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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
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).
(listing torts that did not fit into standard categories when they first arose but nevertheless have been
held to be torts).

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