Book Review: In Defense of Tort Law

By Thomas H. Koenig and Michael L. Rustad

What is your key purpose in writing this book?

Our primary goal was to cut through the rhetoric surrounding American tort law by presenting the best empirical research on the social functions of civil litigation. Corporations have successfully waged a public relations campaign to create the false impression that most lawsuits are spurious, when in fact the opposite is true: tort law is a key guardian of American values. In Defense of Tort Law is the first book to provide a systematic study of the positive functions of tort law in contrast to the anti-tort message of commentators such as Peter Huber, Victor Schwartz, and Walter Olson. The evidence presented in this book shows that the claims of the tort reformers are either seriously misleading or simply untrue. We believe that when people understand the role of civil law in creating a safer and more humane society, they will see the need for a strong tort regime. We describe the strengths of American tort law and the role it plays in protecting women, minorities, and consumers. The book dispels myths about the civil justice system so that tort law can continue to protect Americans in the new millennium.

This book counters the argument that tort law is displacing traditional American values of personal responsibility and self-reliance by creating a legal lottery that rewards greedy plaintiffs and their lawyers at the expense of society. Tort law advances important American values such as corporate responsibility without the need for an intrusive state bureaucracy. We use compelling case studies to show how tort remedies protect Americans from unsafe products, workplace hazards, unfair employment practices, and preventable medical errors.

When Vice President Quayle's 1992 Council on Competitiveness Report contended that tort damages, and specifically punitive damages in products liability, were responsible for destroying American productivity, we decided to subject this claim to empirical research. No reliable data existed on the number of punitive damage awards, the size of the verdicts, the post-verdict history of awards, or whether defendants ever paid them. We compiled the first nationwide database that examined patterns of punitive damage awards in products liability and the aggravating circumstances that led juries to punish corporations. We found that punitive damages were rarely awarded, frequently reduced on appeal, and proportional to compensatory damages. Contrary to the claims of reformers, punitive damages were not awarded in ordinary negligence cases. Punitive damages were frequently based upon smoking gun memoranda demonstrating that the company knew of a profile of developing danger and either concealed the risk or failed to take prompt steps to protect the public. No support was found for the Council on Competitiveness' claim that punitive damages were associated with a decline in American productivity.

Our research on products liability and medical malpractice found that men and women have different patterns of tort recovery associated with their gender roles. At every age level, women had a higher rate of non-pecuniary damages. Females were far more likely than men to be awarded non-economic damages for medical malpractice. Women were disproportionately injured by psychiatric malpractice, sexual abuse by health care providers, and the loss of fertility from mismanaged childbirth. The greater longevity of women is associated with a higher rate of neglect and abuse in nursing homes. In many cases, pain and suffering is the central component of an award, especially where there is also a gender gap in earnings. Capping or limiting the size of non-economic awards will have a disparate impact on women at every life stage.

Gender justice issues can also be found in products liability law where excessively hazardous drugs and medical devices have disproportionately injured American women because these products are associated with reproduction. The anti-miscarriage drug DES, intrauterine devices such as the Copper-7 and Dalkon Shield, silicone-gel breast implants, and super absorbent tampons associated with toxic shock syndrome are just a few examples of mass products liability associated with gender. In contrast, males were the victims of defective products in the workplace such as asbestos dust, exploding chemical drums, or unguarded machinery. Our argument is that tort reform is gender injustice in disguise.

What impact has your research had?

The U.S. Supreme Court in Honda Motor Co. v. Oberg referred to our study of punitive damages as the most comprehensive and useful existing research. Perhaps our biggest impact has been in the courts. The Ohio Supreme Court and the Illinois Supreme Court struck down their states' omnibus tort reform statutes, citing our finding that there is no civil justice crisis. We have written a large number of amicus briefs in state and federal courts throughout the country drawing upon our data. A solid body of empirical knowledge about American tort litigation has built upon our work including studies by law professors such as Marc Galanter, Lucinda Finley, Andrew Popper, Michael Saks, Neal Vidmar, Joseph Sanders, Ted Eisenberg and his collaborators at The National Center for State Courts. Every empirical study has confirmed our basic findings that punitive damages are rarely awarded, judicially controlled, and levied almost exclusively for truly egregious misconduct. We have published our findings in a variety of top law reviews including the Wisconsin Law Review, Michigan Journal of Law Reform, American University Law Review, Rutgers University Law Review, Iowa Law Review, North Carolina Law Review, and Products Liability Law Journal. We testified about tort litigation in both the U.S. Senate and U.S. House of Representatives. Our tort research findings have been extensively reported in the Wall Street Journal, The Economist, The New York Times, ABC News, and hundreds of other media outlets.

Is this a publication for both practitioners and students?

This book provides a highly readable, single source book that explains how the tort law system works. We provide extensive case law support for practitioners trying cases in diverse substantive fields including medical malpractice, products liability, premises liability, and Internet law. Our presentation of the policy arguments will be of interest to trial lawyers as well as to the defense bar. Corporate counsel will find preventive law pointers on how to avoid or limit liability. The chapter on Internet law provides guideposts for limiting liability in online transactions. Legislators and other policymakers are given guidance on how to interpret statutory reform proposals. Our table of cases includes most of the important cases covered in first year torts classes. We trace the development of torts over the last 200 years, showing how each age in Anglo-American law reflects its social and historical context. For example, the torts of criminal conversation and seduction only make sense within the patriarchal context of the eighteenth century. Today's tort action to punish intentional infliction of emotional distress in a virtual reality or a listserv only became necessary with the rise of World Wide Web. Students tell us that they find the discussion of the path of tort law extremely valuable for comprehending the big picture. I am assigning this book as supplemental reading for my first year torts class. Professor Koenig is using the book in his theories of law and policy doctoral class at Northeastern University.

Is there a common theme in your book?

Tort law has served as a key public guardian from eighteenth-century England to the age of the Internet. Punitive damages send a message to even the most powerful that tort does not pay. The remedy of exemplary damages was initially used to punish and deter abuses by the King and his agents. The first punitive damages award was handed down in 1763 in the famous English companion cases of Wilkes v. Wood and Huckle v. Money. These first two exemplary damage awards arose out of the warrantless search and seizure of the editor and staff of a newspaper that castigated the appointment of a new King's ministry. Later, this remedy evolved to protect the rights of common soldiers, servant girls, orphans, paupers, and victims of arrogant aristocrats. In the nineteenth century, intentional torts expanded to counter negligent practices and intentional misbehavior by the agents of railroads, utilities, and streetcar companies. The development of negligence or accident law emerged in the 1850s to counter risky corporate behavior such as building an unsafe bridge, failing to maintain a railway trestle, or allowing employees by fires that swept through factories. Thousands were killed in industrial accidents each year before tort law reduced the carnage by creating incentives for safety. Without viable tort remedies, corporations would suffer no significant penalty when they choose to endanger the consuming public in order to enhance profits.

In the second half of the twentieth century, tort law developed new causes of action such as products liability, medical malpractice, premises liability, wrongful discharge, nursing home negligence, and psychiatric malpractice. The new tort of outrage, recognized by the American Law Institute's 1946 Restatement of Torts, is employed by litigants to punish racial attacks, sexual harassment, hate crimes, and extreme bullying in the workplace. Today, tort law is again evolving to punish and deter online defamation, the spread of computer viruses, online stalkers, e-mail spammers, identity thieves, the invasion of privacy, and fraudulent marketing schemes. The path of tort law has been to moderate and mediate abuses of power in every historical period.

Private litigants serve the public interest by exposing dangers and risks that have gone unnoticed by regulators and the criminal side of the law. Second Circuit Judge Jerome Frank in Associated Industries v. Ickes first articulated the concept of the "private attorney general." Judge Frank used the term to refer to "any person, official or not, who brought a proceeding . . .even if the sole purpose is to vindicate the public interest . . .. Such persons, so authorized, are, so to speak, private Attorneys General." Private attorneys general have played a critically important role in modern tort law as well as in their role of cooperating with public law enforcement officers. Tort law assigns responsibility for injuries to the wrongdoer by requiring the payment of compensation.

In the 1970s and 1980s, private attorneys general uncovered numerous "smoking gun" documents that revealed an industry-wide conspiracy to conceal the deadly consequences of unprotected exposure to asbestos dust, which destroyed the health of hundreds of thousands of American workers. Johns-Manville Corporation, for example, suppressed publications that would have warned the medical community of the risks of asbestosis. The company had a policy of not informing employees that x-rays taken by company doctors revealed clear evidence of asbestosis. Johns-Manville executives claimed that their failure to warn workers was motivated by concern for employees so they "can live and work in peace and the company benefit by their many years of experience." The asbestos industry lulled government regulators into complacency for decades with false assurances that their products posed no health hazard. More recently, private attorneys general have alerted the public to the danger of Firestone tires mounted on Ford Explorers. All Americans will benefit from a strong law in cyberspace where there is no shortage of wrongdoing undetected by authorities.

Why is tort law necessary in cyberspace when there is a criminal law with greater penalties?

Criminal law does play a key role in enforcing laws or norms against child pornography, online gambling, and computer abuse. However, the law reporters reveal few cases where criminal prosecution has played a significant role in protecting individuals against invasions of privacy, online harassment, or the havoc caused by computer viruses such as Red Code or Melissa. Much of the socially harmful misbehavior in cyberspace does not fall under existing criminal statutes. In order to comply with due process requirements, wrongdoers must have received clear notice of the elements of a crime. Criminal statutes simply cannot keep pace with the rapidly changing technology. The difficulty of prosecuting cybercrimes is illustrated by the first Internet criminal case of United States v. LaMacchia. David LaMacchia, an MIT student, was prosecuted for permitting online users to download copyrighted software programs at his Cynosure bulletin board. Pseudonyms and encryption were used to conceal this activity. The government was unable to prosecute the defendant because the statute was designed for a conventional criminal with a financial motive. The criminal action against David LaMacchia was ultimately dismissed because the federal court held that the criminal penalties for wire fraud could not be imposed because there was no proof that LaMacchia had received any financial gain or profit from the infringing acts of illegal copying. It was not until the end of 1997 that the No Electronic Theft Act of 1997 (NET) eliminated the LaMacchia loophole. Criminal law inevitably lags behind the rapidly evolving Internet The remedies of tort law such as conversion or trespass to chattels are more flexible tools that can apply ancient principles to new technologies.

We argue that tort remedies will fill an enforcement gap in cyberspace, especially where law enforcement agencies have yet to properly address high technology issues. Tort law supplements but does not supplant the work of federal and state agencies. Criminal justice agencies lack the computer resources and expertise necessary to detect and prosecute cybercrime. The FBI does not have the tools necessary to counter worldwide terrorists who communicate through the Internet. If tort law developed a duty to report known terrorist activities at web sites, it would be helpful to law enforcement. The cutting edge of cyberspace law will be whether web sites will be required to warn the public or to enact measures to protect Internet security

Tort remedies adapted to Internet wrongdoing will play an increasingly important role in punishing and deterring fraud, hacking, and other wrongdoing on the Internet. In each case, tort law, rather than criminal law, has protected cyberspace consumers and users. By the time a criminal statute can be enacted to counter an Internet-related threat, the creative cyber-criminal finds new technologies to bypass an essential element of the prohibited act or offense. Tort remedies are more flexible than criminal law and can be updated to apply to cyberspace. It is well established principle in tort law that the greater the risk, the greater the duty. Private enforcement or a greater role for e-cops is needed to fill the inevitable enforcement gap in a rapidly evolving information economy.

What are the most common types of cyberspace torts being committed in recent years?

Old torts are already being adapted to Internet-related wrongdoing to deter online harassment, Spam e-mail, invasions of privacy, and hate speech that goes unpunished by the public authorities. Plaintiffs are successfully using John Doe subpoenas to unveil anonymous wrongdoers on the Internet. A doctor won a $675,000 libel damages award for a false charge, posted on a Yahoo! message board, that he was accepting kickbacks. A John Doe subpoena was used to unveil the anonymous poster who charged the physician with underbidding on contracts for Emory University's Pathology Department. We predict that privacy-related torts will become more important as information technology develops new ways of gathering data on our keystrokes, spending habits, medical profiles, and DNA. Europeans already enjoy greater privacy protection in the workplace and the Internet as the result of the European Union's Directive on Data Protection.

Do you foresee any new types of cyberspace torts developing as a result of advanced technology?

It has been a half-century since an entirely new tort has emerged. The American Law Institute's Restatement of Torts first proposed the most recent tort, the intentional infliction of emotional distress, in 1946. California became the first state to recognize this cause of action in a 1952 case, awarding damages to a non-union trash collector who was hounded and threatened with violence by union members. New torts may soon be on the horizon that will be useful to the victims of Internet wrongdoing. A few states have already recognized the tort of spoliation of evidence, punishing defendants that concealed their misconduct by destroying or altering smoking gun records. The spoliation remedy will be increasingly needed because of the ease with which electronic records can be altered, manipulated, morphed, or destroyed. The modus operandi of Internet wrongdoers frequently involves the use of pseudonyms, false identities, forged e-mail addresses, and encryption to conceal their activities. Section 870 of The Restatement of Torts proposed tort liability for defendants who intentionally injured another party and could show no justification or excuse, sometimes called the innominate or prima facie tort. The innominate tort concept has not been widely adopted but may become necessary to punish and deter Internet torts. Online stalking, for example, does not fit neatly into the traditional tort of assault because it lacks the element of imminence. The plaintiff must demonstrate that she was in apprehension of an imminent battery to recover for assault. The innominate tort may be appropriate where traditional torts fail.

Traditional tort actions are being used to confront new dangers. The ancient tort of trespass to chattels, which was originally employed to compensate for injuries to personal property, has been extended to intangible property interests in cyberspace. An ex-employee of Intel Corporation was found to have committed trespass to chattels by sending thousands of e-mails to current employees of the company. His purpose was to form an organization of former Intel employees who had grievances against the company. Intel ordered the former employee to stop transmitting Spam e-mails on their computer systems. When the ex-employee continued sending messages, Intel charged him with trespass to chattels. The company argued that the ex-employee's unsolicited e-mails constituted a trespass of Intel's computer system. The court agreed, rejecting the former employee's First Amendment defense on the grounds that there was no state action since Intel was a private corporation. The troubling aspect of the Intel case is that it reflects the courts' increasing willingness to subordinate employee's privacy and First Amendment rights to the needs of the enterprise. No court has recognized an employee's cause of action for invasion of privacy in any Internet or e-mail monitoring case.

The tort of trespass to chattels has also been employed to restrain corporations who use robots or software agents to extract data from their competitors' web sites. In Register.Com, Inc. v. Verio Inc., a domain name register sought an injunction against a competitor enjoining the use of automated software robots in accessing and collecting registrant contact information contained in their database. The federal court issued a preliminary injunction barring the defendant from using its search robots to extract information from the plaintiff's web site. The court found that the web crawlers were trespassing on the plaintiff's site by violating the web site's terms of service agreement. Another potential expansion of trespass to chattels may occur to counter viruses and worms that infect computer systems. The tort of conversion would be more appropriate if the virulent code completely destroys a computer's hard drive. The application of these ancient torts to a new technology illustrates the flexibility of tort law.

Internet security is a substantive field where tort remedies need to be fortified. In July of 2000, a hacker broke into the University of Washington Medical Center's internal network and downloaded computerized admissions records for four thousand heart patients. The medical facility would be negligent if it failed to implement industry standard security protocol. For example, if a hospital did not have adequate firewalls or encryption, it may be liable for failing to take normal precautions. This security breach raises the question of whether the web site victim of hacker activity may be liable for its contributory or comparative negligence if the data of patients or other third parties is intercepted or altered. The broader liability question is whether a web site owes a duty to maintain a secure computer network. Tort law's remarkable capacity to adapt and evolve to meet new threats and dangers makes it an important institution of social control in cyberspace.

Remedies that adapt traditional tort law principles to Information Age harms and hazards are currently evolving to police new forms of misbehavior such as Internet fraud, on-line stalking, the invasion of privacy, and defamatory postings on web sites. For example, women have been targeted by cyberstalkers aided and abetted by Internet search firms that sell personal information. Internet wrongdoers have harmed women by posting personal information on sadomasochistic web sites and by using new technologies to superimpose their victim's face onto pornographic pictures. Tort law is frequently the only defense that women have against stalking or threatening e-mail transmissions from ex-husbands, former boy friends, or strangers. Similarly, torts have been used to punish those who use the Internet to recruit children for pornographic purposes. Tort remedies are essential because the criminal law often lacks the flexibility to deter and punish these forms of wrongdoing.

In Defense of Tort Law also identifies privacy-based torts as yet another expansion of traditional principles to cyberspace. Immunities enacted to limit the liability of America Online, CompuServe, and other service providers for defamatory postings made by unknown individuals have been expanded by the courts to shield the providers from liability for many cybertorts. This broad immunity has had the unanticipated consequence of protecting web sites that may profit from wrongdoing even though they are not the content providers. In John Does v. Franco Productions, intercollegiate athletes who were secretly videotaped by hidden cameras in restrooms, locker rooms, and showers filed a lawsuit. The videotapes were sold on a number of web sites that transmitted still images of the nude or partially clothed athletes on the Internet. The case against Illinois State University for failing to notify the athletes of the existence of the tapes was dismissed on grounds of qualified immunity. The case against the web sites was immunized by Section 230(c) of the Communications Decency Act. Courts have greatly extended the impact of Section 230 by insulating defendants from an even greater range of tort-based lawsuits.

A strong argument can be made that a web site should have at least some responsibility for warning the public of known criminal activity. In the wake of the World Trade Center bombing, a host of fraudulent web sites have been designed to gather donations under the pretense of collecting money for the victims and survivors. Within an hour of the disaster, there were numerous bulk e-mail campaigns promoting "bogus relief efforts." Currently, a broad immunity insulates the provider from liability for torts or crimes committed at an Internet address. No case law presently exists that requires web sites to prevent the misuse or abuse of Internet sites by criminals. Immunity is breeding irresponsibility because web sites have no incentive or duty to protect web site visitors and the general public.

The World Trade Center bombings illustrate the role that the Internet already serves as a sophisticated tool for the commission of acts of terror. The Taliban is believed to have posted encrypted messages on pornographic chat rooms as a method of evading law enforcement surveillance. One of the emergent issues is whether a web site should have a duty of care to report suspicious activity or wrongdoing that is reported to them. Web sites currently have no duty to warn the public of dangerous activities occurring in chat rooms, listservs, or advertisements even if they have definite notice. Tort law should be permitted to develop an equivalent to the traditional concept of premises liability. Our conclusion is that the twenty first century will require a stronger and more flexible tort law, not one that has been crippled by immunities, caps, and other barriers to full recovery.

Tell our Readers About Your Background.

Michael Rustad is the Thomas F. Lambert Jr. Professor of Law and Director of the High Technology Law Program at Suffolk University Law School. Prior to joining the Suffolk faculty, he worked as an associate for the Boston law firm of Foley, Hoag & Eliot. He was a clerk to the late William E. Doyle of the U.S. Court of Appeals for the Tenth Circuit in Denver where he assisted the judge on the famous case of Silkwood v. Kerr-McGee. He is the co-author of the E-Business Legal Handbook (Aspen Law and Business, 2001) and The Concepts and Methods of Sales, Leases and Licenses (Carolina Academic Press, 1999). He has authored numerous law review articles and books and teaches courses in Internet law, commercial law and tort law at Suffolk.

Thomas Koenig is a professor of sociology and a founding faculty member of the Law, Policy and Society doctoral program at Northeastern University in Boston. He has published widely on topics such as political contributions, social network and statistical methodology, interlocking corporate directorates, punitive damages law, legal education and hierarchy in the legal profession. He teaches courses in legal theory, sociological theory, and social policy.

In Defense of Tort Law by Thomas H. Koenig and Michael L. Rustad, (New York: New York University Press, 2001) ISBN: 0-8147-4757-6, pp. 320.

Alexander Hawes, LLP is a California law firm that specializes in personal injury, wrongful death, and financial losses caused by negligence, defective products, toxic chemicals, corporate misconduct or insurance fraud on behalf of consumers, small investors, injured workers and small businesses. In addition to individual cases the firm prosecutes class actions for large groups of individuals who have suffered financial loss as a result of corporate fraud, defective consumer products, and environmental pollution. The firm holds Martindale-Hubbell's highest rating and is recognized in the List of Preeminent Law Firms in the U. S.

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