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You as a Brand: A Legal History

Dr. Samantha Barbas’ book, Laws of Image: Privacy and Publicity in America, makes an original, important, and engaging contribution to the history of the privacy law in the United States. In the process, the book illuminates how we became a culture obsessed with image management and how the law developed and continues to evolve to protect our rights to become our own personal brands.

In Laws of Image, Barbas analyzes a disparate body of law—mostly tort law—that protects individuals’ rights to control how they are portrayed by others. Barbas dubs this body of law the “laws of public image.” Through careful historical analyses of social, cultural and legal developments, she explains the origins of our culture of personal branding and gracefully charts the transition from Victorian-era sensibilities that condemned those who made spectacles of themselves to modern sensibilities that reward such behavior.

Barbas’ account of the development of the laws of image starts in the late nineteenth century. The book documents the growth of image-consciousness in the US and demonstrates that image-consciousness expands contemporaneously with industrialization, immigration, and urbanization. This occurs presumably because the more one interacts with strangers, the more one needs to manage first impressions to succeed. (P. 29.) The growth of mass media and photojournalism in the nineteenth century also contributed to a desire to control negative “presentations of self.” Meanwhile, the contemporaneous development of the contingency fee gave more people access to the means to repair damaged images through litigation, a factor that perhaps deserves even more prominence than Barbas gives it. (Pp. 18-19; 106.)

Overall, Barbas’ account of the growth of image-consciousness in the nineteenth century is fascinating and highly persuasive. She deserves especially high praise for her treatment of the origins of the privacy torts. Frankly, it is so common for privacy scholars to begin with nods to Samuel Warren and Louis Brandeis’ famous 1890 article, The Right to Privacy, that I always dread reading yet another analysis. But Barbas brings something new to the table. Although Warren and Brandeis are commonly portrayed as creating a right to be let alone, Barbas describes them as creating a “legal right to control one’s public image” (P. 26). This broader framing encompasses a right “to keep one’s personal affairs out of the public eye, and more broadly, to determine one’s own public image without undue interference from the media of mass communication.” (P. 38.) More succinctly, it is a “right to selective publicity” (P. 44) (emphasis added). I have always found The Right to Privacy to be elitist and self-serving, but Barbas convincingly argues that the article’s sentiments would have been common across the social spectrum. Warren and Brandeis were reacting “to a new sensitivity to personal image” that afflicted both the prominent and the obscure. (P. 27.) This sensitivity, as Barbas recounts, “grew from the demands of social life in an increasingly urban, commercial, mass-mediated society, where appearances, first impressions, and superficial images were becoming important foundations of social evaluation and judgement.” (P. 27.) Her use of historical evidence to support this thesis is masterful, and I must admit that I had to reevaluate my reading of The Right to Privacy after almost a quarter of a century in the field.

Venturing into the early twentieth century, Barbas illustrates how image-consciousness intensified in response to the increased “urbanization, innovations in communication and transport, [and] social and geographic mobility.” (P. 81.) She identifies a number of threads in this complex story. She associates growing image-consciousness with a changed perception of identity as fluid and malleable rather than fixed, demonstrating the connection between the psychological conception of the self and the commodification of the self. She also shows how the advertising and film industries fuel individuals’ desires to sell their “selves” to others. In the early twentieth century, the growing advertising industry touted “personal fulfillment through the purchase and use of the right products.” (P. 91.) Consumer choices at the time were not just about image management; rather, they created the potential for “inner transformation” based on then-current understandings of the self as capable of being “continuously rehabilitated, perfected, and worked pure over time.” (P. 94.) Meanwhile, the growing film industry and the celebrities it spawned were, for audiences, paragons of image creation and management to emulate.

Many states responded to these changes by adopting tort causes of action designed to protect citizens from “unwarranted publicity.” (P. 102.) In the 1930s and 1940s, more citizens pursued libel actions, and courts extended the parameters of libel to cover the emotional harms associated with interference with image. In addition, courts began to recognize claims such as intentional infliction of emotional distress, which further expanded legal protections for an individual’s personal brand. (Id.)

Contemporaneously, however, courts began to expand the rights of the media to report on matters of public interest. Barbas documents this countertrend in a chapter about the famous case involving a former child prodigy profiled in the New Yorker. This chapter adds nuance to a well-known case, Sidis v. F-R Publishing Corp. (1940), and shows how it portended a legal shift away from privacy protection. Other competing trend lines were evident after World War II: As the culture became preoccupied with self-expression, attacks on one’s “public image were being cast as serious assaults not only to dignity, but to the psyche itself.” (P. 160.) In other words, an attack on one’s public image by the media threatened the very foundation of one’s self. Meanwhile, a more aggressive press, preoccupied with understanding the hidden sides of public personalities, increased these very attacks. By the 1970s, with the continued growth of libel and privacy litigation, “image law” had matured. Then, as now, it protects not only the individual’s “ability to control his image” but also “his feelings about his image.” (P. 199.)

Given that Laws of Image spans more than 100 years of legal and cultural developments, it is remarkable how readable this book is: It is well-written, and the flow and pacing are excellent. At its core the book is about the fact that “people want to expose themselves to the public—to create a public image, a visible public persona and presence—yet at the same time to manage and control those images.” (P. 210.) As Barbas notes, we often call the desire to manage our image a desire for privacy, but it is not synonymous with the right to be let alone. What the two rights share, however, is a desire for control over what aspects of the self the individual reveals to the public or doesn’t. Laws of Image sheds necessary light for anyone hoping to understand the law’s conflicted embrace of these complex rights.

Cite as: Lyrissa B. Lidsky, You as a Brand: A Legal History, JOTWELL (July 20, 2016) (reviewing Samantha Barbas, Laws of Image: Privacy and Publicity in America (2015)), https://torts.jotwell.com/you-as-a-brand-a-legal-history/.

Bystanders v. Bullies

Sarah L. Swan, Bystander Interventions, 2015 Wis. L. Rev. 975 (2015).

The Stanford rape case has given new prominence to the role of bystanders in sexual assault cases. Many have heralded the actions of the two Swedish graduate students who intervened to stop the sexual assault of an unconscious woman and forcibly detain her attacker until police arrived. However, in the world of tort law, attitudes towards bystanders and bystander intervention are ambivalent, at best.

To begin with, one of the most enduring tort doctrines is the no-duty-to-rescue rule. Its protection is so broad that it shields the most callous persons who refuse to provide assistance, even if they could easily prevent a serious injury to another at little risk to themselves. Bystanders, we are told, are under no legal obligation to act and are allowed to remain passive in the face of suffering and simply go about their own business. As an expression of fundamental values of personal autonomy and individualism, letting bystanders off the hook can appear natural and appropriate. Even the term “bystander” itself suggests lack of involvement and lack of interest. In Bystander Interventions, Sarah Swan cuts against this narrative, exploring the new world of bystander intervention strategies and making the case for reforming tort doctrine and other bodies of law to encourage “active” bystanders.

Swan’s focus is not on the classic tort rescue scenarios involving drowning victims or children poised dangerously close to busy highways, but on recent efforts by the government and activists to curb the “deeply entrenched social problems” of bullying in schools, sexual misconduct on college campuses, and workplace harassment. Citing the new federal mandate requiring colleges to include bystander intervention in their sexual violence prevention programs, Swan believes that bystander strategies have quickly become “the most popular proposed prescription to address these wrongs.” (P. 977.) As Swan sees it: “The idea behind bystander intervention is simple: many of these harms or the precursors to them occur in the presence of other people, and these witnessing individuals thus have the ability to disrupt or mitigate these harms.” (P. 978.)

Contrary to conventional wisdom that imagines rape and other incidents of aggression taking place in private, Swan notes statistics estimating that nearly eighty-five percent of bullying incidents are witnessed by other students, nearly one third of reported sexual assaults take place in the presence of third parties, and almost seventy percent of employed women report that they have observed incidents of sexual harassment. In these contexts, bystander intervention need not involve heroic acts but can be as simple as a college student “creating a distraction” by spilling beer on a potential offender who is about to steer a heavily intoxicated woman student away from the group, or a high school student posting a comment supportive of a classmate who is the target of cyberbullying.

Bystander intervention programs of this sort are all about culture change, attempting to stimulate a shift from a norm of non-intervention to a norm of intervention. Swan acknowledges that, given the newness of these programs, there are not yet reliable empirical studies documenting the efficacy of bystander intervention strategies. Instead, she devotes most of her article to exploring the legal and other impediments that threaten to undermine such efforts before they can take hold.

Swan locates the theoretical foundation for the current bystander intervention programs in the findings of social psychologists who first became interested in studying bystander behavior following the murder of Kitty Genovese in New York City in 1964, in which thirty-eight bystanders reputedly witnessed Genovese’s brutal stabbing but failed to call the police. The studies theorized a “bystander effect” that comes into play in situations of multiple bystanders: not only are persons in such situations less likely to intervene, but they often interpret the inaction of others as a sign that “the situation must not be as dire as they originally perceived.” (P. 986.) Moreover, even when bystanders in such situations conclude that there is a need for intervention, the presence of others results in a “diffusion of responsibility,” allowing the bystander to remain passive yet not experience guilt. In this way, “passive bystanding sends a message of tacit approval” that tends to perpetuate the cycle of harm.

Compounding the bystander effect is a legal environment that largely discourages bystander intervention. A major contribution of Swan’s article is her canvassing of various legal doctrines that inhibit bystanders from taking action, even if the doctrines do not directly prohibit or sanction their interventions. Swan is mainly interested in the expressive function of tort and other laws and their impact on norms creation. The major contest, as she sees it, is between bystander intervention programs which seek “to create a norm of intervention and foster a social responsibility norm,” and the older legal doctrines with the opposite effect, setting up a “competing norms” or “contradictory prescription” problem. Swan believes that in such a competition the non-intervention camp will prevail, citing research indicating that when norms prescribe contradictory behaviors (action versus inaction), “individuals will be more likely to conform to the norm that liberates them from the more costly (or effortful) behavior with respect to their own self-interests.” (P. 997.) Although we might all be better off in a world full of Good Samaritans, Swan is convinced that the immediate burden of intervention discourages bystanders from acting, particularly when legal norms generally favor non-intervention.

Number one on Swan’s list of laws that prop up the competing norm of non-intervention is the no-duty-to-rescue-or-report rule that “reigns supreme” in the vast majority of states. Swan notes that only a small minority of states have legislatively imposed limited duties, such as a duty to report specified serious crimes or to rescue persons in danger of death or grievous bodily harm when the rescue can easily be accomplished without risk to the rescuer. Swan finds it telling that the catalysts for these rescuing and reporting laws have often been “horrendous high-profile events involving sexual assaults,” such as the murder of Sherrie Ivernice, in which a person witnessed the offender sexually assault a young child in a casino restroom. With these notable exceptions, people who witness gang rapes or other sexual assaults, however, face no legal duty to do anything, sending the strong message that “people can and should ‘stay out of other people’s business.’”

Swan pays particular attention to how the law treats actors other than individual bystanders who fail to intervene to avert harm to others. Number two on Swan’s list of legal impediments is the lack of a state duty to protect citizens, which “directly parallels the lack of duty individuals have to each other.” The public duty doctrine and various immunities apply to ensure that the state generally has no enforceable duty to prevent private violence, which Swan asserts discourages bystander intervention by causing individuals “to wonder why they, as mere private citizens, should be asked to shoulder this burden.” (P. 1004.) Swan reports that many of the notorious cases have involved police failure to protect women and girls from domestic violence and other gendered harms, culminating in the “defining case” of Town of Castle Rock v. Gonzales, in which the U.S. Supreme Court held that the police owed no duty to a woman for failing to enforce a restraining order against her ex-husband.

With respect to non-state actors, Swan asserts that the norm of non-intervention is supported by a general lack of legal accountability attaching to institutions and organizations with power or control over the offenders. For example, Swan is highly critical of the strict limitations on imposition of employer vicarious liability under Title VII and of Title IX’s high threshold of proof for holding schools liable for sexual harassment. Under prevailing Title IX law, for example, to obtain relief against a school, a student must prove that the institution had “actual knowledge” of the violation and responded with “deliberate indifference,” creating perverse incentives for schools to insulate themselves from knowledge of violations. Although the tide may now be turning with the Department of Education’s more “victim-centered” administrative enforcement of Title IX during the Obama years, Swan believes that there is still widespread “institutionalized acquiescence” to the harms she targets and that “law has done little to elicit more responsive behaviors.” (P. 1021.) In her lexicon, such institutional actors function as “silent bystanders,” reinforcing the inaction of individual bystanders.

Finally, Swan points to the existence of laws and doctrines that impose liability on bystanders when they do intervene and claims that “in the popular imagination, rescue is often associated with potential liability.” (P. 1023.) She asserts that the Good Samaritan statutes enacted in every state are so confusing and ambiguous that they have done little to reduce the perceived risks of intervention and cites the particular concern of college students who often decide not to report sexual assaults for fear of being charged with petty infractions such as underage drinking.

These numerous legal impediments to creating a climate conducive to bystander intervention lead Swan to recommend a number of legal reforms, some highly specific and others somewhat vague. On the specific side, Swan proposes that states adopt the same legal duty to rescue and report laws that now exist in a minority of states and that colleges adopt a Good Samaritan (or amnesty) policy to ensure that bystanders who intervene will not be penalized for underage drinking or other forms of minor misconduct. On the somewhat vague side, Swan urges that the state, as well as institutions such as schools, colleges, and workplaces, creatively explore ways to bring about a “community responsibility model of accountability,” without, however, pinpointing the changes to vicarious liability or other doctrines that courts should make.

What makes Bystander Interventions a highly imaginative piece is Swan’s ability to flip the frame and subtly place traditional tort law on the defensive. Importantly, her starting point is not the longstanding tort doctrines that generally resist imposing affirmative duties on individuals other than direct offenders, but the new bystander intervention strategies premised on a more communitarian philosophy that regards individuals as interdependent and as bearing some responsibility for the well-being of those in their physical proximity. Equally important to Swan’s analysis is her centering of pervasive harms – bullying, sexual assault, and harassment – that have long been at the margins of tort law and are rarely uppermost in people’s minds when they think about the no-duty-to-rescue rule. Swan is acutely aware that such harms not only inflict serious injuries on individual victims but also constitute “methods of creating and maintaining social hierarchies, including those of race and class, but in particular, those of gender.” (Pp. 989-90.) She sees these three harms not only as serious invasions of personal rights, but as functioning “to set the norms of gender and sexuality in society,” inflicting suffering on those who fail to conform. I read her article as an unapologetic progressive critique of tort and other bodies of law with the aim of curbing these serious problems, even if it entails changing some longstanding legal doctrines.

Despite her confident tone in Bystander Interventions, Swan is not always a proponent of the trend toward “third-party policing” by which “the state tries to deter unlawful conduct by persuading or coercing a third-party individual or organization to perform activities that may discourage a potential primary wrongdoer.” (P. 996.) In an earlier article1, Swan was highly critical of ordinances that hold individuals responsible for the criminal acts of their family members or friends, such as “crime-free” ordinances that impose mandatory terms in rental housing leases requiring the eviction of tenants when their friends or family commit criminal acts on the premises. In these contexts, Swan is opposed to what she sees as neoliberal measures that exact punishment beyond the immediate offender, in large part because of their disproportionately harmful effects on poor and minority communities. To quote from Swan’s website description of her scholarship, she studies the complexity of “how third-party responsibility is leveraged in competing ways to promote social control on the one hand and social change on the other.” Of course, when it comes to the politically controversial measures Swan writes about, one person’s (harmful) social control may be another’s (positive) social change.

Swan’s support for bystander intervention for the harms she targets makes sense precisely because there is often a group element to the offenses themselves. For example, masculinities scholarship has demonstrated that men often harass women and other “outsiders” in the workplace to prove their masculinity to their male co-workers.2 Disturbing recent incidents such as the Steubenville rape case in which bystanders videotaped the sexual assault of an unconscious teenage girl, as well as countless instances of cyberbullying, suggest that the presence of bystanders may be a crucial motivating factor driving the commission of the offense. At least with respect to these targeted harms, Swan makes a compelling case for modifying the no-duty-to-rescue rule and rethinking our common understanding of bystanders.

Cite as: Martha Chamallas, Bystanders v. Bullies, JOTWELL (June 21, 2016) (reviewing Sarah L. Swan, Bystander Interventions, 2015 Wis. L. Rev. 975 (2015)), https://torts.jotwell.com/bystanders-v-bullies/.

Hackney Reviews Judge Weinstein on Torts

James R. Hackney, Jr., Judge Jack Weinstein and the Construction of Tort Law in America: An Intellectual History, 64 DePaul L. R. 2 (2014), available at SSRN.

Professor James Hackney’s recent review of Judge Jack Weinstein’s work on the bench, Judge Jack Weinstein and the Construction of Tort Law in America: An Intellectual History, is well worth reading. He draws interesting parallels between Weinstein’s approach to resolving mass tort disputes, described in his book Individual Justice in Mass Tort Litigation and reflected in several of his opinions, and Guido Calabresi’s theories of tort law, set out most prominently in The Costs of Accidents. Hackney makes a compelling case that their views are more similar than most scholars recognize.

At first the connection between Calabresi and Weinstein seemed a bit of a stretch to me. I’ve read Calabresi’s The Costs of Accidents many times and it has always struck me to be a primarily normative vision of the tort system, full of considerations that have proved to be enormously influential to tort theorists, but of somewhat limited value to judges. For example, the argument that negligence doctrine should be abolished and replaced by strict liability is a theory that most judges would have difficulty putting into practice. This is also confirmed by Judge Friendly’s reluctance to rely on a normative theory based entirely on Calabresi, and put forward by the plaintiff, as a justification for expanding vicarious liability in Ira S. Bushy & Sons, Inc. v. United States, 398 F.2d 167 (2d Cir. 1968).

But Hackney shows that Calabresi’s ideas, melded with Weinstein’s own ideas, can yield a set of practical guidelines for managing and resolving mass tort litigation. My initial skepticism was swept away when I read Hackney’s description of Weinstein’s views on mass torts.

In discussing what he refers to as “modern innovations” in tort law that deal with the issues related to mass torts, Judge Weinstein argues that deterrence, punishment of wrongdoers, foreseeability, and a search for fault can no longer be touchstones of our tort law system. Instead, judges and juries should concentrate on (1) who should pay for the greater risk associated with an increasingly complicated and technological society; (2) the size of damage awards; (3) who should be compensated; and (4) how compensation should be distributed. It is all about deterrence, compensation, and loss spreading. Judge Weinstein notes that the irrelevance of fault in the mass torts context has its historical antecedent in the move to strict liability in products liability cases. He also attributes the historical shift to strict products liability to the need to reduce the administrative cost of trials. (P. 505.)

This is an approach to mass torts cases that is entirely in line with Calabresi’s vision of the tort system. Hackney’s citations connected to this passage are all to Weinstein’s book, not to Calabresi, yet the passage sounds as if it could have been based entirely on Calabresi.

My initial view that Calabresi’s vision could not be applied to real torts cases was wrong. The case management issues presented to judges by mass torts appear to be quite amenable to Calabresi’s influence. Hackney’s review offers both a theoretical framework for Weinstein and a practical application of Calabresi.

Cite as: Keith N. Hylton, Hackney Reviews Judge Weinstein on Torts, JOTWELL (June 8, 2016) (reviewing James R. Hackney, Jr., Judge Jack Weinstein and the Construction of Tort Law in America: An Intellectual History, 64 DePaul L. R. 2 (2014), available at SSRN), https://torts.jotwell.com/hackney-reviews-judge-weinstein-on-torts/.

Tort Law in the Laboratory

Theodore Eisenberg and Christoph Engel, Unpacking Negligence Liability: Experimentally Testing the Governance Effect, 13 J. Empirical Legal Stud. 116 (2016), available at SSRN.

Empirical study of the law is important, particularly for tort law. Fundamental components of the tort system are a “black box,” which largely explains why the field is riven by theoretical disagreement over the purpose of tort law. The claim that tort law efficiently reduces accident costs, for example, critically depends on the extent to which the threat of tort liability deters risky actors from behaving inefficiently. The available data on accidents, however, do not directly measure the relationship, no doubt because the injury rate is affected by a large number of other interrelated factors such as changes in wealth and technology that are extraordinarily hard to disentangle, making it extremely difficult to identify the impact that tort liability has had on actual accident rates. To isolate the influence of particular factors such as the threat of tort liability, empirical study must instead turn to the laboratory, where researchers can conduct experiments that are designed to tease out the role of the varied factors that plausibly explain the accident rate—an excellent example of which is provided by Theodore Eisenberg and Christoph Engel in their article, Unpacking Negligence Liability: Experimentally Testing the Governance Effect.

As persuasively argued by Frederic Schauer in The Force of Law (2015), important jurisprudential questions depend on the particular reasons why individuals comply with the law. In particular, individuals often have independent normative reasons for acting in the manner otherwise required by the law, in which case the law itself is not motivating the behavior. “Until we can understand the different ways in which law intersects with its subjects’ law-independent preferences, we cannot begin to understand the role of incentives and coercion in motivating legal compliance.” (P. 100.) The experiment conducted by Eisenberg and Engel was designed to address exactly this type of problem.

The experiment tries to disentangle four different motivations that could affect an individual’s decision of how much risk to impose on another. First, empirical studies have found that individuals may have an intrinsic moral inhibition to harm a passive bystander, in which case an individual could act safely for moral reasons that she has adopted independently of tort law. A related motivation involves the desire to avoid being blamed for another’s injury, which can again (though not necessarily) be independent of tort law. The remaining two motivations directly implicate tort law. Individuals may adopt a point of view that is internal to the law and simply desire to conform their behavior to the normative requirements of tort law, even if the law is never enforced. Finally, individuals may instead be motivated only by the concern for avoiding liability, acting like the Holmesian “bad man” posited by the economic analysis of tort law. In an attempt to isolate these varied motivations, the experiment involved four different stages that each added new information relevant to a decision by an active participant of how much to engage in a risky activity threatening injury to an otherwise passive participant in the experiment.

In the baseline treatment, announced as a one-shot experiment, the active participant chooses the amount of risky activity based on a specified profit function and is also informed about the corresponding loss function faced by the passive party. The instructions also tell the active participant about the amount of the risky activity that will maximize his or her profit. After a surprise restart, the two participants are told that the experiment will be repeated 50 times and are informed both of the (inefficiently high) level of risky activity that maximizes the risky actor’s payoff and the (efficient) lower level of risky activity that maximizes the expected joint income of the two parties. In the next stage, if the active participant has engaged in excessively high risky activity and the passive participant suffered injury as a result, the injurer faces a 50% probability of being “audited” and then blamed for having exceeded “the socially desirable level of investment.” (P. 150.) The final stage adds a liability component, requiring such an audited injurer to pay compensation to the injured party. The same experiment was then conducted with the passive victim being a computer, in which case the moral inhibition not to harm others presumably would be eliminated.

In an impressively nuanced discussion of the experimental findings, the authors conclude that the only individual motivation without any significance involves the intrinsic morality of not harming a passive bystander. Risky activity was instead reduced in each stage by the additive triggering of three different motivations. In the first or baseline stage only involving the profit and loss functions, 86% of the active participants invested in the profit-maximizing amount. In the second stage announcing the socially desirable level of activity, a significant number of participants were motivated to comply with the law without any threat of sanction (the fraction of participants investing in the profit-maximizing amount dropped to 65%). In the third stage that blamed but did not sanction those who were “audited” and found to be in violation of the announced standard, a fewer but still significant number of participants were motivated by the desire to avoid blame alone (the fraction of participants investing in the profit-maximizing amount was reduced to 58%). In the fourth stage that subjected these excessively risky decisions to liability for compensatory damages, a significant number of participants were motivated by the desire to avoid liability (the fraction of participants investing in the profit-maximizing amount dropped to 33%). The different levels of the risky activity at each stage provide a measure of the influence of each type of individual motivation, leading Eisenberg and Engel to conclude that negligence liability deters risky behavior through a “governance effect” involving the public announcement of a normative expectation coupled with blame and sanctions for violation of the legal norm.

And what should one make of these findings? Consider in this regard their empirical finding that the risky activity was significantly reduced simply because of a public announcement regarding the socially desirable level of activity, a normative expectation not backed up by sanctions (which only entered into the final stage of the experiment). This finding most readily lends itself to the interpretation that a significant proportion of the population has adopted the internal point of view that motivates them to comply with the law, regardless of sanctions. Tort law can deter merely by publicly announcing its normative expectations of safe behavior.

This finding, though important, becomes more puzzling when considered in relation to the actual practice of tort law. The standard case of negligence liability turns on the jury’s determination of whether the defendant exercised reasonable care. Jury instructions do not define the requirements of reasonable care, so the jury presumably makes some type of normative judgment about reasonably acceptable behavior that is not defined by conventional safety practices (like jaywalking in New York City). If so, then the publicly announced normative expectation of tort law is that risky actors should comply with the relevant social norms. The “governance effect” identified Eisenberg and Engel, therefore, must somehow depend on the intrinsic morality of social norms, yet they found that intrinsic morality has no independently significant effect on risky behavior. The experimental design has missed something.

The problem in my view stems from the baseline specification of the safety decision, which relied on mathematically complex profit and loss functions. The instructions were formulated to help the participants avoid making decisions based on mathematical errors, but the logic of the decision was not intuitive. (I found it easiest to perform some simple calculus to clarify matters.) This type of decision making could easily have misframed the normative problem for those who were actively participating in the study, particularly as they were only expressly told about the amount of risky activity that would maximize their own profit and were not given any other motivations for the decision. The decision was framed as one of rational prudence without any salient moral dimensions. The active participant could easily have assumed that he or she merely faced a complex investment decision involving profits that threatened some stranger with a probabilistic monetary loss, a decision with important attributes of ordinary market behavior that is normatively different from risky behavior threatening bodily injury or premature death to a passive bystander. The subsequent announcement of the socially desired behavior in the next stage of the experiment would then cause some individuals to change their decisions by inducing them to reframe the normative problem. Tort law, therefore, can deter by helping individuals to frame properly the normative problem, but this “governance effect” may be an artifact of the experimental design that would yield different results if it had properly framed the normative problem in the first instance.

Tort law in the laboratory does not necessarily generalize to the real world, but this article reveals the substantial potential of this empirical approach. For decades now, researchers from a wide range of disciplines have been conducting studies of this type to determine how social norms influence behavior. Important results have been replicated across different experimental settings, yielding insights about normative behavior that are not identifiable with armchair observation. The empirical study of tort law has not yet reached this point. As Eisenberg and Engel point out, “[t]here is no more than a handful of pertinent experimental papers” that have tried to isolate the different types of reasons that motivate risky behavior threatening injuries to others. (P. 120.) Their article has not fully identified the contents of this “black box” within tort law, but their experimental design provides valuable guidance for what one hopes will be a quickly growing body of scholarship.

Cite as: Mark Geistfeld, Tort Law in the Laboratory, JOTWELL (May 24, 2016) (reviewing Theodore Eisenberg and Christoph Engel, Unpacking Negligence Liability: Experimentally Testing the Governance Effect, 13 J. Empirical Legal Stud. 116 (2016), available at SSRN), https://torts.jotwell.com/tort-law-in-the-laboratory/.

Boilerplate and the Boundary Between Contract and Tort

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

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

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

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

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

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

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

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

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

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

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

Cite as: Nora Freeman Engstrom, Boilerplate and the Boundary Between Contract and Tort, JOTWELL (April 22, 2016) (reviewing Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (2013)), https://torts.jotwell.com/boilerplate-and-the-boundary-between-contract-and-tort/.

Junk Food and Assumption of Risk

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Cite as: Benjamin C. Zipursky, Junk Food and Assumption of Risk, JOTWELL (March 24, 2016) (reviewing Avihay Dorfman, Assumption of Risk, After All, 15 Theoretical Inquiries in Law 293 (2014), available at SSRN), https://torts.jotwell.com/junk-food-and-assumption-of-risk/.

The Man, The Torts Legend

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

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

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

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

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

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

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

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

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

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

Stealth Ways to Keep Tort Cases from African-American Juries

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What Happens if We Call Discrimination a Tort?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cite as: Anthony Sebok, What Happens if We Call Discrimination a Tort?, JOTWELL (December 17, 2015) (reviewing Sandra Sperino, “Let’s Pretend Discrimination is a Tort,” 75 Ohio St. L.J. 1107 (2014)), https://torts.jotwell.com/what-happens-if-we-call-discrimination-a-tort/.

A Holy Grail for Pluralist Theory?

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

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

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

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

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

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

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

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

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

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

Cite as: Sheila Scheuerman, A Holy Grail for Pluralist Theory?, JOTWELL (November 17, 2015) (reviewing Ronen Perry, Pluralistic Legal Theories: In Search of a Common Denominator, 90 Tul. L. Rev. ___ (forthcoming 2015), available at SSRN), https://torts.jotwell.com/a-holy-grail-for-pluralist-theory/.