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.
Jan 8, 2024 Ellen Bublick
If one party argues that another is guilty of negligence for breathing air, no court should allow that claim or defense. Why not? A court might say that breathing air is not negligent in the breach sense—it is reasonable to breathe (everyone does it) and, at least for now, its benefits outweigh its costs. Another way that a court could reject the breathing-air contention would be to say that the breathing party has “no duty” not to breathe. By saying that the party has no duty, the court would recognize an entitlement in the breather. When courts recognize that actors enjoy some entitlements in their daily lives, they cannot avoid deciding which entitlements come with the parties to court, when parties should have those entitlements, and with respect to whom they should apply.
In Professor Eugene Volokh’s important article, The Right to Defy Criminal Demands, Volokh makes the powerful claim that in both civil and criminal cases, courts implicitly do, and explicitly should, “protect defiance of criminal demands against legal liability even when such defiance can increase the risk that the criminal will harm third parties.” (P. 416.) The issue is one of principle. Volokh calls it a “right,” though in a Hohfeldian sense it may be a privilege/liberty or no-duty rule.
As fashioned by Volokh, the right would permit actors “to refuse to comply with [criminal] demands, without being held civilly or criminally liable for the consequences of this defiance and without losing important rights.” (P. 362.) The argument, with which I agree, is for certain liberties and dignitary interests to be protected by courts as a matter of law rather than subject to the vagaries of jury decision and comparative apportionment. (Pp. 368, 409.) In such cases, issues of principle and policy trump the usual tort-law concern of reducing risks of physical injury.
Volokh well illustrates the concern—the way in which courts themselves inadvertently translate criminal demands into legal restraints on crime victims. In one example, Volokh addresses a case in which a legally operating abortion clinic was firebombed by people who wanted to force the clinic to close. The clinic’s neighbors filed a public nuisance suit in which they prevailed against the clinic, because the criminal threats against the structure left neighbors fearful of future attack. In so holding, the court empowered the past and prospective arsonists, by their criminal threats, to force the clinic to pay significant costs, shut down, or relocate. (Pp. 363-64, 387.)
The same reasoning, Volokh notes, can empower people who criminally threaten any controversial business or enterprise, including churches, synagogues, mosques, and bookstores. (P. 364.) An Australian case well illustrates the point. In that case, the court refused a synagogue’s requested building permit because terrorists could target the building. (P. 388 n.85.) In translating terrorist threats against “Jewish communities around the world and in Australia” into legal limits on the threatened synagogue, the court became the terrorists’ actualizer and unwitting accomplice. As Volokh writes, if the law “arms our neighbors or the police with the right to stop our behavior when criminals so demand…, the law is arming criminals with an extra weapon against us.” (P. 369.)
Having clearly articulated the stakes—legal empowerment of criminal actors—Volokh unearths a wide range of civil and criminal contexts in which the right to defy is significant. For instance, in one negligence case, an abusive husband threatened to kill his wife. The wife’s aunt permitted her to stay at the aunt’s home even though the husband might attack. The husband did so, killing a person who was gardening in front of the house. When the decedent’s estate sued the aunt for negligent failure to warn of the danger, the court dismissed on the ground that the attack was “unforeseeable.” (Pp. 378-79.) But Volokh points out that the court could have invoked a more principled rationale for its no-liability holding. If the court had said that the aunt could not shelter her niece, or was required to provide constant warnings to others, the court would have empowered the husband’s threats to control the niece and aunt’s lives. (P. 416.)
Volokh does not deny that criminal threats may create real dangers. But he divides the response to that danger into two categories: the “immediate pragmatism approach” and the “right to defy criminal demands” approach. Under the first approach, courts focus on the ordinary norm of minimizing the foreseeable risks of harm, through which courts sometimes require actors to comply with wrongful commands. Under the second approach, courts focus on actors’ entitlement to defy criminal threats, rather than ask them to bow to unlawful demands. (P. 367.) As one court wrote in a case of domestic violence, “We reject the idea that victims are responsible for the violence they endure in the home, and we will not blame them for their otherwise reasonable actions simply because these actions foreseeably result in violence.” (Pp. 376-77.)
Volokh applies this right-to-defy principle to analogous claims in the criminal sphere with respect to the heckler’s veto, a duty to retreat, provocation as mitigation of defendant’s guilt, and more. The breadth of contexts Volokh identifies reveals the pervasive importance of the entitlement issue he raises.
Finally, Volokh addresses possible limits on the victim’s right to defy. These limits could be based on the independent wrongfulness of the victim’s behavior, the victim’s specific purpose to provoke, and the extent of the intrusion on the victim’s liberty. Volokh also distinguishes the right to defy from the legitimate precautions that parties must take against criminal misconduct. Most precautions don’t violate victims’ dignitary interests “because they don’t enlist the state on the side of the criminal threatener.” Requiring a company to have security features like a door lock would be one example. (P. 411.)
In a country in which crime is prevalent, Volokh’s proposed right to defy is one that courts and legislatures would be well-advised to adopt in some form. Surely the legal system, whether in civil or criminal actions, should not require the lawful to obey the lawless. When determining duties/entitlements courts must also look at principles and policies that inform which precautions ought (or ought not) be required in light of the conducts’ risks. If a reasonable person would fear posting a religiously inflammatory cartoon because of foreseeable risks of terrorist violence, a court might nevertheless recognize an actor’s right to defy terrorist demands by speaking freely, without the poster risking liability, or reducing the poster’s right to security from others. (P. 364 n.5.)
To embrace Volokh’s principle, courts must examine the relative importance of law’s many values, including its expressive value, as well as law’s accountability, deterrence and compensation functions. For example, in the gardener’s estate’s suit against the aunt who took in her threatened niece without warning others, what legal objectives are most important? Should the rule of law express the aunt’s freedom to associate with, and maintain the privacy of, her threatened niece—to say that the aunt has a right not to shape her conduct around the husband’s criminal threats (such that her risk-creating conduct was not wrongful)? Or is it more important to ensure that the innocent shooting-victim could have attempted to avoid physical injury, or once failing to do so, could access the aunt’s homeowners’ insurance to obtain compensation?
In many cases of threatened crime, an evaluation of principles and policies may well warrant recognition of a party’s legal entitlement—to file a police report even though the criminal said not to; to live in a first floor apartment while female regardless of gender-based vulnerability to rape; or to work in a convenience store at night despite the threat of robbery. Of course, when courts recognize an entitlement, rights holders will neither suffer from, nor possibly benefit from, partial assignments of fault in the remaining all-or-nothing claim.
Determining the proper scope of a right to defy is both vital and difficult. Criminal “demands” are sometimes not specific demands at all, as in the case of the legally operating abortion clinic, but rather generalized overhanging threats. Also, what constitutes “criminal” misconduct to trigger a full victim entitlement has raised issues in other tort doctrines that mandate all-or-nothing rules with respect to illegal conduct. Finally, the idea would be well served by further addressing the fact that even minor precautions, such as door locks, increase company’s costs based on future threats of crime. Explaining how to preserve these general precautions against threatened crime, even while recognizing a right to defy, needs greater elaboration.
The difficulty of defining such an entitlement is not exclusive to the right to defy context. Even in the simple case of an entitlement to breathe, courts have not recognized the entitlement at all times and in all circumstances. In Haydel v. Hercules Transp. Inc., 654 So.2d 418, 431 (La. Ct. App. 1995), for example, the defendant transport facility negligently released a cloud of anhydrous ammonia that approached the plaintiff’s nearby home. When plaintiff saw and smelled the chemicals, she “panicked,” feared for her life, and drove off the property. In her negligence action against the transport facility, a jury allocated 10% of the fault to the plaintiff on the basis that her choice to leave amidst the contamination exposed her to more chemicals, thereby exacerbating the harm. In upholding the jury’s assignment of plaintiff fault, the court, in effect, confined the plaintiff to her home while defendant’s chemicals infringed on her property—a sort of false imprisonment by the legal system.
Volokh’s article reminds us that before courts empower wrongdoers to constrain victim conduct, they should think carefully about whether the victims, instead, have some rights that came with them to court.
Nov 14, 2023 John C.P. Goldberg
A.I. in the form of Large Language Models (LLMs) is altering the ways in which we work, learn, and live. Along with their many upsides, an already familiar downside of LLMs is their propensity to “hallucinate” – that is, respond to factual queries with predictions or guesses that are false yet proffered as true. And some of these hallucinations are not merely false but defamatory. For example, if one were to query an A.I. program: “Of which crimes has Professor X of ABC Law School been convicted?,” it might respond with a fabricated list of offenses. When defamatory hallucinations occur, who faces (or should face) liability, and on what terms? In Large Libel Models? Liability for AI Output Eugene Volokh lays out with great care a detailed roadmap for answering these questions.
Much of Professor Volokh’s article is devoted to considering and rejecting grounds for supposing that creators and operators of A.I. models enjoy blanket protection from defamation liability. First among these is an argument based on the tech industry’s best friend: Section 230 of the federal Communications Decency Act (“CDA 230”). As courts have interpreted it, this statute confers broad immunity on internet platforms for defamatory content created by third parties that they host or provide. As such, Volokh persuasively argues, CDA 230 will typically be of no help to A.I. companies, because, even if their models have been trained on third party texts, it is the programs, not a third party, that generates the defamatory content.
Volokh also defuses the suggestion that, because LLMs use predictive algorithms, and are designed for coherence rather than truth, readers will discount the accuracy of their output roughly in the way they would discount the validity of a document they know to have been created by monkeys using typewriters. While early LLM technology perhaps was expected to spit out a lot of nonsense, current versions are taking the world by storm precisely because they are increasingly reliable and have come to be seen as such. As Volokh points out, the mere fact that A.I. users are aware of the possibility of hallucinations does not distinguish them from newspaper readers who are aware that papers sometimes publish false stories. Both are entitled presumptively to treat a given item as factual. Relatedly, under extant law, the presence in an A.I. terms of use of a disclaimer that directs users to verify independently the accuracy of its outputs will not defeat liability if, given the context, a reasonable reader would believe the information being offered is factual.
Others have suggested that the treatment of A.I. under copyright law generates an argument against defamation liability. If one maintains, as some courts have held, that A.I.-generated works are not copyrightable by program creators or users, then it might seem to follow that these same entities cannot be deemed “publishers” of A.I. generated defamatory content. (In defamation law, a “publisher” is, roughly, anyone who communicates a defamatory statement about person P to at least one person other than P.) But this conclusion doesn’t follow. The question of who can claim to own a creative work is different from the question of who is responsible for the circulation of a statement. As Volokh aptly observes, it has never been the case that the publisher of a libelous statement can avoid liability simply by establishing that the statement is not eligible for copyright protection.
Volokh next considers these issues at a more granular doctrinal level. One bit of good news for companies that create or operate LLMs, he maintains, is that courts are not likely to deem N.Y. Times v. Sullivan’s actual malice requirement met simply because the company deployed a program while aware that it will occasionally generate falsehoods. But, as Volokh also notes, even this protective cloak has limits. For example, if a public figure who claims to have been defamed by an A.I. model notifies the creator or operator of the hallucination and provides compelling evidence of falsity – and if the company can alter the model’s weights to fix the problem yet does nothing in the face of such evidence – a jury probably would be entitled to find actual malice.
Meanwhile, under Gertz v. Robert Welch, Inc., private figures suing for a statement on a matter of public concern and who can prove actual injury need only establish negligence to prevail on their defamation claims. Of course, if public figures can prevail in cases in which an A.I. company has been apprised of false and defamatory program output, then, a fortiori, so can these plaintiffs. Because of Gertz’s relaxation of the actual malice rule, moreover, some private figures might be able to prevail even when the defendant was not provided with specific information apprising it of the falsehood of the statement. Analogizing to cases of manufacturers selling negligently or defectively designed products that physically injure consumers, Volokh suggests, for example, that defamation liability might attach if the victim of an A.I.-generated libel proves negligence in the design or operation of the program (such as an unreasonable failure to include a technologically viable self-correcting function).
Given his conclusion that there are meaningful prospects of defamation liability in the A.I. domain, Volokh is moved to consider whether extant law ought to be changed in light of one or more of several concerns: that this liability will be crushing; that it will cause A.I. creators and operators to change their programs in ways that make them less useful; or that it will disadvantage new entrants relative to established entities that can better absorb the cost. Here the main possibility he entertains is the establishment of a new qualified privilege, expanding out from the privilege that many jurisdictions apply to reports of suspected child abuse, that would protect from liability anyone who makes a good faith effort to provide what is understood by recipients to be preliminary information that requires further verification before being acted upon. Although avowedly “not a cheerleader for the American tort liability system” (P. 539), Volokh rejects this envisioned privilege as overly broad and out of sync with an important reality: recipients of A.I.-generated information often will not treat it with the circumspection with which officials are expected to treat an uncorroborated allegation of child abuse.
As the foregoing synopsis I hope demonstrates, Large Libel Models provides a very valuable service in charting out, at the dawn of the A.I. era, the terms on which defamation claims for A.I. hallucinations are likely to play out. As such, it is a must-read for practitioners and scholars working in these areas. For the most part, I find its analysis persuasive, particularly its bottom-line assessment that companies that provide A.I. using LLMs are substantially more vulnerable to defamation liability than are traditional internet platforms such as Google. I would suggest, however that the prospects for liability are in some ways less grim than Professor Volokh supposes, and will offer a different perspective on how disturbed we ought to be about the prospect of significant liability.
On the first point, much will depend on the defamation scenarios that actually occur with any frequency in the real world. A private-figure plaintiff who can prove that their job application was turned down because their prospective employer’s A.I. query generated a defamatory hallucination about them would seem to have a strong claim. By contrast, suppose that P (also a private figure) learns from their friend F that a certain query about P will generate a hallucination that is defamatory of P, but also that P does not know who among their friends, neighbors, and co-workers (if any) have seen the hallucination. It seems likely that P will face an uphill battle establishing liability or recovering meaningful compensation. Even assuming P can prove that the program’s creator or operator was at fault (assuming a fault standard applies), P is likely to face significant challenges proving causation and damages, particularly given modern courts’ inclination to cabin juror discretion on these issues. I suspect this is especially likely to be the case if the program includes – as many programs now do – a prominent disclaimer that advises users independently to verify program-generated information before relying on it. While, as noted, disclaimers do not defeat liability outright, they might well render judges (and some juries) skeptical in particular cases about causation and damages.
Apart from doctrine, one must also take account of realpolitik, as Volokh recognizes. Back in 1995, it took only a whiff of possible internet service provider liability for the tech industry to get Congress to enact CDA 230. And Volokh tells us that A.I. is already a $30 billion dollar business (P. 540). If, as seems to be the case, the political and economic stars favoring the protection of tech are still aligned, legislation limiting or defeating liability for A.I. defamation could well be on the horizon, particularly in the wake of a few court decisions imposing or even portending significant liability.
The foregoing prediction rests not only on an assessment of the tech industry’s political clout, but also on a read of our legal-political culture. For most of the twentieth century, courts and legislatures displayed marked hostility to immunity from tort liability. (Witness the celebrated abrogation of charitable and intrafamilial immunities.) Today, by contrast, courts and legislatures seem quite comfortable with the idea of immunizing actors from liability in the name of putative greater goods. Nowhere is this trend more evident than in their expansive application of CDA 230. While Professor Volokh worries about the prospect of ‘too much’ A.I. defamation liability, the more reasonable fear may be too little. Indeed, it would seem to be a bit of good news that extant tort law, if applied faithfully by the courts, stands ready to enable at least some victims of defamatory A.I. hallucinations to hold accountable those who have defamed them.
Oct 24, 2023 Ronen Avraham
Maytal Gilboa, Yotam Kaplan & Roee Sarel,
Climate Change as Unjust Enrichment, __
Geo. L.J. __ (forthcoming), available at
SSRN (July 6, 2023).
When considering the essence of law, it becomes evident that its fundamental purpose is to safeguard our safety and well-being. However, amidst the many challenges facing humanity, the law has fallen short in shielding us from one of the gravest threats to our lives and way of life – climate change. In a new thought-provoking piece, Climate Change as Unjust Enrichment, Maytal Gilboa, Yotam Kaplan, and Roee Sarel (hereafter referred to as GKS) offer a glimmer of hope. Where international treaties, regulations, and tort law have faltered, GKS propose harnessing the oft-forgotten doctrine of unjust enrichment as a means to rescue us from the dire consequences of climate change.
Climate change, aptly dubbed the “super wicked” problem, presents an overwhelming challenge. Its impacts include severe food crises, water scarcity, rampant infections, increased rainfall and flooding, and escalated violence, among other dire consequences. Moreover, the complex nature of climate change’s harms, distributed across vast populations and with long-term effects, poses formidable barriers to effective intervention.
Why does humanity persist on this perilous course? GKS’s answer to this question lies in a twofold reality. Firstly, powerful commercial actors reap immense benefits from activities contributing to climate change. Secondly, existing legal frameworks have proven inadequate in curbing their actions. GKS propose employing the law of unjust enrichment to ensure that polluting ceases to be a profitable endeavor.
Climate stability, the antithesis of climate change, represents a public good. However, markets tend to under-supply public goods, necessitating public authorities’ intervention to safeguard the collective interest. Measures at the national and international levels may include enforcement through criminal law, subsidizing private litigation, imposing production taxes, or directly regulating polluters’ actions. In their paper, GKS shed light on the failures of international efforts, country-level regulations, and, disappointingly — for me at least as a tort scholar — tort law in combatting climate change.
Let us start at the international level. Despite numerous attempts since the 1972 world conference on the environment, including the 1997 Kyoto Protocols, the 2016 Paris Agreement, and the 2021 Glasgo Climate Pact, the international community has failed to reach consensus and devise an effective legal and policy response to the climate crisis.
Domestic regulations have not fared well either. The Environmental Protection Agency’s efforts to reduce greenhouse gas emissions in the United States have proven insufficient to fulfill the nation’s climate obligations. Public choice theory explains the limitations of national regulatory frameworks, because the pursuit of individual welfare often clashes with optimal policies due to interference from private interest groups. Additionally, future generations lack political representation, leading to a regulatory preference for permitting immediate gains over avoiding future harms.
We are left with tort law, which on the surface may seem a suitable framework for climate litigation, enabling those harmed by climate change to sue the responsible parties. However, tort law also has its complexities. Polluters contributing significantly to global warming may not necessarily breach specific legal duties or regulatory standards. Moreover, tort liability requires proof of harm and causation, a daunting task when climate change’s effects result from the combined actions of multiple actors, spread over large populations, and extended into the distant future.
Sadly, even when scientists generally agree that manufacturing activities contribute to global warming, pinpointing the exact contribution of each emitter to the global processes remains challenging. Proposals for more relaxed theories of causation in climate litigation have faced controversy among tort scholars. One of these proposals, put forward by Ronen Perry and Yehuda Adar, was reviewed here last year.
Given the failures of international treaties, regulations, and tort law, can the law still shield us from climate change? GKS assert that unjust enrichment may hold the key to the solution. The core insight is straightforward: while the harms of global warming are future and abstract, profits from polluting activities exist in the present and are easier to identify and quantify. Therefore, utilizing the doctrine of unjust enrichment, society must develop legal tools to ensure that contributing to global warming ceases to be a profitable venture.
To apply the unjust enrichment doctrine, plaintiffs need to demonstrate (1) a benefit, (2) that this benefit is unjust, and (3) that it was obtained at their expense.
GKS illustrate that in some restitutionary claims, a defendant’s enrichment can be deemed “unjust” when acquired through wrongdoing, such as securities fraud, patent or copyright infringements, breach of contract, or criminal acts. In the context of climate change, GKS outline three categories of cases where polluters’ wrongdoing can give rise to an unjust enrichment claim: violation of environmental regulations, environmentally unreasonable conduct constituting a tort of gross negligence, and malicious circumvention of regulatory efforts or deceptive practices.
But recall that a major deficiency of tort law is its impotence in cases where defendants commit no wrong. Perhaps the biggest contribution by GKS is their attempt to tackle these situations. GKS provide doctrinal and theoretical explanations that justify liability in unjust enrichment even when no duty has been breached, but the defendant gains an undeserved windfall.
GKS propose that a defendant’s enrichment be considered unjust, even without wrongdoing, under specific conditions that collectively signify disproportional enrichment through polluting activities: (1) the defendant significantly contributes to climate change, (2) the activity is highly profitable, and (3) the defendant benefits disproportionately more than others from this activity, meaning that the overall gains of the activity are disproportionately concentrated with the defendant.
This proposition raises intriguing possibilities, and one hopes that GKS will apply their framework to real-life scenarios, particularly existing case law, in future research. Among other things, I think more work is needed about how to identify which polluters must disgorge profits and how to quantify what they must disgorge. Moreover, GKS use as their prime example oil companies making enormous profits and emphasize the need to deter their conduct, thus treating them as wrongdoers; but this is too easy, at least as compared to GKS’s bolder argument that even if no wrong is committed, unjust gains should be disgorged. Indeed, the implications of the latter argument are quite dramatic. Should all manufacturers of nonelectric cars have to disgorge their profits? All companies that facilitate the consumption of meat? All airlines?
In the concluding segment of their paper, GKS explore potential plaintiffs for these unjust enrichment claims. Private plaintiffs, including neighbors of major polluters, can file individual or even aggregate claims, with a significant portion of awarded damages allocated toward environmental protection goals. This not only ensures justice but also deters defendants from contributing to global warming. Alternatively, public plaintiffs, such as state attorneys (historically using unjust enrichment claims for the public good) and NGOs advocating for the public interest or the environment itself, can also bring such claims. In some countries such as New Zealand, India or Ecuador, legal standing for natural resources as legal entities has emerged, further expanding the avenues for seeking justice.
In sum, GKS are not the first ones to offer the use of unjust enrichment to combat climate change, but they make an important contribution to the literature by rigorously demonstrating the application of the principle to climate litigation. To me at least this seems like a just application of unjust enrichment.
Cite as: Ronen Avraham,
Just Unjust Enrichment, JOTWELL
(October 24, 2023) (reviewing Maytal Gilboa, Yotam Kaplan & Roee Sarel,
Climate Change as Unjust Enrichment, __
Geo. L.J. __ (forthcoming), available at SSRN (July 6, 2023)),
https://torts.jotwell.com/just-unjust-enrichment/.
Sep 29, 2023 Gregory Keating
In On Rawlsian Contractualism and the Private Law, David Blankfein-Tabachnick and Kevin Kordana, Professors at Michigan State and Virginia Law Schools, respectively, argue that we are witnessing a fundamental shift in the way that legal scholars think about private law. “[N]ot long ago,” they tell us, “the values taken to govern the private law were thought to be distinct from the values governing taxation and transfer. . .. The conventional, indeed, the nearly universal view of Rawlsianism—the overwhelmingly dominant theory of liberalism and distributive justice—was that the private law lies beyond the scope of Rawls’s two principles of justice.” (P. 1657.) Now, private law scholars—in tort, but also in contract—are coming to think that these bodies of law are parts of what Rawls called “the basic structure of society.” Or so Blankfein-Tabachnick and Kordana argue, citing to, and drawing upon, the work of a dozen or so legal scholars, themselves (and myself) included.
Their paper makes an important contribution because the shift that they spot and argue for promises to reorient private law theory in a valuable way. Insisting on the “privateness” of private law threatens to trivialize fundamental legal fields. Blankfein-Tabachnick and Kordana are quite right to insist that contract, property, and tort engage fundamental questions of power and justice and that theories of private law must engage these questions. And turning private law theory in this direction might breed fruitful interaction with very different kinds of tort scholarship, such as the “social justice tort theory,” championed by Martha Chamallas and Sarah Swan. That scholarship, too, insists that tort law articulates basic terms of social interaction and therefore does (or fails to do) “social justice.”
Blankfein-Tabachnick and Kordana’s article is especially relevant to tort scholarship because tort is the private law field where some (though not all) theoretically inclined legal scholars have been most adamantly committed to the separation of their subject from basic principles of justice. “[P]rivate law,” Ernest Weinrib once remarked, is “just like love.” “Explaining love in terms of extrinsic ends is necessarily a mistake because love does not shine in our lives with the borrowed light of an extrinsic end. Love is its own end . . . in this respect, private law is just like love.” Strikingly, this separation of private law (preeminently, tort law) from basic justice has been one of the few points of agreement between corrective justice theorists and economists. In influential articles and an important book, Louis Kaplow and Steve Shavell argued “that the private law should be sanitized of egalitarian or equity-oriented values. The . . . idea was that any desired egalitarian moves could be achieved more efficiently through systems of income taxation and transfer than through any egalitarian alterations in private law rules.” (P. 1658.)
Private law should maximize wealth and leave equity to the tax system. Tort, for example, should pursue optimal accident avoidance and insurance and leave everything else aside. This division of labor between tort and taxation is, they argue, the institutional recipe for promoting human welfare as well as possible.
For the past forty years or so, it has seemed clear to theorists of private law that private law is distinct from the basic structure of society governed by Rawls’s principles of equal basic liberties, equal opportunity, and the difference principle. Directly applying Rawls’ difference principle to tort damages, for instance, would be a poor way of pursuing either distributive or corrective justice. Tort law, surely, must operate by its own special principles of responsibility and repair.
Lately, though, this consensus has been breaking down. Private law scholars have begun to rethink the matter. In part, to put matters in my own words, this rethinking is a reaction to the threat of trivialization implicit in the view that tort law is thoroughly “private.” Tort lawsuits begin to look like something of importance only to the parties. But this seems wrong. Private law plays a fundamental role in our social life. It governs the relations and interactions among persons in civil society as they go about pursuing the aims and aspirations that give their lives meaning. Tort—or some New Zealand style replacement for it—is a fundamental and necessary institution.
People need to have their urgent interests protected from interference and impairment at each other’s hands. Without some such protection, we would not really have left the state of nature. In the view of the authors, tort is, in Rawlsian terms, “one of the . . . institutions that materially affect citizens’ life prospects, such as basic constitutional liberties, security of the person, the system of taxation and transfer, schooling, and fiscal policy.” (Pp.1659-60.) It is part of “the basic structure of society.” (id.) Upon reflection, this contrary truth also seems plainly correct. Property, tort, and contract were, for instance, fundamental building blocks of the laissez-faire economy of the late nineteenth century.
We are, then, in a puzzling situation. On the one hand, Rawls’s principles of justice don’t apply directly to private law. We can’t, say, use the difference principle to determine who should win tort lawsuits, or to calculate damage awards. On the other hand, we can’t just say that it does not matter if standard ways of computing tort damages reproduce and reinforce historic discrimination along race and gender lines. Tort law must work in ways that are congruent with our fundamental commitments of justice. It should not subvert them.
In On Rawlsian Contractualism and the Private Law, the authors tackle this conundrum. They entertain three possibilities: (1) strong distributivism; (2) weak distributivism; and (3) incompleteness. Strong distributivism holds “that the private law ‘should be designed solely to serve the distributive purposes of the difference principle.’” (P. 1663, quoting Scheffler.) Following the lead of philosopher Samuel Scheffler (from whom they take the three possibilities), Blankfein-Tabachnick and Kordana reject this view. It is incompatible with the priority of equal basic liberties and equality of opportunity. Weak distributivism calls for a conception of private law that avoids “worsening the economic position of the least favoured members of society.” (P. 1664.) Incompleteness holds that there are “aspects of a sufficiently satisfactory private law, and perhaps criminal law, that are just not about distributive justice.” (P. 1667.) For Blankfein-Tabachnick & Kordana, the contest is between these latter two views, and the subordinate questions that they raise—whether, for instance, the difference principle is a principle of reciprocity or a maximizing principle.
On Rawlsian Contractualism and the Private Law’s discussion of these matters is rich and sophisticated, although understandably abstract. Even better, the article opens up important new avenues of thought for thinking concretely about issues in the law of torts. The physical and psychological integrity of the person, for example, is a fundamental concern of both Rawlsian justice and tort. Fundamental questions in tort law directly raise questions of justice that are both basic, and distinctive to the legal field.
Whether product accidents should be controlled by contract law or tort law, and what duties owners of real property owe to entrants on their land, are two cases in point. To choose contract over tort to govern product-related risks of physical harm may jeopardize the safety of those who can only bring to bear relatively limited purchasing and bargaining power. Preferring contract to tort may also undervalue the urgency of our interest in the physical integrity of our persons and overvalue our interest in tailoring our product purchases to our tastes. In the context of landowner liability, to prefer the old regime of the status categories over the new regime with its default duty of reasonable care may overvalue our interest in the free use of our real property and undervalue our interest in the safety of our persons.
In a similar vein, to leave our privacy wholly unprotected may deprive us of one of the conditions essential to our psychological development as beings whose sense of self is not wholly exhausted by our presentations of ourselves to others. To deny any protection to our emotional integrity is to leave an interest as urgent as the physical integrity that tort law has long taken seriously utterly undefended. Because security against various forms of unacceptable interference by others is an essential institutional condition for us to be able to pursue our conceptions of the good as we see fit, tort is both an important institution and one that addresses distinctive questions of basic justice. And, as I noted at the outset of this jot, recognizing that private law engages fundamental questions of justice opens up the possibility of connecting philosophically sophisticated work on the normative content of private law with various forms of “critical” scholarship that emphasize the ways in which private law all too often works injustices.
Most of this work, to be sure, has yet to be done. The “paradigm shift” that Blankfein-Tabachnick & Kordana discern is an incipient one. But, as they rightly assert and argue, the change of mind about the relation of tort law (and contract law) to basic justice is real and important. It holds out the promise of revitalizing private law theory and scholarship by reconnecting them with urgent questions of right and responsibility. Blankfein-Tabachnick & Kordana have spent a number of years crying in the wilderness. Now, they have caught the academy’s attention, and for good reason.
