About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

75 Tex. L. Rev. 1539 (1996-1997)
How to Make a New Tort: Three Paradoxes

handle is hein.journals/tlr75 and id is 1555 raw text is: How to Make a New Tort: Three Paradoxes Anita Bernstein* I. Introduction Though forewarned by the historian S.F.C. Milsom that their hopes are doomed to be dashed, scholars and activists continue to believe that new causes of action can right neglected wrongs and tighten the fit between injuries and remedies.1 Some of these writers purport simply to describe what the courts have done, while others admit that they are engaged in advocacy; all of them state elements of a new cause of action. A small percentage of these efforts ripen into what come to be accepted as new torts.2 This formation-and-birth process is veiled in mystery and ignorance, reminiscent of what young unmarried Victorian women were thought to know about how to make a new baby. In an effort to lift the veil and generalize about the successful creation of new torts, I ventured a simple inductive approach. First, I drew up a list of new torts, unconstrained by defining criteria, as they occurred to me; Dean Keeton's enumeration provided a starting point.3 Next, a * Professor of Law and Norman & Edna Freehling Scholar, Chicago-Kent College of Law. Thanks to Katharine Baker, Fred Bosselman, Jacob Corr6, Stuart Deutsch, David Gerber, Sanford Greenberg, Steven Harris, Jim Huttenhower, and Richard Warner for their comments following a Chicago-Kent roundtable presentation of this Paper;, to Jim Lindgren, for his written comments; and to the Marshall Ewell research fund at Chicago-Kent. I am grateful also to the participants at the Keeton Symposium, especially its hosts, William Powers, David Anderson, and David Robertson, who so engagingly combined hospitality and tough questions. 1. See S.F.C. Milsom, A Pageant in Modern Dress, 84 YALE L.J. 1585, 1585 (1975) (reviewing GRANT GILMoRE, THE DEATH OF CONTRACT (1974)) (The law is a reiterated failure to classify life.-). 2. The earliest use of new tort in this sense that I have found is William L. Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 MICH. L. REV. 874 (1939) (suggesting that decisions in more than 100 cases spanning more than two decades call for the recognition of a separate tort of intentional infliction of mental suffering). Contemporary invocations of the concept include Rory Laneman, Protecting Speech From Private Abridgement: Introducing the Tort of Suppression, 25 Sw. U. L. REV. 223, 243, 238-43 (1996) (discussing how tort law continues to grow and suggesting several factors to be addressed in developing new torts), and Terry R. Spencer, Do Not Fold Spindle or Mutilate: The Trend Towards Recognition of Spoliation as a Separate Tort, 30 IDAHO L. REV. 37, 45-47 (1993) (discussing the development of the new tort of spoliation). 3. See W. PAGE KEETON ET AL., PROSSER & KEETON ON THE LAW OF TORTS 3-4 (5th ed. 1984) (listing torts that did not fit into standard categories when they first arose but nevertheless have been held to be torts).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most