75 did not, it would be accurate to say that approximately three quarters of the tort costs were paid by liability insurance if the former group involved median defense costs of $10 million per case, and the latter group involved median defense costs of $1 million per case, although it would not be accurate to say that liability insurance was “pervasive” in the tort system.) As to the second premise, while there are some prominent exceptions—such as Fleming James and Tom Bake—let us stipulate that it is correct.
The real question is: is the gap “glaring”? At one extreme, one might say that Abraham & Sharkey’s cri de coeur is akin to Betty Friedan’s powerful insight that there was a “problem that had no name” in America in 1963 which, upon being named, framed an agenda for action: feminism. On the other extreme, one might say that all Abraham & Sharkey have done is name something that has always been in place and whose steady, regular operation requires no comment until and unless it breaks down, like the plumbing of a university. It would be an odd kind of commentary on our theories of higher education to say that they have until now failed to address the hydraulic infrastructure which is, admittedly, a pervasive and necessary feature of the university’s continued operation.
Abraham & Sharkey claim that certain facts about liability insurance entail (or are strongly correlated with) certain contingent features about current tort doctrine. (P. 10; discussing Section II.) They observe that the fact of, and the increased scale of, liability policies are connected to the judicial development of strict products liability; the elimination of various immunity doctrines (parental, spousal, charitable and governmental); and the modification of traditional premises liability rules that afforded certain protections to possessors of land.
In addition, they also claim that, but for the rise of liability insurance, certain tort doctrines which are part of the basic toolkit of first year torts would have disappeared. So, according to them, were it not for the ability of tortfeasors to spread the cost of their “bad” moral luck through insurance, the thin skull rule—which is (arguably) an ad hoc exception to the foreseeability requirement of Wagon Mound – would have been shown the door by the judiciary, instead of indulged as it is now (P. 52).
They tell similar stories about other doctrines, including: (1) holding individuals to the same standard of care for the same activity as enterprises (P. 53); (2) measuring damages without regard to degree of fault (except when punitive damages are permitted) (P.55); and (3) the American Rule for legal costs (P. 56). Note that in each of these, the net (or indirect) effect is to prevent defendants from trimming their monetary obligations under in cases where they have been the cause in fact of some loss.
The trajectory described by this history is frankly pro-plaintiff. All of the new doctrines enabled by liability insurance are net positives for plaintiffs, as are all of the old doctrines preserved because of liability insurance. This is a significant conclusion, and Abraham & Sharkey underplay it. They argue that “deontic” theories such as corrective justice and civil recourse could benefit from taking into account that “what would count as a wrong [in tort] might be different if liability insurance were not so generally available.” (P. 67.) Their point is, I think, that those theories lack a persuasive normative account of tort law’s formal commitments, and that the dynamic interaction of liability insurance’s growth the doctrinal change can provide such an account. Yet Abraham & Sharkey do not emphasize the conclusion—implied by their own analysis—that the difference is that more conduct counts as a wrong when liability insurance is generally available compared to when it is not.
Assuming, for the moment, that the foregoing interpretive claim about liability insurance and tort is correct, the obvious next question is why. Abraham & Sharkey are invested in the explanation being non-trivial, and there is some reason to think that their instinct is correct. After all, if liability insurance’s relation to what happens in courtrooms were really just like plumbing’s relation to what happens in universities, then adding volume should not change the character of the outcomes.
But it seems that it does. So it cannot simply be that providing many more dollars for lawyers and damages is all that liability insurance does; if that were the case, then even if the absolute number of cases and dollars won by plaintiffs were to increase ten-fold, there would be no distinctive swerve in the pro-plaintiff character of the doctrine
One reason why adding “volume” changes the character of the outcomes in tort law is that judges grow increasingly indifferent to the impact of defendants being held liable where they perceive that the impact will be diluted through cost-spreading, whereas they remain quite sensitive to the impact of no-liability outcomes on plaintiffs. There are various places in their analysis where Abraham & Sharkey suggest that this is the real impact of liability insurance – for example, when they discuss the impact of Justice Traynor’s famous Escola concurrence.
Their explanation for why a subjective standard of care for individuals would not have replaced the objective standard of care applied universally to individuals and enterprises alike (P. 53) trades on this idea as well. In their telling, the only reason courts feel comfortable imposing the “harsh” outcomes entailed by the objective standard of care on individuals is that, through the “ameliorating effect of liability insurance,” individual defendants will be no worse off than if they had been large enterprises (P. 54).
Abraham & Sharkey may be justified in asserting that the role of liability insurance in modern tort law is so significant that any account that fails to address it suffers from a “glaring” gap. But I do not think they have fully made their case. This is for two reasons.
First, an argument based on the indifference of courts to the impact of liability on defendants does not account for the courts’ positive treatment of plaintiffs. After all, even if courts were of the view that defendants—now that they have insurance—are not terribly worse off for being found liable, they still might not be inclined to make plaintiffs better off.
One still needs a reason to think that, as a default rule, plaintiffs should recover in these cases. Is it because all things being equal, the defendants have indeed acted culpably, and liability insurance removes any external constraint on redressing the wrong suffered by the plaintiff? Or is it because in all these cases, as Fleming James would have it, there is no party who is culpable, but shifting individual accident costs to an enterprise is the proper default rule, all things being equal? I suspect that Abraham & Sharkey are inclined towards the latter, but they do not say.
Second, taking as true the correlation they describe, there is some reason to be suspicious of the causal story. The pro-plaintiff doctrinal “wins” Abraham & Sharkey describe may have occurred in spite of, not because of, the introduction and expansion of liability insurance. Causal stories in social science are notoriously hard to prove or disprove. But here is one additional fact that Abraham & Sharkey do not mention, which, at a minimum, must be addressed.
During the last 40 years, at least, liability insurers have been at the vanguard of tort reform both in the legislatures and the courts. If one counts the U.S. Chamber of Commerce as an agent of the liability insurance industry (and I think it is fair to do so), then one must ask how it is possible for a practice to have an effect that is in fundamental tension with those who benefit from the practice. Many of the doctrinal results which Abraham & Sharkey attribute to liability insurance have been vigorously resisted, and, in the case of both products liability and damages in medical malpractice, reversed by the institutions closely associated with the corporations that provide liability insurance. This seems in tension with the causal story Abraham & Sharkey tell.
Abraham & Sharkey’s article forces the reader—regardless of her normative views about the current state of tort doctrine—to think in new way about the forces that have led us to the current status quo. If, as they argue, certain doctrinal outcomes are heavily determined (or even over-determined) by the inexorable growth of liability insurance, then any critical account of tort law has to start with insurance. As I have suggested, the story that Abraham & Sharkey tell is perhaps even more complex than they realize. In their story, the rise of insurance has benefitted plaintiffs as a class according to certain doctrinal metrics. It still may be the case that, below the surface (and behind the scenes), the insurance industry and its political allies have systematically limited the transformative potential of tort law through legislative reforms that weaken the capacity of plaintiffs, as a class, to seek redress.
Cite as: Anthony Sebok,
We Don’t Talk About Insurance (no, no, no!), JOTWELL
(April 5, 2024) (reviewing Kenneth S. Abraham & Catherine M. Sharkey,
The Glaring Gap in Tort Theory, 133
Yale L.J. __ (forthcoming, 2024), available at SSRN (Sept. 27, 2023)),
https://torts.jotwell.com/we-dont-talk-about-insurance-no-no-no/.
Mar 11, 2024 Kenneth W. Simons
A common but troublesome factual cause problem arises in the following medical malpractice scenario. A doctor negligently treats or fails to diagnose a patient’s medical condition, and the patient dies or suffers serious harm from the condition. The patient (or the patient’s family) can prove that due care might have prevented that harm but cannot prove this causal link by a preponderance of the evidence. In recent years, most courts have responded to this “loss of a chance” of a better medical outcome (LOC) problem not by denying all liability, and not by awarding full damages, but instead by awarding partial damages. Most scholars, and the most recent drafts of two Restatement Third, Torts projects, endorse this response.
In her illuminating and provocative article, Damned Causation, Professor Elissa Philip Gentry takes a different tack. She is deeply skeptical of overreliance on general statistics in LOC cases and urges a more nuanced approach, an approach that grants much greater discretion to the jury. In the course of her careful analysis, Gentry clarifies the complex statistical issues that these cases raise and offers a promising alternative to current judicial practice.
Gentry begins by identifying the “attributable risk rate” as the most appropriate initial metric for measuring the chance that a doctor’s negligence made the patient worse off (P. 434). The meaning of that rate is best understood through examples. Suppose that at the time of the doctor’s negligence, the patient had a background (or “inevitable”) 60% risk of dying of cancer, which the doctor’s negligence increased to a 90% risk of death. The patient dies of cancer. Under the traditional preponderance test of factual cause, the doctor would not pay any damages, because it is more likely than not that the patient would have died even if the doctor had used due care. In this example, the “avoidable” ex ante risk—i.e. the risk of death that due care could have prevented—is 30%.
Gentry would compute the attributable risk that the doctor caused the death of this patient as 33%, because there was a 30/90 chance that the negligence caused the death. Thus, if a court rejects the traditional preponderance test and permits the award of proportional damages for the patient’s death, those damages should equal 33% of the full damages that would be awarded if the negligence of the doctor unquestionably was a factual cause of the death.
Gentry also gives the example of a doctor whose negligence decreases the patient’s chance of survival from 85% to 80%, and whose patient dies of the relevant disease (P. 434). If we convert these percentages into the mathematically equivalent risk of death, the doctor has increased that risk from 15% to 20%. Gentry then computes the attributable risk rate as 5/20, or 25%. In both this example and the prior example, Gentry’s computation of the size of the chance of survival that was “lost” deliberately ignores the ex ante risk that the patient would not die, because in both examples, it is known as of trial that the patient did die. Most scholars who have addressed this issue agree that, insofar as these probabilities are intended to provide the best ex post approximation of the chance that the doctor caused the death, this ratio method is the best method of computing the probabilities.
But, Gentry argues, courts should not be satisfied with initial probability estimates. They should be very careful when employing this type of probabilistic statistical information, recognizing its limits as well as its value. Specifically, they should not automatically permit damages (even partial damages) simply because the attributable risk exceeds some specified threshold, such as 50% or 30% or 10%; nor should they automatically exclude damages (even full damages) simply because the attributable risk falls below some threshold.
Why should courts hesitate? Because, as Gentry points out, the statistical information typically offered by experts in LOC cases is group-based information from empirical studies, such as overall survival rates if cancer is diagnosed at Stage I, II, III or IV; but that information is sometimes a poor approximation of (a) the individual patient’s preexisting risk of suffering harm apart from the doctor’s negligence or (b) that patient’s amenability to cure if the doctor uses due care.
In a series of highly instructive tables and graphics, Gentry presents scenarios in which the group defined by an initial attributable risk rate (such as 30%) actually contains several distinct subgroups, some with a much higher risk rate, and others with a much lower one. These subgroups reflect individualized factors such as the patient’s demographic characteristics, medical history, lifestyle choices, and genetic endowments. And, she claims, if further evidence is available to distinguish which subgroup the patient is a member of, that patient might properly obtain either a full damage recovery, partial recovery (but not necessarily in proportion to the overall initial group risk rate), or no recovery.
Some of Gentry’s examples illustrate the danger that reliance on overly general statistical information will result in overcompensation of plaintiffs, by awarding full or partial damages even though more detailed patient-specific information might reveal a very strong likelihood that the patient was not made worse off by the doctor’s negligence. But using overly general statistical information can also undercompensate plaintiffs, because more specific ex post information sometimes indicates that the general statistical information understates the probability that defendant’s negligence caused the patient’s harm.
What, then, is Gentry’s solution? She proposes that, instead of giving decisive weight to initial probability estimates based on readily available information, courts should undertake a two-step process. First, they should “personalize” the attributable risk information, adjusting it to make it as accurate as possible, in light of both the patient’s observable and unobservable characteristics.
Second, they should “operationalize” the information by determining whether the patient’s harm is “distinguishable.” It is distinguishable if ex-post evidence, acquired after the patient suffers harm, does demonstrate, or potentially can demonstrate, whether the patient’s harm was inevitable or instead avoidable; otherwise, it is indistinguishable. For example, available ex-post evidence might show that the patient’s tumor grew unusually quickly, or unusually slowly, relative to the population in the initial statistical study. The jury should, according to Gentry, adjust the attributable risk rate to reflect such evidence.
This innovative analysis holds the promise of achieving greater accuracy in determining whether the defendant’s negligence was the factual cause of the patient’s harm. The analysis is plausible in the abstract, but it does not resolve some questions. First, an important rationale for awarding partial damages in LOC cases is to avoid a recurring pocket of legal immunity from developing. If the inevitable risk of death is greater than 60%, for example, the traditional preponderance test cannot be satisfied, yet most courts have held that optimal deterrence and fairness support a damage award. Although Gentry’s proposed refinement of the probability analysis might further this rationale in some cases, it is not guaranteed to do so, because it gives no explicit weight to whether awarding partial damages will avoid a pocket of immunity.
Second, “distinguishability” of the harm is a key component of Gentry’s proposal, but distinguishability is a matter of degree. Thus, the inquiry into distinguishability will itself be costly to the parties and prone to error. A court that adopts the proposal might therefore need to rely on presumptions and bright-line rules in order to keep the two-stage inquiry manageable. However, if we complicate the current practice of using cruder statistics in LOC cases by adopting numerous refinements, it might be extremely difficult for experts to offer plausible probabilistic estimates of both the preexisting or “inevitable” risk of harm faced by the individual plaintiff and the additional “avoidable” risk that the defendant’s negligence created.
If that is correct, then courts might well be uncomfortable permitting any award of partial damages, because expert evidence for computing the proportion of damages that plaintiff should receive is lacking. The upshot? The jury would be left with the choice of awarding either full or no damages. Yet the desire to avoid that all-or-nothing choice has been a major impetus behind judicial recognition of LOC as a distinct legal doctrine.
A related question is when, under Gentry’s proposal, a partial damage award should be awarded for LOC. She endorses proportional damages in indistinguishable harm cases (P. 459), but she is doubtful that the jury can make reliable proportional damage calculations in distinguishable harm cases (P. 461). But if a large proportion of current LOC partial damage cases are characterized as distinguishable harm cases, then the partial damage remedy will become much less common, a result that might be to the disadvantage of injured patients.
Notwithstanding these lingering questions, Gentry’s article is a major contribution to the literature on LOC, properly emphasizing (as most courts have not) the importance of the question whether it is feasible to distinguish, based on ex post evidence, whether the harm to a patient was inevitable or was due to negligence. And more generally, she offers an illuminating framework for evaluating the ways in which statistical information can and should be used when the factfinder is considering whether the plaintiff has established legal causation. Medical malpractice is the only area of tort law in which most courts have been willing to make wide use of probabilistic statistical information in determining the causation and valuation of harm. As Gentry emphasizes, such information is likely to become easier to collect and aggregate in the future. It will become increasingly important for courts and scholars to develop justifiable and refined methods for using probabilistic information in fields outside of medical malpractice. (P. 422, 462.) The insights of Damned Causation will be invaluable as we explore these new horizons.
Feb 7, 2024 Cristina Tilley
Private causes of action for constitutional injuries are doctrinal eels. They slither freely among formal legal categories – variously creatures of constitutional law and tort; of federal jurisdiction and even conflict of laws. They have no agreed genus name; sometimes they are called Ku Klux Act claims; sometimes Enforcement Act claims; technically claims pursuant to 42 U.S.C. Section 1983 and conversationally constitutional tort. Because they swim in and out of jurisprudential silos, they elude critical analysis under any single legal lens, virtually demanding interdisciplinary consideration. In Colorblind Constitutional Torts, Osagie K. Obasogie and Zachary Newman rise to this challenge, using history, doctrine, corpus linguistics, and critical race theory to pin down constitutional tort and identify an as-yet undiscovered reason that this once-powerful tool of racial justice is falling short of its early promise.
Colorblind begins with a compact and opinionated overview of Section 1983 history, beginning in the antebellum period and moving to the twenty-first century. Obasogie and Newman establish that pre-war slave patrols in the Southern states mutated into a loose web of post-war private and public racial vigilantism driven by “militias, the Ku Klux Klan, and eventually (in some areas) what we now call ‘the police.’” (Pp. 1148-50.) The Reconstruction Amendments, they suggest, reflected Congressional recognition that the mere fact of emancipation was insufficient to produce meaningful liberty for formerly enslaved people. The Fourteenth Amendment was therefore a critical companion initiative, designed to “change structural and institutional relations between whites and African-Americans.” (P. 1146.)
Because Congress did not trust federal courts to partner with them as change agents, lawmakers endowed themselves with vast power to legislate racially just structures and institutions. (P. 1152.) Consequently, when white “mobs” comprising private citizens and public officers loosed “terroristic violence” on Black Southerners, Congress used this authority to legislate a forceful remedy – 42 U.S.C. Section 1983. The authors contend, based on this history, that constitutional tort is inextricable from the Fourteenth Amendment’s “goal of racial equality,” and the production of “new anti-racist equality norms.” (Pp. 1151-52.) When the Supreme Court authorized Section 1983 actions against marauding police officers in Monroe v. Pape nearly a century later, it explicitly reiterated that Section 1983 was tied to the racial equity ambitions of the Fourteenth Amendment. (P. 1155.)
Like many policing scholars, Obasogie and Newman consider the Section 1983 jurisprudence that developed in the post-Monroe decades too police-friendly to do the civilian protection job for which it was designed. Unlike most policing scholars, Obasogie and Newman trace the demise of constitutional tort’s racial justice power to the 1989 case Graham v. Connor. Their scrutiny of this oft-slighted case is itself a signal contribution. It deepens a literature trained primarily on the Court’s doctrine of qualified immunity, which shields officer-defendants whose behavior violated no “clearly established” constitutional right. (P. 1143.)
In Graham, a Black North Carolinian sued local police officers who roughed him up for suspicious behavior after ridiculing his pleas for orange juice to offset a diabetic insulin reaction. Graham claimed that when the officers caused him “a broken foot, cuts on his wrists, a bruised forehead, and an injured shoulder” they violated his constitutional rights. (P. 1140.) The Supreme Court used the case to announce that all civil claims of police “excessive force” were thereafter to be pleaded as deprivations of Fourth Amendment rights, and were to be rejected if the officers’ behavior was “objectively reasonable.” (P. 1141.) Graham, the authors lament, effectively prohibited police misconduct claims grounded in Fourteenth Amendment rights to racial equality and substantive due process. It forced those claims into a police-friendly “reasonableness” rubric, thus “de-racializing and de-historicizing a vehicle for civil remediation that was created for the specific purpose of racial justice in light of the grave wrongs suffered by African-Americans for several centuries.” (P. 1186.)
Laudably, the authors do more than blame the Court for this result. They also conduct a corpus linguistics study and support their charge with empirical evidence. Specifically, they select 200 random federal court cases involving Section 1983 claims – half from the period between Monroe and Graham and half from the period between Graham and 2016. (P. 1173.) They code the cases for rhetorical variables associated with different theories of Section 1983, and their findings are instructive.
First, they find that after Graham, the uses of historical titles for Section 1983 (the Ku Klux Act or the Enforcement Act) dropped 29 percent, “highlight[ing] a waning interest in or commitment to acknowledging the original purpose and context of [these] causes of action.” (P. 1176.) Second, they find that after Graham, mentions of the Fourteenth Amendment in police misconduct cases dropped by 22 percent while mentions of the Fourth Amendment increased by 49 percent. This finding is unsurprising in light of the Court’s Graham directive, but the authors think it signifies more than lower court deference to precedent. Judicial rhetoric that distances constitutional tort from the Fourteenth Amendment, they contend, tells the public that constitutional tort litigation has little to do with racial justice at large and much to do with technically incompetent officers who misbehave for a variety of non-racial reasons. (P. 1176.) Finally, the authors find that while courts in the pre-Graham years occasionally identified the races of the civilian and officer litigants, those in the post-Graham years rarely did. Again, the authors infer that this rhetorical trend reflects a judicial assumption that race is irrelevant to police misconduct even when evidence in and out of court might suggest otherwise. (P. 1176.)
In all, the authors conclude that Graham has transformed Section 1983 into a technocratic mechanism that treats police systems as presumptively benign and officer misconduct as presumptively rare – a far cry from its origins as a democratic mechanism to forge just systems from a history of racial hostility. (P. 1201.) Ultimately, Obasogie and Newman make a poignant case that Graham is part of an ascendant colorblind constitutional ethos that obscures the existence of racialized power structures in order to functionally immunize them from legal scrutiny. (P. 1195-99.) If Section 1983 is to fulfill its original purpose, they urge, federal courts must revive a race-conscious approach to police wrongdoing and aspire to systemic reform. (P. 1207.) What that approach might entail on an operational level is not detailed. The authors seem to prefer a regime in which civilians could claim that police behavior considered “reasonable” under the Fourth Amendment was nevertheless a Fourteenth Amendment rupture (P. 1207) because it involved a race-based use of discretion or “shocked the conscience.”
There is little reason for readers to doubt that the authors’ plea to rehistoricize and reracialize constitutional tort could improve its tenor, and lead to concrete doctrinal changes. But there is reason to doubt that this move alone – or even in conjunction with robust changes to qualified immunity – can produce the wholesale reckoning the authors seek. After all, the relevant body of law is known as constitutional tort for a reason. Tort law is fundamentally concerned with one-on-one wrongdoing and individualized dignitary vindication. Indeed, before Section 1983 existed, police wrongdoing was remedied exclusively through garden-variety tort causes of action. The authors miss an opportunity when they assume that centering individual officer wrongdoing in police misconduct litigation necessarily undermines the goal of racially just policing.
This public law skepticism about the smallness of private tort litigation is common but regrettable, and police accountability law shows why. Section 1983 is an uneasy hybrid of tort form, constitutional substance, and jurisdictional expedience precisely because the kind of racial toxicity it targets arises from a virulent public-private symbiosis. Racial implicit bias takes root in the cradle of private homes, matures in the monoculture of classrooms and playfields shaped by property covenants and discriminatory banking systems, and blooms on public streets surveilled by tax-funded officers who are acting out a hierarchy learned in infancy.
Constitutional tort defies categorization because the problem it addresses defies categorization. Obasogie, Newman, and the many public law scholars who mourn the decline of Section 1983 regard it as a lost panacea for racialized police misconduct. They treat its revival as a necessary and sufficient response to unjust policing. And they make a forceful case that an ideal version of constitutional tort could push back on discriminatory policing systems. But when they write off suits focusing on individual officer behavior, they reveal a short-sightedness about the power of venerable torts like battery, false imprisonment, and intentional infliction of emotional distress – all capable of stigmatizing real officers who indulge real racial bias while in uniform. As Obasogie and Newman continue their excellent descriptive and prescriptive work on American policing, one hopes they will grapple with the role of private bias in unjust policing and the role of private law in eradicating it.
