TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Monday, October 9, 2023

Zipursky & Goldberg's New Works, Part II

Continuing a post from Friday, Ben Zipursky and John Goldberg have posted several new works to SSRN.  Fourth, A Tort for the Digital Age:  False Light Invasion of Privacy Reconsidered.  The abstract provides:

In his famous 1960 article, William Prosser identified four privacy torts: Disclosure of Private Facts, False Light Invasion of Privacy, Appropriation of Likeness, and Intrusion Upon Seclusion. Although each was recognized in the Second Torts Restatement and by various courts, the false light tort seems to have foundered. Indeed, starting in the late 1980s, prominent courts rejected it and many academics have expressed grave misgivings about it. Often interpreted as a kind of ‘defamation lite,’ the tort seems to its critics an ill-defined wrong that clever lawyers invoke to evade important limitations on defamation liability.

Drawing from case law and an important but underappreciated body of prior scholarship, this article elucidates the distinctive content and role of false light as an authentic invasion-of- privacy tort and explains why its recognition is especially important in our digital world. To appreciate its value requires, first and foremost, grasping that its closest tort sibling is not defamation, but instead public disclosure. Like that tort and unlike defamation, false light applies only to a subset of subject matters – those that are genuinely private and are not newsworthy – and only when highly offensive images or messages pertaining to the plaintiff are widely disseminated to the public. In short, as Melville Nimmer once noted, the sound judgment undergirding false light is this: if causing humiliation or grave offense by disseminating accurate depictions or accounts of private matters is actionable, it should be no less actionable when the putative representations are false. In an era of deepfakes and other privacy-invading misrepresentations, courts should embrace the tort of false light.

Fifth, Trying and Succeeding.  The abstract provides:

In “Duties to Try and Duties to Succeed,” Stephen Smith distinguishes two types of duties one might find in areas of private law such as contracts and torts: (1) duties to succeed (such as a duty not to trespass on another’s land), and (2) duties to try (such as a duty to try not to injure another through careless conduct). Smith argues that these types of duty differ not only in their structure, but in the standards of conduct they support (strict liability versus fault), the nature of the wrongdoing involved when those standards are breached (setbacks to rights or interests versus displays of disrespect), and the kind of liability they generate (damages that involve the duty-bearer doing the next best thing to heeding her duty to succeed versus damages that restore formal equality given the disrespect that is displayed by the breach of a duty to try). Finally, he concludes that, because Anglo-American private law grew haphazardly out of the writ system, it contains both types of duties yet lacks a coherent account of which duties apply or should apply to which conduct and which injuries.

Building on Smith’s highly illuminating treatment while also pushing back against his somewhat skeptical conclusion, our contribution to this volume will argue that there is a way for private law to combine aspects of duties to try and duties to succeed into what we call “qualified duties of noninjury.” In developing this claim, we re-examine Brown v. Kendall, 60 Mass. 292 (1850), a crucial decision that helped mark U.S. private law’s move away from the writ system by recognizing and defining the modern tort of negligence. Close attention to Chief Justice Shaw’s reasoning in Brown, we argue, will show that, at the center of negligence law, and indeed all of tort law, are qualified duties of noninjury, i.e., duties that have both a conduct element and an injury element.

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