- Hila Keren, Beyond Discrimination: Market Humiliation and Private Law, 95 Univ. Colo. L. Rev. 87 (2024).
- Hila Keren, Market Humiliation, 56 Loy. L.A. L. Rev. 565 (2023).
So many ways to suffer, so few of them redressed by the law of torts. We who teach the course cover a short list. First and foremost, physical impact on the body. Damage to tangible property. Intrusions into land, almost all of them of the visible kind.
Tort puts another set of interests in a secondary or lesser category, recognizing the possibility of real harm caused by faulty conduct but simultaneously blocking recourse with doctrinal hurdles that keep most potential plaintiffs out of court. Consequential economic loss, emotional distress, reputational harm, and interference with a possessor’s enjoyment of land fall into this category of recognized-yet-mostly-unremedied types of injury. In a pair of recent articles, both of them honored by her school as outputs originating in the same project, Hila Keren argues persuasively for an addition to this tranche.
The article Keren published first, titled simply Market Humiliation (here abbreviated Market), announces an injury with a novel description. Beyond Discrimination: Market Humiliation and Private Law (Beyond Discrimination), the follow-up, sends civil recourse to the rescue. Both pieces rest on a posited ideal of “market citizenship,” which Keren defines as “a unique set of rights and duties that should be defined and enforced by the state … not only via expanded nondiscrimination laws but also through private law” (Market, abstract.) At stake is “immense human suffering–individual and collective” (Beyond Discrimination, P. 94).
For the tersest possible example of market humiliation, Keren mentions (Beyond Discrimination, P. 98) a sign in public view that says Whites Only. Readers might hold different opinions on what the law should do about this affront but would likely agree that this message does, or at least could, inflict harm. In further illustration of market humiliation, Keren offers a real-life account on point: Ruth Bader Ginsburg recalled having seen in her youth a sign in public that said No Dogs or Jews Allowed (Beyond Discrimination, P. 137).
Keren starts with eight true-story vignettes whose facts come from decisional law. Jobsite supervisors tell a (white, apparently) woman who does drywalling work that she’s a ‘c–t’ and a ‘f—–g b—h’ who should be cleaning instead. An African American customer at McDonald’s tries to return her fries when they’re cold and the manager yells that he’s “tired of those damn [n-word] bringing their food back and don’t want to pay for it.” Robert Hasbany thought Deborah Reynolds was good enough to employ in his medical office but not good enough to escape his repeated berating about her weight. One day when Reynolds showed up for work Hasbany ordered her to weigh herself, presumably in front of him on his office scale, and when she refused he ordered her to either “weigh in, or get a doctor’s note.” Keren has five more anecdotes. (Market, Pp. 569-70.) These three will suffice.
Market humiliation has six characteristics (Beyond Discrimination, Pp. 97-102) that can unite to form a balancing test for a cause of action, says Keren. These traits are (1) exclusion, (2) a gap in power between the aggressor and the target, (3) hostility, (4) pointed targeting of a marginalized identity, (5) surprise, and what Keren calls (6) “audience” or witnesses. Consistent with the multifactor-test pattern familiar in American law, not all six need be present to support a claim.
By “market” in her two titles Keren makes reference to an array of settings familiar from daily life: “work, housing, transportation, retail, and other types of transactional exchanges of goods or services for pay” (Market, P. 570). Aggregating these venues into a larger “market” references a theme Keren mentions only briefly (see Beyond Discrimination, P. 143): law and economics, wherein we rational actors know what we want and express our desires through the instrument of price. Keren sites market humiliation in “the rising critical perspective of Law and Political Economy” (Beyond Discrimination, P. 143). From my hobbyist interest in law and economics, I think this characterization understates Keren’s contribution. Market humiliation as a construct joins critical perspectives on law and economics, yes, but it also enlarges a major insight of none other than Adam Smith.
Smith taught that exchanges of money and its counterparts generate value for us as individuals and enlarge the political economy in which we live. We prefer more wealth to less. Smith famously told his readers that this attitude of ours is socially useful rather than reprehensible or materialistic in the pejorative sense of that word. Food, said Smith, reaches our table not because of the benevolence of providers like “the butcher, the brewer, or the baker,” but “from their regard to their own interest. We address ourselves not to their humanity but to their self-love, and never talk to them of our own necessities but their advantages.” In this realm, nobody receives or expects a favor: the market economy delivers pleasure and satisfaction as standard operating procedure.
From there, the sting Keren says will ensue ensued for us when fellow participants in markets cast us out of a shared social ideal becomes clear. We victims encountered fellow market participants asking nothing from them but for them to act on that universal self-love. After bringing to the exchange what the market supports, we learned that these people preferred to insult us than give themselves what they want. We never claimed to be anything special, but our rejectors went out of their way to say we’re lower than that.
The law ought to care about this experience. Keren gathers evidence to show the harm of market humiliation (Beyond Discrimination, Pp. 102-03) and its tendency to stay in place or get worse. Rather than dissipate, it gets “recalled and refelt by victims” (Beyond Discrimination, P. 104).
Docket timing at the Supreme Court occasioned a turn for Keren as chronicler of market humiliation. In 2023, shortly after Market, the first of the two articles, was published, the Court decided 303 Creative LLC v. Elenis, a dispute at the intersection of antidiscrimination law in public accommodations and the First Amendment. Calling this case “an actual dispute” might be an overstatement, as Keren suggests (Beyond Discrimination, P. 112), at least from the vantage point of private law’s insistence that something happen to someone before the courts will intervene. The proprietor of 303 Creative LLC wanted to know—in advance, before a real-life clash arose—whether her website business had permission to turn away hypothetical couples in the future should they ask her to publicize their same-sex weddings. Rather than act according to her conscience and find out the consequences, this seller went to federal court for reassurance that she’d be safe from enforcement by the Colorado Civil Rights Commission should a hypothetical future buyer complain about her policy. The Supreme Court, by a 6-3 vote, gave Lorie Smith the comfort she sought as inflictor manqué of humiliation in the wedding-website market.
First Amendment freedom of speech as interpreted in this decision “opened the door wide to more practices of discrimination to be carried out through market activities and to an expanded risk of market humiliation” (Beyond Discrimination, P. 91). Keren reads the majority opinion in 303 Creative LLC as in effect supplying another of her vignettes like the one about the drywall worker and the McDonald’s customer and the medical-office employee ordered by her doctor boss to step on the scale. Siting the 303 Creative LLC result in free speech rather than the free exercise of religious homophobia worsened this risk, Keren continues. Only a fraction of market humiliators prefer to characterize what they do as religion, and now all of them needn’t bother. Entitlement to humiliate as provisioned in 303 Creative LLC “from now on will be available to countless commercial providers” (Beyond Discrimination, P. 91). And so Keren has “sounded an alarm in a time of crisis” (Beyond Discrimination, P. 172).
In response to this cry, the private law maxim of ubi jus ibi remedium comes to mind. If these behaviors that Keren condemns are of interest to the law, then there ought to be a remedy for persons who suffer harm when these behaviors occur. Putting “private law” into the title of Beyond Discrimination, Keren invites her reader to judge this complaint from a humiliated individual at a kind of pleading stage. Does it, or should it, state a cause of action? Keren finds an imperative for private law by showing the inadequacy of the rights and remedies that current antidiscrimination law provides.
Market actors inflict humiliation on other people with reference to more traits or identities than what antidiscrimination law recognizes in its protected categories. Keren nominates “LGBTQ+,” being fat, and speaking with a foreign accent as pertinent omissions. Even targets of market humiliation “lucky” enough to have their condition recognized in civil rights law find their entitlements to redress interpreted narrowly in court. Take for example Shopping While Black. (Beyond Discrimination, P. 108.) The McDonald’s customer in Keren’s second vignette (Market, P. 568-69) lost when a Florida court found she was not “actually denied the ability either to make, perform, enforce, modify, or terminate a contract” by the defendant’s employee who shouted the N word at her when she told him the French fries she’d bought were cold. Humiliation isn’t enough to generate redress until the law changes.
Before she wrote these two articles, Keren named her project “Market Citizenship for All: An Inclusive Theory of Contract Law,” reflecting her experience as a scholar and teacher of contracts. Beyond Discrimination does indeed engage with contract law when Keren favors expanded understanding of a particular contracts doctrine, good faith, to strengthen her construct of market citizenship. But Keren moved on as her work progressed. I admit I’m partial, but I park the flag of Tort on the problem that these two papers present.
Having started with a focus on commerce and then moving to care more about a species of personal injury attributable to fault, Keren’s two articles remind readers of the emergence of another important legal concept. Products liability has a similar origin story. When Keren observes that good faith is thinner in the United States than in the civil legal systems it came from (Beyond Discrimination, P. 154) and that a remedy available in tort but not contract, punitive damages, seems necessary, she echoes the products liability precedent where tort superseded contract. Keren ends up characterizing her idea as a “new tort of market humiliation” (Beyond Discrimination, P. 164) rather than an expansion of contract principles. In a parallel to the emergence of products liability in the twentieth century, contributions from Contract can inform a new tort in the twenty-first.
Taken together, Beyond Discrimination and Market point to work ahead. Keren has established policy priorities and a useful six-factor balancing test for the tort. Followers will fill in particulars about the wrong and build on the remedies that Keren has sketched preliminarily.
This new-tort partisan applauds Keren’s plan and its execution in these two articles. Market humiliation is central to literatures on other private law fields and to antidiscrimination law, not to mention all human life in the modern political economy—and because this wrong is a personal injury, it deserves signal honor here in the Torts bytes of Jotwell.
