Torts Without Names, New Torts, and the Future of Liability for Intangible Harm

Torts Without Names, New Torts, and the Future of Liability for Intangible Harm

68 Am. U. L. Rev. 2089 (2019).

* David and Mary Harrison Distinguished Professor of Law, University of Virginia School of Law.

** David and Mary Harrison Distinguished Professor of Law, University of Virginia School of Law.

The Authors would like to thank the participants of a workshop at the University of Virginia School of Law.

Torts have names for a reason.  A tort without a name would very nearly be a contradiction in terms because it would not describe itself.  But torts do not always get names immediately upon birth. Typically, it takes some time to recognize what they are because they are in search of an identity or have vaguely defined content.  The law of torts of the future may well experience this process, as it works through the rights and liabilities that govern harms characteristic of the information age:  invasions and misuses of digitized personal data and sexualized attitudes and misconduct, for example.  The dominant form that new liabilities took in the twentieth century was through the establishment of new, particularized torts.  An alternative, but much less known form of liability, however, competed with the named-tort approach during this same period and to some extent, still competes with it.  This is the application of what we call a “residual category” of liability.  In our judgment, however, a residual category approach to the intangible harms of the twenty-first century should and would fail in the same way, and for the same reasons, that this approach largely failed in the twentieth century.  The new torts of the twenty-first century will have to be particular, named torts. This Article explains why this will be the case, and then undertakes to demonstrate how these explanations apply to the most salient forms of intangible harm on the current scene—harms that inevitably will be candidates for tort liability in the years to come. We identify the aspects of each form of loss that we think may well become actionable through the adoption of new torts or the expansion of existing torts, as well as the aspects of loss that will continue not to be actionable.