Band 17, Heft 1

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.

An orthodox view of tort law sees it as primarily a means of assigning costs -- for economic reasons, on some views, or for moral reasons, on others. Gregory Keating compellingly challenges this orthodoxy, showing how tort is essentially a matter of setting prospective norms designed to protect rational agents from wrongful harms, to which it attaches special negative significance. Here I discuss two areas that may raise complications for this account -- strict liability and the tortious infliction of pain -- and propose a reconciliation.

Reasonableness and Risk offers two main claims that might open up fruitful avenues for further reflection. The first claim has to do with the need to abandon form and turn our attention to substance . The argument is that we cannot understand or justify the law of torts without attending to the interests that it protects. The second claim is related to the need to abandon the habit of treating torts in isolation and instead study its integration within a web of institutions which share responsibility for protecting the urgent interests of members of society. The argument here is that our urgent interest in physical integrity exceeds (goes beyond and is greater than) the law of torts. In engaging with these claims, this paper points out potential connections with some pressing questions for both tort law and risk regulation brought to the fore by the recent emergence of Artificial Intelligence (AI) systems.

The primary causal requirement that must be met for a negligent party to be held liable for a harm is a demonstration that the harm would not have occurred if the party had not been negligent. Thus, for a speeding driver to bear liability for harm done in a car accident, it must be shown that the accident would not have happened if the driver had driven at a reasonable speed. The main point made here is that this basic causal requirement may be difficult or impossible to satisfy and hence may interfere with the discouragement of negligence. Therefore, an alternative and usually easier-to-meet causal requirement is proposed – that the harm would not have occurred if the negligent party had not been engaged in his activity (if the driver had not been engaged in driving).