'Repay evil with blessing,' Apostle Peter writes

North Scituate Baptist Church, R.I.
Swampyank at English Wikipedia
via Wikimedia Commons CC BY-SA 3.0

With Election Day tomorrow, this might be an opportune moment for a message of peace and non-retribution.

Last week I had the privilege of sharing the word of 1 Peter 3:8-9 at the nearby Rhode Island church of a dear friend and pastor while he was away from the pulpit. (Oct. 27, below.)

Finally, all of you, be like-minded, be sympathetic, love one another, be compassionate and humble. Do not repay evil with evil or insult with insult. On the contrary, repay evil with blessing, because to this you were called so that you may inherit a blessing.

The pastor had preached the preceding week on the flaws of human criminal justice. So I started by shifting the focus to civil justice and the fundamental question, as framed by my late friend and mentor Professor Marshall S. Shapo, A injures B and could have avoided it; what should society do? 

Professor Shapo was well schooled in the Old Testament and knew the teaching of Exodus, an eye for an eye. The New Testament put another spin on the problem and confronts the contemporary Christian litigator with a vexing challenge. 1 Peter 3:8, et seq., is only a piece of the solution, and I don't purport to have it all worked out. Nevertheless, and at risk of some hypocrisy, I found a starting point in the verses.

I thank the pastoral and worship teams and congregation of North Scituate Baptist Church, Rhode Island, for their kindness, hospitality, and indulgence of my ramblings, which I hope were motivated by the Spirit. (Full service.)

A reminder that The Savory Tort is a personal blog. What I write here is not representative of my employer nor communicated in my public capacity, even if some content also serves the professional interests of my teaching, research, and public service.

Free torts textbook ready for academic year 2024-25

TORTZ: A Study of American Tort Law is complete and revised for the coming academic year 2024-25.

The two-volume textbook is posted for free download from SSRN (vol. 1, vol. 2), and available in hardcopy from Lulu.com at cost, about $30 per volume plus shipping.

• SSRN volume 1
• SSRN volume 2
• Lulu.com hardcopies

This final iteration of the book now, for the first time, includes its final three chapters: (16) interference and business torts, (17) government liability and civil rights, and (18) tort alternatives.

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TORTZ TABLE OF CONTENTS

Volume 1

Chapter 1: Introduction

A. Welcome
B. The Fundamental Problem
C. Parameters
D. Etymology and Vocabulary
E. “The Pound Progression”
F. Alternatives
G. Review

Chapter 2: Intentional Torts

A. Introduction
B. Assault

1. History
2. The Restatement of Torts
3. Subjective and Objective Testing
4. Modern Rule
5. Transferred Intent
6. Statutory Torts and Harassment

C. Battery

1. Modern Rule
2. The Eggshell Plaintiff
3. Knowledge of a Substantially Certain Result
4. Common Law Evolution and Battered Woman Syndrome

D. False Imprisonment

1. Modern Rule
2. Problems

E. Intentional Infliction of Emotional Distress (IIED)

1. Dynamic Intent
2. Modern Rule
3. The “Heart Balm” Torts

F. Fraud

1. Fraud in Context
2. Modern Rule
3. Pleading Fraud
4. Exercise

G. The “Process” Torts

1. Innate Imprecision
2. Modern Rule
3. Majority Rejection of Malicious Civil Prosecution

H. “Prima Facie Tort”

1. Origin of Intentional Tort
2. Modern Rule

Chapter 3: Defenses to Intentional Torts 

A. Introduction
B. Defenses of Self, Other, and Property
C. The Spring Gun Case
D. Arrest Privilege and Merchant’s Privilege
E. Consent

1. Modern Rule
2. Scope of Consent
3. Medical Malpractice
4. Limits of Consent

F. Consent in Sport, or Recklessness

1. The Problem of Sport
2. Recklessness

Chapter 4: Negligence

A. Introduction
B. Modern Rule
C. Paradigmatic Cases
D. Historical and Theoretical Approaches to Negligence

1. Origin
2. Foreseeability
3. Custom
4. Augmented Standards
5. Economics

a. Introduction
b. “The Hand Formula”
c. Coase Theorem, Normativity, and Transaction Costs

6. Aristotelian Justice
7. Insurance and Loss-Spreading

E. Landowner Negligence, or Premises Liability

1. Theory of Duty and Standards of Breach
2. Common Law Tripartite Approach
3. Variations from the Unitary Approach in the Third Restatement
4. Applying the Framework, and Who Decides

F. Responsibility for Third-Party Conduct

1. Attenuated Causation, or “the Frances T.  Problem”: Negligence Liability in Creating Opportunity for a Criminal or Tortious Actor
2. Vicarious Liability and Attenuated Causation in the Employment Context: Respondeat Superior and “Direct” Negligence Theories

G. Statutory Torts and Negligence Per Se

1. Statutory Torts
2. Negligence Per Se

a. Introduction
b. Threshold Test
c. Three Mile Island

H. Medical Negligence
I. Spoliation of Evidence

1. Introduction
2. Minority Rule
3. Recognition or Non-Recognition of the Tort Approach
4. Majority Approach

J. Beyond Negligence

Chapter 5: Defenses to Negligence

A. Express Assumption of Risk (EAOR)
B. EAOR in Medical Negligence, and the Informed Consent Tort

1. Development of the Doctrine
2. The “Reasonable Patient” Standard
3. Modern Rule of Informed Consent
4. Causation in Informed Consent
5. Experimental Medicine

C. “Implied Assumption of Risk” (IAOR)

1. Everyday Life
2. Twentieth-Century Rule
3. Play and Sport
4. Work

D. Contributory Negligence

1. Twentieth-Century Rule
2. Complete Defense
3. Vitiation by “Last Clear Chance”

E. Comparative Fault
F. IAOR in the Age of Comparative Fault

1. The Demise of “IAOR”
2. Whither “Secondary Reasonable IAOR”?
3. Revisiting Mrs. Pursley at Gulfway General Hospital

G. Statutes of Limitations
H. Imputation of Negligence

Chapter 6: Subjective Standards

A. Introduction
B. Gender

1. The Reasonable Family
2. When Gender Matters

C. Youth

1. When Youth Matters
2. Attractive Nuisance
3. When Youth Doesn’t Matter

D. Mental Limitations

1. General Approach
2. Disputed Policy

Chapter 7: Strict Liability

A. Categorical Approach
B. Non-Natural Use of Land
C. Abnormally Dangerous Activities

1. Defining the Class
2. Modern Industry

D. Product Liability

1. Adoption of Strict Liability
2. Modern Norms
3. “Big Tobacco”
4. Frontiers of Product Liability

Chapter 8: Necessity

A. The Malleable Concept of Necessity
B. Necessity in Tort Law
C. Making Sense of Vincent
D. Necessity, the Liability Theory

Chapter 9: Damages

A. Introduction
B. Vocabulary of Damages
C. Theory of Damages
D. Calculation of Damages
E. Valuation of Intangibles
F. Remittitur
G. Wrongful Death and Survival Claims

1. Historical Common Law
2. Modern Statutory Framework

a. Lord Campbell’s Act and Wrongful Death
b. Survival of Action After Death of a Party

3. Problems of Application

H. “Wrongful Birth” and “Wrongful Life”
I. Punitive Damages

1. Introduction
2. Modern Rule
3. Pinpointing the Standard

J. Rethinking Death Compensation

Volume 2

Chapter 10: Res Ipsa Loquitur

A. Basic Rules of Proof
B. Res Ipsa Loquitur (RIL)

1. Modern Rule
2. Paradigmatic Fact Patterns

Chapter 11: Multiple Liabilities

A. Introduction
B. Alternative Liability
C. Joint and Ancillary Liability
D. Market-Share Liability Theory
E. Indemnification, Contribution, and Apportionment

1. Active-Passive Indemnity
2. Contribution and Apportionment
3. Apportionment and the Effect of Settlement

F. Rules and Evolving Models in Liability and Enforcement
G. Review and Application of Models

Chapter 12: Attenuated Duty and Causation

A. Introduction
B. Negligence Per Se Redux

1. The Problem in Duty
2. The Problem in Causation
3. The Problem in Public Policy

C. Duty Relationships and Causation Timelines

1. Introduction
2. Frances T. Redux, or Intervening Criminal Acts
3. Mental Illness and Tarasoff Liability
4. Dram Shop and Social Host Liability
5. Rescue Doctrine and “the Fire Fighter Rule”

a. Inverse Rules of Duty
b. Application and Limits

6. Palsgraf: The Orbit and the Stream

a. The Classic Case
b. A Deeper Dig

D. Principles of Duty and Causation

1. Duty
2. Causation

a. The Story of Causation
b. Proximate Cause in the Second Restatement
c. Scope of Liability in the Third Restatement
d. Proximate Cause in the Third Restatement, and Holdover Rules
e. A Study of Transition: Doull v. Foster

E. The Outer Bounds of Tort Law

1. Balancing the Fundamental Elements
2. Negligent Infliction of Emotional Distress (NIED)

a. Rule of No Liability
b. Bystanders and Borderline NIED

3. Economic Loss Rule

a. The Injury Requirement
b. Outer Limits of Tort Law
c. Loss in Product Liability and the Single Integrated Product Rule

Chapter 13: Affirmative Duty

A. Social Policy
B. The American Rule
C. Comparative Perspectives
D. Bystander Effect, or “Kitty Genovese Syndrome”

Chapter 14: Nuisance and Property Torts

A. Trespass and Conversion
B. Private Nuisance
C. Public Nuisance and the Distinction Between Private and Public
D. “Super Tort”

Chapter 15: Communication and Media Torts

A. Origin of “Media Torts”
B. Defamation

1. Framework and Rules
2. Defamation of Private Figures

a. Defamation Proof
b. Defamation Defense

3. Anti-SLAPP Defense
4. Section 230 Defense
5. Constitutional Defamation

a. Sea Change: New York Times Co. v. Sullivan
b. Extending Sullivan
c. Reconsidering Sullivan

C. Invasion of Privacy

1. Framework and Rules

a. Disclosure
b. Intrusion
c. False Light
d. Right of Publicity
e. Data Protection

2. Constitutional Privacy and False Light
3. Demonstrative Cases

a. Disclosure and Intrusion
b. Right of Publicity
c. Bollea v. Gawker Media

4. Data Protection, Common Law, and Evolving Recognition of Dignitary Harms

Chapter 16: Interference and Business Torts

A. Business Torts in General

1. Tort Taxonomy
2. The Broad Landscape
3. Civil RICO

B. Wrongful Termination
C. Tortious Interference

Chapter 17: Government Liability and Civil Rights

A. Sovereign Immunity

1. Federal Tort Claims Act (FTCA) and Foreign Sovereign Immunities Act (FSIA)
2. Text and History of the FTCA
3. Discretionary Function Immunity

B. Civil Rights

1. “Constitutional Tort”
2. Core Framework
3. Official Immunities
4. Climate Change

C. Qui Tam
D. Human Rights

1. Alien Tort Statute
2. Anti-Terrorism Laws

Chapter 18: Tort Alternatives

A. Worker Compensation

1. Introduction and History
2. Elements and Causation
3. Efficacy and Reform

B. Ad Hoc Compensation Funds

TORTZ volume 2 unpacks duty, causation, damages, introduces nuisance, defamation, privacy

Tortz volume 2 is now available for affordable purchase from Lulu.com and for free PDF download from SSRN.

Tortz volume 2 follows up volume 1 (Lulu, SSRN, The Savory Tort), published in 2023 and pending update this year. I am using Tortz volumes 1 and 2 with students in my American tort law classes in the United States and in Poland this academic year.

The two-volume Tortz textbook represents a survey study of American tort law suitable to American 1L students and foreign law students. In volume 1, the first eight chapters cover the fundamentals of the culpability spectrum from intentional torts to negligence to strict liability.

Volume 2 comprises chapters 9 to 15: (9) damages, (10) res ipsa loquitur, (11) multiple liabilities, (12) attenuated duty and causation, (13) affirmative duty, (14) nuisance and property torts, and (15) communication and media torts. 

Contemporary content in Tortz volume 2 includes exercises in pure several liability; treatment of opioid litigation in public nuisance law; recent criticism of New York Times v. Sullivan in defamation law; and exposure to common law developments in privacy law, such as the extension of fiduciary obligations to protect personal information.

Three final chapters will be added to Tortz volume 2 for a revised edition later in 2024: (16) interference and business torts, (17) government claims and liabilities, “constitutional tort,” and statutory tort, and (18) worker compensation and tort alternatives. Any teacher who would like to have copies of draft materials for these chapters in the spring is welcome to contact me.

Tortz is inspired by the teachings of Professor Marshall Shapo, a mentor to whom I am deeply indebted. Marshall passed away in November 2023.

My thanks to Professor Christopher Robinette, Southwestern Law School, who kindly noted the publication of Tortz volume 2 on TortsProf Blog even before I got to it here.

Professor Marshall Shapo leaves extraordinary legacy

Marshall S. Shapo
Northwestern photo by Jasmin Shah

Barukh atah Adonai Eloheinu melekh ha'olam, dayan ha-emet. 

A luminary in American legal education, a brilliant scholar in torts, and a dear mentor and friend, Professor Emeritus Marshall S. Shapo died Friday, at 87, in Chicagoland.

A professor at Northwestern University Law School for more than 40 years, most of his more-than-half-century academic career, Shapo was a prolific scholar and award-winning authority on torts and product liability law. In his books, articles, and teaching, Shapo saw tort law as inextricable from culture, politics, and society. Accordingly, he approached his subject matter holistically, embracing historical, economic, and critical perspectives as all essential, and none alone definitive, to understand the law.

It was that breadth of perspective that prompted me to adopt the second edition of Shapo's Tort and Injury Law as my textbook when I started teaching torts 20 years ago, in 2003. Reflective of Shapo's versatility of mind and insatiable curiosity, his pedagogy challenged students at once with writings in ancient philosophy and religion, and with theories of economics and feminism. References to the Torah appeared alongside excerpts from research in the latest interdisciplinary social science.

I reached out to Marshall in 2003 for guidance in using his book; I did not then suspect that he would become my extraordinary mentor. I was privileged to join Tort and Injury Law as a co-author for the third edition in 2006. My teaching today in torts, and in Tortz, is and forever will be a product of Shapo's worldview. His teaching lives on in my career and classes, and no doubt in the practices and lives of his generations of students and mentees, and theirs in turn.

Yet Tort and Injury Law was a only small part of Marshall's importance to me. Of incalculable value were his insights into academic life, his counsel, especially in times of hardship, and, so often, simply his enduring friendship. As relentlessly busy and productive as he always was, he called me periodically with no agenda, just to check in. However much I wished not to burden him with mundane ups and downs, he somehow, with the skill of a seasoned counselor, elicited my confessions. His humility and wisdom were invariably comforting. Never was there a frustration—a discontented student, a shortsighted colleague—that Shapo had not faced and hurdled already in his career: evidence that I, too, could land well on the other side.

Shapo above else modeled balance of work and life. His obituary honors his surviving wife, Helene—also an inspiring and renowned legal educator—sons, Benjamin and Nathaniel; and six grandchildren and great-grandson.

Appropriately, Shapo's family led off the obituary, before any mention of his career. Marshall himself placed his wife and sons at the top of his CV. Never did I have a catch-up conversation with Marshall in which he did not update me on their well-being. When speaking of grandchildren, he radiated with a joy that not even product liability litigation could evoke. All of his accomplishments and honors as a lawyer and educator meant nothing to him in comparison with his devotion to family.

Marshall, rest in peace.

The Shapo family invites memorial contributions to the American Parkinson's Disease Association, P.O. Box 61420, Staten Island, N.Y. 10306.

TORTZ volume 1 now available to print on demand

I'm pleased to announce the publication of TORTZ: A Study of American Tort Law, volume 1 of 2.

Hard copies can be printed at Lulu.com for just $30 plus shipping. A free PDF can be downloaded from SSRN.

Eight chapters cover the fundamentals of the culpability spectrum from intentional torts to negligence to strict liability. After two pilot deployments of content, in 2021 and 2022, this book will be my 1L students' Torts I textbook in fall 2023.

I anticipate publication of volume 2 in 2024.

Northwestern Law celebrates Professor Marshall Shapo [POSTPONED]

Professor Marshall Shapo is a dear mentor and a giant of American tort law and public policy.  I am selfishly disappointed that I cannot be in Evanston on April 17, but I wholeheartedly join in the celebration of this special soul.

Program and registration at Northwestern Law.

Singapore Supreme Court rejects civil process torts

In August, the Singapore Supreme Court refused to adopt the tort of abuse of process and refused to extend the tort of malicious prosecution to the civil context.  The case is Lee Tat Development Pte Ltd v. Management Corp. Strata Title Plan No 301, [2018] SGCA 50 (Aug. 17, 2018) (summary).

Associate Justice Phang (Singapore Supreme Court)

The court opinion, which ranges over more than 100 pages, is a remarkable work of jurisprudence and should not go unnoticed by comparativist students of common law.  The opinion was authored by Associate Justice Andrew Phang Boon Leong.  Justice Phang is a Harvard LL.M./S.J.D. who worked his way up the academic ranks in law, business, and management in Singapore before his appointment to the bench about a dozen years ago.  He has a treatise in contracts among his bona fides.  I owe my awareness of this decision to James Lee, equity scholar and reader in English law at The Dickson Poon School of Law, King's College London.

My purpose here is not to get into the merits or challenges of the torts of abuse of process and malicious civil prosecution.  Suffice to say that if that is your interest, this opinion is mandatory reading.  From the 20,000-foot perspective, I'll say that for many years I did not teach these torts in 1L beyond the bare bones mentioned in my CAP casebook by Prof. Marshall Shapo.  Increasingly I'm feeling like I need to give these torts more bandwidth.  I'm not sure whether it's a function of coarsening society, a natural evolution of common law, or me just paying better attention, but I feel like these "meta-torts"—that is, torts about tort litigation; my term, not to be confused with meta-humans, nor with Birks, et al.'s quasi-tort equitable wrongs—are getting more play today than they used to.  Accordingly, this year I drafted multistate rules to guide students, and at some point, I will add the rules to my American torts primer.

Singapore Supreme Court (Terence Ong, CC BY-SA-2.0)

Instead I want to share three favorite bits of Justice Phang's opinion.  The first thing to notice here for the comparativist is that Singapore is a common law jurisdiction.  I confess, it's not the first nation I think of when reeling off a list of common law countries.  For an academic, it might ought be.  (I have been there, and it is a lovely, unique place.)  Singapore inherited English common law by way of the British East India Co., a distinction in which, of course, it is not unique.  At the same time, Singapore's unusual role as a tiny economic powerhouse, dependent on and defined by its commercial relationships with the world, make its common law a unique and worthy study in internationalism.  Thoughtful and contextualized, Justice Phang's opinion exemplifies this point.  For survey research, the court thanked academic amicus Prof. Gary Chan, a colleague of Phang's from the law school at Singapore Management University.

Of 'quenchless feuds'.  Justice Phang (¶ 1) elegantly characterized the land dispute that underlies Lee Tat:

As the Judge observed [in the High Court], this is yet another legal tussle in a series of bitterly fought litigation between the parties which stretches across more than four decades and which hitherto has resulted, inter alia, in five decisions of this court, excluding the present decision.  In the last of those decisions, this court characterised the protracted quarrel between the parties as a "marathon saga of litigation" [citation omitted].  At this juncture, some seven years and yet another set of proceedings later, it seems appropriate to say, in the words of Herman Melville, that it is a "quenchless feud" (Herman Melville, Moby-Dick; or, The Whale (Norton, 1892) at p 169).

That this dispute arose in what appears to be a Singaporean iteration of the Hatfields and the McCoys does bolster the court's conclusion on meta-torts.  If transaction costs are part of the problem in your legal system—we know they're a huge problem in the American system—you might want to think twice about piggyback litigation.  At some point the law of diminishing returns eclipses justice in the dogged search for truth.

Of 'timorous souls' and 'bold spirits'.  In considering the wisdom of extending Singaporean common law, Justice Phang (¶ 11) broke out a Lord Denning gem:

In considering possible recognition of the torts of malicious civil prosecution and abuse of process in Singapore, we bear in mind the oft-quoted observations by Denning LJ (as he then was) in the English Court of Appeal decision of Candler v Crane, Christmas & Co [1951] 2 KB 164, where the learned judge drew (at 178) a distinction between "timorous souls who were fearful of allowing a new cause of action" and "bold spirits who were ready to allow it if justice required".  These observations have, in fact, been quoted more than once by this court itself [citations omitted].  However, there is a limit to judicial law making.

This is a beautiful treatment of the seeming conflict between common law as a law-making device, renowned for its very capacity to grow and adapt to new circumstances, and the fundamental identity of the western judiciary as a creature of only corrective justice in the Aristotelian mold.  Otherwise put, the enterprise of common law often seems at odds with the purportedly non-normative job of the judge.  To set the problem in its popular American baseball metaphor, when is a judge, whose job it is only to call balls and strikes, duty-bound to change the size of the strike zone?  This problem in relation to the nature of the common law enterprises has been a puzzler in the United States at least since Holmes's Common Law and has at times generated nuances of distinction between otherwise like-minded judges in such a way as to vex legal scholars.

William the Conqueror

Of the Norman Conquest.  In examining the policy rationale for malicious (criminal) prosecution to test its applicability in the civil context, Justice Phang (¶ 87) traced the division between criminal and civil law to 1066:

The character of a criminal prosecution, carried out with a view to punishing a public wrong, is fundamentally different from that of a civil prosecution which is carried out with a view to vindicating a private right.  The difference between these two types of proceedings was explained in the following passage from an earlier decision of this court, Public Prosecutor v. UI [2008] 4 SLR(R) 500 at [52]:

... With the reign of William the Conqueror, the [English] criminal justice system, as it then stood, changed drastically.  A distinction was created between liability for private wrongs and liability for public wrongs.  Sir William Blackstone explained clearly the distinction between public wrongs and private wrongs in Commentaries on the Law of England vol 4 (A Strahan, 15th Ed, 1809) as follows (at p5):

[P]rivate wrongs, or civil injuries, are in infringement or [a] privation of the civil rights which belong to individuals, con[s]idered merely as individuals: public wrongs, or crimes and [misdemeanours] are a breach and violation of the public rights and duties, due to the whole community, con[s]idered as a community, in [its social] aggregate capacity.

As a result of the above change in the English criminal justice system, the individual victim was replaced by the State.  The offence was considered to be committed against the State and the liability of the offender was, accordingly, owed first and foremost to the State.  This is the criminal justice system which Singapore has inherited and maintains to this day.... [emphasis added by Justice Phang].

Justice Phang (¶¶ 88-90) derived from this history three salient distinctions between criminal and civil process.  First, criminal charges more than civil claims can impugn a defendant's reputation in the community.  Second, the consequences of criminal conviction are more invasive of the defendant's rights than the consequences of civil liability.  Third, criminal prosecution is an enterprise of public authorities, while civil prosecution is a private pursuit.  In all three respects, then, the need for a remedy to malicious prosecution is greater in the criminal context than in the civil context.

A useful review of abuse of process, malicious (criminal) prosecution, and "malicious use of civil process" in American law can be found in Barry A. Lindahl, 4 Modern Tort Law: Liability and Litigation ch. 40 (updated June 2018) (available on Thomson Reuters Westlaw), which begins (§ 40.1) by differentiating the three concepts.  Meanwhile Justice Phang's opinion in Lee Tat takes an elegant snapshot of the common law world.