What If a Moral Theory of Tort Requires Deterrence?

Sep 1, 2023 Leslie KendrickAdd a Comment

Leslie Kendrick

Gregory Keating’s absorbing and insightful new article, “Irreparable Injury and the Limits of the Law of Torts,” surveys familiar territory from a distinctive vantage. As he does in his recent book, Reasonableness and Risk, Keating invites us to reconsider the fundamentals of what tort law is for and what reasonable care looks like. In this paper, he presents these questions through a central motivating problem: reparation is one of the central goals of tort (some would say its only goal), but in many cases, “tort reparation is not fully up to its assigned task.” (P. 1.) In particular, serious physical injury and death are two harms that tortious wrongdoing may inflict but the tort system cannot repair.

Keating argues that this problem finds its clearest expression in cases of premature death. (P. 3.) He observes that common-law tort failed to address the death of plaintiffs at all, and to the extent that tort suits address it today, they do so through statutory survival and wrongful death actions. (Pp. 4-5.) Even then, generally speaking, neither action compensates for the specific harm that occupies Keating: the harm of no longer being alive. Survival and wrongful death actions may account for financial resources lost on account of tortious premature death, and loved ones may receive recompense for their own emotional harms, but hedonic damages—damages for pain and suffering or loss of enjoyment of life—are generally available only for the period in which an injured plaintiff was alive. They are not typically awarded to the dead. (P. 5.)

Keating’s broad point here—that tort law cannot fully repair certain types of harms—is familiar from the literature on incommensurability and corrective justice. But here Keating builds upon his prior work on irreparable injury to pursue the issue in a specific direction. By homing in on tortious killings, Keating suggests that the problem is not just that tort law’s remedies do not succeed in redressing harms that are incommensurable with money, but that for some types of harm, arguably the worst types, tort does not even attempt to offer redress. Seemingly by design, the tort system “is intrinsically incomplete.” (P. 3.)

Some might leverage this acknowledgment as a critique of corrective justice theories. Some might further use it to argue that any plausible tort theory must incorporate deterrence: after all, if tort cannot adequately repair certain types of devastating harm, perhaps it ought to try to prevent them in the first place. Keating takes a different tack. He does note that irreparable injury is a problem for corrective justice accounts. At the same time, however, he views it as a major problem for deterrence, at least as that value manifests in standard economic conceptions of tort. (P. 3.) Citing Richard Posner, Keating observes that deterrence is only achieved if damage awards fully reflect the costs of accidents. (P. 3.) They clearly do not do so, Keating argues, in cases of tortious death or serious physical harm. Tort is thus “a flawed price system,” the deterrent power of which diminishes precisely where potential victims need it most. (P. 4.)

Keating thus maintains that the incompleteness problem poses grave difficulties both for corrective justice theories and efficient deterrence theories. More affirmatively, he argues that the problem of irreparable injury should cause us to turn our attention to one specific element of negligence claims: the standard of care.

The failure of tort to address irreparable injury, Keating argues, indeed signals the need for deterrence—for preventing irreparable injury in the first place. Keating thus maintains that deterrence is an important component of the law’s approach to serious injury: a law of reparation alone is not enough. (P. 6.) Notably, however, he embraces deterrence for deontological rather than economic reasons. He argues that physical safety “is a kind of Rawlsian primary good,” because harm to it “impair[s] our basic powers of agency.” (P. 6.) Because physical safety is a primary good, harms to it are different in kind from other harms, such as financial loss. Given the importance of physical safety, avoidance of physical harm is of higher priority than deterrence of other harms.

Higher priority for avoidance of physical harm leads Keating to argue that the traditional economic conceptualization of deterrence as efficiency is incorrect. Defining the appropriate standard of care in cost-benefit terms does not recognize the priority of physical safety. When the question is whether to spend a bit more or impose risk of severe physical harm on others, Keating argues, the cost-efficient decision is often the wrong one as a moral matter. (Pp. 8-9.)

To provide alternatives to the Posnerian conception of negligence, Keating draws on two standards found in regulatory law: the “safe-level” standard and the “feasibility” standard. Both, he says, are alternative standards of care that better reflect the priority of avoiding physical harm.

The safe-level standard requires risk to be reduced to the point where no “significant risk” of devastating injury exists. (P. 12.) As an example, Keating points to the Food Quality Protection Act of 1996, which requires pesticide residue to be reduced to a “safe” level, i.e., where “there is a reasonable certainty that no harm will result from aggregate exposure” to pesticide residue (P. 12.) The feasibility standard, meanwhile, requires that risk be reduced as much as possible consistent with the long-run continuation of an activity. Keating draws from the Occupational Health and Safety Act and the Clean Air Act to offer examples of standards that essentially require risk reduction to the maximum feasible degree. (P. 13.) Looking outside the law, Keating sees something like a feasibility standard in social attitudes toward rescue: “Money seems no object when miners are trapped in a mine, or when children are trapped in a burning building,” even though “[f]rom an economic perspective this seems foolish and extravagant.” (P. 16.)

Keating argues that both safe-level and feasibility standards stand in stark contrast to the dominant economic approach to deterrence, which equates cost-efficient care with legally adequate care. He believes cost-benefit analysis may provide the correct standard in some cases—for example, those involving exclusively financial and property-based harms, which can appropriately trade off against each other—but should not define care across the board. Avoidance of certain severe and irreparable harms deserves priority and thus requires a higher standard of care.

Irreparable Injury and the Limits of Tort revisits familiar problems from within tort theory with Keating’s own distinctive approach. On a theoretical level, he sets forth a deontological theory that insists upon deterrence as a core value but rejects typical economic conceptions of deterrence as morally inapposite. He offers a deontological approach that encompasses both reparation and deterrence, while acknowledging tort’s inadequacies on both counts. He sees the inadequacy of reparation as inescapable—which makes it all the more important to reconceptualize deterrence to protect better against irreparable injury.

The piece also places Keating’s theoretical argument within the context of existing law, where he finds fewer resonances within tort than within regulation. Keating’s choice to bring regulatory standards into conversation with tort theory has striking implications. One is that tort theory perhaps does not have a monopoly on how to conceptualize its core values—that, as the article’s title suggests, tort has limits.

The piece also suggests an implication for regulatory law: that increasing allegiance to cost-benefit analysis within administrative agencies is moving in exactly the wrong direction. Higher regulatory standards of care should supplant tort’s commitment to deterrence as efficiency, not vice versa. (Pp. 7-8.) Keating contends that “acting efficiently is not rationality incarnate,” and “[e]fficiency is one value among many.” (P. 8.) He argues that philosophical and political liberalism’s commitment to value pluralism makes physical safety a better candidate for priority than efficiency—at the least, it casts grave doubt on assertions that efficiency is a “master value for all law and public policy” and cost-benefit analysis “the only game in town.” (P. 10.)

Keating recognizes work on irreparable injury from different specialties and methodologies, including my colleague Doug Laycock’s writing on the concept within remedies jurisprudence and Mark Geistfeld’s economic analysis of it within tort law. Geistfeld is especially apt, and Keating is in conversation with him in the notes of this piece: working from an economic perspective, Geistfeld argues that the inadequacy of tort remedies compels us to reevaluate the substantive standards imposed by tort duties. (Geistfeld, too, takes issue with dominant economic and corrective accounts on this basis.) It would be enlightening to see more direct conversation with other approaches in the main text. It is striking that consideration of the problem of irreparable injury can generate relatively convergent insights from radically different methodological starting points, and I am interested in what further reflection would yield.

I am also curious about how Keating would approach irreparable injury that does not involve the physical integrity of persons—for example, irrevocable alterations to or losses of real or personal property. Some other accounts of irreparable injury address such harms, but the special priority Keating gives to avoidance of physical injury and death leaves them in an uncertain position within his account. Elaboration would be especially welcome given Keating’s analogies to administrative regulation, where rules might protect not only human physical health and safety but also special features of the natural environment, or the continued existence of other species, or other goods that are difficult to quantify and impossible to restore once they are lost.

In debates about deontological and consequentialist theories of tort, the clash between single-value theories—between repair and deterrence—can sometimes ring the loudest. Keating’s body of work makes an important and cohesive case for both repair and deterrence under one umbrella. In this article, Keating elaborates on his deontological account of why deterrence matters, an account that warrants consideration by theorists of all stripes. And just as his theory offers food for thought for everyone, his approach provides a suggestion for us all: that we should sometimes look up and out, toward the law beyond tort’s limits.

The Citadel as Sandcastle

Jul 18, 2023 Christopher J. RobinetteAdd a Comment

Christopher J. Robinette

The story of the rise and fall of privity of contract in products liability is familiar to all torts scholars. William Prosser even labeled privity a “citadel” and wrote two significant law review articles discussing in martial terms the assault upon and fall of the citadel of privity.¹ The story is simple. In an 1842 English case, Winterbottom v. Wright, Lord Abinger held that an injured passenger could not sue the manufacturer of the allegedly defective stagecoach that injured him because the coach was provided under contract to the passenger’s employer, not to him.² Abinger invoked floodgates by reasoning, “There is no privity of contract between these parties…Unless we confine the operation of such contracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue…” Id. The rule migrated to the United States, where courts held that, even though Winterbottom sued in contract, privity prevented plaintiffs from recovering for products injuries in negligence cases. In 1916, however, Judge Cardozo in MacPherson v. Buick Motor Co. ended the reign of privity by holding that a plaintiff injured by an allegedly defective automobile that he purchased from a retailer could sue the manufacturer directly.³

But the story is false. Such is the argument of Professor Alexandra Lahav in her compelling new article. Instead, Lahav insists that the doctrinal rule for producers of injurious products in the United States in the nineteenth century was negligence liability.

We are so familiar with the story that we can name that tune in just a few notes. So, to be told it is not true is surprising. How does Lahav reach that conclusion? She investigates reported state cases between 1850 and 1916. (P. 5.) She finds that 110 state court cases include a reference to Winterbottom v. Wright prior to 1916. (P. 17.) Of the 110, only twenty-five involve products, and Lahav notes that many of those twenty-five cases involve faulty construction and livestock, rather than typical mass market products. (P. 17.) Of the twenty-five, only twelve do not involve injury in the course of employment. (P. 17.) Of the twelve, four uphold privity, but they are all construction cases. (P. 17.) A fifth case, about the sale of a sick sheep, was decided on proximate cause grounds, but the court did endorse privity in dictum, stating that a third-party purchaser could not sue the original seller. (P. 17.) By contrast, seven of the twelve cases reject privity, including cases involving erroneously labeled medicine, defective furniture, a carriage, a boiler, and soap. (P. 17.)

Of the thirteen cases involving injury from products in the course of employment, seven were allowed to proceed even though they would have been barred by privity, while six were rejected on privity grounds. (Pp. 17-18.) The cases invoking Winterbottom in non-products cases—approximately eighty-five cases—involved services, such as title searches, will drafting, and telegram delivery. (P. 18.) These cases usually held that a third party had no cause of action against the service provider. (P. 18.)

Lahav summarizes the conclusions from her study. For a case that supposedly dominated products liability for over half a century, twenty-five relevant citations is minimal. Moreover, “of the mass product cases explicitly considering the Winterbottom precedent prior to MacPherson all rejected privity.” (P. 17.) She continues, “[t]he reasonable conclusion from this analysis is that privity was the rule for services, but not for products. Even in the employment context, privity as a bar to suit was at best a controversial doctrine.” (P. 18.)

Based on her study, Lahav retells the story. (P. 12.) As background, Lahav notes that the period from 1850 until 1910 was beset with social and economic upheaval. Cities became crowded as both immigrants and native-born citizens sought better wages. (P. 13.) Unlike their rural counterparts, urban dwellers were unable to produce their own products. (Pp. 13-14.) At the same time, technological developments made the mass production of goods a possibility. (P. 14.) In this environment, there was a need to protect consumers.

Perhaps no case discussed by Lahav illustrates the social changes and need for protection better than the claim by a boarder against a manufacturer for injuries sustained in the collapse of a murphy bed.⁴ Lahav notes that the suit would have been unlikely in 1850, not because of privity, but because there were few people living and working in cities who needed to rent a room. (P. 51.) The murphy bed, designed to fit people into smaller places, was itself the result of people’s increased need for housing. (P. 51.) Consumers living in cities using mass-produced items were vulnerable. Contrary to the traditional story, Lahav believes that judges protected them:

The doctrinal growth of products liability law was related to significant changes, wrought by the industrial revolution, in what products were available that could injure people, who was buying them, and social changes in terms of what people were buying. Courts had always recognized that manufacturers had a duty in tort. (P. 51.)

The retelling includes Winterbottom v. Wright, but in a reduced role. For Lahav, “the case that ought to be at the center of any discussion of products liability in the nineteenth century United States” is Thomas v. Winchester.⁵ That case, cited 194 times during 1850-1916, involved a poison mislabeled as a medicine that seriously injured a woman. (Pp. 19-21.) Despite the fact that the “medicine” was not sold directly to the consumer, the court allowed the suit. The gist of the ruling “was that a manufacturer had an obligation to warn when the medicine was dangerous, and to be careful packing it…” (Pp. 23-24.) But Lahav notes that other cases made it clear that medicine did not have to be poisonous or almost result in death to lead to liability. (P. 24.)

Lahav canvasses numerous products that led to liability absent privity during the last half of the nineteenth and beginning of the twentieth centuries. The list includes clothing (Pp. 25-29), soap (Pp. 29-32), food (Pp. 32-36), and automobiles. (Pp. 36-40.) The last category, of course, brings us back to MacPherson. In the traditional story, Judge Cardozo is given credit for shrewdly, and perhaps disingenuously, moving the law from the era of privity into the era of negligence. In Lahav’s retelling, “Cardozo was more correct than he is usually given credit for being, even if somewhat less magical.”⁶ (P. 40.)

By itself, this historical analysis is interesting and useful. It will, for example, alter the way I teach these cases in my Products Liability class next fall. But Lahav also connects her argument to a larger issue. She notes that recently judges have been using common law rules in analyzing statutes, and that they treat those rules as set in stone by early case law. (P. 49.) Lahav rightly suggests that getting history wrong can negatively impact future cases.

If anything, Lahav understates the importance of her research. With the Supreme Court’s turn toward what Professor Jack Balkin calls “thick originalism,” in which history is dispositive in interpreting the meaning and expected application of constitutional provisions, historical errors can carry grave consequences.⁷

Tort law provides a prime example. In Ives v. South Buffalo Ry. Co., the New York Court of Appeals declared the state’s initial attempt to enact a workers’ compensation statute unconstitutional on due process grounds.⁸ It did so because one of the “fundamental principles of law in existence” at the time of the adoption of the federal and New York Constitutions was “that no man who was without fault or negligence could be held liable in damages for injuries sustained by another.”⁹ The court’s proposition was historically inaccurate; strict liability governed multiple tort issues at the time the relevant constitutional provisions were adopted.¹⁰ Thus, the Supreme Court’s current jurisprudence allows historical errors to become constitutional rules. Lahav’s work warns us that such errors are more prevalent than we knew.

Professor Lahav’s article is remarkable scholarship. It is essential reading for scholars and teachers of Products Liability, those interested in tort history, and those concerned about the future of constitutional law.

Editor’s note: Reviewers choose what to review without input from Section Editors. Jotwell Torts Section Co-Editor Alexandra Lahav had no role in the editing of this article.

1. William L. Prosser, The Assault upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099 (1960); William L. Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn. L. Rev. 791 (1966).
2. 10 M. & W. 109, 152 Eng. Rep. 402 (Ex. 1842).
3. 217 N.Y. 382, 111 N.E. 1050 (1916).
4. Lewis v. Terry, 111 Cal. 39 (1896).
5. 6 N.Y. 397 (1852).
6. Cf. John C.P. Goldberg & Benjamin C. Zipursky, The Myths of MacPherson, 9 J. Tort L. 91, 106 (2016).
7. Jack M. Balkin, Constitutional Interpretation and the Uses of History 132 (forthcoming, 2023).
8. 201 N.Y. 271, 94 N.E. 431 (1911).
9. Ives, 201 N.Y. at 293, 94 N.E. at 439.
10. These include private nuisance, trespass to land, and wild animals. For more on this issue, see Donald G. Gifford, Richard C. Boldt & Christopher J. Robinette, When Originalism Failed: Lessons from Tort Law, 51 Fla. St. U. L. Rev. __ (forthcoming, 2023).

Tort Trials and Tribulations

Jun 21, 2023 Nora Freeman Engstrom1 comment

Nora Freeman Engstrom

In The Civil Jury: Reviving an American Institution, authors Richard L. Jolly, Valerie P. Hans, and Robert S. Peck sound a dire—and important—warning: the jury trial has almost completely vanished from civil litigation, and its disappearance comes at great cost. While many have noted civil trials’ decline over the past century, the Report goes a step further, not only compiling data to track the jury trial’s demise, but also cataloguing reasons for it, explaining why it matters, and offering concrete ways to reverse this ominous trend.¹¹

In this Jot, I’ll focus on why those of us interested in tort law, and the role of juries in tort law, should read—and heed—the authors’ warnings.

First, a primer on the civil trial landscape writ large. As Jolly, Hans, and Peck explain, between 1962 and 2020, the percent of federal civil cases disposed of via jury trial fell from a respectable 5.5% to an almost non-existent 0.48%. And though state court statistics are spottier, the limited data that are available suggest that, in the states, civil jury trial rates have fallen from 1.8% of civil case dispositions in 1976 to just 0.6% of such dispositions in 2002 to a miniscule .09% in 2019. Further, the few trials that do occur are, on average, shorter and more constricted—with fewer jurors, stricter time limits, more bifurcation, and compressed voir dire.¹²

Just like civil jury trials generally, tort jury trials are going the way of the dodo bird.

Consider the federal system.¹³ In 1962, 17.6% of federal tort actions reached trial.¹⁴ Fast forward to 2022, where only about 0.42% of federal tort actions made it to trial.¹⁵ Of 103,252 federal tort cases terminated between September 2021 and 2022, only 432 saw trials of any kind—and only 327 dispositions out of 103,252 involved juries. Graphed, the decline of trials is so stark that, by 2022, you need a magnifying glass to see that there were any tort trials at all.

Source: Admin. Office of the U.S. Courts, Annual Report of the Director, Table C-4 (1962 and 2022).¹⁶

What explains this sharp decline? As Jolly, Hans, and Peck explain, there are plenty of potential culprits. These include: (1) the rise in pretrial adjudication (think, summary judgment and motions to dismiss); (2) the increased use of alternative dispute resolution (frequently, mediation); (3) a feedback loop in which would-be trial lawyers shy away from trial because they fear their advocacy skills are rusty or undeveloped (and, of course, lawyers’ skills remain rusty and undeveloped because they shy away trials); and (4) the proliferation of statutory damage caps, as well as the Supreme Court’s punitive damage jurisprudence, both of which, from the plaintiffs’ perspective, restrict the benefit that would accompany even a resounding trial victory. The authors additionally place some of the blame at the feet of judges who have been known to steer litigants toward settlement with a heavy hand—as well as certain business interests, who, they say, “engaged in a decades-long political campaign to convince the public, practitioners, and the judiciary” that the civil jury is “unqualified to decide complex disputes, and that twelve laypeople routinely bring not wisdom but prejudice against certain litigants.” (P.  4.)

More than simply showing that the civil trial is disappearing and cataloging the reasons behind the decline, the authors, additionally, chronicle four reasons why we should care.

First, in the authors’ telling, the decline of the trial by jury is worrying because juries offer a unique and vital check on concentrated power. Indeed, the American colonists relied on juries to “nullify the excesses of the Crown,” and the Founders viewed civil juries “as a necessary institution within the constitutional structure, responsible for integrating laypeople into the administration of justice and checking abuses of power.” (Pp. 7–9).

Second, juries inject diverse viewpoints into deliberations. After all, judges (still) tend to be mostly white and mostly male.¹⁷ By contrast, jurors are demographically diverse and come from all walks of life. They reflect—and bring to their rulings—the lived experience of a true cross section of the community. As such, “juries bring…a strong grounding in community norms to the fact-finding task.” (P. 22.)

Third, juries inject a fresh perspective into deliberations. Unlike trial judges, who may think they have heard the same case before, and for whom the fact-finding process may become routinized, juries come to court with fewer preconceptions.

Fourth and finally, civil juries’ benefits extend beyond the courtroom. Here, the authors compile compelling evidence that jury service boosts other forms of civic engagement. For example, “[j]urors who served on civil juries of 12 persons or juries that were required to reach a unanimous decision—in other words, the traditional form of trial by jury—were significantly more likely to vote following their service, controlling for their pre-service voting history.” Id. at 25. Jury trial alums also hold more favorable views of the legal system. On this score, evidence recently compiled by the National Center for State Courts surfaces a troubling decline in the public’s confidence in both state and federal courts¹⁸ —a fact that tees up two fascinating questions: Might these drops in public confidence be linked to the above jury trial trends? And might they be reversed if the jury trial were revitalized?

Then, beyond these general virtues of the civil jury trial that the authors elegantly address, I would suggest that, for two key reasons, the disappearance of the jury trial matters uniquely in the tort law context.

First, unlike many other kinds of cases that make up civil court dockets, tort lawsuits are particularly likely to pit a lone (and injured) individual against a business—and, as such, tort suits are particularly likely to feature a sharp power dynamic between the those on the left and right sides of the “v.”¹⁹ There is an argument, I’d suggest, that in that lopsided context, the jury’s diverse perspective is particularly important.²⁰

Second, as compared to judges, juries can be especially clear communicators. Drawn from and speaking for the community, juries are especially able to express moral disapproval and to recognize and rectify harm. This, too, has particular resonance in tort. After all, that expressive function may not matter when it comes to dry contract claims or simple land disputes. But, when a jury orders Alex Jones to cough up nearly $1 billion for calling the Sandy Hook massacre a hoax, decides that Exxon must hand over more than $5.2 billion for sullying the Prince William Sound, or renders a verdict of $4.7 billion against Johnson & Johnson for talc-related injuries, the jury conveys a particular outrage—and offers the plaintiff particular recognition—that would otherwise go unheard.

In sum, though it’s not “about” the tort system, Jolly, Hans, and Peck’s fine report offers a valuable message for those of us who care about this specific corner of the civil justice ecosystem. The civil jury is on life support. Unless and until we resuscitate it, our tort system is in particular peril.

1. See, e.g., Nora Freeman Engstrom, The Diminished Trial, 86 Fordham L. Rev. 2131 (2018); Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. Empirical Legal Stud. 459 (2004).
2. See generally Engstrom, supra note 1.
3. Federal court statistics offer only a partial (and possibly non-representative) window into the tort trial landscape since the lion’s share of tort litigation occurs in state courts. Unfortunately, though, the data on state court goings-on are shamefully scant, leading many scholars—myself included—to use federal statistics as a rough and imperfect proxy. For discussion of the stubborn data challenges that afflict state courts, see, e.g., Anna E. Carpenter et al., Studying the “New” Civil Judges, 2018 Wis. L. Rev. 249, 266 (2018).
4. Galanter, supra note 1, at 462. Importantly, that figure likely exaggerates the number of trials. That is because the calculation is drawn from Table C-4 of the Administrative Office of the U.S. Courts’ Annual Report of the Director, which counts as a trial any “contested proceeding at which evidence is introduced.” Id. at 461. This capacious definition includes not just trials, but also hearings on such matters as Daubert motions or motions for class certification. The tallies of actual, bona fide trials could be as low as half of the “reported” tally. See Engstrom, supra note 1, at 2140.
5. The figures come from Table C-4 for the period from September 30, 2021 through 2022. As explained in note 4, these numbers almost certainly exaggerate the number of trials.
6. In this chart, the blue bars represent the total tally of cases resolved in any way (dismissed, settled, taken to trial, etc.). The orange bar represents the subset involving jury trials. The gray bar represents the subset involving bench trials. Interestingly, in 1962, diversity actions comprised a little more than half of the tort cases in federal court; by 2022, diversity actions comprise almost the entirety of the whole.
7. For a discussion of state judge demographics, see Tracey E. George & Albert H. Yoon, Measuring Justice in State Courts: The Demographics of the State Judiciary, 70 Vand. L. Rev. 1887, 1903 & 1906 (2017) (reporting that “[p]eople of color make up roughly four in ten people in the country but fewer than two in ten judges” and that “[n]ot a single state has women on the bench in the numbers commensurate with their representation in the general population”). For a discussion of federal judge demographics, see Am. Bar Ass’n, Profile of the Legal Profession 6 (2022) (reporting that, as of July 1, 2022, 70% of federal judges were male and 78.4% were white).
8. See Nat’l Center for State Courts, State of State Courts 2022 Poll 6 (2022) (reporting substantial drops in the proportion of Americans who report having “a great deal” or “some” confidence in state and federal courts during the period from 2012 through 2022).
9. See Lynn Langton & Thomas H. Cohen, Civil Bench and Jury Trials in State Courts, 2005, at 3 Tbl. 3 (2008).
10. This representation matters, in part, because it is apt to promote litigants’ sense of procedural justice. For more on procedural justice, see generally Lawrence B. Solum, Procedural Justice, 78 S. Cal. L. Rev. 181 (2004). For the relationship between procedural justice and jury adjudication, see Brooke D. Coleman, A Legal Fempire?: Women in Complex Civil Litigation, 93 Ind. L.J. 617, 642 (2018) (“An individual litigant who sees herself in the decision maker . . . will have a much stronger sense of participation, and thus legitimacy.”).

The Common Law Inside Social Media

May 22, 2023 Anita BernsteinAdd a Comment

Anita Bernstein

Leslie Y. Garfield Tenzer and I have crossed paths only once, in an encounter that I found memorable. The venue was a 2014 symposium called Social Media and Social Justice. As one might expect at a law school event with social justice in its title, denunciation and concern abounded. The gloomy context caused a remark by Professor Tenzer to stand out: “I love social media!” When the time came to publish my presentation, I felt moved to quote this splash of good cheer.

Nine years later, Tenzer’s love of this environment seems alive, though with a plangent note running through her insightful Social Media and the Common Law (“Social Media”). Tenzer says she “finds fault with the judiciary’s failure” to impose accountability on the sector (P. 229) and worries about “the prevalence of unaddressed and unpunished social media harms” (id.) that include defamation, invasion of privacy, harassment, emotional distress (which can be severe enough to precipitate suicide, see P. 242) and the cluster of consequences that result from what now gets called cyberbullying. But Social Media seeks to mend rather than end what it observes. Its case for more tort liability is intended to make providers and communications healthier, not just more accountable for the injuries they inflict.

Social Media focuses on judges as political actors: Tenzer says they lag behind lawyers, legislatures, and administrative bodies in adapting to how we live now. Exercising power at an average age of 46, contemporary judges as a cohort became adults before 1997, the year Tenzer uses to mark the emergence of the internet, and their worldview lingers in a bygone day when they were young. Judges too readily write off what occurs online as transitory, lightweight, and of only passing interest.

Tenzer’s dismay about unremedied harms contributes to the important literature that denounces the shelter from responsibility enjoyed by online service providers. Twenty-seven years ago, Congress wrote immunity into Section 230 of the Communications Decency Act. As the internet scholar Danielle Keats Citron observes in a valuable new article, disapproval of this choice, a stance she pioneered in 2008, is now almost conventional wisdom. Observers now agree on the harm of wide-scale immunity and diverge only on how to repair it. Though not alone in urging more from the judiciary, Tenzer has distinct points to make about judges’ missteps.

Social Media lobs a particular helping of blame on federal courts in California for the problem of too much immunity. If I read her correctly (Pp. 238-41), Tenzer believes judges could have distinguished the defendants that dodged responsibility in Ninth Circuit courts—a group that includes Facebook, Roommates.com, and a dating site called Metrosplash.com—from immunity-enjoyers such as AOL and Prodigy, older businesses that look more neutral in the mode of utility plumbing.

Were they paying better attention, says Social Media, judges would recognize the breadth and depth of harm caused by and on social media. They could learn not only from claims of injury that litigants present to them but from their own work experiences. Tenzer cites the federal model instruction (P. 259) that tells them to order jurors to stay silent “on social media websites and apps (like Twitter, Facebook, Instagram, LinkedIn, YouTube, WhatsApp, and Snapchat).” Presumably, state court judges deliver a similar admonition. Content that judges themselves post on social media has provoked complaints of misconduct (Pp. 262-63). Judges also review discipline for lawyer misconduct (P. 261), a record that includes complaints involving social media. In short, judges have the information they need to “change with the times.” (P. 263.)

The judiciary has failed to grasp not only the problem but an important doctrinal solution. Online communication, Tenzer contends, aligns with teachings from the common law. Having found progressive potential in this source myself—“The Common Law Inside Social Media,” the title of this jot, echoes an earlier title of mine—I appreciated the evidence Tenzer has gathered to support applying authority from the eighteenth century to the twenty-first. Judges can apply a jurisprudential tradition whose origins lie in disputes about land and bulky physical objects to adjudicate actions and consequences that take place on a screen.

Because screen imagery looks fleeting and can be moved into apparent oblivion with a click, the harms of social media might also seem fleeting. Actually, however, they’re durable. Durability affects the law of libel and slander, Tenzer observes (P. 248), and also makes invasions of privacy more hurtful and harder to erase. Any injury that the common law can remedy increases when durability makes it linger. Social media as an environment will itself stay durable, no matter how many judges think it just might flit away on the breeze it flew in on.

In what social media-speak might call “hashtag not all judges,” Tenzer stirs instances of praise into her larger criticism of judicial responses to social media harm. Justice Samuel Alito, faulted on page 267 for questioning what Tenzer finds a self-evident truth—that judges are able to “apply pre-social media precedent to large social media companies”—wins what looks like approval on page 253 for taking seriously the threat that Supreme Court litigant Anthony Elonis posted on Facebook. Early in the internet age, Tenzer reminds us (P. 265), a federal district court found a remedy for a barrage of unsolicited emails in the venerable old tort of trespass to chattel. Social Media faults the judicial record with admirable nuance and fairness.

Speaking of praise: My esteem for Social Media goes further than agreeing with its thesis and commending Tenzer for the leadership provisioned in this work. I think Social Media hides its light under a bit of a bushel.

Real injuries, real doctrines, and real legal entitlements populate Social Media, but Tenzer lessens the clarity and tough-mindedness of this message when she hones in on a vaguer source of authority. The heading for Part IV, “Judicial Failure to Set Social Norms,” joins similar phrasing throughout this article. Tenzer wants to encourage judge-generated and -midwived new “social norms” (see P. 226 and elsewhere), along with “societal norms” (Pp. 258, 267), “social media norms” (Pp. 227, 229, 253), and “common law norms” from the same source.

For lawyers, however, making law is more important than playing a role in the generation of norms—or at least it’s a closer fit with their experience and expertise. I intend no disparagement of norms. “Law and norms” deserved to emerge in the legal academy as a focus of study, and norms are of more than academic interest. The influences and inspirations of norms shape a species that can’t stay alive without social groups. But lawyers aren’t only on the receiving end of this influence and pressure. They are instigators too. By doing its job, our profession pushes norms to emerge, evolve, and recede.

Judicial decisions also change norms, but here too as a byproduct rather than a direct goal. Take cyberbullying case law, for example. Tenzer faults courts for having “passed up the chance to signal normative behavior for social media use” (P. 269), a move that could ameliorate the harm of cyberbullying. Judges’ forfeiture of their opportunity to signal has permitted dangerous conduct to flourish and spread.

Not quite, I think. Judges can indeed signal normative behavior. But the work Tenzer wants them to do is not so much signal anything as decide cases correctly. Her analysis in Social Media convinces me that “the chance” that the Supreme Court “passed up” in its relevant-to-cyberbullying Mahanoy Area School District v. B.L. decision of 2021 was to revisit old beliefs about school control that underlay Tinker v. Des Moines Independent Community School District, the student-speech chestnut decided in 1969.

Electronic-technology transformation has made brick-and-mortar geography at the center of Tinker obsolete, Tenzer argues. Agreed. Judicial craft to the rescue. But that craft manages precedent and issues judgments; only incidentally does it signal normative behavior.

Norm creation will emerge if Tenzer gets her way. I hope she does. But better social media norms are secondary to the law that Social Media improves.

Injured Tenants, Uninsured Landlords, and a Proposal for Mandatory Landlord Insurance

Apr 20, 2023 Jennifer WrigginsAdd a Comment

Jennifer Wriggins

Allyson Gold’s excellent article, Insuring Justice, shows that when low-income tenants suffer personal injuries caused by substandard housing conditions, the torts system fails them and protects negligent landlords. While the negligence cause of action applies to landlords’ actions and omissions in theory, low-income tenants face multiple barriers to successful negligence claims against landlords for their injuries. A chief barrier is the lack of liability insurance for landlords. This long-overdue article is the first to examine liability insurance for landlords, particularly for those who rent to low-income tenants.

Prof. Gold brings extensive knowledge of issues and problems facing low-income tenants as well as of insurance, and tort law, to bear in discussing liability for injuries caused by substandard housing. Why, Prof. Gold asks, do lawmakers require Airbnb landlords to have liability insurance for short-terms rentals to tourists, yet they do not require that landlords renting to long-term tenants carry liability insurance? She shows that this disparity is neither inevitable nor justifiable.

While other scholars have focused on the broad relationship between liability insurance and torts,²¹ and on various areas where the lack of liability insurance affects compensation and deterrence,²² this piece shines light on a huge and significant liability insurance void that prior scholarship has not illumined. Prof. Gold begins with principles of insurance law, explains risk allocation more broadly, reviews statutory approaches to landlord insurance, and finally makes recommendations, advocating mandatory liability insurance for landlords and other reforms.

Setting the table for her later recommendations, she highlights contexts where public policy has justified mandates and where insurance is not left to private individual decision-making. State auto insurance and federal flood insurance mandates are examples of such requirements. Insurance mandates can be “private” as well, she shows, using the example of homeowners’ mortgage insurance, which is sometimes demanded by mortgage lenders as a condition of the loan. However, landlords renting to long-term tenants generally are not required to have liability insurance, she explains. The only exception is the woefully inadequate coverage required for landlords receiving financing under Freddie Mac.

Prof. Gold then turns to the way current law and insurance practices shift risk between landlord and tenant and highlights the harms caused by substandard housing conditions. She has a deeply informed perspective on empirical issues involved in rental housing which is absent in the torts and insurance law literature. She deftly weaves together different sources of data – from broad National Safety Council data, to cases, to government reports, to newspaper articles focusing on electrical safety issues in one Milwaukee neighborhood (predominately Black and poor, with conditions likely to be repeated elsewhere), and more. She thereby creates a nuanced picture of the issues facing tenants injured by substandard housing conditions. She shows throughout and in detail how current inadequate policies and practices fall disproportionately on low-income racial minorities.

There is a chasm, she explains, between the legal rights that tenants in many jurisdictions have to demand repairs and tenants’ inability to actually make repairs happen. In part because of this chasm, the substantial risks of physical injury that substandard housing creates simply endure and worsen, unaffected by tort suits. Further, insurance companies often serve as private risk managers, for example, instructing homeowners how to reduce fire risk in fire-prone areas or varying rates based on risk; when rental properties lack liability insurance, these safety-promoting functions are absent.²³

Without liability insurance, judgments for injuries are very likely to be uncollectable, or at least, very difficult to collect because properties are often owned by shell companies, and assets are hard to track down. With no potential payor, injured tenants will not be able to retain lawyers on a contingency fee basis. Prof. Gold carefully shows how insurance policies available to tenants and landlords cover less harm than policies available to homeowners. For example, renters insurance does not cover medical expenses.

The article offers a sophisticated discussion of insurance coverage barriers that draws on history, information from private regulatory bodies like the National Association of Insurance Commissioners, empirical studies, and legal scholarship. Prof. Gold insightfully demonstrates how “given the conditions of rental housing stock, homes and occupants that are most in need of [insurance] protection may be the most difficult to insure, leaving tenants vulnerable to harms from personal injury and property damage.” (P. 42.) She reviews and compares statutory approaches, asking which party should bear the risks of harm, time, and expense of injuries arising out of rental housing. The article’s argument that the current system is contrary to public policy is persuasive.

Prof. Gold makes two main recommendations. The more modest one is a disclosure regime requiring landlords to disclose their insurance or lack of it to tenants. While not ideal, this would be an improvement over the current lack of transparency which disadvantages tenants. The other, more far-reaching reform is to require landlords who are renting long-term (30 days or more) to have liability insurance, similar to the Airbnb requirement mentioned earlier. Such a mandate, she memorably states, would “place legal residents on equal footing with tourists.” (P. 53.) This change could result in more compensation for injuries and potentially more deterrence of unsafe conditions, depending on underwriting and various factors.²⁴ Rhode Island recently passed a first-in-the-nation law requiring liability insurance for landlords; its impacts are sure to be studied for reform efforts elsewhere.

Public policy justifications for insurance mandates have been successful in contexts like auto insurance and equally apply here, she argues. While opponents may argue that mandates will disrupt the rental market or lead to additional costs, Prof. Gold notes that similar concerns were raised when courts began to recognize implied warranties of habitability, yet the bad outcomes predicted in that context have not come to pass.

She also argues that other reforms, such as Rochester’s ordinance requiring lead inspections of rental properties and correction of lead hazards, have not caused significant costs to landlords or disruption in the rental market. The author’s analysis of insurance mandates might benefit, in future scholarship, from discussion of the literature addressing the pros and cons of mandates in different contexts.²⁵ The current situation, so comprehensively analyzed by Prof. Gold, urgently calls out for attention and reform. This article is a huge contribution that hopefully will lead to reform, as well as to more scholarly attention to the many issues it raises.

1. See generally, Kenneth S. Abraham, The Liability Century: Insurance and Tort Law from the Progressive Era to 9/11 (2008); Tom Baker, Liability Insurance as Tort Regulation, Six Ways that Liability Insurance Shapes Tort Law, 12 Conn. Ins. L. J. 1 (2005).
2. See, e.g., Merle H. Weiner, Civil Recourse Insurance: Increasing Access to the Tort System for Survivors of Domestic and Sexual Violence, 62 Ariz. L. Rev. 957 (2021); Rick Swedloff, Uncompensated Torts, 28 Ga. St. U. L. Rev. 721 (2013); Jennifer Wriggins, Domestic Violence Torts, 75 S. Cal. L. Rev. 121 (2001).
3. See, e.g., Protecting Your Home from Wildfires, USAA (May 27, 2022); Omri Ben-Shahar & Kyle D. Logue, Outsourcing Regulation: How Insurance Reduces Moral Hazard, 111 Mich. L. Rev. 197 (2012).
4. See, e.g., Ben-Shahar & Logue, supra note 4.
5. Mandates are not a perfect solution to the problems they aim to fix, but there are no perfect solutions. See generally, Jennifer Wriggins, Mandates, Markets, and Risk: Auto Insurance and the Affordable Care Act, 19 Conn. Ins. L. J. 275, 289 n.65 (2013); Kenneth S. Abraham, The Liability Century: Insurance and Tort Law from the Progressive Era to 9/11, at 78-103 (2008). For example, auto insurance mandates may have inflationary effects on health costs and may lead to more accidents than there would be without insurance because of the “moral hazard” effect of having liability coverage. Yet, because of the importance of the public policy issues raised by auto injuries, we have developed a complex and enduring array of insurance products, many of which are mandated. The result of this is that auto injuries are the most frequently compensated type of injury in torts. Prof. Gold’s article powerfully questions the priorities our system reflects.

Comparing Vicarious Liability

Mar 20, 2023 Donal NolanAdd a Comment

Donal Nolan

Future legal historians are unlikely to disagree on the area of Commonwealth tort law which underwent the most radical transformation in the early years of the twenty-first century. After having lain largely dormant throughout the previous century, in the last two decades the doctrine of vicarious liability has been subject to far-reaching changes across much of the common law world, which surpass in their extent other recent developments in the law of tort. And those historians will find no better guide to these changes than this timely and illuminating collection of essays, expertly curated by Paula Giliker.

The core of this collection consists of essays on recent developments in vicarious liability in Australia, Canada, England and Wales, Ireland, New Zealand, Hong Kong, Scotland (as a mixed legal system, an exception to the common law focus), and Singapore. These essays are bookended by two substantial chapters by the editor, in which she first introduces the issues and methodology and later draws some comparative conclusions and considers the insights to be gained from cross-jurisdictional analysis. As so often is the case, it is the editor’s own contribution that makes this collection of essays more than just the sum of its parts, and Giliker deserves credit not just for conceiving of such an innovative project, but for bringing it to fruition with such aplomb.

In addition to outlining the current state of vicarious liability in their jurisdiction (and placing this in a broader social and theoretical context), the contributors were asked to comment on the extent to which the courts had considered developments elsewhere. The result is a book which is not only brimful with insights into vicarious liability, but which also highlights the interdependence of Commonwealth legal systems––at least when it comes to the law of tort.

Vicarious liability boils down to two broad questions: was the relationship between the tortfeasor and the defendant one capable of giving rise to such liability (stage 1); and was there a close enough link between the tortious conduct and that relationship for such liability to arise on the facts (stage 2). As the essays in the book demonstrate, in Commonwealth legal systems both stages of the analysis have been the subject of significant change since the turn of the century.

At stage 1, the courts in almost all the jurisdictions surveyed (except Australia and Hong Kong) have added a new category of relationships “akin to employment” to the list of established relationships. This development coincided with the recognition of “joint” vicarious liability, whereby two entities––such as a permanent and a temporary “employer”–could be held vicariously liable for the same tort.

And at stage 2, all the jurisdictions surveyed have abandoned Sir John Salmond’s famous two-part test, whereby an employee’s act was “in the course of employment” if it was “(a) a wrongful act authorised by the master or (b) a wrongful and unauthorised mode of doing some act authorised by the master.” J.W. Salmond, The Law of Torts 83 (1907). For the most part––Australia again excepted––Salmond’s formula has been replaced with a test focused on the closeness of the connection between the tortious conduct and either the stage 1 relationship or the tasks assigned to the tortfeasor pursuant to that relationship.

The primary driver of change at both stages has been the courts’ desire to give meaningful redress to the victims of child sexual abuse in institutional settings. At stage 1, the “akin to employment” category meant that religious institutions could be held liable for abuse by priests and members of religious orders whose work was not carried out under a contract of employment. And at stage 2, vicarious liability for child abuse required abandonment of the Salmond test, since such abuse could not plausibly be described as “an unauthorised mode of doing some act authorised by the [employer]” (such as the act of caring for the child in question).

It is unusual for developments in wider society (in this case, the scandal of widespread child sexual abuse in institutional settings) to have such an immediate and discernible impact on the development of tort law doctrine, and this would seem to explain the high level of cross-citation between legal systems reported in the book. As courts in different jurisdictions scrambled to develop the law to provide redress in recurrent factual scenarios, they naturally looked to each other for guidance. The most important source of such guidance was Canada, partly (one suspects) because abuse cases were litigated there first, but also because of the quality of the Canadian judicial response. After moving across the Atlantic to the UK, the conceptual framework first developed in Canada subsequently radiated around the globe, meeting lasting resistance only in Australia, although even there (as Christine Beuermann shows in her chapter in the book) the outcomes of the cases have often been similar to those arrived at elsewhere.

The basic outline of this narrative will be familiar to most Commonwealth tort lawyers. But as the first attempt to lay out the recent history of vicarious liability across a range of common law jurisdictions, this book provides tort scholars and practitioners with a veritable treasure trove of examples and plenty of food for thought besides. Among many points that struck me after reading it, I highlight just four.

First, in all the jurisdictions surveyed, the focus of vicarious liability litigation has shifted decisively from negligence to the intentional torts––not only abuse cases, but also cases of physical violence, often involving co-workers. As Stephen Todd points out in his chapter on New Zealand, this has left one issue largely unresolved, which is the significance of the recent developments at stage 2 in the negligence context.

Second, although there is much talk in the literature on vicarious liability (including this collection) of the impact of changing patterns of employment amid casualization and the rise of the “gig economy,” the case law surveyed in the book suggests that these developments in the world of work have thus far had precious little effect on the law. On the contrary, far from breaking down the boundary between employees and independent contractors, the courts have generally upheld the traditional refusal to attach vicarious liability to the torts of contractors, as well as continuing to apply the traditional criteria for distinguishing such contractors from employees.

Third, the theoretical underpinnings of vicarious liability are still unstable. True, Commonwealth courts have tended to justify the recent expansion of the doctrine by reference to theories of “enterprise liability” or “enterprise risk,” but the impression one gets from reading the book is that this is largely lip service, with such theories little more than a loose-fitting cloak with which to conceal the judicial intuitions that actually ground legal outcomes. There is certainly not much evidence here of meaningful judicial engagement with the theoretical literature, nor of the use by judges of theoretical frameworks as analytical tools for distinguishing between different factual scenarios. (Canada may be an exception in this respect, as may Singapore, where, David Tan’s chapter suggests, notions of “enterprise risk” have genuinely driven recent judicial analysis.)

And finally, despite the rapid expansion of vicarious liability, courts across the Commonwealth have sought to preserve some continuities with the old law, not only holding the line on independent contractors, but also emphasizing the importance of developing the law by analogy with existing precedents. Maintaining this balance between novelty and orthodoxy has not always been easy, however, as the chapters in the book make clear.

What I liked most about the book, though, were the insights it offers into the inter-relationship between Commonwealth legal systems in the modern era. The traditional dominance of English law (as epitomized by the now largely defunct practice of appeals from Commonwealth jurisdictions to the Privy Council in London) has given way to a non-hierarchical interplay which Giliker labels a “cross-jurisdictional dialogue.” (P. 238.)

In this new age, the degree of persuasive authority that a decision carries in another jurisdiction is determined not by the identity of the court that handed it down but by the quality of its reasoning. Hence, for example, while the UK courts continue to exert considerable influence in Hong Kong and Singapore, the direction of influence can also reverse, as when the UK Supreme Court recently drew upon a decision of the Singapore Court of Appeal when deciding not to extend vicarious liability to independent contractors.

Furthermore, while these processes of influence can be obvious––witness key UK decisions following Canadian leads––they can also be so subtle as to be virtually undetectable. Was the recent retrenchment in the UK law of vicarious liability, for example, partly attributable to the skeptical response of the High Court of Australia to earlier, more expansive, UK decisions? Giliker suggests so (Pp. 235–36), but in the absence of citation of the relevant Australian case law by the UK judges, we cannot be sure.

The decision to focus on the operation of these processes of influence in the vicarious liability context led to the exclusion from the survey of South Africa and the United States, two legal systems where there has been little cross-citation in this context with the jurisdictions discussed in the book. For the student of vicarious liability, that is somewhat unfortunate, but the logic of the decision is clear, and it gives the collection a higher level of coherence than it would otherwise have. Furthermore, it is that coherence that lends the book its broader significance.

Without a doubt, this groundbreaking collection is essential reading for any Commonwealth tort scholar––or for any scholar from elsewhere interested in recent developments in vicarious liability in the Commonwealth. But the book also heralds the dawn of a new form of multi-jurisdictional common law scholarship, which extends beyond the traditional focus on Australia, England and Wales, and North America. And for that reason alone, it deserves a wide readership across the common law world.

Just Kidding? The Problem of Unenforceable Waivers of Liability

Feb 8, 2023 Anthony SebokAdd a Comment

Anthony Sebok

In their forthcoming article, Unenforceable Waivers, Edward Cheng, Ehud Guttel, and Yuval Procaccia (“CGP”) ask an embarrassing question: Why do businesses require customers to sign waivers that have been struck down by courts in published opinions that are available not only to their lawyers but also to their customers? In this Jot, I praise CGP for their sharp eye–this is torts scholarship at its best–and then evaluate their suggestions for reform.

First, the question: Killington Ski Resort is the defendant in a well-known Vermont Supreme Court case that adopted a pro-plaintiff interpretation of the public policy limitation on express assumption of risk. Why does Killington still ask its customers to sign the waiver struck down in that case (Dalury v. S-K-I Limited)? I teach this case, as do many others, as a clear statement of Vermont law. In classroom discussion, I begin with the assumption that whatever one thinks of Dalury’s common law reasoning or policy implications, the Vermont Supreme Court was “wrong clearly even when [it] was clearly wrong” (pace H.L.A. Hart).

CGP cite other examples of states including Connecticut, Hawaii, Tennessee, and Minnesota, whose courts have issued clear rulings that are ignored by businesses, and quote from current waivers that are obviously unenforceable. This phenomenon is arguably even more flagrant in states where such waivers are forbidden by statute–such as Louisiana (all waivers) and New York (health clubs).

CGP argue that businesses secure unenforceable waivers because they face a straightforward risk/reward calculation: there is no downside and some potential upside to presenting customers with these unenforceable waivers. It typically costs nothing for the business to ask for the waiver. (Note that this is not always true–in another case I teach, Jones v. Dressel, the business “purchased” the customer’s waiver by offering a $50 discount.) The benefit, while speculative, is worth something if it is realized. The chief benefit is that some customers who would otherwise bring a lawsuit won’t because they falsely assume that the waiver bars their claim. Let’s call this the “abandonment benefit,” since it assumes that the customer abandons her claim based on her awareness of the putative waiver. Interestingly, CGP offer an additional explanation which is parasitic on the abandonment benefit: based on the same logic, insurers encourage their insureds to incorporate unenforceable waivers in their contracts and may even require them to do so. (P. 52 n.160.)

The cost of unenforceable liability waivers, according to CGP, is that they impair both deterrence and compensation, two central functions of negligence law. (P. 13.) Defendants will be under-incentivized to invest in safety, and victims of unreasonable conduct will not receive fair compensation. Before we accept these arguments, it is worth stopping and asking about the real-world impact of unenforceable waivers. It is possible, for example, that Killington’s investment in safety would be the same regardless of how many waivers they collect, simply because Killington is still unwilling to take the risk of being sued and losing (after all, it knows the waivers cannot hold up in court), and so it may be cost-effective to invest in the safety required by the law and view the abandonment benefit as a windfall.

For the abandonment benefit to make a difference to a defendant’s net liability costs ex post, a lot rides on the hope that the customer will indeed self-edit after an accident by declining, because of the waiver, to ask a lawyer if she has a case. This strikes me as implausible, since it assumes that customers even know about the waivers, much less have read and understood them.

Still, the mere existence of unenforceable waivers is a problem, regardless of whether they actually make a difference in tort law’s capacity to deter or compensate. If nothing else, they misstate the law. From my point of view, even if unenforceable waivers did nothing more than marginally increase cynicism about the law among lawyers and business people they are worth eliminating. Therefore, it is worth reviewing CGP’s proposals to get rid of them.

The first proposal is to use contract law’s doctrine of non-severability to police the waivers, which are, after all, invalid portions of the contract between the consumer and the business. CGP suggest that courts hold the entire contract invalid, thus penalizing the business that might otherwise have hoped that the worst possible outcome would be the severance of the offending waiver from the contract. However, as CGP admit, relieving the consumer of her duty to pay under the contract is not much of a penalty in most waiver cases. This proposal will not have much of an incentive effect ex ante, given that the sums at issue in the performance of the contract are usually very small compared to the tort liability the waiver is designed to eliminate.

The second proposal is to legislate civil penalties for businesses that knowingly adopt unenforceable waivers. CGP provide a few examples where this public law solution has already been adopted, such as Massachusetts, which imposes a $2500 penalty against health clubs that ask customers to waive their right to sue for injuries caused by unsafe conditions. (P. 44.) Consumers thus act as “private attorney generals,” seeking statutory damages against businesses with whom they contract who have clearly violated state law in connection with their deal. CGP recognize, however, that civil penalties, like the threat of the non-enforcement of a contract in its entirety, may not be a sufficient incentive, given the bet that the businesses are taking, which is that the waiver will deter a potentially costly tort judgment.

Their third proposal solves the incentive problem: it is to allow courts to impose punitive damages where, in addition to acting negligently, the defendant also asked the plaintiff to waive her right to sue in contract before the accident. Left unclear in this proposal is whether the right to seek punitive damages would be triggered by a defendant invoking the waiver in the underlying tort action by the plaintiff, or simply by the fact that the defendant asked the plaintiff to sign the waiver at the outset of the relationship. I suspect that, given the deterrence goals articulated by CGP, they intend the latter.

I have some qualms about this proposal. In the common law of most states in which they are awarded, punitive damages must be causally connected to conduct that contributed to the plaintiff’s injury. To be sure, in a typical punitive damages case, the defendant’s conscious indifference to the plaintiff’s rights may not increase the plaintiff’s harm; nevertheless, punitive damages can be imposed because the indifference was expressed in the doing of the harm. But in the examples CGP offer, it is not obvious that the existence of the unenforceable waiver caused the defendant’s tortious conduct–there is no reason to think that, but for the waiver, the defendants would have exercised the care required by the law.

My qualms do not extend to those procedural doctrines, like the remedy for spoliation or the tolling of statute of limitations, that provide the plaintiff with a benefit that enables the plaintiff to prove the alleged tortious wrongdoing. But the reason the plaintiff receives such a benefit is not solely to punish the defendant. Rather, the benefit corrects a secondary wrong that makes it harder to know whether the defendant committed the primary wrong. By contrast, adding punitive damages after a plaintiff proves negligence even when the defendant’s waiver played no role in the plaintiff’s case strikes me as unmoored from the legitimate purposes of a tort remedy.

Even if CGP can meet my concerns, I think that there is a fourth option which they should consider. As an aside, they mention that public law regulation might have the beneficial effect of reminding the lawyers who advise the businesses that they should not be recommending unenforceable contract terms to their clients. (P. 45.) But this point can be taken further. The real culprits in the story told by CGP are the lawyers (including the insurance company lawyers) who advise businesses like Killington to require customers to sign unenforceable waivers. There is a good chance that some clients–especially the smaller businesses–are not aware of the precedents that prohibit the waivers in their contracts and rely on their lawyers to inform them of their obligations. Furthermore, laypeople may not appreciate that common law contract principles impose duties as binding as public law, but their lawyers should certainly understand this.

Furthermore, Model Rule of Professional Responsibility (MRPC) 1.1 requires a lawyer to provide competent legal advice to their clients, and it is hard to understand under what circumstances it is competent legal advice to encourage a client to include clearly unenforceable terms in a contract drafted on the client’s behalf. The lawyer’s wrongdoing goes beyond their breach of duty to their clients (who may not care unless the contracts are struck down). MRPC 4.1 prohibits a lawyer “knowingly mak[ing] a false statement of material fact or law to a third person [in the course of representing a client a lawyer].” MRPC 8.4(c) prohibits “conduct involving dishonesty, fraud, deceit or misrepresentation,” including, one might assume, the communication to the public that the law is something other than it is.

It may be that the threat of professional discipline is insufficient to prevent businesses from adopting waivers that are clearly inconsistent with existing precedent. Clearly, much turns on how seriously the sorts of lawyers who draft contracts for these businesses take the threat and whether it would be easy for those businesses to hire less scrupulous lawyers if the first group were deterred. But the advantage of focusing on the lawyers is that this places the penalty in exactly the right place. The wrong of including unenforceable waivers is that they constitute a flouting of the rule of law by lawyers who know better. CGP have done us a great service in identifying a problem in our midst, and that problem is lawyers who lack respect for the clear requirements/prohibitions of common law declared by the courts.

When Bad News Didn’t Travel Fast Enough

Jan 5, 2023 John C.P. GoldbergAdd a Comment

John C.P. Goldberg

Evelyn Atkinson’s article, Telegraph Torts: The Lost Lineage of the Public Service Corporation, offers a fascinating look at judicial decisions and statutes from the late 1800s and early 1900s that–unusually for the time–imposed liability for negligence causing “pure” emotional distress. A typical fact pattern was as follows. A resident of a rural town would pay the local Western Union office to send an urgent telegram notifying the intended recipient that his close relative was dying. Because of Western Union’s negligence, the message was not transmitted. Bereft over having missed the last chance to commune with his dying relative, the intended recipient sued Western Union for damages. While claims of this sort often failed, courts and legislatures in Southern and Western states tended to validate them.

The paper is an effort to answer why, of all actors that caused foreseeable serious distress through their negligent acts, telegraph companies were almost uniquely vulnerable to liability, but only in certain states. Its answer has a paradoxical flavor. On the one hand, Atkinson suggests, liability was justified on the ground that Western Union–by far the dominant player in the industry–was for all intents and purposes a public utility, i.e., a powerful monopoly that provided an essential public service. As she explains, in parts of the West and South, when family members were geographically dispersed, the telegraph was effectively the only way for them to get in touch, particularly on short notice.

On the other hand, equally important was the fact that Western Union employees frequently interacted with customers in a highly personal, almost intimate, way. Thus, we learn from the article that telegraph operators in small towns, who often worked out of the local railway station, tended to be especially well-informed about goings on in the community and the larger world, and on that basis were expected to play a special role by, for example, tracking down relatives whose precise whereabouts might be unknown. We further learn that many operators were women, heightening the image (based on sex stereotypes of the time) that telegraph companies were welcoming, sympathetic, and could be entrusted to handle sensitive matters. Indeed, Atkinson has tracked down industry publications that embraced and fostered this image. In turn, when telegraph companies failed to deliver death telegrams, there was a sense among customers of something approaching betrayal.

The courts and legislatures that allowed for liability in the death-telegram cases took account of these features of the business by treating Western Union like a common carrier, and therefore as owing special solicitude to its customers. These were not arm’s-length transactions but instead contracts with a “status” component, akin in some respects to marriage contracts. In sum, according to Atkinson, when courts and legislatures imposed liability in death-telegram cases, they did so in recognition that Western Union provided services of a sort that warranted the imposition of a special legal duty to attend to certain customers’ emotional well-being. Strikingly, she reports that liability was imposed in cases brought by a range of claimants, including men and women, the wealthy and the non-wealthy, and whites and non-whites.

Atkinson concludes by suggesting that there are lessons for modern law in this historical episode. First, she says that it helps to bring to light the underappreciated role of private-law litigation in the emergence of the Progressive-era idea that certain large-scale businesses are affected by the public interest and thus properly subject to special kinds of regulation. Second, she claims that it stands as an important precedent within our legal traditions for the idea that law regulating utility-like entities (such as modern internet platforms) can and should go beyond protecting consumers against price gouging and other forms of economic exploitation. In sum, a set of seemingly quirky cases and statutes concerning a largely obsolete communications technology provides support for laws today that would impose a legal duty on entities such as platforms to take care not to carry content that foreseeably causes serious emotional distress to their customers.

There’s lots to like about this article. It’s rich in detail and nuanced in the story it tells. As such, it demonstrates the value of scholarly efforts to place doctrinal developments in historical and sociological context. It also uncovers and provides a plausible explanation for an interesting geographical distribution of decisions and statutes. And it nicely highlights how different types of business-customer interactions are governed by different social norms and legal rules. When customers rely on a business to handle certain sensitive or intimate aspects of their lives, those businesses may have special obligations to be attentive to the distinctive harms that might result if they are not diligent. As noted, Atkinson argues that today’s internet platforms interact with users in a manner that fits this mold, and thus that it would be in keeping with our legal traditions for courts and legislatures to hold them accountable for mishandling private communications and information in a manner that predictably causes serious distress.

Naturally, there are also grounds for challenging some of the article’s claims. For example, its characterization of the bases on which courts and legislatures held telegraph companies responsible does not seem to explain why liability was limited to the mishandling of death telegrams. Why was there not liability for other foreseeable distress caused by comparable screw-ups, such as the failure to deliver a telegram that caused an aunt to miss the birth of her niece? In other words, if the basis for liability was that Western Union provided an essential public service while also carefully cultivating among its customers the sense that it could be trusted to handle delicate matters, why didn’t one see liability for negligent failures to deliver any message concerning something about which a sender or intended recipient would be expected to have strong feelings?

Relatedly, as Atkinson notes, a roughly contemporaneous line of cases recognizing liability for emotional distress were suits brought by surviving family members against morticians who mishandled their decedents’ corpses. Coincidence? Or was it less important to the death-telegram cases that Western Union was a quasi-utility whose employees were embedded in small-town communities and more a matter of courts and legislatures recognizing that when any business–large or small, embedded or not–knowingly undertakes to provide services to the bereaved, it is obligated to be vigilant of such persons’ emotional well-being?²⁶ (A recognition of this sort seemingly underlies the recent verdicts in Vanessa Bryant’s and Chris Chester’s suits against the Los Angeles Sheriff’s and Fire Departments for their failure to prevent officers from inappropriately sharing gruesome images of Bryant’s and Chester’s decedents.)

While one can thus question whether death-telegram cases serve as strong precedents for certain forms of progressive public-utility regulation, there’s no denying that Atkinson has provided us with a subtle, informative, and suggestive treatment of an important moment in the development of modern negligence law. Anyone interested in the history of tort law, or in contemporary questions about liability for emotional distress, will want to read–and will enjoy reading–this fine article.

1. See Benjamin C. Zipursky, Snyder v. Phelps, Outrageousness, and the Open Texture of Tort Law, 60 DePaul L. Rev. 473, 507-08 (2011) (arguing that the death-telegram and mortician cases are indicative of tort law’s longstanding solicitude for victims wrongfully made to experience added distress over the death of close relatives, and suggesting that this feature of tort law, among others, was ignored by the majority opinion in Snyder v. Phelps, 562 U.S. 443 (2011)).

Punching up on the Tort of Negligence

Nov 25, 2022 Ronen AvrahamAdd a Comment

Ronen Avraham

I like papers that go against well-established conventions, theories, and practices–papers that punch up. Such is Yehuda Adar’s and Ronen Perry’s (hereinafter A&P) new paper titled: Negligence Without Harm, which argues that victims could sue and receive remedies for a tort of negligence even if they have not suffered any harm.

For at least a century, every first-year common law student has known that the tort of negligence is comprised of four elements: duty of care, breach of duty, causation, and harm; and that to win on a negligence claim, the plaintiff must prove all these elements (as well as to overcome defenses such as contributory negligence).

Over the years, scholars have attacked this four-element orthodoxy. Some have argued against the need for (or at least for a very broad understanding of) the duty requirement (think Holmes, Andrews in Palsgraf, Prosser, or the Restatement (Third) of Torts), against the need for the breach requirement (think about Richard Epstein’s support of strict liability), or even against causation (both factual and legal). Some have even argued that we could or should do away with tort law entirely (think Stephen Sugarman or Jules Coleman).

As the title of their paper suggests, A&P attack the harm element. A&P argue that to win a negligence claim, the plaintiff should not be required to prove any harm–not because in some cases harm is hard to prove, but because in all cases harm should not be a necessary element of the tort of negligence. Indeed, many non-negligence torts (libel, trespass, false imprisonment, to name a few) do not require harm (or at least its proof). A&P propose to add negligence to this list. For A&P, negligence should be actionable per se.

The motivation behind A&P’s paper is to deal with situations like Michael Buckley’s, a railroad pipefitter who was negligently exposed to asbestos for three years while working for a railway company. Buckley did not have any symptoms, and the U.S. Supreme Court rejected his claims for negligent infliction of emotional distress or medical monitoring costs (Metro-N. Commuter R.R. v. Buckley, 521 U.S. 424, 426–47 (1997)). The railroad conceded that it had negligently exposed Buckley to asbestos. What worries A&P is that under existing negligence doctrine, Buckley could not pursue an injunction to stop that exposure and could not even seek any monetary award to vindicate his right to a reasonable level of physical security. And without any such remedy, it is impossible to incentivize the employer to take reasonable precautions, prevent the employer’s unjust enrichment, or impose punitive damages for the allegedly reckless conduct. Why would such claims fail? Because negligence is not actionable without harm.

To be sure, scholars have long argued that imposing unreasonable risk is problematic even before harm has manifested. They have tried to deal with the issue within the four-elements orthodoxy, however, either by conceptualizing the risk as a cognizable harm in and of itself, by arguing it caused another, already materialized, emotional or economic harm, or by calling for some generalized version of the “loss of chance” doctrine for torts falling even outside of medical malpractice. A&P go beyond these responses and ask us to stop pretending that risk is harm. Instead, they would drop the harm element entirely.

There are three strands to A&P’s argument. The first strand is analytical. A&P show it is incoherent to call conduct negligent only when harm has manifested because given the formal structure of the tort of negligence, breach must precede harm. For A&P, this means that tort doctrine regards negligence as wrongful per se, irrespective of any ensuing harm. Insisting on harm, they argue, “is equivalent to stating that absent harm no duty was breached, and no wrong was committed against the complaining party.” (P. 14.) But “[i]f the negligent breach of duty is not wrongful per se, what makes the harm resulting from such breach wrongful?” (P. 14.) Therefore, in their view,

“[E]ither breach of duty through negligent conduct is legally wrongful, in which case harm turns out to be inessential for legal action; or harm is essential, in which case no pre-injury conduct, as blameworthy as it might be, can be deemed a legal wrong. The two presumptions cannot logically co-exist.” (P. 15.)

The second strand of their argument attempts to show that fairness-based theories of tort law get it all wrong when they require harm. For A&P, exposing another person to foreseeable unreasonable risk is an interpersonal moral wrong irrespective of its consequences. Negligence, in other words, is a moral wrong as between the risk-creator and the risk-bearer, irrespective of harm. To be sure, it is not that harm has no moral significance, but rather that harm should be a prerequisite for compensation, not for actionability. For them, negligent conduct is not less infringing, disrespectful, or threatening if the risk does not materialize. As they put it, “To flatly deny that there could or should be any right of redress for exposure to foreseeable unreasonable risk comes very close to the morally objectionable idea that people are free to breach legal duties, subject only to the contingent obligation to pay compensatory damages if harm ensues.” (P. 25.) But this Holmesian approach is exactly what efficiency-oriented scholars accept. So, we now turn to them.

The third strand in A&P’s argument is that efficiency-oriented scholars can live well with risk-based damages rather than harm-based ones. Does it matter whether a tortfeasor pays ex ante damages in the amount of PL with probability 1 (where P is the probability of the loss and L is the seriousness of the loss), or instead expects to pay L ex post with probability P? The expected liability after all is the same, and in both cases the tortfeasor is incentivized to take the same level of (optimal) precautions. Of course, plaintiffs cannot get both compensation for the risk before it materializes and for the harm after it materialized. Plaintiffs will have to choose between the two remedies and sometimes might regret their choices. But from a deterrence perspective, compensating for negligence that does not cause harm can generate optimal deterrence.

In terms of practical recommendations, A&P would allow victims of unreasonable (but unmaterialized) risk to obtain, within the framework of a negligence lawsuit, a range of pre-injury preventative remedies such as injunctions to remove the risk, punitive damages, or risk-based damages.

In their paper, A&P deal with various counterarguments and theories and expose some of the critiques’ weaknesses. A&P cannot, of course, respond to all possible questions and criticisms either small or large. A smaller question would be when a statute of limitations should start to run. Currently, it starts in relation to the harm, but what happens when the harm element is no longer needed? The bigger question left for a better occasion is whether, given the deficiencies of the existing tort system, it is worth keeping tort law at all. Perhaps we should instead aim at having a more robust, public or private-based, system for dealing with accidents, as many have argued. (See for example my arguments for such a solution in Ronen Avraham & Issa Kohler-Hausmann, Accident Law for Egalitarians, 12 Legal Theory 181 (2006).)

At the end of the day, A&P challenge philosophers, tort theorists, and law and economics scholars. And by challenge, I mean A&P claim these scholars all get it wrong when they insist on the harm element. And that is what I had in mind when I wrote that they punched up. It is not that the idea of negligence without harm has not been floated before, but it has not been defended so vigorously for a very long time. Whether tort scholars of all flavors agree with A&P or not, Negligence Without Harm deserves a reading. I hope this Jot helps initiate a lively debate on their proposals.

#NegligenceToo

Oct 27, 2022 Cristina TilleyAdd a Comment

Cristina Tilley

At the height of the #MeToo era,²⁷ not a month seemed to pass without tell of bad behavior by a titan of American government, media, or entertainment. The resulting public thirst for contrition gave rise to a very specific oeuvre of male apology.

“I misread things in the moment,” stated one entertainer after learning that a sexual partner had sobbed in her Uber home after their night together.²⁸ I’ve had “encounters” where I was sort of “navigating and not knowing,” observed another man who learned that his exploration of a female colleague’s breast while she was hosting a television segment had been unwelcome.²⁹ “I [have] learned…that when you have power over another person, asking them…isn’t a question. It’s a predicament,” said a third, who had undressed in front of fellow professionals in the workplace.³⁰ Something is going awry in these encounters, where men attuned to their own desires simply do not register that their counterpart is having a different experience, but “learn” the female perspective after the fact. Modern law lacks useful tools to assess this disconnect, and in A Negligence Claim for Rape, W. Jonathan Cardi and Martha Chamallas give us one. (Pp. 3-4.)

Cardi and Chamallas make two significant contributions to the legal conversation about sexual oppression. First, they persuasively argue that negligence claims may be more responsive than criminal law to behavior colloquially known as acquaintance rape.³¹ Second, they suggest a role for negligence in “resetting…cultural attitudes” around sexual intercourse. (P. 43.)

Cardi and Chamallas begin by demonstrating why a pivot from criminal law to tort may facilitate sexual dignity for those who lack physical and social strength–paradigmatically (but not exclusively) women. Studies estimate that 1 in 5 women will be raped during their lifetime, but only a fraction of those women will report the incident to law enforcement. (Pp. 3-4.) Further, only a sliver of those reports will culminate in a criminal indictment and conviction. (Id.)

Cardi and Chamallas then turn to tort’s comparative ability to vindicate these claims. They acknowledge that the conventional claims of battery, assault, and false imprisonment often fall short. (Pp. 5-6.) Why? In these torts, defendants may escape liability if they can prove plaintiff consent, (Id.) and the authors demonstrate how poorly modern consent doctrine functions to isolate the dynamics that make a sexual experience antagonistic from those that make it reciprocal. For example, a defendant is in the clear if he can persuade the jury that he reasonably believed the plaintiff consented to sexual touch, even if the jury credits the plaintiff’s testimony that she did not, in fact, welcome it. As the authors point out, even when “a plaintiff is so drunk that she lacks the capacity to make decisions[,]” the defendant bears no liability for using her body for his sexual gratification if she “does not act in a way that would cause a reasonable person to believe that she is incapacitated.” (Pp. 15-16; emphasis added.)

Easy access to consent defenses is just one reason for Cardi and Chamallas’s dissatisfaction with intentional tort claims for sexual injury. Intentional tort judgments are typically not covered by liability insurance, making them economically infeasible for lawyers operating on contingency fees, and thus underutilized as a path to compensation. (P. 25.)

The authors next explore an unconventional approach to tort claims of sexual oppression: negligence. (P. 18.) They contend that in what they call “focal cases,” where the defendant does not set out to exploit a sexual partner, he may still commit an interpersonal wrong calling for a remedy. This wrong lies in the “unreasonable creation of circumstances that run the risk of undermining plaintiff agency” or sexual penetration of the plaintiff “despite the existence of an unreasonable risk that the plaintiff ha[s] not…consented.” (P. 21.) In these cases, the defendant’s indifference to the impact of his own power or to indications of his partner’s unwillingness is a dereliction of care that makes negligence “a good conceptual fit.” (Id.)

Negligence is also a pragmatically appealing option, they contend, because it sidesteps the doctrines that complicate intentional tort claims for sexual oppression.³² For example, consent is not squarely at issue in negligence as it is in battery or assault. Of course, defendants could argue that a plaintiff was comparatively negligent in contributing to the defendant’s belief that desire was mutual. However, they suggest the lack of established caselaw on the issue (P. 35) may give courts latitude to “eliminate (or sharply curtail[]) the defense in these situations.” (P. 37.) Doing so would produce plaintiff remedies, they claim, and simultaneously offset the victim-blaming dynamics of the consent defense in intentional rape claims. (Id.)

Cardi and Chamallas predict several other functional advantages to negligence claims for rape. These include opening the door to insurance coverage for injury awards, lengthening the statute of limitations to file complaints, and providing a legal mechanism to condemn the defendant’s behavior without applying to him the stigmatizing label “rapist.” (Pp. 24-26.) They anticipate judicial objections that undesired sexual penetration causes only emotional injury typically outside the reach of negligence, and respond with persuasive scientific and psychological literature that supports treating the injury as physical.

If the authors’ only goal were to find an existing cause of action capable of remedying individual plaintiff injuries in focal cases, their success would be essentially complete. They make a convincing case that defendants should be held accountable when they place their own interest in sexual gratification above the plaintiff’s interest in sexual self-determination. They show that this kind of interpersonal wrong is plausibly described as negligence within tort doctrine. And they demonstrate why negligence may address this wrong more effectively than intentional tort or criminal law.

But Cardi and Chamallas seem interested in using sexual negligence claims towards broader cultural ends. For example, they critique the Restatement (Third) of Torts for continuing to validate the defendant’s perception of a sexual encounter in intentional tort cases. (P. 45.) They urge courts adjudicating negligence claims for rape to rethink that baseline by adopting a “third-party perspective” to evaluate whether a sexual actor was reasonably careful – explicitly rejecting the self-referential point of view that anchors the male apology oeuvre. (P. 46.) Moreover, they situate their proposal in the “social context” of #MeToo and the Title IX affirmative consent movement, (Pp. 43-44) both of which seek to de-normalize the trope that men are sexual subjects and women, sexual objects.³³ These passages of their article can be understood to imply that a jurisprudence of negligent sexual behavior could modernize the culture of intimacy.

In some of the same passages, however, Cardi and Chamallas describe courts in negligence cases as assessing the behavior of sexual “initiators” and the sexual “targets” who “comply” in response to aggression. (Pp. 46-47.) This terminology is jarring when used in a negligence context – we do not typically refer to negligent doctors, for example, as “initiating” malpractice against “targets.” The dissonance is more than linguistic. Consciously or not, the authors’ word choice perpetuates the idea that sex is a zero-sum contest in which men are hunters and women are prey, despite their apparent disavowal of that model elsewhere in the piece. (P. 30, deploring the zero-sum portrayal of rape remedies as boons to women and losses to men.)

This leaves the reader wondering what to make of the authors’ expressed interest in “resetting…cultural attitudes.” (P. 43.) They seem to angle for a modest recalibration of the legal entitlements to each gender in the sexual realm, most notably shifting from a male-centered to a neutral point of view about the reasonableness of sexual tactics. Still, this change, and the language they use to describe it, retains the cultural depiction of penetration as a prize captured by one partner at the expense of another. Updating social thought about what constitutes a “fair” transfer of sexual access is progress, but is it the progress our moment demands? The authors dismiss as “radically relativistic” the view that “each party’s subjective perception of their [sexual] actions is equally ‘valid,’” (P. 37) but why? Most individuals do assume their sexual perceptions are valid, and that truth is what seems to necessitate a legal duty to bring those perceptions into the open as a basis for modifying behavior in real time. Emphasizing the duty to create an intersubjective communicative space could change the cultural narrative of sex from one of veiled negotiation over female concession to one of reciprocal feeling and desire.³⁴ Of course, that cultural reset may be outside the scope of an already ambitious project.

Cardi and Chamallas have tasked themselves with finding a legal tool capable of responding to underdeterrence in the area of sexual oppression. They have delved into tort doctrine and emerged with a creative and credible option. That accomplishment compels admiration, even as it invites further discussion.

1. See, e.g., Maya Salam, One Year After #MeToo, Examining a Collective Awakening, N.Y. Times Gender Letter (Oct. 5, 2018).
2. See, e.g., All Things Considered, The Fine Line Between a Bad Date and Sexual Assault: Two Views on Aziz Ansari, NPR (Jan. 16, 2018).
3. See, e.g., Matt Miller, Stephen Colbert Pushes Ben Affleck on Sexual Harassment in a Tense Late Show Interview, Esquire (Nov. 17, 2017).
4. See, e.g., Louis C.K. Responds: These Stories Are True, N.Y. Times (Nov. 10, 2017). To be clear, none of these reported situations involved intercourse or claims of rape.
5. Although their titular concern is “rape,” Cardi and Chamallas actually offer a more nuanced definition of the behavior and injury they are addressing: “sexual assault effected without use of physical force beyond the act of sexual penetration.” (P. 8.)
6. Notably, the authors would not limit plaintiffs to either negligence or intentional tort, but would permit them to bring both claims, arguing in the alternative. (P. 46.)
7. See, e.g., Isaac Chotiner, Martha Nussbaum on #MeToo, The New Yorker (June 1, 2021).
8. Lawrence E. Hedges, Sexual Pleasure in Light of Intersubjectivity: Neuroscience, Infant Research, Relational Psychoanalysis, and Recognition Theory, 18 Int’l Body Psychotherapy J. 146, 153 (2018) (describing sex as a “reciprocal affect attunement process”).