68 Am. U. L. Rev. 2089 (2019).
* David and Mary Harrison Distinguished Professor of Law, University of Virginia School of Law.
** David and Mary Harrison Distinguished Professor of Law, University of Virginia School of Law.
The Authors would like to thank the participants of a workshop at the University of Virginia School of Law.
Torts have names for a reason. A tort without a name would very nearly be a contradiction in terms because it would not describe itself. But torts do not always get names immediately upon birth. Typically, it takes some time to recognize what they are because they are in search of an identity or have vaguely defined content. The law of torts of the future may well experience this process, as it works through the rights and liabilities that govern harms characteristic of the information age: invasions and misuses of digitized personal data and sexualized attitudes and misconduct, for example. The dominant form that new liabilities took in the twentieth century was through the establishment of new, particularized torts. An alternative, but much less known form of liability, however, competed with the named-tort approach during this same period and to some extent, still competes with it. This is the application of what we call a “residual category” of liability. In our judgment, however, a residual category approach to the intangible harms of the twenty-first century should and would fail in the same way, and for the same reasons, that this approach largely failed in the twentieth century. The new torts of the twenty-first century will have to be particular, named torts. This Article explains why this will be the case, and then undertakes to demonstrate how these explanations apply to the most salient forms of intangible harm on the current scene—harms that inevitably will be candidates for tort liability in the years to come. We identify the aspects of each form of loss that we think may well become actionable through the adoption of new torts or the expansion of existing torts, as well as the aspects of loss that will continue not to be actionable.
Torts have names for a reason. The names “invasion of privacy,” “intentional infliction of emotional distress” (“IIED”), and even “negligence” each are descriptions of the core content of these different causes of action. The same is true of all the other torts. A tort without a name would very nearly be a contradiction in terms because it would not describe itself. But torts do not always get names immediately upon birth. Typically, it takes some time to recognize what they are because they are in search of an identity or have a vaguely defined content. This was at first true for IIED1See, e.g., Nickerson v. Hodges, 84 So. 37, 37–39 (La. 1920) (holding the defendants liable for intentionally inflicting emotional distress via a cruel practical joke, without naming the basis or cause of action); Lamson v. Great N. Ry. Co., 130 N.W. 945, 945–46 (Minn. 1911) (affirming a judgment holding a railroad conductor liable for affecting the plaintiff’s health by using strong language in her presence). and the privacy torts,2See, e.g., Pavesich v. New England Life Ins. Co., 50 S.E. 68, 68–69, 81 (Ga. 1905) (holding that the petition set forth a cause of action for violating a person’s privacy when a publishing company published a likeness of the plaintiff without the plaintiff’s consent); Rhodes v. Graham, 37 S.W.2d 46, 46–47 (Ky. 1931) (reversing the trial court’s decision granting the defendant’s demurrer in an action for wiretapping plaintiff’s telephone conversations, with no reference to what would later be termed the tort of “intrusion on seclusion”). the last new intentional torts to be adopted, about a century ago.3See generally William L. Prosser, Handbook of the Law of Torts 54–67, 1050–62 (1941) (describing the emergence of IIED and privacy tort actions). And new torts sounding in negligence have largely camouflaged this process through the combined force of doctrinal structure and misdirected emphasis.4The default rule that there is no liability in negligence without the existence of a predicate duty means that new negligence torts often are created by recognizing a new duty not to negligently risk causing a particular form of loss. See Kenneth S. Abraham, The Forms and Functions of Tort Law 61 (5th Ed. 2017). When this happens it often incorrectly appears that an artificial restriction on liability for negligence has been removed, not that a new form of liability—and certainly not a new tort—has been created. See, e.g., Kline v. 1500 Mass. Ave. Apartment Corp., 439 F.2d 477, 478–81 (D.C. Cir. 1970) (adopting negligence liability for a landlord’s failure to maintain adequate security by relaxing no-duty restriction on liability); Dillon v. Legg, 441 P.2d 912, 916–17, 924–25 (Cal. 1968) (adopting liability for negligent infliction of emotional distress by relaxing no-duty restriction on liability).
Because not a single, named new tort has been adopted in nearly a century, it might appear that the process by which new tort liabilities are created has become static, or even moribund. In our judgment, this conclusion may soon prove to be dramatically incorrect. If harms involving tangible, physical forces—railroads, cars, durable products, drugs, and chemical wastes—were the stuff of twentieth-century tort law, harms involving intangible forces and intangible harms—invasions and misuses of digitized personal data, and sexualized attitudes and misconduct, for example—may be the stuff of the law of torts in the twenty-first century.5Tort law tends to protect against physical harm—bodily injury and property damage (and their consequences)—and to compensate victims who suffer those physical harms more rigorously than other forms of harm, such as “pure” (freestanding) emotional suffering and economic loss. See Abraham, supra note 4, at 272. We use the term “tangible” to refer to overtly physical forces and overtly physical harms and the term “intangible” to refer to forces (cyber invasions, for example) and harms (emotional and economic loss, for example) that are not overtly physical. Obviously, we recognize that cyber invasions have a physical component, even when that component is not overt and observable. In addition, by describing emotional and economic harm as “intangible,” we do not mean that these harms are any less real or important than physical harms. Rather, our reference to “tangible” and “intangible” forces and harms is a shorthand designed to capture the general distinction between two subject matters that the law of torts, as it now stands, usually treats differently.
For this reason, the law of torts of the future may be the farthest thing from static or moribund. Rather, it may well become a prime battleground for working through the rights and liabilities that govern harms characteristic of the information age. Indeed, the parallels between the present period and the era of 1960 to 1985, which was the most dynamic period in the history of the law of torts, are striking and suggestive. Because of social pressure for tort law to expand both negligence and strict liability, the earlier period witnessed tremendous ferment, turmoil, and the consequent explosion of liability for physical harm caused by the tangible, physical forces of the industrial era.6See generally George L. Priest, The Invention of Enterprise Liability: A Critical History of the Intellectual Foundations of Modern Tort Law, 14 J. Legal Stud. 461, 461 (1985) (reflecting on the dramatic “conceptual revolution” in tort law between 1960 and 1985); Gary T. Schwartz, The Beginning and the Possible End of the Rise of Modern American Tort Law, 26 Ga. L. Rev. 601, 601, 604–05 (1992) (noting the uncertainty and vitality, which resulted from a “huge growth in tort liability”).
The present age may be about to witness the same degree of social pressure, with corresponding turmoil and expansion of liability for intangible forces and the intangible harms they cause. For example, because of inadequate data security, cyber hacking now commonly results in both economic loss and invasions of the privacy of those whose credit accounts or digitized personal information have been hacked.7See infra Section III.A–B (discussing negligent release of hacked consumer credit information and confidential information). In addition, varieties of sexual and sexualized misconduct recently have garnered much more attention and concern than in the past.8See infra Section III.C (discussing intentional or negligent sexualized misconduct in the rise of the MeToo movement). Each of these forms of wrongful conduct generates mainly intangible loss rather than physical harm.
The form taken by any new tort liabilities arising out of these and similar wrongs will be important to the development and predictability of those liabilities, and to their impact on wrongful conduct. The dominant form that new liabilities took in the twentieth century was through the establishment of new, particularized torts. An alternative but much less known form of liability, however, competed with the named-tort approach during this same period, and to some extent still competes with it. This is the application of what we call a “residual category” of liability.
The idea of a residual category of tort liability first surfaced more than a hundred years ago, when Oliver Wendell Holmes partly described, and partly proposed, that there be tort liability for “intentional infliction of temporal damage.”9Oliver Wendell Holmes, Jr., Privilege, Malice, and Intent, 8 Harv. L. Rev. 1, 3 (1894) [hereinafter Holmes, Privilege, Malice, and Intent]. Cases decided in the following decades imposed liability on grounds that appeared to reflect this residual category, which came to be principally illustrated in the concept of what eventually was termed “prima facie tort.”10See infra Sections II.B–C. This alternative approach turned out to garner very little, actual support in decided cases, but it continues to be asserted sporadically as a potential basis for the imposition of liability in lawsuits around the country.11See infra Sections II.B–C. In our view, however, a residual category approach to the intangible harms of the twenty-first century should and would fail in the same way, and for the same reasons that this approach largely failed in the twentieth century. The new torts of the twenty-first century will have to be particular, named torts.
This Article explains why this will be the case, and then undertakes to demonstrate how these explanations apply to the most salient forms of intangible harm on the current scene—harms that inevitably will be candidates for tort liability in the years to come. Part I develops a general theory of the preconditions necessary to the adoption of new torts and the variety of obstacles that potential new torts must surmount if they are to be adopted. In Part II, we explore the history of Holmes’s contention that there was a residual category of tort liability for “intentional infliction of temporal harm” subject to “justification.” In addition to Holmes, this contention had eminent supporters—Pollock, Bohlen, and Prosser, among others. Yet, as we show, in the form in which those luminaries described it, this general, residual category of liability was never established as a robust alternative to the adoption of particular, named torts. In Part III, we apply our analysis of how new torts become “named” and their scope becomes defined to several potential new torts of the future, all involving intangible forces or harms likely to be salient during the rest of the century. We identify the aspects of each form of loss that we think may well become actionable through the adoption of new torts or the expansion of existing torts, as well as the aspects of loss that will continue not to be actionable.
We conclude by arguing that, despite the fact that invasions of intangible “rights” or “interests” may be more common in the future and may increasingly be perceived as wrongs that reflect widespread social concern, the invasions should not be, and are unlikely to be, redressed through the application of a residual category of liability for the intentional infliction of intangible harm. Rather, we contend that if new torts associated with intangible forces and harms are adopted, they will be discrete, concrete, and contained. In short, any residual potential tort liability that exists will manifest itself in the expansion of existing torts or the establishment of new torts with discrete elements and defined limitations—torts with names.
I. A General Theory of the Preconditions to the Emergence of New Torts
Our focus here is on torts that have come into existence or have been proposed or considered, but failed to come into existence, during roughly the last century, and torts that might come into existence in a future that bears some resemblance to the present.12Although the account in this Part does not directly address how and why all of the existing torts came into being, what we have to say applies in many ways to the existing torts. There is a core set of torts involving the interests in bodily security and rights of property, for example, that have long been in force and whose existence can easily be explained and justified by the importance of the interests they protect: assault, battery, negligence, liability for defective products, trespass to property, and nuisance. A number of torts that protect other interests are also subject to ready explanation and justification because of the interests they protect: fraud, defamation, and intentional interference with contract, for example. The tort system long ago picked all of this low-hanging fruit. That fruit is not our concern. For an effort to explain how to intentionally create a new tort, however, see generally Anita Bernstein, How to Make a New Tort: Three Paradoxes, 75 Tex. L. Rev. 1539 (1997). Any theory must explain not only positive but also negative evidence. Ours therefore seeks to explain, among other things, why potential torts that some people thought were going to emerge, or might have emerged, did not do so.13On this score, theories of torts often have little to say. For example, the most prominent civil recourse theorists have written extensively on what characterizes torts and have sought to explain why torts are legal wrongs even when they are not moral wrongs but say much less about why some acts or omissions that might count as legal wrongs do not. See, e.g., John C.P. Goldberg & Benjamin C. Zipursky, Torts as Wrongs, 88 Tex. L. Rev. 917, 918–19, 937 (2010) (explaining how courts must consider social policy as well as economic and political circumstances when deciding whether a particular act is justiciable). Similarly, corrective justice theorists explain the structure of tort liability but not why certain injustices are not subject to tort liability. The closest statement addressing this issue we have found in the work of one of the leading corrective justice theorists is that the “plaintiff’s injury must be to something, such as personal integrity or a proprietary entitlement, that ranks as the embodiment of a right.” Ernest J. Weinrib, The Idea of Private Law 134 (1995). Nor have we found anything expressly addressing the issue in one of the leading instrumental works, William M. Landes & Richard A. Posner, The Economic Structure of Tort Law (1987).
The first step in our inquiry is to identify what it takes for a new form of tort liability to come into being. There are four preconditions relevant to the establishment of a new tort. The more clearly one or more preconditions is satisfied in a particular situation, the less important complete satisfaction of the other conditions is likely to be.
A. Social Salience and Normative Weight
The first and predominant precondition to the imposition of tort liability, and therefore to the emergence of a new tort, is the perceived wrongfulness of the defendant’s conduct. Perceived wrongfulness often is reflected in concern outside the legal system that transforms what would otherwise be a technical doctrinal issue into a social problem presented to the courts for solution. “Social salience” and “normative weight” are not really separate phenomena. They overlap and reinforce each other. Nonetheless, we address these closely related factors separately in order to tease out their slightly different aspects.
1. Social salience
At various times, widespread perceptions surface that certain kinds of conduct are causing harms to others and that the conduct and resulting harms are socially troublesome enough to amount to “wrongs.” One example of this phenomenon was the emergence, about a century ago, of causes of action in tort for pure emotional distress.14See Prosser, supra note 3, at 216–17.
Prior to the emergence of causes of action for intentional and negligent infliction of emotional distress, courts denied such recovery on a number of grounds.15One was that emotional harm itself was too idiosyncratic and too speculative to be capable of being concretized in the form of an actionable wrong. A second, related reason was that because of the idiosyncratic nature of emotional harm, damages for that harm were impossible to measure. The last reason was that if the tort system allowed recovery for emotional harm, it would be overwhelmed with frivolous or feigned claims, opening up the floodgates of litigation that would clog courts’ dockets. See Dan B. Dobbs, The Law of Torts 822–24 (2000). Those barriers to recovery were then surmounted because of developments outside the legal system. Society began to take genuine emotional harm more seriously, rather than dismissing it as frivolous, idiosyncratic, or simply as a necessary condition of human interaction. This was partly because the professionalization of specialists in mental health made emotional harm diagnosable and treatable.16See G. Edward White, Tort Law in America: An Intellectual History 103 (expanded ed. 2003). They could diagnose genuine emotional distress and distinguish it from idiosyncratic or feigned distress.17Id. In addition, the costs of diagnosing and treating emotional harm could be quantified.18Id. at 105. The previously speculative character of emotional harm and of the damages that might be awarded to people who had suffered it was thereby reduced. And as those developments occurred, the difficulties presented to the legal system from feigned or frivolous claims, or from massive litigation, were perceived as surmountable.19Id. Cumulatively, this social recognition of genuine emotional loss resulted in tort liability emerging as a basis for the redress of some conduct producing purely emotional harm.20Id. at 102–06.
Analogous social salience can be observed in the emergence in the 1960s of strict liability for manufacturing defects—departures from the manufacturer’s intended design—in products that caused harm to the users and consumers of those products.21Initially, tort remedies for negligently caused defects in products were available only to those in privity (contractual relations) with the persons responsible for the defects. But after the rise of mass production and distribution, the typical user or consumer of a product was no longer the person in privity with the product’s manufacturer; the person in privity was more typically a retailer who did not use the product but sold it to a consumer. Thus, the liability of manufacturers for negligently-caused defects in their products was extended beyond retailers to consumers. The theory of that extension was that the manufacturer was aware that its product was going to be used by consumers rather than retailers, and that if it negligently caused defects in the product, it would be the consumers rather than the retailers who were likely to be injured. See MacPherson v. Buick Motor Co., 111 N.E. 1050, 1051, 1053–55 (N.Y. 1916) (holding Buick liable for negligence even though the vehicle was sold to the plaintiff indirectly through a retailer). The mass manufacturing and distribution of products in the twentieth century had resulted in countless products reaching the hands of consumers that had been manufactured by enterprises with which they had virtually no connection. For manufacturers to profit from selling such products, yet to bear no responsibility for the injuries they caused when the manufacturer’s negligence could not be pinpointed, seemed unfair.22See Note, The Cutter Polio Vaccine Incident: A Case Study of Manufacturers’ Liability Without Fault in Tort and Warranty, 65 Yale L.J. 262, 263–64 (1955) (“Policy considerations indicate that Cutter should be liable to persons who contracted polio from live virus in the vaccine it manufactured, without regard to whether it was at ‘fault.’”). For an expression of the legal arguments reflecting these social concerns, see Escola v. Coca Cola Bottling Co., 150 P.2d 436, 440 (Cal. 1944) (en banc) (Traynor, J., concurring).
The point here is simply that the emergence of liability for pure emotional distress and of strict liability for manufacturing defects was driven not only by technical, doctrinal considerations that were completely internal to the tort system. Those doctrinal changes—in effect the adoption of new torts—reflected attitudes in the world outside the legal system about responsibility for those losses.
2. Normative weight
A second factor is the wrongfulness of the conduct that would be subject to a potential new tort. Social salience and normative weight are closely related because the more wrongful the conduct, the more socially salient it is likely to be. The elements of a new tort then tend to reflect this connection by focusing on what is most wrongful about the conduct in question. The courts ensured that the principal new torts established in the twentieth century satisfied this condition by making only the most blameworthy forms of the conduct they addressed subject to liability.23See generally Restatement (Second) of Torts § 46–48 (Am. Law Inst. 1965). Thus, IIED is actionable only if the defendant’s conduct in causing distress was “extreme and outrageous.”24Id. § 46. Analogous requirements apply in the torts involving invasion of privacy. Intrusion on seclusion is actionable only if the intrusion is intentional and would be “highly offensive to a reasonable person.”25See Restatement (Second) of Torts § 652B (Am. Law Inst. 1977). Public disclosure of true private facts is actionable only if the matter publicized would be both “highly offensive to a reasonable person” and “is not of legitimate concern to the public.”26See id. § 652D. Similarly, placing a person in a false light is actionable only if it would be “highly offensive to a reasonable person,” and the defendant had knowledge of or acted in reckless disregard of the falsity in question. Id.§ 652E. The last privacy tort is appropriation of another’s name or likeness. This tort involves the wrongful appropriation of an aspect of the plaintiff’s identity, resulting in either commercial loss or personal distress. Id. § 652C. The scope of the torts of public disclosure and false light is now limited, however, by First Amendment free speech principles. See Florida Star v. B.J.F., 491 U.S. 524, 526 (1989) (public disclosure); Cantrell v. Forest City Publ’g Co., 419 U.S. 245, 246, 249 (1974) (false light).
A second aspect of normative weight is the extent to which the wrong in question can be fitted into an already-existing tort. The greater the fit, the smaller the residuum of wrongs that will go unredressed if a new tort is not created. Conversely, the lesser the fit, the larger the category of unredressed wrongs and the more likely the courts are to create a new tort. For example, intrusions on seclusion often did not involve physical trespass because they occurred through sight or hearing rather than physical presence,27See, e.g., Pritchett v. Bd. of Comm’rs, 85 N.E. 32, 33 (Ind. App. 1908) (observing the plaintiff from outside her property); McDaniel v. Atlanta Coca-Cola Bottling Co., 2 S.E.2d 810, 812 (Ga. Ct. App. 1939) (recording conversations). and public disclosure of true facts did not involve defamation because falsity of the defamatory statement is an element of that tort.28Dobbs, supra note 15, at 1119–20. Establishment of those new causes of action redressed a major category of wrongful conduct that trespass and defamation could not capture.29On the other hand, much that now falls within the privacy torts of false light and appropriation of name or likeness could well have fit within expanded versions of defamation and conversion. Something like that might well have occurred had the highly influential torts scholar William Prosser not contended early on that a single tort of invasion of privacy was emerging. Prosser, supra note 3, at 1050 (“The majority of the courts which have considered the question have recognized the existence of a right of ‘privacy,’ which will be protected against interferences which are serious, and outrageous, or beyond the limits of common ideas of decent conduct.”). He later recanted, for it soon became clear that there was no such residual category, even for invasions of privacy. William L. Prosser, Handbook of the Law of Torts 637 (2d ed. 1955) (indicating that invasion of privacy “appears in reality to be a complex of four distinct wrongs”). Rather, there are now the four separate privacy torts. Similarly, whether IIED could have been assimilated into assault, which already protected a plaintiff’s interest in peace of mind, is a closer question. But once again, the eagerness of legal scholars—this time Calvert Magruder and, again, Prosser—to synthesize developments and, perhaps prematurely, denominate them as new torts, redirected that approach. See, e.g., Calvert Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harv. L. Rev. 1033–35, 1064 (1936); William L. Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich. L. Rev. 874, 874 (1939).
Over the years, commentators have proposed the creation of a number of new torts, some of which we think may not have developed because much of the conduct in question could be characterized as falling within the scope of an existing tort. Thus, a conventional cause of action for battery applies to some forms of the proposed tort of sexual fraud,30See Restatement (Third) of Torts: Intentional Torts to Persons § 15 cmt. e (Am. Law Inst., Tentative Draft No. 4, 2019) (a defendant’s failure to disclose to a plaintiff that he has a sexually transmitted disease prior to consensual intercourse constitutes battery). and with a bit of modification, it could apply to others.31See id. cmt. f (suggesting that a false statement to the plaintiff that the defendant intended to marry her does not render consensual sexual intercourse a battery); see also Jane E. Larson, “Women Understand So Little, They Call My Good Nature ‘Deceit’”: A Feminist Rethinking of Seduction, 93 Colum. L. Rev. 374, 379–80 (1993) (proposing the tort of sexual fraud). Similarly, IIED applies to at least some forms of the proposed tort of racial hate speech.32See, e.g., Richard Delgado, Words that Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling, 17 Harv. C.R.- C.L.L. Rev. 133, 134, 179 (1982) (proposing a tort based on intent to demean by reference to race). The availability of existing causes of action as a means of remedying at least some of the wrongs that would fall within the scope of potentially new torts takes the pressure off creating a new cause of action, both by diminishing the normative appeal of a new tort and, as a practical matter,33See discussion infra Section I.D. by giving plaintiffs and their lawyers avenues of recovery that obviate the need to pursue establishment of a new tort all the way through the otherwise necessary process of trial (or summary judgment) and appeal.
The picture in the world of negligence liability is similar. Despite the tendency of the courts and tort scholars to treat expansions of liability in negligence as mere removal of restrictions on liability, new causes of action in negligence often would be better understood to be new torts recognizing the normative weight of the wrongs in question.34That was undoubtedly true of negligent infliction of “pure” emotional distress, as courts came to acknowledge the seriousness of the emotional distress suffered by the women who were so frequently plaintiffs in these cases, and the consequent wrongfulness of risking this kind of loss. See Abraham, supra note 4, at 272. The same is true of the rise of manufacturer liability in negligence for product-related injury. Nominally, this new liability came about through the abolition of a no-duty-in-the-absence-of-privity rule. See MacPherson v. Buick Motor Co., 111 N.E. 1050, 1051 (N.Y. 1916). But for all practical purposes, products liability was a new tort, reflecting increased recognition of the wrongfulness of manufacturing unduly dangerous products. Moreover, whether new forms of negligence liability are considered new torts or mere relaxation of limitations on liability, it would not be accurate to say that there is prima facie liability for negligently-caused harm. On the contrary, there is no general duty not to be negligent,35See Abraham, supra note 4, at 261. and therefore no sense in which negligence resulting in harm must always be justified in order to avoid liability for causing that harm. In short, new forms of liability in negligence are not manifestations of any residual category of liability for negligently-caused harm.
To be viable, a new tort must be justiciable, by which we mean amenable to adjudication. Justiciability in this context has two features: the first involving the elements of the tort and the second involving the damages that are recoverable for committing it.
1. Discreteness requirements
First, the elements of a new tort must be discrete, concrete, and contained. A tort that would be open-ended will be unappealing to the courts because of the difficulties they anticipate it would later pose for them. The threat that there will not be a core set of routine facts to which a new doctrine can be easily applied, but instead a series of lawsuits in which the courts are called upon in each case to define the scope of and fashion limits on liability, will discourage creation of a new tort. On the other hand, if the scope of a potential new tort can be delineated to a reasonable extent in the early stages of its development, the prospect of recognizing it will be far less threatening.
The elements of the two core privacy torts discussed above, intrusion on seclusion and public disclosure of true facts, satisfied this requirement by specifying that the invasions in question must be “highly offensive” to the reasonable person.36See supra notes 25–26 and accompanying text. The other two “privacy” torts posed little challenge in this regard. False light was a close relative of defamation, and appropriation in many instances involved the wrongful use of a commercial asset. See Restatement (Second) of Torts § 652C cmt. b (Am. Law Inst. 1977). This was so obviously limited to a discrete and contained (as well as normatively weighty) category of invasions that there was little prospect of its generating a series of suits posing challenges involving doctrinal formation and open-ended boundaries. In addition, whether an invasion was “highly offensive” posed a mixed question of fact and law, which meant that in many instances, it would be unnecessary for the courts to define in great detail the cases that fell into that category. Rather, if reasonable people could disagree about that question, answering it became the province of the jury, subject only to fairly general instructions.
The same was true of IIED, in which the defining and limiting criterion of liability was that the infliction be “extreme and outrageous.”37Restatement (Second) of Torts § 46 (Am. Law Inst. 1965). There would be few lawsuits with the potential to satisfy this criterion. And the lynchpin of this cause of action also posed a mixed question of fact and law that would be subject to application by juries on a case-by-case basis, rather than requiring detailed, standard development by the courts as a matter of law.38See id. § 46 cmt. h.
Some of the new torts proposed during recent decades may have foundered because they did not promise this kind of discreteness and limitability. A proposal for a tort of suppression of protected speech, for example, contemplated a balancing of property and contract interests against free speech rights in order to determine what counts as an actionable suppression.39See, e.g., Rory Lancman, Protecting Speech from Private Abridgement: Introducing the Tort of Suppression, 25 Sw. L. Rev. 223, 226, 245–55 (1996). That would be a vague standard of liability. On the other hand, the tort of spoliation of evidence, which has now been recognized in several jurisdictions, has objectively definable contours. It involves the failure to preserve property for another’s use as evidence in pending or future litigation.40Terry R. Spencer, Do Not Fold Spindle or Mutilate: The Trend Towards Recognition of Spoliation as a Separate Tort, 30 Idaho L. Rev. 37, 38, 39 (1993). The failure of this tort to become widely recognized must be ascribed to other factors, most notably (as we indicate next) the difficulty of proving cognizable damages resulting from breach.
2. Cognizable damages
The second feature of justiciability is that the damages that are awarded for commission of a new tort must be cognizable. Tangible losses tend to be more quantifiable and therefore more cognizable than intangible losses. This is one of the many reasons that liability for bodily injury and property damage has thus far been more robust than liability for intangible harm. Thus, neither the privacy torts nor IIED had easily cognizable damages because the harm suffered by the plaintiff was almost always exclusively emotional.41The exception was commercial appropriation when the plaintiff sought to recover commercial losses. For this reason, the courts had been reluctant, up to the point at which those torts were recognized, to countenance awards for pure emotional loss.42See Abraham, supra note 4, at 272. A cause of action for negligent infliction of emotional distress, for example, had been recognized in only very limited circumstances.43For example, the “impact rule” that was in force for the first several decades of the twentieth century required that the plaintiff have suffered a physical contact of some sort, even if not an injurious contact, in order to recover damages for emotional distress resulting from fear of injury. See Abraham, supra note 4, at 272–73. Part of the reason for this reluctance was that the courts lacked confidence in the verifiability of such loss. But another reason was the difficulty of valuing the losses even when there was no doubt that they had occurred. Similarly, until well into the twentieth century, awards for the emotional losses suffered by survivors resulting from the wrongful death of a loved one were either expressly precluded (though the fact that juries awarded such damages anyway was an open secret), or subject to a definite, and low, monetary ceiling. See id. at 255. The major form of intangible loss that was recoverable at that point was of course the pain and suffering associated with bodily injury. But awards for pain and suffering were comparatively low until the middle of the twentieth century, and awards were anchored, in practice, to the seriousness of a tangible physical injury. For example, as late as 1961, a decision from the California Supreme Court, affirming a negligence judgment for $187,000, including $53,000 for pecuniary losses, for injuries involving serious, painful, and permanent injury to the plaintiff’s foot, elicited a dissent from Justice Roger Traynor, arguing that the award of $134,000 for pain and suffering was excessive. Seffert v. L.A. Transit Lines, 364 P.2d 337, 339, 341, 344 (Cal. 1961) (en banc) (Traynor, J., dissenting).
We suspect that it was not merely increased comfort with awards of damages for pure emotional loss that led to the courts’ acceptance of causes of action that involved this form of loss in privacy and IIED cases. Rather, the high degree of blame required for invasions of privacy and IIED to be actionable meant that awards for compensatory damages actually functioned something like punitive damages. Under such circumstances, the courts could overlook the difficulties associated with quantifying the amount of emotional loss the plaintiff had suffered because they did not think of the awards as being completely geared to the amount of loss the plaintiff had suffered as they would have been in cases involving less blameworthy behavior by the defendant.
A number of contemporary proposals for new torts contemplate awarding damages on a basis that would seriously fail the cognizability test. For example, the damages available for suppression of protected speech would compensate for “frustration, humiliation, feelings of powerlessness,” and “the denial of a fundamental aspect of citizenship.”44Lancman, supra note 39, at 260. Similarly, a number of courts have refused to recognize spoliation of evidence as a tort because of the uncertainties associated with damages that may have resulted from spoliation.45Edwards v. Louisville Ladder Co., 796 F. Supp. 966, 966–69 (W.D. La. 1992); Federated Mut. Ins. Co. v. Litchfield Precision Components, Inc., 456 N.W.2d 434, 435, 438–39 (Minn. 1990) (en banc). The marginal cognizability of damages in many spoliation cases also seems related to the difficulty of proving a causal connection between spoliation and loss since the harm often involves impairment of the plaintiff’s ability to have succeeded in a lawsuit, a quintessentially speculative question.46Spencer, supra note 40, at 53. Unsurprisingly, many of the cases in which spoliation claims survive motions for summary judgment adopt an approach to causation whose proof is less problematic.47See, e.g., Schaefer v. Universal Scaffolding & Equip., LLC, 839 F.3d 599, 611 (7th Cir. 2016), remanded to 2017 WL 1382815, at *1 (S.D. Ill. Apr. 18, 2017) (requiring only that the plaintiff prove that there would have been a reasonable probability of success if the missing evidence were available); Danna v. Ritz-Carlton Hotel Co., 213 So. 3d 26, 37 (La. Ct. App. 2016) (adopting a presumption that spoiled evidence would have been unfavorable to the party who failed to preserve it).
C. Essentiality: The Unavailability of Other Sources of Regulation or Relief
A third precondition to the emergence of a new tort is that the wrongful acts in question are not effectively addressed already by a source of law outside the common law of torts. When there is a statutory or regulatory regime that addresses the wrongful acts that the courts might otherwise hold are tortious, the probability that the courts will create a new tort to deal with those wrongful acts declines. In such a situation, the pressure to create a new cause of action will be less intense than it would otherwise be. The courts will therefore be less likely to perceive a need for redress in tort. For example, the U.S. Fair Housing Act4842 U.S.C. §§ 3601–3619 (2012). and Title VII of the Civil Rights Act of 196449§ 2000. both prohibit various forms of discrimination and allow awards of damages, as well as counsel fees, to successful complainants.50§§ 2000e-5(g), 3613(c). The existence of these causes of action made it less likely that new torts redressing these kinds of wrongs would be created.
It is worth noting that the causal sequence we are describing works in both directions. Sometimes a regulatory regime comes into existence precisely because tort law has been unable to address the wrongful conduct in question. Environmental protection statutes, such as the Clean Air Act,51§§ 7401–71. were adopted, in part, because the law of nuisance was not capable of deterring excessive pollution or compensating its victims.52There is wide agreement that the common law is a grossly inadequate method of addressing modern pollution problems. This is recognized even by staunch advocates of the common law. See, e.g., Richard Posner, Economic Analysis of Law 46–47 (2d ed. 1977). On the other hand, sometimes a new tort emerges, in part, because there is no adequate regulatory regime already addressing the problem. The tort of spoliation of evidence seems to us to fit this pattern.
When a federal regulatory regime is in place, it may be held to preempt state tort law or serve as the basis of a “regulatory compliance” defense when a negligence suit is brought against the enterprise being regulated.53For discussion, see Robert L. Rabin, Reassessing Regulatory Compliance, 88 Geo. L.J. 2049, 2050 (2000); Catherine M. Sharkey, Products Liability Preemption: An Institutional Approach, 76 Geo. Wash. L. Rev. 449, 450 (2008). In both instances, regulatory regimes that are responses to newly emergent social problems, such as the discovery of latent adverse effects from the use of prosthetic medical devices or drugs,54See Editorial, 80,000 Deaths. 2 Million Injuries. It’s Time for a Reckoning on Medical Devices., N.Y. Times, May 4, 2019, https://www.nytimes.com/2019/05/04 /opinion/Sunday/medical-devices.html [https://perma.cc/F4SX-49LH] (noting that problems with medical devices often take many years to emerge). may serve to deter suits against the manufacturers of those products, either because the regulatory regime seeks to limit the scope of tort liability or because its regulations are treated as absolving a manufacturer from negligence if complied with. Thus, when pressure emerges to provide redress for a newly perceived social wrong, a central preliminary question is whether there is an existing regulatory response to the problem.
D. Practicality: A Critical Mass of Cases with the Potential for Substantial Damages
Beyond the foregoing considerations, there are practical prerequisites to the establishment of a new tort. There must be a sufficient number of cases involving the tort for the courts to have the opportunity to develop the contours of the tort and for law governing the tort to be articulated. For this to occur, ordinarily the new tort must involve damages of sufficient magnitude to encourage the filing of lawsuits by attorneys, who typically are paid for their success on a contingent fee basis.
1. A sufficient number of cases
The nearly infinite variety of life throws up any number of examples of objectionable conduct that might otherwise qualify as tortious. But the occasional one-off or rare instance of wrongdoing is unlikely to generate a lawsuit or, if it does, is unlikely to prompt the courts to seriously contemplate recognizing the conduct as tortious. First, without a critical mass of cases, the courts simply will not have the opportunity to articulate and develop the standards that govern a potential new tort. Faced with allegations that may well seem to be one-of-a-kind, the courts will be presented with a motion to dismiss on the ground that the complaint fails to state a cause of action. When the courts conclude that the allegations not only fail to fall into an existing form of tort liability but also that they are unlikely to be repeated very often, the courts will be disinclined to permit a suit to proceed. They are likely to shy away from recognizing the kind of claim that they predict will end after just one case. Even if a court did recognize a cause-of-action, the absence of subsequent cases involving similar allegations would mean that the initial recognition had led nowhere, making it an isolated, unclassified instance of something indeterminate. This prospect will discourage permitting the imposition of liability in such cases.
In addition, if the courts perceive a case to be unique or extremely unusual, the type of wrongful conduct in the case will not be understood to require activating the “cumbrous and expensive machinery” of the state to which Holmes famously referred.55Oliver Wendell Holmes, Jr., The Common Law 88 (G. Edward White ed., 2009). Actions in tort are typically perceived as addressing recurring patterns of misconduct that, precisely because they recur, warrant legal intervention. One-off wrongs simply do not qualify on this score. Although the perceived uniqueness of a form of wrongful conduct is an index of the low social salience that we have already identified as being a precondition to the development of a new tort, it is a highly practical consideration as well: very unusual wrongs are unlikely to be embraced by the tort system precisely because their uniqueness suggests they are unlikely to recur across a range of cases.
2. Adequate damages
The U.S. system of compensating plaintiffs’ attorneys reinforces the points we have just made. Most attorneys representing plaintiffs in tort actions take the cases on a contingent-fee basis.56See Abraham, supra note 4, at 4. If the plaintiff recovers damages, either through judgment or settlement, then the plaintiff’s counsel is paid a previously agreed-upon percentage of the recovery. If the plaintiff recovers nothing, however, then the plaintiff’s counsel is paid nothing.57See Abraham, supra note 4, at 4.
As a consequence, plaintiffs’ attorneys make risk-reward calculations in deciding which cases to take. A case with a low probability of success must promise a significant payoff in the event that it is successful, or it is not a good “bet” for an attorney considering whether to take the case. Any case that would require establishing a new cause of action will necessarily involve an investment by the plaintiff’s attorney that is substantially in excess of the investment required in a case falling within an established tort. Addressing legal issues of first impression at trial and on appeal is costly. If a defendant who is a likely repeat-player in the event that a new tort is established, or a liability insurer that will face repeated claims for coverage in that event is involved, then the defendant will oppose recovery even more strongly. Consequently, the investment of time and money required by the plaintiff’s attorney will increase accordingly.
The upshot of these considerations is that cases that do not involve significant potential damages are much less likely to materialize into lawsuits than cases that have the prospect of a significant payoff in damages. This means not only that any individual case must present such a prospect, but also that there be some prospect that there will be other cases in the future if a new tort is established, so that an attorney in the first case can amortize his or her substantial investment in establishing a new tort over a set of future cases, which will cost less per case to litigate than the first case. To put it another way, the greater the probability that the front-end cost of establishing a new tort can, in effect, be recovered in future cases, the greater the likelihood that the effort to establish a new tort will be undertaken.58In addition, because the plaintiff’s counsel is paid a percentage of any recovery, the amount of damages that flow from a potential new tort will be an important ingredient in decisions about whether to pursue a new cause of action. In our view, cases that promise only vindication, or nominal damages that merely signify indignation over the defendant’s behavior, are less likely to be brought. On the other hand, cases in which the defendant’s behavior was sufficiently egregious to create the potential for an award of punitive damages even when a plaintiff’s actual losses are minimal are more likely to be brought. Since these are cases in which the defendant’s behavior was intentional and possibly malicious, we should expect that, in cases where actual damages are minimal, there will be more pressure to establish new intentional torts than torts sounding in negligence or strict liability.
II. Prima Facie Tort and the Quest for a Residual Category of Liability
We have just argued that, unless a wrong satisfies the preconditions to establishment of a new tort, it will not be established and will not be named. An alternative view, however, is that tort liability can be based on a residual category of tort liability that is always potentially available to redress sporadic and isolated wrongs that otherwise would not be actionable.59See infra Sections II.A.1, II.A.2. This view has had very respectable adherents, dating all the way back to Holmes.60See infra Sections II.A.1, II.A.2.
No one, to our knowledge, has ever contended that there is residual liability in tort for “wrongful infliction of harm.” That would be a residual category of tort liability as broad as there could be. The principal example of a putative residual category of liability in tort involves a narrower, but still comparatively broad, form of liability. This cause of action started out as “intentional infliction of temporal damage,” which meant something like inflicting “tangible” harm,61Holmes seems to have been the first, or one of the first, to use the term “temporal,” but he did not define what he meant by it. See Holmes, Privilege, Malice, and Intent, supra note 9, at 3. It is possible that he meant “tangible” damage, such as injury to person or property, as opposed to intangible damage such as emotional harm. An alternative definition is “compensation in money as a substitute for and the equivalent of the promised performance,” which to the modern ear sounds virtually unlimited, and therefore is probably not accurate. Arthur L. Corbin, Corbin on Contracts § 55.1 (Joseph M. Perillo, revised ed. 2005). and then evolved into what was called “prima facie tort.” The rise of prima facie tort, and its subsequent failure to mature and develop, is the best example we have of putative residual liability in tort—a broad form of presumptive tort liability, without a meaningful name—in actual operation.
This story demonstrates that there is an important distinction between the potential for new forms of tort liability to be adopted and the existence of a residual category of tort liability. The former potential always exists, but that potential is not realized through the invocation of the latter. This is the paradox of residual tort liability. No form of liability supposedly falling within a residual category actually stays there once it is recognized. Residual tort liability is, at most, merely a conceptual placeholder. To demonstrate this, we canvass, in some detail, the history of prima facie tort, explaining how it first existed without bearing that name, was then recognized and named in a few states, yet later proved to have little traction.
A. Holmes, Pollock, and the Early Cases
In the 1870s, Oliver Wendell Holmes, Jr., in the United States,62Holmes and Pollock were contemporaries who first met in England in 1874 and would correspond with one another through 1932. See David H. Burton, The Intellectual Kinship of Oliver Wendell Holmes, Jr., Frederick E. Pollock, and Harold J. Laski, 119 Proc. Am. Phil. Soc’y 133–35 (1975). and Frederick Pollock, in England, both began publishing legal scholarship.63Burton, supra note 62, at 133–35. Holmes had contributed legal essays and digests of cases to the American Law Review, of which he became co-editor in 1870, and in 1881, he published a series of lectures known as The Common Law.64Holmes, supra note 55, at xxxix, 1–2. Pollock’s Principles of Contract at Law and in Equity appeared in 1876, and in 1887, he published the first edition of his The Law of Torts.65For more detail on Pollock’s early scholarship, see Neil Duxbury, Frederick Pollock and the English Juristic Tradition 20–27 (2004). Both Holmes and Pollock were particularly interested in deriving and articulating general principles of liability around which common law subjects could be organized.
1. Setting the conceptual stage
Holmes argued in The Common Law that standards of tort liability should be objective rather than subjective and that there was a sharp distinction between acts that offended morality and acts that were legally culpable.66Holmes, supra note 55, at 102–03. His intuition seems to have been that malicious motives were irrelevant if one kept within the law.67Id. at 131. Holmes’s initial inclination was thus to subsume “malice” in “intent” and to treat the existence of intent as an objective inquiry.68Id. at 132–33. A few years later, Frederick Pollock stated his position on the same issue a bit differently:
There is no express authority that I know of for stating as a general proposition of English law that it is a wrong to do wilful harm to one’s neighbour without lawful justification or excuse . . . . Thus in the Anglo-Saxon laws . . . [o]nly that harm which falls within one of the specified categories of wrong-doing entitles the person aggrieved to a legal remedy.
Such is not the modern way of regarding legal duties or remedies . . . . The three main heads of duty with which the law of torts is concerned—namely, to abstain from wilful injury, to respect the property of others, and to use due diligence to avoid causing harm to others—are all alike of a comprehensive nature.69Frederick Pollock, The Law of Torts: A Treatise on the Principles of Obligations Arising from Civil Wrongs in the Common Law 21–22 (1887).
In the meantime, Holmes’s thinking had evolved toward Pollock’s, and he modified the position on “malice” that he had taken in The Common Law. In an article in the Harvard Law Review in 1894,70Holmes, Privilege, Malice, and Intent, supra note 9. For a discussion of the evolution of Holmes’s thinking and an account of the rise of prima facie tort, see Kenneth J. Vandevelde, A History of Prima Facie Tort: The Origins of a General Theory of Intentional Tort, 19 Hofstra L. Rev. 447, 447, 457–62 (1990). Holmes maintained that “the intentional infliction of temporal damage, or the doing of an act manifestly likely to inflict such damage and inflicting it, is actionable if done without just cause.”71Holmes, Privilege, Malice, and Intent, supra note 9, at 3. First, he acknowledged that a finding of “malice” might in itself subject a party to tort liability even if his conduct was not otherwise unlawful. Id. “Malice” was no longer subsumed in the category of “intent;” it was an independent basis of liability. Id. Second, whereas in The Common Law Holmes had treated “malice” as part of a continuum of foreseeability that also included “intent” and “negligence,” see Holmes, supra 55, at 131–33, and as a tool serving to clarify whether a defendant’s conduct had violated a standard of liability, his analysis of “malice” in Privilege, Malice, and Intent was centered on justification and excuse. Intentional injury resulting in “temporal” damage was now presumed to be actionable unless a defendant could show that his or her actions were not “malicious” because they were justified. See Holmes, Privilege, Malice, and Intent, supra note 9, at 3.
2. The rise of the putative cause of action
Holmes’s formulation suggested that causing “malicious” economic injury (for example, to a competitor) was prima facie tortious.72See Holmes, Privilege, Malice, and Intent, supra note 9, at 7–8. But in Holmes’s view, this seemingly residual category of potential liability did not automatically result in liability for intentional economic damage inflicted on another.73Id. Such liability depended on whether the conduct in question had a justification.74Id. This is evident in the cases in which Holmes applied this principle after his Harvard article appeared. The most important was Vegelahn v. Guntner,7544 N.E. 1077 (Mass. 1896). in which workers went on strike for shorter working hours and higher pay, organizing a picket line outside Vegelahn’s factory and seeking to encourage persons to boycott Vegelahn’s business or to discourage persons from doing business with or working for Vegelahn.76The case first came to Holmes, sitting as a trial judge in an equity court, in the form of an injunction against the picketing and the boycott. Holmes issued a partial injunction preventing the striking workers from obstructing the door of Vegelahn’s factory or threatening violence against persons who sought to enter it, but allowed both the picketing, so long as it was conducted peacefully, and the boycott to continue. Id. at 1077. During the years that Holmes served on the Supreme Judicial Court of Massachusetts (1882 to 1902), all of the justices of that court were expected to spend part of their time traveling around the state and serving as trial judges, sometimes in law courts and sometimes in equity courts. For more detail, see G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self 255–56 (1993). The Supreme Judicial Court of Massachusetts prohibited both the picketing and the boycott.77Vegelahn, 44 N.E. at 1078.
In his dissent in Vegelahn, Holmes treated the case as demonstrating that the “intentional infliction of temporal damage” was “warrant[ed]” by the “law” when it was “justified.”78Id. at 1080 (Holmes, J., dissenting). In “numberless instances,” Holmes wrote, an actor could intentionally do harm to another if the basis for inflicting that harm was justifiable.79Id. Whether the harm was justifiable turned on “considerations of policy and of social advantage.”80Id. Holmes thought that in the context of labor disputes, efforts on the part of workers to secure better wages and working conditions justified strikes, boycotts, and picketing in pursuit of those aims, so long as they were peaceful.81Id. at 1081–82. In short, Holmes had announced the proposition that the intentional infliction of temporal damage was tortious unless justifiable in order to focus on justifiability, and in Vegelahn, had analyzed justifiability to limit the scope of liability.
Holmes was the lone dissent in Vegelahn.82Ironically, he believed that since his opinion apparently took the side of labor against capital in an industrial dispute, it would end up being something he “may have to pay for [ ], practically, before I die.” Oliver Wendell Holmes Jr. Correspondence with Lady Clare Castletown (November 21, 1896), in Oliver Wendell Holmes Papers (Microfilm ed. 1985), quoted in White, supra note 76, at 289. But despite focusing on the justification for “intentional infliction of temporal damage,” rather than the mere fact that acts had been done intentionally or had caused harm, he still acknowledged the possibility that a number of such inflictions might end up being actionable.83Vegelahn, 44 N.E. at 1080–81 (Holmes, J., dissenting). Similar opinions, applying similar logic and doctrinal structure, followed,84In Plant v. Woods, 57 N.E. 1011, 1015 (Mass. 1900), a majority of Holmes’s Massachusetts judicial colleagues ended up agreeing with him that justifiability was the critical inquiry in such cases, and that justifiability was a matter of social policy. But once again, in a labor dispute, the majority found that efforts by members of workers to disparage their opponents were not justifiable and thus actionable if they could be shown to produce damage. Id. “The necessity that the plaintiffs should join this association is not so great,” the majority declared, “such as to bring the acts of the defendant under the shelter of the principles of trade competition.” Id. The plaintiffs had “the right . . . to be free from molestation.” Id. often with Holmes dissenting but sometimes in the majority depending on what counted as sufficient “justification.”85Similarly, in Moran v. Dunphy, 59 N.E. 125, 126 (Mass. 1901), the defendant made comments about the plaintiff to the plaintiff’s employer that eventually caused the employer to fire the plaintiff. The plaintiff sued for intentional interference with contractual relations, a recognized tort. Id. Holmes, overruling a demurrer to the action granted by a trial court, held that “to induce a third person to end his employment,” when done “maliciously and without justifiable cause,” was “an actionable tort.” Id. Technically, the decision only allowed the case to go forward: Holmes and his colleagues did not pass on the justifiability of the defendant’s actions or even note what the defendant’s purported justification was. Moreover, Holmes treated the case as involving intentional interference with contract rather than a prima facie tort. But his analysis suggested that he was inclined to extend his emphasis on justification to other torts in which persons intentionally interfered with the business relationships of others. The cognizability of the tort of intentional interference with contract, at a time when the concept of an all-purpose tort of intentional, unjustifiable infliction of temporal damage was still largely unrecognized, can be put down to the value afforded “rights” of property and contract and the importance attributed to preserving the stability of contracts in late nineteenth-century America. See Stephen A. Siegel, Understanding the Nineteenth Century Contract Clause: The Role of the Property-Privilege Distinction and “Takings” Clause Jurisprudence, 60 S. Calif. L. Rev. 1, 8–9 (1986); Henry N. Butler & Larry E. Ribstein, The Contract Clause and the Corporation, 55 Brook. L. Rev. 767, 778 (1989).
After Holmes was appointed to the U.S. Supreme Court, he was afforded another opportunity to articulate the elements of the form of residual liability in tort he had been identifying. The case, Aikens v. Wisconsin,86195 U.S. 194 (1904). did not come to the Court as a common law decision, but as a challenge to the constitutionality of a Wisconsin statute prohibiting the combination of two or more persons from willfully or maliciously interfering with another in trade or business.87Id. at 201–02. Since the defendants had admitted that they had malicious motives in making the agreement, and the Wisconsin court had stopped short of concluding that the statute could fairly be applied to non-malicious “willful” acts as well as malicious acts, the case reduced itself to whether a legislature could constitutionally punish malicious acts that damaged others.88Id. at 202, 206–07.
This led Holmes to assert that the acts of the defendants would have been actionable at common law.89Id. at 204. In his assertion, Holmes provided his clearest statement of the elements of that action. “It has been thought by other courts as well as the Supreme Court of Wisconsin,” he maintained, “that such a combination followed by damage would be actionable even at common law. It has been considered that, prima facie, the intentional infliction of temporal damage is a cause of action, which . . . requires a justification if the defendant is to escape.”90Id. In addition, because “malicious mischief is a familiar and proper subject for legislative repression,” he was prepared to conclude that “[i]t would be impossible to hold that the liberty to combine to inflict such mischief . . . was among the rights which the Fourteenth Amendment was intended to preserve.”91Id. at 205.
Finally, Holmes suggested that when what he called “disinterested malevolence” could be shown as a basis for the intentional infliction of temporal damage, it could serve to take such actions “out of the justification by the motive with which they were made.”92Id. at 206. Although Holmes did not make explicit whether a tort action could be maintained if “disinterested malevolence” was paired with some other appropriate motive, such as further competition in business or securing leverage in labor negotiations, he said that the statute in Aikens should be limited to “combinations of a kind for which no justification could be offered.”93Id.
In light of the progression of those decisions, at this point, it would have been plausible to conclude that there was an emerging residual category of liability for “intentional infliction of temporal damage,”94Holmes, Privilege, Malice, and Intent, supra note 9, at 3. and that “disinterested malevolence”95Aikens v. Wisconsin, 195 U.S. 194, 206 (1904). would be a key to determining when there was liability and when there was a justification that insulated a potential defendant from liability. Certainly, the broad language that Holmes used would have supported that conclusion.
But given the actual facts of the cases in which this kind of broad language had been used, a different conclusion would also have been possible. All of the cases we have discussed, in which Holmes and others articulated a broad principle that could be understood to be applying a residual category of liability, involved labor disputes. In each of those disputes, multiple parties, or an organization composed of multiple parties, were the defendants, and the common characteristic of the alleged wrongful conduct was that the defendants had acted in concert. The crux of the alleged wrong was the exercise of collective power to affect market competition. In the cases we discussed above and in his writing, Holmes took the position that this kind of conduct was not actionable when it was not violent.