TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Tuesday, September 14, 2021

Wright on Multiple Legally Responsible Causes

Richard Wright has posted to SSRN Identifying and Assigning Liability Among Multiple Legally Responsible Causes.  The abstract provides:

This paper, forthcoming in the Rechtstheorie journal, discusses the development of the NESS analysis of natural causation in philosophy and law and (relatedly) the failure of the but-for/sine-qua-non test as an exclusive test, responds to criticisms of the NESS analysis, notes general acceptance of the NESS analysis by academics and increasingly by courts made aware of it, distinguishes the natural causation issue from the legal responsibility and ultimate liability issues, and briefly discusses the legal responsibility and ultimate liability issues.

September 14, 2021 in Scholarship | Permalink | Comments (0)

Friday, September 10, 2021

Hedley on Private Law Theory

Steve Hedley has posted to SSRN Private Law Theory:  The State of the Art.  The abstract provides:

This essay reviews four recent English-language essay collections, each of which proposes a vision of private law theory – that is, of how private law appears in the light of a wider understanding of the world. It concentrates on how each collection gives some sort of shape to the emerging discipline. Discussion of the shape, meaning and significance of private law is of course nothing new; but the recent massive outpouring of theory, and the issues which have been treated as important, require some discussion of the intellectual climate which has led us to this place. For the most part, this essay argues, the discussion has been governed by the increasing obsolescence of classical private law concepts, which the more progressive writers have taken as a call to develop new concepts, and the more traditional writers have taken as a call to defend what is valuable about them; over time, this has increasingly pushed the traditionalists to a position where they can describe some (though hardly all) of what we all see, but which is largely impotent in justifying it – that is, in explaining why it is worth retaining. Meanwhile, the terms of debate have become increasingly narrow, as continuity is privileged over change, the lawyer’s point of view privileged over that of other community members, and national court-based law is emphasised over the many other forms of social ordering. Yet there are now also welcome signs of a broader approach, by which different perspectives are seen as complementing one another rather than as rivals, and there is (sometimes at least) genuine enquiry into what is really universal and what is merely a local present-day peculiarity. And we might be approaching – to put it no higher– the time when private law theory is a genuine conversation rather than as a mere cacophony of voices.

September 10, 2021 in Scholarship | Permalink | Comments (0)

Tuesday, September 7, 2021

Geistfeld on Proximate Cause

Mark Geistfeld has posted to SSRN Proximate Cause Untangled.  The abstract provides:

The many facets of tort liability are filtered through the requirement of proximate cause, which has made the element confusing and the source of considerable controversy. Is proximate cause properly determined by the directness test or the foreseeability test, each of which has been both widely adopted and roundly criticized? Is there any defensible conception of a direct cause? Is foreseeability an adequately determinate method for limiting liability? If so, is foreseeability relevant to duty, to proximate cause, or to both elements? Disagreement about all these matters stems from the failure to fully untangle the role of proximate cause across all elements of the tort claim.

In a negligence case, for example, duty determines the risks that factor into the duty to exercise reasonable care. This property implies that the duty must be limited to the risks of foreseeable harm in order for the standard of reasonable care to govern only those harms. Foreseeability for this purpose is defined by the general zones of danger or reference classes that the reasonable person would consider when estimating the likelihood of accidental harm, reducing foreseeability to a behavioral concept that is adequately determinate for resolving the issue of breach. The element of proximate cause then provides a case-specific requirement that the plaintiff’s injury must be within a general category of foreseeable harms encompassed by both the tort duty and its breach—a necessary predicate for liability. The prima facie case accordingly requires the foreseeability test to establish proximate cause for the breach of a duty that is limited to the risks of foreseeable harm.

Once liability has been established, the damages phase of the case requires a further inquiry to fix the full extent of compensable harm proximately caused by the tortious conduct. The foreseeability test produces inequities in the determination of damages that the directness test fairly resolves. This inquiry is structured by the uniformly adopted rule that permits full recovery for an unforeseeably large harm, such as a crushed skull, that was directly caused by a tortious force that would normally cause minor injury, such as a bump on the head. This rationale also explains why the intentional torts exclusively rely on the directness test, eliminating culpability as a confounding factor in the analysis of proximate cause. Because the directness test is a rule for equitably determining compensatory damages, its tort rationale does not justify the directness test for proximate cause in criminal cases, contrary to a widely adopted assumption. Instead of being competing formulations, the directness and foreseeability tests each address different components of a tort claim, explaining why each one is both widely adopted and yet roundly criticized when employed as the only method for determining proximate cause.

September 7, 2021 in Scholarship | Permalink | Comments (0)

Thursday, September 2, 2021

Kutner on Property Torts and the Restatements

Peter Kutner has posted to SSRN Property Torts and the Restatements.  The abstract provides:

Essay examining connections between tort law and property, and the Restatements' treatment of tort liability for loss of, damage to or interference with property interests.

September 2, 2021 in Scholarship | Permalink | Comments (0)

Monday, August 30, 2021

Punishment and Private Law

Bloomsbury has released Punishment and Private Law, edited by Elise Bant, Wayne Courtney, James Goudkamp & Jeannie Paterson.  The blurb provides:

Does private law punish? This collection answers this complex but compelling question. Lawyers from across the spectrum of the law (contract, tort, restitution) explore exactly how it punishes wrong doing. These leading voices ask whether that punishment is effective and what its societal role might be. Taking the discussion out of the technical and into a broader realms of a wider purpose, it is both compelling and thought-provoking.

Order online at www.bloomsbury.com – use the code UG8 at the checkout to get 20% off your order!

August 30, 2021 in Books, Scholarship | Permalink | Comments (0)

Wednesday, August 25, 2021

Janger & Twerski on Warranties and Amazon

Edward Janger and Aaron Twerski have posted to SSRN Warranty, Product Liability and Transaction Structure:  The Problem of Amazon.  The abstract provides:  

Amazon, and other internet sales platforms, have revolutionized the manner in which goods are purchased and sold. The obligations undertaken by Amazon in those sales are unclear, both as a matter of transparency, and as a matter of legal doctrine. Is Amazon a store? Is it a shipper? Is it a telephone? In various transactions Amazon can play some or all of these roles. Choosing the right metaphor has consequences. Amazon knows this and has done everything it can to deploy the metaphors selectively to its best legal and practical advantage, even when the chosen characterizations are inapt or even mutually inconsistent.

In an earlier article, we explored whether Amazon should be considered a “seller” for the purposes of product liability when a customer purchases goods from a third-party seller using the Amazon platform. We concluded that the answer was an emphatic “Yes.” We examined the relationship between Amazon and the third-party seller, and considered the extent to which Amazon controlled all aspects of the sale. We also noted, to a lesser extent, the way in which the consumer experienced the sale process.

The purpose of this article is, to extend that analysis to include the law of contracts—principally the law of warranty. We ask the next question: Should Amazon be considered a “warrantor” for the purposes of making the implied warranty of merchantability when it serves as an intermediary between a third-party seller and a consumer buyer? Again, we conclude that it does.

This article will proceed in four steps. First, it will explore the formal legal problems that transaction structure creates when sales are intermediated by an internet platform like Amazon. The problem created by Amazon’s manipulation of transaction structure is the same for contract and for tort, but as we shall see, the doctrinal response is not symmetric. Second, it will explore whether that transaction structure should affect substantial rights. To address that question we will look at what a customer actually sees when they purchase something from Amazon. We will show that what the consumer experiences is at odds with the formal transaction structure claimed by Amazon. We will examine the text of the Uniform Commercial Code (UCC), and show that the statute does not preclude Amazon from being considered a warrantor. Further, Amazon could, and probably should be considered a warrantor-by-estoppel, or as an agent. Third, we will consider whether Amazon should be viewed as successfully disclaiming warranty. Here we conclude that the answer is tied inextricably to ongoing debates about the enforceability of boilerplate in consumer contracts. Those debates are reflected in the current battle royal of the Restatement of Consumer Contracts, but more importantly, in uncertainty in the courts. For that reason, warranty will offer an imperfect solution at best. So, finally, fourth, we return to tort, and argue that the section 20 of Third Restatement of Torts – Product Liability offers a somewhat more direct solution, including within the definition of "seller," somebody who "sells or otherwise distributes."

August 25, 2021 in Scholarship | Permalink | Comments (0)

Friday, August 20, 2021

Harris on Rationales for Vicarious Liability

Daniel Harris has posted to SSRN The Rival Rationales for Vicarious Liability.  The abstract provides:

Vicarious liability means holding one person responsible for the misdeeds of another just as if the wrongdoer and the defendant were the same person. There are two competing rationales for the idea. The agency rationale is based on the idea that agents act as extensions of their principals’ legal personality. According to the agency rationale, vicarious liability requires proof the wrongdoer was an agent, apparent agent, or employee of the defendant (the exact relationship depending on the type of tort) plus proof the misconduct occurred within the scope of the agency. Under an alternative approach that Dean William Prosser dubbed the “modern justification of vicarious liability,” agency does not matter. Corporate defendants must pay, regardless of fault, for enterprise related torts, even if the actual wrongdoer was an independent contractor or an employee acting outside the scope of employment. Scholars often present the modern justification as the law and ignore the agency rationale or treat it as outmoded. This Article will show that, in fact, the agency rationale is supported by powerful arguments and is generally followed by the courts (outside of California).

August 20, 2021 in Scholarship | Permalink | Comments (0)

Wednesday, August 18, 2021

Lande on Collaborative Law

John Lande has posted to SSRN Canaries in the Litigation Coal Mine.  The abstract provides:

Although litigation provides many vitally important benefits for individuals and society, it can harm everyone it touches, including litigators. Collaborative lawyers offer clients the collaborative process, which consists solely of negotiation. Because these lawyers find litigation to be extremely traumatic, they value the opportunity to handle collaborative cases, in which they are precluded from litigating by virtue of an enforceable “disqualification agreement.” These lawyers are like canaries in the “litigation coal mines,” warning of dangers that litigation can cause.

This article highlights traumas that litigation can cause law students, lawyers, and parties. It describes the benefits that collaborative practice can provide for lawyers and parties – as well as challenges in collaborative practice. However, relatively few parties use collaborative practice, especially in non-family law cases. This article emphasizes the importance of all lawyers helping clients manage their conflicts as well as possible while minimizing the harm to clients, people in their lives, and themselves (i.e., the lawyers). It includes links to practical resources to help lawyers do so, especially when they need to litigate.

August 18, 2021 in Scholarship | Permalink | Comments (0)

Monday, August 16, 2021

Sawacki on Ethical Malpractice

Nadia Sawacki has posted to SSRN Ethical Malpractice.  The abstract provides:

Traditional claims of medical malpractice arise from deviations from medical standards of care regarding knowledge, professional decision-making, or technical skill. While many standards of ethical behavior are just as firmly rooted in medical custom as these more technical standards, U.S. courts have typically been unwilling to acknowledge ethical violations as compensable breaches of legal duty. This Article poses a question that should be at the forefront of discussions about medical liability in the 21st century – whether malpractice law should evolve to recognize violations of professional ethical norms as a basis for tort liability. In evaluating this question, it draws analogies to arguments that have been raised in the context of legal malpractice, informed consent, and clinical practice guidelines. The Article concludes that while standards of medical ethics may be relevant to assessing the standard of care in medical malpractice cases, it may be premature to treat ethics violations as prima facie grounds for liability.

August 16, 2021 in Scholarship | Permalink | Comments (0)

Wednesday, August 11, 2021

JOTWELL Torts: Avraham on Cheng et al. on Sequencing in Damages

Over at JOTWELL Torts, Ronen Avraham reviews Sequencing in Damages by Edward Cheng, Ehud Guttel & Yuval Procaccia.

August 11, 2021 in Scholarship, Weblogs | Permalink | Comments (0)

Tuesday, August 10, 2021

Sinai & Shmueli on Maimonides and Tort Theory

Yuval Sinai & Benny Shmueli have published Maimonides and Contemporary Tort Theory with Cambridge University Press.  The blurb provides:

Maimonides lived in Spain and Egypt in the twelfth century, and is perhaps the most widely studied figure in Jewish history. This book presents, for the first time, Maimonides' complete tort theory and how it compares with other tort theories both in the Jewish world and beyond. Drawing on sources old and new as well as religious and secular, Maimonides and Contemporary Tort Theory offers fresh interdisciplinary perspectives on important moral, consequentialist, economic, and religious issues that will be of interest to both religious and secular scholars. The authors mention several surprising points of similarity between certain elements of theories recently formulated by North American scholars and the Maimonidean theory. Alongside these similarities significant differences are also highlighted, some of them deriving from conceptual-jurisprudential differences and some from the difference between religious law and secular-liberal law.

August 10, 2021 in Books, Religion, Scholarship | Permalink | Comments (0)

Monday, August 9, 2021

Baker, Avraham & Sebok on the Market for Post-Settlement Litigant Finance

Lynn Baker, Ronen Avraham & Tony Sebok have posted to SSRN The Mysterious Market for Post-Settlement Litigant Finance.  The abstract provides:

Litigant finance is a growing and increasingly controversial industry in which financial firms advance a plaintiff money in exchange for ownership rights in the proceeds of the legal claim on a nonrecourse basis: A plaintiff must repay the advance only if compensation is ultimately received for the legal claim. The nonrecourse nature of this funding exempts it from most states’ consumer credit laws, enabling funders to charge higher interest and fees than would otherwise be permitted. When this funding involves ordinary consumers, critics of the industry contend that the uncapped interest rates exploit vulnerable litigants, while its defenders argue that the availability of these cash advances improves the welfare of consumers, especially those who have no other credit options.

This funding made headlines during the recent NFL concussion litigation, with more than one thousand players reported to have received such cash advances and with class counsel raising concerns of “predatory lending.” Because the industry has not been forthcoming with facts, the larger policy debate thus far has largely relied on anecdotes and speculation. In addition, the debate has ignored the important differences between pre- and post-settlement litigant funding.

This Article is the first to present systematic, large-scale data on post-settlement litigant funding—the type of funding most NFL players reportedly received. We were given unrestricted access to the complete archive of sixteen years of funding applications and funding contracts from one of the largest consumer litigant funding companies in the United States. These data, which are robust and representative, enable us to make transparent the terms and true price to consumers of this formerly mysterious funding. We find that the Funder offers not only clearer contract terms but also better financial terms to post-settlement clients relative to pre-settlement clients. Yet these better terms do not come close to reflecting the virtually nonexistent litigation risk to the Funder. We therefore recommend that post-settlement litigant funding be subject to the same regulations as conventional consumer credit and that a standardized, simple disclosure be required.

August 9, 2021 in Scholarship | Permalink | Comments (0)

Wednesday, August 4, 2021

Torrey on Harmonizing Wrongs and Compensation

At Workers' Compensation Law Prof Blog, David Torrey, a Pennsylvania workers' compensation judge who also teaches at Pitt, covers my latest article, with a focus on the WC material.

August 4, 2021 in Scholarship, Weblogs | Permalink | Comments (0)

Tuesday, July 27, 2021

Billauer on Liability for Brain-to-Computer Interface

Barbara Pfeffer Billauer has posted to SSRN The Bionic Plaintiff and the Cyborg Defendant:  Liability in the Age of Brain-to-Computer Interface.  The abstract provides:

Human-enhancing devices via machine interface are rapidly approaching mass marketability. These devices include, for example, exoskeletons that allow functionality for those neurologically impaired are powered hydraulically, mechanically, or electrically. Newer devices, recently approved by the FDA, power such devices via brain waves transmuted into electrical signals. This Brain to Computer Interface (BCI) technology has been utilized in advanced designs, such as controlling a stylus or robotic arms, and more mundane contraptions, such as wheelchairs, via brain waves signaling intention. All are governed under Class II FDA designation for devices posing low and moderate risks.

Of concern are studies that have recorded the existence of a readiness potential that precedes brainwaves involved in conscious movement, recordable shortly before intent to move -- or even awareness of such intent -- is acknowledged by the user. This raises the question regarding whether BCI technology can mobilize devices based on unconscious or subconscious thoughts – creating the possibility of “unintended” harm, calling into question the legal definition of “intent” needed to prove assault and battery. The BCI devices also render it nearly impossible to divine relative contribution of fault in the event of an accident: was it due to the intent (conscious or not) of the user- or product malfunction, the subject, perhaps, of a product liability suit against the manufacturer? It appears the technology is poised to throw the tort system into disarray.

Here I postulate that FDA Class III regulation is warranted for BCI devices. This would assure greater oversight and protection – not just for the user- but for bystanders and the public at large for devices allowing remote movements engineered by pure thought. I further suggest that enhanced testing is warranted – and that failure to pursue such testing might render the manufacturer liable in tort breaching pre-emption bars, thereby furnishing double protection: deterrence via lawsuit, plus FDA oversight. This double protection, I suggest, is warranted in such potentially dangerous situations. Finally, I highlight the difficulties in assessing fault and recklessness in law when actions are committed without full awareness.

July 27, 2021 in Scholarship | Permalink | Comments (0)

Monday, July 26, 2021

Russell on Comparative Auto Accidents

Thomas Russell has posted to SSRN Car Crashes, Personal Injury Litigation, and Frivolous Defenses in Alberta and Colorado.  The abstract provides:

This Article is a comparative empirical study of car crash litigation in Alberta, Canada and Colorado, USA.

The first part of the Article compares the rates of car crash injuries and litigation between Alberta and Colorado. The Article assembles data for what sociolegal scholars typically call the dispute pyramid, but I argued that a salmon run is a better metaphor for the winnowing of injuries through lumping, claiming, settling, and litigating.

The Article shows that Albertans have a safer driving culture than do Coloradans. Surprisingly, the data also show that Albertans file car crash lawsuits much more frequently than Coloradans, notwithstanding the American reputation for litigiousness. I suggest that something within the settlement of property damage only cases likely accounts for the difference.

The second part of the article presents a summary of empirical data and argument concerning the pleading of frivolous defenses by American insurance defense lawyers. I compare the pleading of these defenses to the Alberta Rules of Court.

I am especially interested in hearing from Alberta and Canadian lawyers regarding differences between the Canadian tort system and that of the United States.

July 26, 2021 in Scholarship | Permalink | Comments (0)

Friday, July 23, 2021

Allen on the Emotional Woman Standard

Alena Allen has posted to SSRN The Emotional Woman.  The abstract provides:

The emotional woman is nonexistent in the common law, but the reasonable man is an indelible figure. Conceptions of reasonableness permeate nearly every aspect of the law while emotion is largely absent. The reasonable man determines negligence. Reasonable minds determine whether a contract has been formed. Reasonable doubt stands between freedom and incarceration. The primacy of reason in American jurisprudence is so engrained that it is rarely questioned or critiqued. Although it seems axiomatic to equate socially desirable conduct with reasonableness, this Article dissects how reasonableness became a central tenet of American law and argues that continued adherence to reasonableness as the optimal standard for evaluating conduct entrenches value-laden androcentric norms. It further argues that, in practice, reasonableness is an ill-defined construct masquerading as an objective standard. As such, instead of arguing for a reasonable woman standard of care, this Article departs from the standard feminist critique and argues that reasonableness itself is inherently androcentric. Thus, it argues that reasonableness is not the optimal standard for evaluating tortious or criminal conduct. Using current social science research, this Article argues that emotion is crucial to sound decision-making and proffers the emotional woman standard as a superior alternative to the reasonable man. Lastly, this Article discusses implications for how the emotional woman standard furthers existing paradigms of feminist discourse.

July 23, 2021 in Scholarship | Permalink | Comments (0)

Thursday, July 22, 2021

Rave and McGovern on a Hub-and-Spoke Model of Multidistrict Litigation

Theodore Rave has posted his article with the late Francis McGovern, A Hub-and-Spoke Model of Multidistrict Litigation, on SSRN.  The abstract provides:

Consolidating mass tort cases in federal multidistrict litigation (MDL) has been a successful strategy for efficiently managing, facilitating the maturation of, and resolving nationwide disputes. This has been particularly true for cases involving single-event mass disasters or defective products sold by a single defendant, even when thousands of plaintiffs are involved. But in "mega mass torts"--those involving multiple defendants and multiple products and activities over an extended period of time (e.g., asbestos, silicone gel breast implants, opioids)--comprehensive resolution in an MDL has proven elusive. In these mega mass torts, the MDL judge can become a bottleneck, as there are only so many motions, discovery disputes, and bellwether trials a single judge can decide. But while these types of mega mass torts may be too varied for a single simultaneous trial or global settlement, eschewing aggregation would result in massive losses of efficiency and consistency.

Here we propose a "hub-and-spoke" model of MDL case management for these sorts of mega mass torts that takes full advantage of the nationwide scope of the federal judiciary to relieve pressure at the bottleneck. The idea is to initially consolidate all related cases in a single MDL (the hub) for common discovery and pretrial management. In the course of managing the hub MDL, the hub MDL judge will identify sensible groupings of parties and claims to recommend to the Judicial Panel on Multidistrict Litigation for strategic disaggregation as test cases. Those test cases will then be remanded to other federal judges (the spokes) to allow the litigation to move forward through further pretrial development, bellwether trials, and potential piecemeal settlements. The spoke cases can proceed in parallel with the cases still in the hub MDL to speed the process of maturation, much in the same way that a computer can handle complex tasks faster through parallel processing than through serial processing. The hub MDL judge may also retain jurisdiction over a common issue or party to provide a ready forum for a potential global resolution should the information generated in the spokes make one possible.

In this article, we discuss the problem of bottlenecks in mega mass tort litigation. We then describe the hub-and-spoke model, the advantages it offers over other approaches to mega mass tort litigation, and the ways in which it can increase the chances of finality in mega mass tort cases through a variety of settlement structures. Finally, we analyze an example of the hub-and-spoke model in action in the ongoing National Prescription Opiates MDL.

July 22, 2021 in Scholarship | Permalink | Comments (0)

Friday, July 16, 2021

Feminist Torts Judgments: Pruitt's Commentary on Boyles v. Kerr

Lisa Pruitt has posted to SSRN Commentary on Boyles v. Kerr (Texas 1993) for Feminist Judgments:  Rewritten Torts Opinions.  The abstract provides:

This paper comments on Professor Cristina Tilley's rewritten feminist opinion in Boyes v Kerr (Texas 1993). The Texas Supreme Court in Boyles v. Kerr rigidly refused to extend the state’s negligent infliction of emotional distress (NIED) precedents to permit recovery when the plaintiff was a young woman (Susan Kerr) whose emotional distress was the consequence of her lover (Dan Boyles, Jr.,), in collaboration with three friends, surreptitiously videotaping the pair having sex and then sharing the video with his fraternity brothers at the University of Texas. But the feminist rewrite of Professor Tilley (writing as Justice Tilly) makes clear that the salient doctrines were and are more than capacious enough to have permitted Kerr’s NIED recovery. In fact, the myriad opinions in Boyles, as well as their extensive discussion of NIED’s history and precedents, reveal a highly malleable claim, the evolution of which reveals clearly gendered themes and trends.

July 16, 2021 in Books, Scholarship | Permalink | Comments (0)

Tuesday, June 22, 2021

Gold Reviews Smith on the Structure of Remedial Law

Andrew Gold has posted to SSRN his review of Stephen Smith's Rights, Wrongs, and Injustices:  The Structure of Remedial Law.  The abstract provides:

This paper is a draft review of Stephen Smith’s recent book -- Rights, Wrongs, and Injustices: The Structure of Remedial Law (Oxford University Press, 2019). The book offers a groundbreaking and deeply insightful theory of the remedies in private law. On Smith’s account, remedies are judicial rulings, and they are issued because they provide people with new reasons for action. This review will focus on a jurisprudential puzzle that lies at the center of the book. Rights, Wrongs, and Injustices provides an original account of the authority in court orders. I will suggest that the book is right that the authority in court orders is distinctive, but wrong in its analysis of what grounds that authority. Considering this question, however, sheds significant new light on the law of remedies and on private law as a whole.

June 22, 2021 in Books, Scholarship | Permalink | Comments (0)

Friday, June 11, 2021

Penney on Chilling Effects

Jon Penney has posted to SSRN Understanding Chilling Effects.  The abstract provides:

With digital surveillance and censorship on the rise, the amount of data available online unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence (AI), machine learning, and facial recognition technology (FRT) for surveillance and data analytics, concerns about “chilling effects”, that is, the capacity for these activities “chill” or deter people from exercising their rights and freedoms have taken on greater urgency and importance. Yet, there remains a clear dearth in systematic theoretical and empirical work point. This has left significant gaps in understanding. This article has attempted to fill that void, synthesizing theoretical and empirical insights from law, privacy, and a range of social science fields toward a more comprehensive and unified understanding.

I argue that conventional theories, based on fear of legal or privacy harm, are narrow, empirically weak, cannot predict or explain chilling effects in a range of different contexts, and neglect its productive dimensions—how chilling effects shape behavior. Drawing extensively on social science literature, I argue that chilling effects are best understood as a form of social conformity. Chilling effects arise out of contexts of ambiguity and uncertainty—like the ambiguity of public or private sector surveillance—but have deeper psychological foundations as well. In moments of situational uncertainty, people conform to, and comply with, the relevant social norm in that context. Sometimes this means self-censorship, but most often it means more socially conforming speech or conduct. A theory of chilling effects as social conformity has important normative, theoretical, and empirical advantages, including greater explanatory and predictive power, clarifying what chilling effects theory is for and what it produces, as well as providing a basis to navigate competing and differing chilling effect claims. It also has implications, I argue, for constitutional standing as well as the First Amendment chilling effects doctrine.

June 11, 2021 in Scholarship | Permalink | Comments (0)