Thursday, October 17, 2019
Wednesday, October 16, 2019
Edward Janger & Aaron Twerski have posted to SSRN The Heavy Hand of Amazon: A Seller Not a Neutral Platform. The abstract provides:
Since the adoption of Section 402A of the Second Restatement of Torts, every party in a product’s distribution chain has been potentially liable for injuries caused by product defects. Consumers who buy from reputable sellers are almost always guaranteed that they will have a solvent defendant if injured by a product defect. Amazon, though responsible for a vast number of retail sales, has sought to avoid liability by claiming that it is not a seller but a neutral platform that merely facilitates third-party sales to consumers. With the exception of one court most courts have sided with Amazon and left injured consumers without a remedy against insolvent third-party sellers. All of the decided cases have failed to examine the nuances and complexity of how Amazon does business. This essay puts the lie to Amazon’s claim that it is not a seller by demonstrating how Amazon controls third-party sales and hides its true role from consumers.
Monday, October 14, 2019
Congratulations to Ewa Baginska, the University of Gdansk, and the European Group on Tort Law for a successful and enjoyable conference on "Civil Liability and New Technologies" last week. Most of the presentations focused on liability for autonomous vehicles (there are relatively recent laws in the UK and Germany) and platforms such as Google, Twitter, and Facebook. Speakers included EGTL members Piotr Machnikowski, Bernhard Koch, Ken Oliphant, Ulrich Magnus, and me, as well as Constantijn Bakker (Amsterdam School of International Business) and Dorota Masniak (Gdansk). Some of the papers will appear in Insurance Review. The program is here: Download Civil liability and new technologies_program
Thursday, October 3, 2019
Daniel Solove and Paul Schwartz have posted to SSRN ALI Data Privacy: Overview and Black Letter Text. The abstract provides:
In this Essay, the Reporters for the American Law Institute Principles of Law, Data Privacy provide an overview of the project as well as the text of its black letter. The Principles aim to provide a blueprint for policymakers to regulate privacy comprehensively and effectively.
The United States has long remained an outlier in privacy law. While numerous nations have enacted comprehensive privacy laws, the U.S. has clung stubbornly to a fragmented, inconsistent patchwork of laws. Moreover, there long has been a vast divide between the approaches of the U.S. and European Union (EU) to regulating privacy – a divide that many consider to be unbridgeable.
The Principles propose comprehensive privacy principles for legislation that are consistent with certain key foundations in the U.S. approach to privacy, yet that also align the U.S. with the EU. Additionally, the Principles attempt to breathe new life into the moribund and oft-criticized U.S. notice-and-choice approach, which has remained firmly rooted in U.S. law. Drawing from a vast array of privacy laws and frameworks, and with a balance of innovation, practicality, and compromise, the Principles aim to guide policymakers in advancing U.S. privacy law.
Wednesday, October 2, 2019
Karen Sokol has posted to SSRN Seeking (Some) Climate Justice in State Tort Law. The abstract provides:
Over the last decade, an increasing number of path-breaking cases have been filed throughout the world seeking to hold fossil fuel industry companies and governments accountable for their actions and inactions that have contributed to the current climate crisis. This Article focuses on an important subset of those cases-namely, the recent surge of cases brought by states, cities, and counties all over the United States alleging that the largest fossil fuel industry actors, including ExxonMobil, Shell, BP, and Chevron, are liable in state tort law for harms caused by climate change.
The Article begins with a synthesis of the history of U.S. climate tort litigation, grouping the cases into two "waves." The current state tort cases are in the second wave and represent an attempt to avoid the legal pitfalls that plagued the first. The Article then undertakes the first close examination of the defendants' response to the second-wave climate tort cases; namely, that federal common law preempts all the plaintiffs' state tort claims. Unsurprisingly, the issue has divided the courts that have decided it, as the Supreme Court caselaw is sparse and unclear. The Article identifies the doctrinal problem in the caselaw, and then argues that the only way to bring coherence to the law while adhering to federalism principles is to disallow preemption of state tort law by federal common law. Finally, the Article offers a new perspective on why that is also the right result as a policy matter.
The second-wave climate tort suits are part of larger global movement of resorting to the courts to demand climate justice that should be given a full hearing. The current era of climate disruption and its catastrophic threats demand not only new and improved legal and policy mechanisms, but also the use of current ones-including state tort law-to the fullest extent possible.
Tuesday, October 1, 2019
Barbara Billauer has posted to SSRN Re-Birthing Wrongful Birth Claims in the Age of IVF and Abortion Reforms. The abstract provides:
Claims for reproductive negligence typically fall under two rubrics. Claims by the wrongfully birthed child are almost never countenanced, while claims by the wronged parent generally are. Nevertheless, in these wrongful birth claims, usually recovery is strictly limited. While damages for rearing a child with congenital ailments may be allowed, those for raising healthy child are not. The bases for denying healthy child care are couched in policy grounds and derive from an anathema of abortion, a view of the sanctity of life and an outmoded judicial ipse dixit that child-rearing is one of life’s greatest gifts for which damages will not lie, even if such result shields a clearly negligent defendant. Here, I first point out that current vogue restricting abortion may have an adverse impact on efforts seeking to reverse this approach. I further argue that whatever gifts accrue to healthy child-rearing also may apply to non-healthy children, and the health or disability of the child should not be relevant to the outcome of these claims. And finally I propose a novel approach: broadening the damage ambit by noting that the birth of the child is not the only harm accruing to the parents. A court’s focus on only the birthed child and parents’ bliss in raising her ignores the impact of the negligence on the family unit as a whole, and on the parents as individuals and denies the individual plaintiffs their rights of autonomy, liberty and the pursuit of happiness.
Wednesday, September 25, 2019
Alex Lemann has posted to SSRN Autonomous Vehicles, Technological Progress, and the Scope Problem in Products Liability. The piece is one of four in the "New Voices" symposium in the fall 2019 issue of the Journal of Tort Law. The abstract provides:
Autonomous vehicles are widely expected to save tens of thousands of lives each year by making car crashes attributable to human error—currently the overwhelming majority of fatal crashes—a thing of the past. How the legal system should attribute responsibility for the (hopefully few) crashes autonomous vehicles cause is an open and hotly debated question.
Most tort scholars approach this question by asking what liability rule is most likely to achieve the desired policy outcome: promoting the adoption of this lifesaving technology without destroying manufacturers’ incentives to optimize it. This approach has led to a wide range of proposals, many of which suggest replacing standard rules of products liability with some new system crafted specifically for autonomous vehicles and creating immunity or absolute liability or something in between.
But, I argue, the relative safety of autonomous vehicles should not be relevant in determining whether and in what ways manufacturers are held liable for their crashes. The history of products liability litigation over motor vehicle design shows that the tort system has been hesitant to indulge in such comparisons, as it generally declines both to impose liability on older, more dangerous cars simply because they lack the latest safety features and to grant immunity to newer, safer cars simply because of their superior aggregate performance. These are instances in which products liability law fails to promote efficient outcomes and instead provides redress for those who have been wronged by defective products.
Applying these ideas to the four fatalities that have so far been caused by autonomous vehicles suggests that just as conventional vehicles should not be considered defective in relying on a human driver, autonomous vehicles should not be immune when their defects cause injury.
Friday, September 20, 2019
Stephen Sugarman & Caitlin Boucher have posted to SSRN Re-Imagining the Dignitary Torts. The abstract provides:
Tort law is cluttered with different causes of action that permit financial recovery for emotional harms arising from what we call wrongful affronts to human dignity. These include the common law torts of offensive battery, assault, false imprisonment, privacy invasion, defamation, some nuisance claims, and the more broadly labeled actions for intentional and negligent infliction of emotional distress. We don’t need all this clutter. Plus, simplifying our approach to dignitary harm would eliminate unjustified inconsistencies found in this group of torts. This article paves the way for a more coherent approach to the protection of personal dignity.
Thursday, September 19, 2019
James Goudkamp and Donal Nolan have posted to SSRN Pioneers, Consolidators and Iconoclasts: The Story of Tort Scholarship, the introduction to Scholars of Tort Law. The abstract provides:
Common law scholarship is overwhelmingly focused on judicial decisions, with the result that the writings of even highly influential legal scholars have, by comparison, rarely been the subjects of scrutiny in their own right. This represents a serious gap in our understanding of the common law and its development. The purpose of the current volume is to begin the process of redressing this imbalance, by considering the role played by leading scholars of tort law from across the common law world in the development of the subject. The focus of the contributions is on the nature of the work produced by each of the scholars in question, important influences on them and the influence which they in turn had on thinking about tort law.
Thursday, September 12, 2019
James Goudkamp and Donal Nolan have edited (and written for) Scholars of Tort Law, now available from Hart Publishing. A discount is available with this flyer: Download Goudkamp & Nolan The blurb provides:
The publication of Scholars of Tort Law marks the beginning of a long overdue rebalancing of private law scholarship. Instead of concentrating on judicial decisions and academic commentary only for what that commentary says about judicial decisions, the book explores the contributions of scholars of tort law in their own right. The work of a selection of leading scholars of tort law from across the common law world, ranging from Thomas Cooley (1824–1898) to Patrick Atiyah (1931–2018), is addressed by eminent current scholars in the field. The focus of the contributions is on the nature of the work produced by each of the scholars in question, important influences on their work, and the influence which that work in turn had on thinking about tort law. The process of subjecting tort law scholarship to sustained analysis provides new insights into the intellectual development of tort law and reveals the important role played by scholars in that development. By focusing on the work of influential tort scholars, the book serves to emphasise the importance of legal scholarship to the development of the common law more generally.
And the Table of Contents:
1. Pioneers, Consolidators and Iconoclasts: The Story
of Tort Scholarship ..................................................................................1
James Goudkamp and Donal Nolan
2. Thomas McIntyre Cooley (1824–1898) and Oliver Wendell Holmes
(1841–1935): The Arc of American Tort Theory .....................................43
John CP Goldberg and Benjamin C Zipursky
3. Professor Sir Frederick Pollock (1845–1937): Jurist as Mayfly ..................75
4. Professor Sir John Salmond (1862–1924): An Englishman Abroad ......... 103
5. Professor Francis Hermann Bohlen (1868–1942) ................................... 133
Michael D Green
6. Professor Sir Percy Winfield (1878–1953) ............................................... 165
7. Professor Leon Green (1888–1979): Word Magic and the
Regenerative Power of Law .................................................................. 203
8. Professor William Lloyd Prosser (1898–1972) ........................................ 229
Christopher J Robinette
9. Professor Fleming James Jr (1904–1981) ............................................... 259
10. Professor John G Fleming (1919–1997): ‘A Sense of Fluidity’ ................. 289
11. Professor Patrick Atiyah (1931–2018) .................................................... 309
12. Mr Tony Weir (1936–2011) .................................................................. 337
13. Law, Fact and Process in Common Law Tort Scholarship ..................... 359
Wednesday, September 11, 2019
Douglas Kysar & Conor Dwyer Reynolds have posted to SSRN Regulation Through Recourse: Rediscovering Tort as Regulation. The abstract provides:
Most scholars hold that tort has little or no power to effectively or legitimately regulate complex risks such as environmental pollution. This consensus has spurred a broad skepticism about tort’s regulatory capacity within the judiciary, altering the contours of tort law itself. This Article challenges such skepticism by presenting a case study of farmers who used tort to manage the risk of air pollution from a nearby aluminum plant. The scope of their success suggests that features of tort adjudication such as equitable powers, discovery and procedure, settlement, and community have been overlooked by tort theorists. By reintegrating these features into theoretical visions of tort law, we can rediscover tort’s potential as a powerful tool within what might be called society’s ‘ecosystem’ of risk regulation.
Monday, September 9, 2019
Michael Wells has posted to SSRN The Role of Fault in Section 1983 Municipal Liability. The abstract provides:
Under Monell v. Department of Social Services, local governments are not vicariously liable for constitutional violations committed by their employees. Those governments, however, are liable under 42 U.S.C. § 1983 for violations committed by "policymaking" officials. In the face of these two principles, courts have struggled with cases in which an underling commits a constitutional violation and the claim of municipal liability is based on a policymaker's failure to prevent it. The government can be liable in these "indirect-effect" cases for a policymaker's "deliberate indifference" to safeguarding constitutional rights, a standard that demands an even greater showing of culpability than gross negligence. Critics argue that this approach is misguided and that the Court should instead impose a rule of vicarious liability for all § 1983 claims made against municipalities. The goal of constitutional tort law, however, should not be either to remedy every constitutional violation or to limit liability to only the most egregious cases. Rather, the law should be structured in a way that better accommodates the competing policies that are at play in this context. These include the pro-liability values of vindication of constitutional rights and deterrence of violations, but also due regard for depletion of municipal resources and for the risk that officials will exercise too much caution. With accommodation as its guideline, the Court or Congress should abandon the deliberate-indifference test, because it is too lenient. General vicarious liability, however, is too expansive. A better approach is to adopt an objective negligence standard of liability, under which local governments would face liability in indirect-effect litigation for unreasonable failures to prevent subordinates' constitutional violations.
Friday, September 6, 2019
Wednesday, September 4, 2019
Mark Geistfeld has posted to SSRN Folk Tort Law. The abstract provides:
The standard of reasonable care is the most important example of a substantive tort obligation that is largely determined by folk law or the understanding that jurors as lay individuals have about the legal obligation. In order to be adequately determinate, the folk law of reasonable care must be based on a widely shared metanorm that jurors use to evaluate socially acceptable behavior. Studies of jury decision-making in tort cases assume that there is such a metanorm without identifying it. These studies, like torts scholarship more generally, have not accounted for the substantial body of evidence showing that individuals are guided by a metanorm of reciprocity that is highly relevant to the resolution of negligence cases. By applying this metanorm to the case at hand, jurors enforce behavioral obligations that map into the modern tort rules of negligence and strict liability. A metanorm of reciprocity quite plausibly defines folk tort law, although it is a separate question why the legal system chooses to enforce this social norm. Folk tort law is not fully capable of answering this question, but as an important component of modern tort law, it should be accounted for by any persuasive interpretation of the practice.
Tuesday, September 3, 2019
D'Andra Shu has posted to SSRN When Food is a Weapon: Parental Liability for Food Allergy Bullying. The abstract provides:
Food allergies in children are rising at an alarming pace. Increasingly, these children face an added threat: bullies targeting them because of their allergies. This bullying can take a life-threatening turn when the bully exposes the victim to the allergen. This article is the first major legal analysis of food allergy bullying. It explores the legal system’s failure to adequately address the problem of food allergy bullying and makes the case for focusing on the potential tort liability of the bully’s parents. Parents who become aware of their child’s bullying behavior and fail to take adequate steps to stop it are tacitly encouraging it and should be liable for their child’s conduct. So too should parents who enable the bullying by flouting school policies and sending their child to school with a prohibited food that is then used to bully or by modeling intolerant behavior that their child mimics at school. This will ensure that parents who contribute to their child’s bullying are held accountable and that the bully’s victim receives justice.
Monday, August 26, 2019
Greg Keating has been busy lately. He has posted two more pieces to SSRN. First, Between Absolutism and Efficiency: Reply to Professors Geistfeld, Grady, and Priel. The abstract provides:
This paper replies to Professor Geistfeld, Grady, and Priel’s excellent comments on my article Principles of Risk Imposition and the Priority of Avoiding Harm, 36 Revus J. for Const. Th. & Phil. of Law, 7 (2018). Both my article and Professor Geistfeld’s, Grady’s and Priel’s papers a part of the “Symposium: Risk Regulation and Tort Law, A discussion with Gregory C. Keating.” This Reply completes the Symposium. It attempts, briefly, to develop two lines of argument. One line attempts to respond to the specific criticism that Professors Geistfeld, Grady, and Priel, make in the Comments. In part, my specific replies seek to show that the safety and feasibility standards are rationally justifiable and genuine alternatives to cost-justification as a standard of precaution. Though I disagree with specific arguments of each of my critics, I believe that other claims they make are true, but do not undermine my arguments. For example, my arguments are compatible with Professor Grady’s correct observation that juries have the authority to reach verdicts inconsistent with the priority of avoiding harm — or any other theory of negligence. The merits of jury adjudication are not settled by any normative theory of reasonable care. I also agree with Professor Priel’s thesis that societies do not prioritize harm prevention. We are, I think, torn between competing moral outlooks and the standards of precaution that express those outlooks. My point is that standards of precaution which prioritize the avoidance of harm are rationally defensible, albeit in non-welfarist terms. I am likewise persuaded that Professor Geistfeld is correct to contend that welfare economics is compatible with non-welfarist normative commitments, but mistaken to think that measures such as willingness-to-pay and willingness-to-accept are the best ways to articulate the concrete implications of non-welfarist principles of precaution.
This Reply leads, however, with a second line of argument. We are all — consequentialists and non-consequentialists, philosophers and economists — imprisoned in the grip of the debate between utilitarianism and its critics that dominated political philosophy in the latter half of the 20th century. Classical utilitarianism fell into disfavor because its commitment to maximizing utility is capable of justifying deprivations of basic rights for a minority whenever such restrictions promoted the greatest net happiness. The cure for this disease lay in making some basic rights “absolute” — in ruling out some trade-offs entirely. Applied to problems of risk imposition, the legacy of this debate is the assumption that we must choose between “absolutism” and “efficiency”. Unattractive as “efficient” trade-offs may be, the absolute prohibition of trade-offs is untenable when risks of physical harm are at issue. The safety and feasibility standards must fail because they are unacceptably absolutist. Once we shake ourselves free of this philosophical legacy we can see that this is not the case: these standards are standards for making trade-offs not for forbidding them and that the trade-offs they prescribe are perfectly plausible.
Second, Fair Precaution. The abstract provides:
This book chapter briefly sketches a general framework which explains why questions of fairness have a natural salience when the imposition of risks of harm by some on others is at issue, and it applies that conception to major aspects of negligence law. Fairness comes to the fore because risk impositions require us to compare what those who impose the risks stand to gain, and those upon whom they are imposed stand to lose. Determinations of due care reconcile competing claims of liberty and security, for a plurality of persons. Fairly reconciling liberty and security requires reconciling them on terms that are justifiable both to those who impose risks and to those upon whom they are imposed. This, in turn, requires comparing the benefits and burdens of risk impositions in terms of their objective urgency, assessing the burdens and benefits of risk impositions qualitatively, and assigning a certain priority to the avoidance of harm. The framework is used to explicate the concept of due care articulated by the Hand Formula, to illuminate the circumstance where risks are imposed with a “community of risk”, and to situate subordinate doctrines of due care such as custom, statutory negligence, and jury adjudication. Brief contrasts are drawn with both law and economic approaches to justified precaution as efficient precaution, and with versions of corrective justice which see negligence liability falling out of a universe of conceptual possibilities where it holds the high ground of a golden mean.
Friday, August 23, 2019
Steven Shavell has posted to SSRN On the Redesign of Accident Liability for the World of Autonomous Vehicles. The abstract provides:
This article proposes a scheme of liability that would desirably control accident risks in the coming world in which motor vehicles will be autonomous. In that world, travelers will not be drivers, rendering liability premised on driver fault irrelevant as a means of reducing accident dangers. Moreover, no other conventional principle of individual or of manufacturer liability would serve well to do so. Indeed, strict manufacturer liability, recommended by many commentators, would actually tend to leave accident risks unchanged from their levels in the absence of liability. However, a new form of strict liability – the hallmark of which is that damages would be paid to the state – would be superior to conventional rules of liability in alleviating accident risks and would be easy to implement.
Tuesday, August 20, 2019
Gregory Keating has posted to SSRN Is Tort Law 'Private'?. The abstract provides:
A prominent, important strand of contemporary thinking about tort law — represented most powerfully by the work of Arthur Ripstein and Ernest Weinrib — has coalesced around the thesis that the concept of “private law” is the key to the subject. In one familiar usage of the term, the thesis that tort is private law is innocuous. Tort is private law in the sense that it is concerned with relations among persons in civil society. As the banner under which a school of thought marches, “private law” is a much weightier concept. It asserts that the essence of tort law is encapsulated in the traditional bipolar lawsuit. Within that formal structure, all that matters are the relations between the particular plaintiff and the particular defendant.
This book chapter argues that modern tort law is not private in the way that these theorists claim, for reasons that are both historical and normative. Modern tort took shape in response to the emergence of accidents as a social problem and its rise involved the displacement of traditional bipolar wrongs from the center of the field. Long established intentional wrongs — battery, trespass, defamation, and the like — arise out of episodic, one-off collisions between individual persons going about their lives. In an industrial, technological society, accidents are the recurring byproducts of organized and fundamental social activities. Modern fault liability emerges as the center of modern tort law in response to this social transformation. When this happens, accidents become the focal point of tort law and fault is sharply divorced from moral notions of personal responsibility and blameworthiness. To be sure, negligent wrongs remain genuine wrongs. The fault standard is an attempt to articulate what a right to the physical integrity of one’s person requires in the way of care owed by others. Failures to exercise reasonable care are wrongs when they result in harm to persons who can claim the right to such care. But they are also wrongs that may be blamelessly committed. Negligence is wrongful conduct, not culpable mens rea. We require reasonable care not because failing to be reasonably careful is always and everywhere egregiously blameworth, but because even blameless and slight negligence can inflict severe harm.
Champions of tort as private law implicitly recast tort in a pre-modern form, thereby obscuring fundamental and significant features of our law. Modern tort law responds to a pressing social problem and protects persons’ fundamental interest in physical integrity. It is a part of basic justice concerned with interactions that cannot be avoided in the course of normal modern lives — not a law which addresses random and voluntary individual interactions. And almost since its inception, modern tort law has been only one of a family of institutions that address organized, systematic, risk. Direct regulation of risk and administrative schemes are two others. This family of institutions is not sundered by a radical separation of the private law of torts from the public law of regulation. Tort law, direct regulation of risk, and administrative schemes are complementary and competitive alternatives to one another, responding to overlapping problems and articulating related values.
Monday, August 19, 2019
Gregory Keating has posted to SSRN Corrective Justice: Sovereign or Subordinate?. The abstract provides:
The concept of “corrective justice” has figured prominently in debates over the formal structure and normative commitments of private law — especially tort law — over the past generation. This chapter organizes those debates around two very different conceptions of the role and significance of corrective justice in private law, especially tort law. One conception sees corrective justice as “sovereign” the other sees it as “subordinate”. On a subordinate conception, corrective justice is an aspect of the institution of tort law and it must be accounted for by an adequate theory of tort. On a sovereign conception, corrective justice is the master concept of tort law; it does the explaining. In the disciplinary battles of the past few decades, economically inclined theorists of tort — especially Richard Posner — have conceived of corrective justice as subordinate whereas philosophically inclined theorists have taken it to be sovereign. The thought behind the subordinate conception is obvious enough. Ordinary tort adjudication does corrective justice; a theory of tort worthy of the name ought to explain way. The argument for the sovereignty of corrective justice is less obvious. It grows out of a critique of the economic analysis of tort developed by Jules Coleman and Ernest Weinrib. In a nutshell, they argue that corrective justice is a backwards-looking practice and is therefore poorly explained by the forward-looking logic of economic analysis.
On their face, the central concepts of negligence law — duty, breach, harm, actual and proximate cause — hang together to articulate a relationship of right and responsibility between victim and injurer. Breach of duty is a reason to hold a defendant responsible for harm done to a victim by the breach of that duty. Tort law looks backwards toward the past interactions of the parties in order to determine if the defendant should be held responsible for the plaintiff’s injury. For orthodox economic analysis, however, liability is not imposed because the defendant breached a duty of care and was the actual and proximate cause of harm done. Liability is imposed when and because we rightly conclude that the imposition of liability for past harm will induce optimal prevention of accidental harm going forward. For economics, the concepts of duty, breach, actual and proximate cause, and harm are not the real grounds of liability. They are evidentiary markers that do a respectable job of identifying cheapest cost-avoiders going forward.
This chapter argues that the corrective justice critique of economic analysis is powerful, but that the conclusion that corrective justice is the sovereign principle of tort, and perhaps even private law more generally, is not. Corrective justice in tort looks back to the violation of tort law’s primary norms. Those norms, and the values they seek to institute, deserve to be at the center of our understanding of the field. For the economic analysis of tort, the path forward may lie in moving towards the kind of indirect account of the institution now familiar in property scholarship. Such an account would give due recognition to the norms that figure prominently in tort adjudication, and seek to show how the institution as a whole is justified by its desirable consequences.
Friday, August 16, 2019
Ken Abraham & Ted White have posted to SSRN First Amendment Imperialism and the Constitutionalization of Tort Liability. The abstract provides:
To what extent does the First Amendment impose limits on the permissible scope of tort liability? Until recently, the clear answer would have been, “only under very limited circumstances.” During the last few decades, however, the First Amendment has been so greatly expanding its empire that giving this answer is no longer possible. “All bets are off” would be a more accurate answer, because the forms of speech to which the Supreme Court has extended First Amendment protection have become impressively broad. Although existing First Amendment restrictions on the permissible scope of tort liability currently are limited, the very existence of those restrictions confirms that many torts involving speech potentially are subject to First Amendment protection. And many torts do involve speech – the duty to warn about the dangers of prescription drugs, fraud, and even some forms of simple negligence are just a few examples.
If the First Amendment of the future limited all or even many of these different constitutionally unprotected forms of tort liability, then its scope would be pervasive. We contend, however, that neither existing First Amendment doctrine nor sensible constitutional policy supports extending free speech protection to torts that are accomplished through speech, except in extremely narrow circumstances. Extending First Amendment protection to such torts would aggravate what we argue are two of the principal risks posed by First Amendment imperialism: the erosion of the cultural distinction between truth and falsity, and devaluation of the status of speech about matters of public concern. Our contention is that most of the forms of speech involved in torts that are accomplished through speech currently are, and should remain, excluded from First Amendment protection. To support this contention, we examine the First Amendment’s extension to previously unprotected forms of speech over the last three-quarters of a century, compare the new First Amendment protections to the doctrinal elements of a series of torts that always or often are accomplished through speech, and argue that it would make little sense, as a matter of tort or constitutional law, to restrict liability for those torts on First Amendment grounds.