Abstract This Essay integrates two ambitions: to lay out new theoretical foundations for antidiscrimination law and to demonstrate the practical significance of these foundations to tackle instances of wrongful discrimination beyond the reach of the current legal regime. Concerning theory, we articulate an account of wrongful discrimination grounded in private law’s basic commitment to reciprocal respect for the self-determination and substantive equality of private persons. Concerning practice, we argue that antidiscrimination law is currently at its pre-MacPherson v. Buick stage, meaning it is made up of isolated pockets of liability for discriminatory behavior. The gaps between them are indefensible since they necessarily undermine people’s fundamental right to be treated as equals by holders of normative powers such as proprietors, employers, and lessors. Nothing short of a full-blown tort of discrimination will enable antidiscrimination law to reach its own MacPherson moment. The theoretical account we develop provides the necessary framework for embarking on this crucial endeavor: a clear articulation of the normative foundations of this tort as an integral and indispensable part of private law in a liberal society. Drawing on existing tort doctrines, we identify important legal tools that can be utilized for prescribing the proper elements—duty, breach, injury, causation, and remedy—of a novel, generic tort of discrimination.
{"title":"The Tort of Discrimination","authors":"Hanoch Dagan, Avihay Dorfman","doi":"10.1515/jtl-2023-0008","DOIUrl":"https://doi.org/10.1515/jtl-2023-0008","url":null,"abstract":"Abstract This Essay integrates two ambitions: to lay out new theoretical foundations for antidiscrimination law and to demonstrate the practical significance of these foundations to tackle instances of wrongful discrimination beyond the reach of the current legal regime. Concerning theory, we articulate an account of wrongful discrimination grounded in private law’s basic commitment to reciprocal respect for the self-determination and substantive equality of private persons. Concerning practice, we argue that antidiscrimination law is currently at its pre-MacPherson v. Buick stage, meaning it is made up of isolated pockets of liability for discriminatory behavior. The gaps between them are indefensible since they necessarily undermine people’s fundamental right to be treated as equals by holders of normative powers such as proprietors, employers, and lessors. Nothing short of a full-blown tort of discrimination will enable antidiscrimination law to reach its own MacPherson moment. The theoretical account we develop provides the necessary framework for embarking on this crucial endeavor: a clear articulation of the normative foundations of this tort as an integral and indispensable part of private law in a liberal society. Drawing on existing tort doctrines, we identify important legal tools that can be utilized for prescribing the proper elements—duty, breach, injury, causation, and remedy—of a novel, generic tort of discrimination.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"2013 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135769831","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract A symposium on great torts cases of the twenty-first century must include Intel Corp. v. Hamidi, the canonical case about whether unwanted e-mail spam sent to a company’s server could give rise to a trespass to chattels claim. While much has been written about Intel, in this Essay, we argue that Intel is as much of a classic for what it reveals about the old-fashioned tort as it is for its more closely examined ruling on “cybertrespass.” The dueling personal property analogies chosen by the majority and dissenting opinions in Intel reveal basic and fundamental disagreements about what sorts of conduct the traditional tort prohibits: specifically, when a plaintiff may obtain nominal damages or an injunction against a defendant’s contact with personal property when that contact does not have lasting physical effects. As we point out, this question arose in cases long before Intel and generated some discussion during the drafting of the First and Second Restatements of Torts. Now, the same question arises in Fourth Amendment law and the law of Article III standing, areas in which recent Supreme Court decisions have elevated trespass-to-chattels analyses to renewed significance. Our Essay indicates the need for further development on open questions in the law of trespass to chattels, suggesting some ways that central tort-law notions like intentionality and custom might provide firmer bases for recognizing the harm in unwanted contact with things.
{"title":"Analog Analogies: Intel v. Hamidi and the Future of Trespass to Chattels","authors":"Maureen E. Brady, James Y. Stern","doi":"10.1515/jtl-2023-0032","DOIUrl":"https://doi.org/10.1515/jtl-2023-0032","url":null,"abstract":"Abstract A symposium on great torts cases of the twenty-first century must include Intel Corp. v. Hamidi, the canonical case about whether unwanted e-mail spam sent to a company’s server could give rise to a trespass to chattels claim. While much has been written about Intel, in this Essay, we argue that Intel is as much of a classic for what it reveals about the old-fashioned tort as it is for its more closely examined ruling on “cybertrespass.” The dueling personal property analogies chosen by the majority and dissenting opinions in Intel reveal basic and fundamental disagreements about what sorts of conduct the traditional tort prohibits: specifically, when a plaintiff may obtain nominal damages or an injunction against a defendant’s contact with personal property when that contact does not have lasting physical effects. As we point out, this question arose in cases long before Intel and generated some discussion during the drafting of the First and Second Restatements of Torts. Now, the same question arises in Fourth Amendment law and the law of Article III standing, areas in which recent Supreme Court decisions have elevated trespass-to-chattels analyses to renewed significance. Our Essay indicates the need for further development on open questions in the law of trespass to chattels, suggesting some ways that central tort-law notions like intentionality and custom might provide firmer bases for recognizing the harm in unwanted contact with things.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45690947","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract In Tacoma, Washington, on a late June afternoon in 2013, a police officer brutally shot an unarmed, mentally-ill, middle-aged homeless man four times in the back with a Glock 45. He was not a suspect in any criminal wrongdoing, and horrified eyewitnesses confirmed that he was not posing a threat to anyone, including the officer, at the time of the shooting. The victim, Cesar Beltran-Serrano, survived, and subsequently sued the city for his injuries. The case eventually landed at the Washington Supreme Court, where the court was asked to resolve two separate legal issues: does the public duty doctrine immunize localities from liability when an officer has affirmatively acted (rather than just failed to act), and can a police officer who intentionally shoots a person be liable in both negligence and intentional tort. The court found in favor of the plaintiff on both issues. In so doing, the court created a viable and accessible path towards greater police accountability. On this basis alone, the decision deserves a spot in this symposium issue on the Great Tort Cases of the 21st Century. Yet the case does still more: its holdings are important not just for plaintiffs bringing claims against police, but for parties in cases far beyond the police/city context. Most notably, the issue of whether negligence can co-exist with intentional assault and battery claims is of particular importance to sexual assault tort litigation and potentially opens pathways for other contexts as well. The dual holdings in Beltran-Serrano thus hold much promise for those seeking social justice through tort law.
{"title":"Beltran-Serrano v. City of Tacoma","authors":"S. Swan","doi":"10.1515/jtl-2023-0033","DOIUrl":"https://doi.org/10.1515/jtl-2023-0033","url":null,"abstract":"Abstract In Tacoma, Washington, on a late June afternoon in 2013, a police officer brutally shot an unarmed, mentally-ill, middle-aged homeless man four times in the back with a Glock 45. He was not a suspect in any criminal wrongdoing, and horrified eyewitnesses confirmed that he was not posing a threat to anyone, including the officer, at the time of the shooting. The victim, Cesar Beltran-Serrano, survived, and subsequently sued the city for his injuries. The case eventually landed at the Washington Supreme Court, where the court was asked to resolve two separate legal issues: does the public duty doctrine immunize localities from liability when an officer has affirmatively acted (rather than just failed to act), and can a police officer who intentionally shoots a person be liable in both negligence and intentional tort. The court found in favor of the plaintiff on both issues. In so doing, the court created a viable and accessible path towards greater police accountability. On this basis alone, the decision deserves a spot in this symposium issue on the Great Tort Cases of the 21st Century. Yet the case does still more: its holdings are important not just for plaintiffs bringing claims against police, but for parties in cases far beyond the police/city context. Most notably, the issue of whether negligence can co-exist with intentional assault and battery claims is of particular importance to sexual assault tort litigation and potentially opens pathways for other contexts as well. The dual holdings in Beltran-Serrano thus hold much promise for those seeking social justice through tort law.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42550274","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract In Loomis v. Amazon.com, the California Court of Appeal confronts the most pressing products liability issue of our time: the extent to which an online marketplace is liable for injuries caused by defective products sold on its platform. In a trailblazing concurrence destined to enter the torts canon, Justice John Wiley highlights Amazon’s ability to influence the safety of the products it makes available for sale, and uses the case to remind us that the “deep structure of modern tort law” is built to “minimize the social costs of accidents.” Similarly, Justice Wiley cuts a clear path through the thicket of the economic loss rule, institutional (or vicarious) liability and punitive damages cases by following the torts lodestar: the irresistible simplicity of preventing harm.
{"title":"The Irresistible Simplicity of Preventing Harm","authors":"C. Sharkey","doi":"10.1515/jtl-2023-0027","DOIUrl":"https://doi.org/10.1515/jtl-2023-0027","url":null,"abstract":"Abstract In Loomis v. Amazon.com, the California Court of Appeal confronts the most pressing products liability issue of our time: the extent to which an online marketplace is liable for injuries caused by defective products sold on its platform. In a trailblazing concurrence destined to enter the torts canon, Justice John Wiley highlights Amazon’s ability to influence the safety of the products it makes available for sale, and uses the case to remind us that the “deep structure of modern tort law” is built to “minimize the social costs of accidents.” Similarly, Justice Wiley cuts a clear path through the thicket of the economic loss rule, institutional (or vicarious) liability and punitive damages cases by following the torts lodestar: the irresistible simplicity of preventing harm.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45309658","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Law recognizes a necessary (i.e., but-for) factor as a factual cause. However, it is a common misconception that the but-for test is the exclusive test of factual causation. Longstanding case law reveals that a factor may be a factual cause of an outcome, even if it was neither necessary nor sufficient for it. This was recently unanimously confirmed by the Supreme Court of the United Kingdom in Financial Conduct Authority v. Arch Insurance (UK) Ltd (2021). In the law, there seems to be a uniform concept of what it means to be a factual cause, one that is wider than necessity and includes unnecessary and insufficient factors which are recognized as factual causes across a wide variety of legal contexts. This uniform concept of factual cause can be captured in a forensically straightforward way in an “extended but-for test”. Appreciation of unnecessary and insufficient factual causes, which are common, provides a more coherent frame in which to view the outcomes of certain earlier cases. It also illuminates the importance for clarity of legal reasoning of separating the context-independent factual cause issue from context-dependent analytical stages such as the scope of the rule and remedy, including loss quantification.
{"title":"Unnecessary and Insufficient Factual Causes","authors":"Jane Stapleton","doi":"10.1515/jtl-2023-0030","DOIUrl":"https://doi.org/10.1515/jtl-2023-0030","url":null,"abstract":"Abstract Law recognizes a necessary (i.e., but-for) factor as a factual cause. However, it is a common misconception that the but-for test is the exclusive test of factual causation. Longstanding case law reveals that a factor may be a factual cause of an outcome, even if it was neither necessary nor sufficient for it. This was recently unanimously confirmed by the Supreme Court of the United Kingdom in Financial Conduct Authority v. Arch Insurance (UK) Ltd (2021). In the law, there seems to be a uniform concept of what it means to be a factual cause, one that is wider than necessity and includes unnecessary and insufficient factors which are recognized as factual causes across a wide variety of legal contexts. This uniform concept of factual cause can be captured in a forensically straightforward way in an “extended but-for test”. Appreciation of unnecessary and insufficient factual causes, which are common, provides a more coherent frame in which to view the outcomes of certain earlier cases. It also illuminates the importance for clarity of legal reasoning of separating the context-independent factual cause issue from context-dependent analytical stages such as the scope of the rule and remedy, including loss quantification.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47556875","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Three established torts require the defendant’s behavior to be “offensive” or “highly offensive” in order to be actionable: offensive battery, public disclosure of true private facts, and intrusion on seclusion. Although what links these “offensiveness” torts together has not been recognized before, this Article demonstrates that they occupy a sub-category of tort liability that is coherent, insight-generating, and useful. The torts developed at different times and in a sense for different reasons, but all three rest on the same principle: the idea that individual autonomy involves not only inviolable bodily space, but also inviolable private and informational space. What counts as actionable wrongdoing for these torts depends on the cultural context, because what is considered offensive conduct may vary, as cultural conditions change. The typical victim (or observer) of one of these torts must plausibly have the reaction “How dare you?” for the offensiveness element of the tort to be satisfied. That is what links these three superficially disparate torts together, and warrants understanding them together, as protections against invasions of the different forms of inviolable space that are a core feature of every individual’s autonomy.
{"title":"The Offensiveness Torts","authors":"K. Abraham, G. White","doi":"10.1515/jtl-2023-0017","DOIUrl":"https://doi.org/10.1515/jtl-2023-0017","url":null,"abstract":"Abstract Three established torts require the defendant’s behavior to be “offensive” or “highly offensive” in order to be actionable: offensive battery, public disclosure of true private facts, and intrusion on seclusion. Although what links these “offensiveness” torts together has not been recognized before, this Article demonstrates that they occupy a sub-category of tort liability that is coherent, insight-generating, and useful. The torts developed at different times and in a sense for different reasons, but all three rest on the same principle: the idea that individual autonomy involves not only inviolable bodily space, but also inviolable private and informational space. What counts as actionable wrongdoing for these torts depends on the cultural context, because what is considered offensive conduct may vary, as cultural conditions change. The typical victim (or observer) of one of these torts must plausibly have the reaction “How dare you?” for the offensiveness element of the tort to be satisfied. That is what links these three superficially disparate torts together, and warrants understanding them together, as protections against invasions of the different forms of inviolable space that are a core feature of every individual’s autonomy.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46689568","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract In the United Kingdom, as in some other parts of the Commonwealth, the courts have long embarked on a search for a general formula which can be applied to determine whether a duty of care arises in any given negligence case. In 2018, the United Kingdom Supreme Court delivered its judgment in Robinson v. Chief Constable of West Yorkshire Police, in which a plurality strikingly rejected as misconceived attempts to identify such a general test. Duty cases, the Supreme Court held, are to be decided by reference to precedent where applicable, or (where no such precedent applies) by analogy with the existing authorities. This approach curtails the role of policy in the duty of care enquiry. In this article, the decision in Robinson is put in context and its significance explained. It is argued that the approach to the duty question adopted in Robinson should be welcomed. Not only is that approach the best of the alternatives available, but it is the only one that is consistent with the methodology of the common law and the rule of law.
{"title":"R obinson v. C hief Constable of West Yorkshire Police: Taking Duty Back to Basics","authors":"James Goudkamp, D. Nolan","doi":"10.1515/jtl-2023-0029","DOIUrl":"https://doi.org/10.1515/jtl-2023-0029","url":null,"abstract":"Abstract In the United Kingdom, as in some other parts of the Commonwealth, the courts have long embarked on a search for a general formula which can be applied to determine whether a duty of care arises in any given negligence case. In 2018, the United Kingdom Supreme Court delivered its judgment in Robinson v. Chief Constable of West Yorkshire Police, in which a plurality strikingly rejected as misconceived attempts to identify such a general test. Duty cases, the Supreme Court held, are to be decided by reference to precedent where applicable, or (where no such precedent applies) by analogy with the existing authorities. This approach curtails the role of policy in the duty of care enquiry. In this article, the decision in Robinson is put in context and its significance explained. It is argued that the approach to the duty question adopted in Robinson should be welcomed. Not only is that approach the best of the alternatives available, but it is the only one that is consistent with the methodology of the common law and the rule of law.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44145868","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Student suicide is a tragic problem on university campuses. Should universities have a tort duty to prevent them? Common law historically has shielded universities from liability based on the “suicide rule,” which holds that suicide is an intervening cause of harm and thus not within the scope of risk of negligence. Nguyen v. Massachusetts Institute of Technology represents a shift in this view, and begins to usher universities into an era of greater accountability, while mitigating the harsh impact of the suicide rule. This essay examines Nguyen as a classic example of common law’s incremental development. As with other areas previously off-limits to tort liability, Nguyen moves cautiously, opening the door to liability but with limits that avoid expansive liability in the absence of a university’s actual knowledge of suicide risk. It is too early to tell whether those limits will remain, or whether the basis for liability recognized in Nguyen will expand. Either way, Nguyen represents an important step in tort law’s response to a significant societal problem.
{"title":"Preventing Student Suicide: Nguyen v. Massachusetts Institute of Technology","authors":"B. Grey","doi":"10.1515/jtl-2023-0028","DOIUrl":"https://doi.org/10.1515/jtl-2023-0028","url":null,"abstract":"Abstract Student suicide is a tragic problem on university campuses. Should universities have a tort duty to prevent them? Common law historically has shielded universities from liability based on the “suicide rule,” which holds that suicide is an intervening cause of harm and thus not within the scope of risk of negligence. Nguyen v. Massachusetts Institute of Technology represents a shift in this view, and begins to usher universities into an era of greater accountability, while mitigating the harsh impact of the suicide rule. This essay examines Nguyen as a classic example of common law’s incremental development. As with other areas previously off-limits to tort liability, Nguyen moves cautiously, opening the door to liability but with limits that avoid expansive liability in the absence of a university’s actual knowledge of suicide risk. It is too early to tell whether those limits will remain, or whether the basis for liability recognized in Nguyen will expand. Either way, Nguyen represents an important step in tort law’s response to a significant societal problem.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43880885","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Two tort law tenets are broadly accepted. First, litigants are to be judged based on their conduct, not on their character. In tort law, if not in heaven, the sinner is entitled to the same treatment as the saint. Second, it’s also broadly understood that, as comparative negligence supplanted contributory fault in the latter years of the last century, compensation stopped being binary; recovery became proportional. When, as is very often the case, the plaintiff and the defendant both err, the plaintiff’s entitlement to compensation is a matter of more or less, not yes or no. Against that backdrop, this Essay identifies four doctrines—the wrongful conduct rule, the “innocence” prerequisite to legal malpractice actions, the non-innocent party doctrine, and the complicity defense—that implicitly challenge both of these bedrock principles. We show how these “wrongdoer doctrines” extinguish claims, not just because of what the plaintiff has done but, rather, who the plaintiff is. And we also explore the doctrines’ other infirmities. Namely, these doctrines subvert the basic goals of tort law, authorize character assassination, defy consistent or principled application, rest on a false premise, and operate to resurrect a stealth version of contributory fault. Finally, this Essay, written for a symposium celebrating the great tort cases of the 21st century, highlights a recent opinion out of West Virginia that unmasked one such doctrine and appropriately relegated it to the dustbin of history.
{"title":"Felons, Outlaws, and Tort’s Troubling Treatment of the “Wrongdoer” Plaintiff","authors":"Nora Freeman Engstrom, R. Rabin","doi":"10.1515/jtl-2023-0022","DOIUrl":"https://doi.org/10.1515/jtl-2023-0022","url":null,"abstract":"Abstract Two tort law tenets are broadly accepted. First, litigants are to be judged based on their conduct, not on their character. In tort law, if not in heaven, the sinner is entitled to the same treatment as the saint. Second, it’s also broadly understood that, as comparative negligence supplanted contributory fault in the latter years of the last century, compensation stopped being binary; recovery became proportional. When, as is very often the case, the plaintiff and the defendant both err, the plaintiff’s entitlement to compensation is a matter of more or less, not yes or no. Against that backdrop, this Essay identifies four doctrines—the wrongful conduct rule, the “innocence” prerequisite to legal malpractice actions, the non-innocent party doctrine, and the complicity defense—that implicitly challenge both of these bedrock principles. We show how these “wrongdoer doctrines” extinguish claims, not just because of what the plaintiff has done but, rather, who the plaintiff is. And we also explore the doctrines’ other infirmities. Namely, these doctrines subvert the basic goals of tort law, authorize character assassination, defy consistent or principled application, rest on a false premise, and operate to resurrect a stealth version of contributory fault. Finally, this Essay, written for a symposium celebrating the great tort cases of the 21st century, highlights a recent opinion out of West Virginia that unmasked one such doctrine and appropriately relegated it to the dustbin of history.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"0 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41621020","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The tort of trespass to land has proven to be controversial as applied to airplane overflights (and more recently to drones) as well as to oil and gas production using hydraulic fracking technology. The key to applying trespass to intrusions above and below the surface of land is to distinguish between possession of land and the right to possess land. Surface owners have the right to possess the column of space above and below the surface (a kind of option value), but only to the extent that this space is subject to possible effective possession. The Pennsylvania Supreme Court in Briggs v. Southwestern Energy Production concluded that fracking can result in physical intrusions that can be detected using available monitoring technology. The court further concluded that such physical intrusions should be subject to trespass liability. We argue that these conclusions are correct insofar as such intrusions interfere with a surface owner’s possible effective possession – the action of the intruder necessarily means that the surface owner could also find it economically advantageous to engage in production activity in this portion of subsurface space itself. The decision confirms the utility of the law of trespass to the architecture of property, in that it establishes an indispensable baseline against which exchanges of rights and regulatory modifications of rights can occur.
摘要事实证明，侵犯土地的侵权行为在飞机飞越（以及最近的无人机）以及使用水力压裂技术的石油和天然气生产中都存在争议。将侵入适用于地表以上和地表以下的入侵的关键是区分土地占有权和土地占有权。表面所有者有权拥有表面上方和下方的空间柱（一种期权价值），但仅限于该空间可能被有效占有的范围。宾夕法尼亚州最高法院在Briggs诉Southwestern Energy Production一案中得出结论，水力压裂可能导致物理入侵，可以使用现有的监测技术检测到。法院进一步得出结论，此类物理入侵应承担侵入责任。我们认为，这些结论是正确的，因为这种入侵干扰了地表所有者可能的有效占有权——入侵者的行为必然意味着地表所有者也会发现在这部分地下空间从事生产活动在经济上是有利的。该决定确认了非法侵入法对财产结构的效用，因为它确立了一个不可或缺的基线，在此基础上可以进行权利交换和权利的监管修改。
{"title":"Briggs v. Southwestern Energy Production: Hydraulic Fracturing and Subsurface Trespass","authors":"T. Merrill, Henry E. Smith","doi":"10.1515/jtl-2023-0026","DOIUrl":"https://doi.org/10.1515/jtl-2023-0026","url":null,"abstract":"Abstract The tort of trespass to land has proven to be controversial as applied to airplane overflights (and more recently to drones) as well as to oil and gas production using hydraulic fracking technology. The key to applying trespass to intrusions above and below the surface of land is to distinguish between possession of land and the right to possess land. Surface owners have the right to possess the column of space above and below the surface (a kind of option value), but only to the extent that this space is subject to possible effective possession. The Pennsylvania Supreme Court in Briggs v. Southwestern Energy Production concluded that fracking can result in physical intrusions that can be detected using available monitoring technology. The court further concluded that such physical intrusions should be subject to trespass liability. We argue that these conclusions are correct insofar as such intrusions interfere with a surface owner’s possible effective possession – the action of the intruder necessarily means that the surface owner could also find it economically advantageous to engage in production activity in this portion of subsurface space itself. The decision confirms the utility of the law of trespass to the architecture of property, in that it establishes an indispensable baseline against which exchanges of rights and regulatory modifications of rights can occur.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46508391","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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